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    Yale Law Journal: Volume 125, Number 2 - November 2015
    Yale Law Journal: Volume 125, Number 2 - November 2015
    Yale Law Journal: Volume 125, Number 2 - November 2015
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    Yale Law Journal: Volume 125, Number 2 - November 2015

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    The contents of the November 2015 issue (Vol. 125, No. 2) are:

    Articles: "The Un-Territoriality of Data," by Jennifer Daskal; and "Political Entrenchment and Public Law," by Daryl Levinson & Benjamin I. Sachs

    Review: "18 Years On: A Re-Review," by Richard A. Posner

    Note: "Financing the Class: Strengthening the Class Action Through Third-Party Investment," by Tyler W. Hill

    Comment: "Law Enforcement and Data Privacy: A Forward-Looking Approach," by Reema Shah
    Quality ebook formatting includes fully linked footnotes and an active Table of Contents (including linked Contents for individual Articles and Notes), proper Bluebook formatting, and active URLs in footnotes. This is the second issue of Volume 125, academic year 2015-2016.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateNov 30, 2015
    ISBN9781610278119
    Yale Law Journal: Volume 125, Number 2 - November 2015
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      YALE LAW JOURNAL

      NOVEMBER 2015

      VOLUME 125, NUMBER 2

      Yale Law School

      New Haven, Connecticut

      Yale Law Journal

      Volume 125, Number 2

      Smashwords edition. Copyright © 2015 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      Published by the Yale Law Journal. Digitally published in ebook editions, for the Yale Law Journal, by Quid Pro Books, at Smashwords. Available in all major digital formats and at leading retailers and booksellers.

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      Cataloging (Number 2):

      ISBN 978-1-61027-811-9 (ePUB)

      CONTENTS

      ARTICLES

      The Un-Territoriality of Data

      Jennifer Daskal     (125 YALE L.J. 326)

      Political Entrenchment and Public Law

      Daryl Levinson & Benjamin I. Sachs     (125 YALE L.J. 400)

      NOTE

      Financing the Class: Strengthening the Class Action Through Third-Party Investment

      Tyler W. Hill     (125 YALE L.J. 484)

      REVIEW

      18 Years On: A Re-Review

      Richard A. Posner     (125 YALE L.J. 533)

      COMMENT

      Law Enforcement and Data Privacy: A Forward-Looking Approach

      Reema Shah     (125 YALE L.J. 543)

      About the Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to the Yale Law Journal Forum at http://www.yalelawjournal.org/submissions. We cannot guarantee that submitted responses will be published. Responses selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, with the exception of December) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

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      SINGLE AND BACK ISSUES. Each issue of of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc., for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-124, please contact William S. Hein & Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org) and through Volume 110 on the Yale Law Journal’s website (http://www.yalelawjournal.org).

      MANUSCRIPTS. The Journal invites the submission of unsolicited Articles, Essays, Book Reviews, and Forum pieces. Manuscripts must be submitted online at http://www.yalelawjournal.org/submissions.

      COPYRIGHT. Copyright © 2015 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (20th ed. 2015), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal Company, Inc. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Peter Salovey, A.B., M.A., Ph.D., President of the University

      Benjamin Polak, B.A., M.A., Ph.D., Provost of the University

      Robert C. Post, J.D., Ph.D., Dean

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian

      Ellen Cosgrove, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Mary Briese Matheron, B.S., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor Emeritus of Property and Urban Law and Professorial Lecturer in Law

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Geoffrey Cornell Hazard, Jr., M.A., LL.B., Sterling Professor Emeritus of Law

      John H. Langbein, LL.B., Ph.D., Sterling Professor Emeritus of Law and Legal History and Professorial Lecturer in Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jerry L. Mashaw, LL.B., Ph.D., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      FACULTY

      Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      †    Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      Richard Albert, B.C.L., LL.M., Visiting Professor of Law and Canadian Bicentennial Visiting Associate Professor of Political Science (fall term)

      †    Anne L. Alstott, A.B., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Michelle Anderson, J.D., LL.M., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Women’s Rights (spring term)

      Rick Antie, B.S., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Ian Ayres, J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Seyla Benhabib, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Paul Bloom, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Philip C. Bobbitt, J.D., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)

