The Jurisdiction Problem: Regulating Borderless Data in a Multipolar Legal Order

Data travels in seconds around the globe. In the meantime, however, laws of countries through which data is traveling are having trouble to keep up. Within seconds a data set generated in a country is transmitted to another country, stored on servers in a third country and is accessed by authorities of a fourth country. In this article, competing models of international law are analyzed how they distribute authority for the regulation of data in cross border situations. The rights-based model of the European Union to regulate data by law is being confronted with the access model of the USA, with the more recent tendency of a more sovereignty-oriented model of data localization pursued by China, Russia and India. Invalidation of one transatlantic transfer arrangement after the other (Safe Harbor, Privacy Shield etc.) in cases like Schrems as well as on-going conflicts between the disclosure orders of law enforcement authorities in the USA and the data protection obligations of authorities in Europe clearly show that there is not just a string of individual cases, but rather a deeper-lying structural conflict. This article therefore analyzes the various models of international law from a comparative perspective. Finally, this article shall also come up with a contribution to the solution of the problem of the problem of jurisdiction with regard to data transfer, i.e. the problem of interoperability. For this purpose, the issue of legal fragmentation as the object of study is to be defined and not just used as background for a study of individual cases. Bounded mutual recognition, calibrated comity as well as treaty-based channels for lawful access to data in other countries shall be the basis of this study.

کلیدواژه ها:

data sovereignty ، jurisdiction ، cross-border data flows ، extraterritoriality ، digital governance ، legal fragmentation