Free for a Fee

by guest blogger Marketa Trimble

At the recent “Law, Borders, and Speech” conference at Stanford, several participants debated the relevance of server location in determining jurisdiction. Some Silicon Valley attorneys at the conference argued that the location of a server should not be just one of the factors in a jurisdictional inquiry, but that it should be the determinative factor for jurisdiction. Support for this position is consistent with the recent Microsoft (Data Stored in Ireland) decision in which the U.S. Court of Appeals for the Second Circuit, in dicta, suggested that the location of a server containing data should determine jurisdiction over that data (for commentaries on the decision see, for example, here and here). Does it make sense for internet companies (ISPs, content providers, etc.) to take this position?

The position that the location of a server should be determinative in a jurisdictional inquiry makes sense in the context of the companies’ fight against data location requirements – the rules through which countries mandate that companies locate their servers (and data) in the countries’ territory if the companies want to do business there. The USTR has criticized these data location requirements and has included “data localization [sic] requirements” among the “Key Barriers to Digital Trade.” [I favor the phrase “data location” over “data localization” for reasons I explain at the end of this post.]

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/12/server-location-jurisdiction-and-server-location-requirements-guest-blog-post.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.