      Lea Brilmayer, J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard R.W. Brooks, Ph.D., J.D., Professor (Adjunct) of Law (fall term)

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Steven G. Calabresi, B.A., J.D., Visiting Professor of Law (fall term)

      Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      George Chauncey, M.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Marian R. Chertow, M.P.P.M., Ph.D., Professor (Adjunct) of Law (fall term)

      Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Ellen Cosgrove, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona M. Doherty, B.A., J.D., Clinical Associate Professor of Law

      Steven Barry Duke, J.D., LL.M., Professor of Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor Emeritus of Property and Urban Law and Professorial Lecturer in Law

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      †    William N. Eskridge, Jr., M.A., J.D., John A. Garver Professor of Jurisprudence

      Daniel C. Esty, M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      †    James Forman, Jr., A.B., J.D., Clinical Professor of Law

      Emmanuel Gaillard, Ph.D., Visiting Professor of Law (spring term)

      Lech Garlicki, Doctorate in Legal Sciences, Habil. in Legal Sciences, Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Stanley J. Garstka, M.S.I.A., Ph.D., Professor (Adjunct) of Law (fall term)

      ‡    Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      Abbe R. Gluck, B.A., J.D., Professor of Law

      Julie Goldscheid, M.S.W., J.D., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Women’s Rights (spring term)

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      David Singh Grewal, J.D., Ph.D., Associate Professor of Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Mark Hall, B.A., J.D., Florence Rogatz Visiting Professor of Law (fall term)

      ‡    Henry B. Hansmann, J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Marcia Johnson, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Christine Jolls, J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      ‡    Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      Paul W. Kahn, J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities

      Johanna Kalb, M.A., J.D., Visiting Associate Professor of Law

      Amy Kapczynski, M.A., J.D., Professor of Law

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean, John Thomas Smith Professor of Law, and Professor of Economics

      Harold Hongju Koh, M.A., J.D., Sterling Professor of International Law

      Issa Kohler-Hausmann, J.D., Ph.D., Associate Professor of Law and Associate Professor of Sociology

      Anthony Townsend Kronman, J.D., Ph.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Joseph M. Field ’55 Professor of Law

      John H. Langbein, LL.B., Ph.D., Sterling Professor Emeritus of Law and Legal History and Professorial Lecturer in Law

      ‡    Anika Singh Lemar, B.A., J.D., Clinical Associate Professor of Law

      ‡    Yair Listokin, Ph.D., J.D., Shibley Family Fund Professor of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Daniel Markovits, D.Phil., J.D., Guido Calabresi Professor of Law

      Jerry Louis Mashaw, LL.B., Ph.D., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Mary Briese Matheron, B.S., Associate Dean

      †    Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      John D. Morley, B.S., J.D., Associate Professor of Law

      Christina M. Mulligan, B.A., J.D., Visiting Associate Professor of Law (spring term)

      Andrew V. Papachristos, M.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Jason Parkin, B.A., J.D., Florence Rogatz Visiting Clinical Associate Professor of Law

      Nicholas R. Parrillo, J.D., Ph.D., Professor of Law

      Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law

      Robert C. Post, J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law

      Claire Priest, J.D., Ph.D., Simeon E. Baldwin Professor of Law

      George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      Asha Rangappa, A.B., J.D., Associate Dean

      William Michael Reisman, LL.M., J.S.D., Myres S. McDougal Professor of International Law

      ‡    Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      †    Cristina Rodríguez, M.Litt., J.D., Leighton Homer Surbeck Professor of Law

      John E. Roemer, A.B., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Roberta Romano, M.A., J.D., Sterling Professor of Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law (fall term)

      Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      David E. Schizer, M.A., J.D., Florence Rogatz Visiting Professor of Law (spring term)

      David N. Schleicher, M.Sc., J.D., Associate Professor of Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      †    Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, J.D., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Scott J. Shapiro, J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Reva Siegel, M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      James J. Silk, M.A., J.D., Clinical Professor of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Lawrence M. Solan, Ph.D., J.D., Sidley Austin—Robert D. McLean Visiting Professor of Law (spring term)

      Edward Stein, Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (spring term)

      ‡    Kate Stith, M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies (fall term)

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      Tom R. Tyler, M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Patrick Weil, M.B.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      ‡    Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education, William O. Douglas Clinical Professor of Law, and Director, Jerome N. Frank Legal Services Organization

      ‡    John Fabian Witt, J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      *    Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Taisu Zhang, J.D., Ph.D., Irving S. Ribicoff Visiting Associate Professor of Law (fall term)

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law (spring term)

      *    On leave of absence, 2015–2016.

