Traditionally, the world map and territorially bounded spaces have dominated the ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, reflected in traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to the traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is exceptional due to certain characteristics of data. The question as to how states exercise jurisdiction over, or spatially locate, a protean thing such as data, is one which deserves further exploration. By comparing the approaches of China, the EU, and the US, this Article explores how laws and regulations in this area have extraterritorial effects, thus moving away from a strict territorial approach. At the same time, they are “reterritorializing” by linking their laws on data transfers to data infrastructure, data subjects, or data controllers. This shows that states tend to repurpose their territorial sovereignty as they see fit, but this repurposing is not something which is unique to the data governance context. States have historically used a variety of justifications for the extraterritorial exercise of jurisdiction, as well as found creative ways to reterritorialize things, people, events, and processes that were not strictly territorially bounded within their borders. Thus, rather than treat regulations on data privacy and data transfers as an exceptional exercise of territorial sovereignty beyond borders, we might consider this an exemplification of yet another creative reimagination of the elasticity of sovereignty. These exercises in reimagining are significant when we consider their distributional effects and how they allocate decision-making power over governance of data, as well as how they constitute and shape political communities. The elasticity of sovereignty means that authority, governance, and decision-making are ultimately functions of power. The question is, then, how to challenge those exercises of power to repoliticize social problems rather than have them managed within “global expert regimes.”
Data Governance and the Elasticity of Sovereignty,
46 Brook. J. Int'l L.
Available at: https://brooklynworks.brooklaw.edu/bjil/vol46/iss1/1
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