      †    On leave of absence, fall term, 2015.

      ‡    On leave of absence, spring term, 2016.

      LECTURERS IN LAW

      Sarah Baumgartel, A.B., J.D.

      Emily Bazelon, B.A., J.D.

      Brian Logan Beirne, B.S., J.D.

      Tessa Bialek, B.A., J.D.

      Jeremy L. Daum, B.S., J.D.

      Gregg Gonsalves, B.S.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Su Lin Han, M.A., J.D.

      Stephen Latham, J.D., Ph.D.

      James Ponet, M.A., D.D.

      Megan Quattlebaum, B.A., J.D.

      Michael Ulrich, J.D., M.P.H.

      Graham Webster, B.S., A.M.

      Robert D. Williams, B.A., J.D.

      VISITING LECTURERS IN LAW

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Catherine Ashton, B.Sc.

      Yas Banifatemi, Ph.D., LL.M.

      Mark Barnes, J.D., LL.M.

      Stephen B. Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      Lincoln Caplan, B.A., J.D., Truman Capote Visiting Lecturer in Law

      Timothy Collins, B.A., M.B.A.

      Victoria A. Cundiff, B.A., J.D.

      Brian T. Daly, M.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Gregory Fleming, B.A., J.D.

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Lee Gelernt, M.Sc., J.D.

      Peter T. Grossi, Jr., M.A., J.D.

      Menaka Guruswamy, LL.M., D.Phil., Peter and Patricia Gruber Fellow in Global Justice

      David L. Harfst, B.A., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow

      Jeffrey A. Meyer, B.A., J.D.

      Andrew J. Pincus, B.A., J.D.

      Stephen Preston, B.A., J.D., Oscar M. Ruebhausen Distinguished Senior Fellow

      Richard Ravitch, B.A., LL.B.

      Eric S. Robinson, M.B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      John M. Samuels, J.D., LL.M., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Paul Schwaber, M.A., Ph.D.

      Michael S. Solender, B.A., J.D.

      Jacob J. Sullivan, M.Phil., J.D., Oscar M. Ruebhausen Distinguished Senior Fellow in National Security

      Robert Sussman, B.A., LL.D.

      Stefan R. Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Megan A. Wulff, M.P.H., J.D.

      David M. Zornow, B.A., J.D.

      The Un-Territoriality of Data

      JENNIFER DASKAL

      [125 YALE L.J. 326 (2015)]

      ABSTRACT. Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant here and there, and it presumes that the here and there have normative significance. The ease and speed with which data travels across borders, the seemingly arbitrary paths it takes, and the physical disconnect between where data is stored and where it is accessed critically test these foundational premises. Why should either privacy rights or government access to sought-after evidence depend on where a document is stored at any given moment? Conversely, why should State A be permitted to unilaterally access data located in State B, simply because technology allows it to do so, without regard to State B’s rules governing law enforcement access to data held within its borders?

      This Article addresses these challenges. It explores the unique features of data and highlights the ways in which data undermines longstanding assumptions about the link between data location and the rights and obligations that should apply. Specifically, it argues that a territorial-based Fourth Amendment fails to adequately protect the people it is intended to cover. Conversely, the Article warns against the kind of unilateral, extraterritorial law enforcement that electronic data encourages—in which nations compel the production of data located anywhere around the globe, without regard to the sovereign interests of other nations.

      AUTHOR. Assistant Professor, American University Washington College of Law. For helpful conversations, comments, and support, special thanks go to William Banks, Bobby Chesney, Ashley Deeks, Laura Donohue, Amanda Frost, Ahmed Ghappour, Ryan Goodman, David Gray, Claudio Grossman, Chimène Keitner, Orin Kerr, Amanda Leiter, Jennifer Mueller, Paul Ohm, David Pozen, Daniel Richman, Carol Steiker, Peter Swire, David Vladeck, Stephen Vladeck, and Benjamin Wittes. Also, thanks to participants at New York University’s Hauser Colloquium on October 29, 2014; participants at the University of Texas faculty workshop on November 20, 2014; participants at the Privacy Law Scholars Conference in Berkeley, CA on June 5-6, 2015 (where this Article was the recipient of the PLSC Young Scholars Award); participants at Columbia Law School’s national security law workshop on July 9-10, 2015; two excellent research assistants, Tiffany Sommadossi and Justin Watkins; and the terrific and incredibly diligent editors at the Yale Law Journal.

      ARTICLE CONTENTS

      INTRODUCTION

      In December 2013, United States federal law enforcement agents served a seemingly innocuous search warrant on Microsoft, demanding information associated with a Microsoft user’s web-based e-mail account. But there was a problem—the e-mails sought by the government were located in a data-storage center in Dublin, Ireland. Consequently, Microsoft refused to turn over the e-mails, claiming that the government’s warrant authority did not extend extraterritorially; the warrant was therefore invalid. The government, along with the magistrate judge and district court, disagreed—concluding that the relevant reference point for purposes of warrant jurisdiction was the location of the provider (in this case Microsoft), not the location of the data.¹ Because the Ireland-based data could be accessed and retrieved by Microsoft employees within the United States, the warrant was territorial—not extraterritorial—and therefore valid.²

      The question of where the relevant state action takes place when the government compels the production of e-mails from an Internet Service Provider (ISP) is one of first impression and is now being litigated before the Second Circuit. It has garnered the attention of communication companies throughout the United States, the Irish government, the European Parliament, media outlets, the U.S. Chamber of Commerce, and a wide array of commentators.³ In a strongly worded letter, the former European Union Justice Commissioner warned that execution of the warrant may constitute a breach of international law⁴—a sentiment echoed in the amicus briefs supporting Microsoft.⁵ But this statement simply assumes the answer to the key questions that the case poses: where does the key state action occur? At the place where data is accessed or the place where it is stored?

      The dispute lays bare the extent to which modern technology challenges basic assumptions about what is here and there. It challenges the centrality of territoriality within the relevant statutory and constitutional provisions governing the search and seizure of digitized information. After all, territorial-based dividing lines are premised on two key assumptions: that objects have an identifiable and stable location, either within the territory or without; and that location matters—that it is, and should be, determinative of the statutory and constitutional rules that apply. Data challenges both of these premises. First, the ease, speed, and unpredictability with which data flows across borders make its location an unstable and often arbitrary determinant of the rules that apply. Second, the physical disconnect between the location of data and the location of its user—with the user often having no idea where his or her data is stored at any given moment—undercuts the normative significance of data’s location.

      This is not to say that tangible objects are immovable or that they are always co-located with their owner. Both people and objects travel from place to place. And people can be, and often are, separated from their tangible property by an international boundary. But the movement of people and their physical property is a physically observable event, subject to readily apparent technological and physical limitations that affect how quickly bodies and tangible things can travel through space. By contrast, the movement of data from place to place often happens in a seemingly arbitrary way, generally without the conscious choice—or even knowledge—of the data user (by which I mean the person with a reasonable expectation of privacy in the data, such as the user associated with a particular e-mail account).⁶ An e-mail sent from Germany, for example, may transit multiple nations, including the United States, before appearing on the recipient’s device in neighboring France. Contact books created and managed in New York may be stored in data centers in the Netherlands. A document saved to the cloud and accessed from Washington, D.C., may be temporarily stored in a data storage center in Ireland, and possibly even copied and held in multiple places at once. These unique features of data raise important questions about which here and there matter; they call into question the normative significance of longstanding distinctions between what is territorial and what is extraterritorial. Put bluntly, data is destabilizing territoriality doctrine.

      Data also challenges territoriality’s twentieth-century companion criteria—citizenship and national ties—as determinative of the constitutional and statutory rules that apply. It is now widely accepted that both citizens and noncitizens with substantial voluntary connections to the United States enjoy basic constitutional protections (including the protections of the Fourth Amendment) even when they are located outside the United States’ borders.⁷ Conversely, the Fourth Amendment does not protect noncitizens outside the United States, absent sufficient voluntary connections to the nation.⁸ Thus, territoriality doctrine, at least for constitutional purposes, involves a two-part inquiry into territoriality and target identity—with target identity turning on the depth of the target’s connections to the United States.

      But just as data highlights the arbitrariness of making the location of mobile zeroes and ones determinative of the rights and obligations that apply, data also exposes the problems with making identity determinative of such rights and obligations. Digital footprints are neither observable nor readily identifiable as belonging to a particular person. While an Internet Protocol (IP) address might reveal a user’s location, the use of anonymizing services and other tools designed to protect the user’s privacy (or evade detection) can make even the task of identifying a data user’s location exceedingly difficult, let alone the user’s citizenship or depth of connection to the United States.⁹ While similar identification problems occur in the world of tangible property, the ubiquitous and intermingled nature of data compounds the problem of identification in both degree and kind. This problem is particularly acute in the context of mass surveillance, where the sheer quantity of data collected necessitates the use of presumptions as a basis for establishing identity. The vast quantity of data collected means that even a low error rate will yield large quantities of data associated with misidentified users.

      This Article takes up the challenge that data—in particular its mobility, interconnectedness, and divisibility—poses to territoriality doctrine and its focus on user identity. To be clear from the outset, I do not purport to provide all of the answers, a task that requires far more than a single article. Rather, the aim of this Article is threefold: first, to expose the fiction of territoriality in a world of highly mobile, intermingled, and divisible data; second, to highlight flaws in the territoriality doctrine; and third, to suggest alternative approaches to thinking about the scope of the Fourth Amendment, the rules governing the acquisition of foreign intelligence information, and the territorial limits on law enforcement jurisdiction.

      In so doing, this Article fills an important gap in the literature. While there was, beginning in the 1990s, a surge of scholarship on the borderless Internet’s effect on sovereignty, the literature focused largely on private law (such as e-commerce and trademarks) and associated regulatory issues.¹⁰ In contrast, scholarly literature has devoted comparatively little attention to the constitutional and sovereignty implications of the government reaching or sending its agents across borders to search and seize. Orin Kerr offers perhaps the most sustained attention to the issue, but he does so while focusing primarily on border searches and with the goal of maintaining the Fourth Amendment’s territorial-based distinctions.¹¹ I, by contrast, argue that data challenges territoriality doctrine at its core, requiring us to reconsider—and in some cases reject—the territorial-based distinctions as they apply to the search and seizure of digital data.

      The Article proceeds in three parts. Part I begins by analyzing the longstanding presumption against extraterritoriality, examining its dominant (and often confused) constitutional, statutory, and jurisdictional applications. It explores the underpinnings of the now-dominant view that only certain people—namely U.S. citizens, noncitizens with substantial voluntary connections to the United States, and those physically present in the United States—are entitled to Fourth Amendment rights and heightened statutory protections with respect to foreign intelligence surveillance.

      This Part also highlights the very different purposes that territoriality serves within the context of the Fourth Amendment doctrine (and, by extension, surveillance law) and within the context of warrant jurisdiction. The Fourth Amendment imposes restrictions on the government’s authority to search and seize; by contrast, warrants provide the government the affirmative authorization to do so. Thus, whereas territoriality for Fourth Amendment purposes is based on an understanding of who is entitled to privacy rights visà-vis the U.S. government, territorial-based limits on warrant jurisdiction are based on respect for other nations’ sovereignty coupled with pragmatic concerns about the difficulty of unilaterally enforcing a warrant within another nation’s borders.

      Part II highlights the ways in which data challenges key underlying presumptions about territoriality across each of these areas of the law. This Pection identifies central differences between data and its tangible counterparts, focusing in particular on data’s mobility, divisibility, and interconnectedness. It also examines the location independence of data and its user, referring to the user’s lack of knowledge or explicit choice as to the location of his or her data at any given moment.

      Finally, Part III argues that these differences between data and its tangible counterparts matter, but in the exact opposite way from what the government has suggested. These differences both compel a rethinking of a territorial Fourth Amendment and highlight the dangers of unilateral, extraterritorial law enforcement that data enables. More specifically, I argue that the intermingling and mobility of data mean that territorial and identity-based distinctions at the heart of the Fourth Amendment and the statutory scheme governing foreign intelligence surveillance no longer serve the interests they are designed to protect, at least as applied to the acquisition (or seizure) of data. Large quantities of protected persons’ data are being incidentally collected

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