ABSTRACT

Currently, questions around Internet jurisdiction – in a general sense – are gaining an unprecedented level of attention. Yet, progress is both slow and limited. This chapter argues that the most significant obstacle for progress is found in the fact that our current thinking on jurisdiction is largely dominated by, and rooted in, notions of territoriality. The problem is that it is not always easy – or indeed possible – to determine where (in real-space geographical terms) events take place online. Thus, this chapter advances an alternative. More broadly, this chapter aims to bring attention to several themes of central importance for digital contracts in global surroundings. Apart from the already mentioned reliance on territoriality, those themes are: (i) that the Internet cannot be allowed to be a lawless space; (ii) that cross-border online interaction fulfils a valuable function; (iii) that we presently are experiencing a state of ‘hyper-regulation’ and (iv) that the role of contracts has increased with our use of the Internet. This chapter is also aimed at bringing attention to important considerations of the extent to which we uphold party autonomy in the context of choice of forum and choice of law clauses online. In addition, the prevalent ‘targeting’ focus is discussed and analysed in detail.

INTRODUCTION

The world is changing dramatically and rapidly due to advances in information technology, in particular the Internet. But despite these changes, the central role of contracts remains. In fact, it seems the role contracts play in our lives is increasing. And arguably, this trend is particularly clear in the context of crossborder interactions raising questions of which court(s) may claim jurisdiction, and which (country's) substantive law will govern the interaction.

This chapter commences by examining this theme and four other clear themes discernible in digital contracts in global surroundings, namely:

A series of events have led to the idea for this book and the first one is more than obvious: the Edward Snowden affaire On 6 June 2013 Glenn Greenwald published in The Guardian the first in a series of articles – and later co-authored a few other – on global mass surveillance practices led by the United States ‘National Security Agency (NSA) On the first day, the worldwide public learned that the NSA has obtained a clandestine court order from a secretly operating court of law, called the Foreign Intelligence Surveillance Court (FISC), and on its basis the Agency has been collecting metadata on telephone calls of millions customers of a major private telecommunications provider, Verizon This provider was forbidden from disclosing both the order itself and its compliance with it On the second day (7 June), the worldwide public learned further that these practices had not been limited to a single provider and that the NSA was allegedly’ tapping directly into the central servers of nine leading U.S Internet companies ‘: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple The worldwide public also learned that the NSA has been ‘listening’ to anything about anybody whose data merely flew throughservers located on US soil, even when sent from one overseas location to another Finally, the NSA has shared these data with its fellow agencies in the US, such as with the Federal Bureau of Investigation (FBI) These practices were variously codenamed – labels of surveillance programmes such as PRISM, Xkeyscore, Upstream, Quantuminsert, Bullrun or Dishfir have since entered the public debate– and their aim was to procure national security with the help of surveillance (These practises were not a novelty for the NSA has operated domestic surveillance programmes since the Agency's establishment in 1952 It is also true that surveillance practices are as old as humanity and over time have became an integral part of modernity, but these have intensified in the aft ermath of the 11 September 2001 terrorist attacks.)

INTRODUCTION

Perhaps the most common interpretation of Pieter Bruegel the Elder's painting Landscape with the fall of Icarus highlights popular ignorance of and indifference to the drowning of Icarus In Greek mythology, Daedalus and his son Icarus attempted to fly with the aid of wings they had made of both feathers and wax Icarus recklessly flew too close to the sun, his wings melted and he drowned in the sea In Bruegel's painting, Icarus has already fallen, but he and his sad fate are hardly noticed He disappears in the richness of the landscape shown, the crew of a ship sailing by has not reacted to his fall and – as Bruegel's contemporary fellows would have said – the farmer goes on ploughing.

Despite both the authenticity of the painting and its dominant interpretation being questioned, we have found this masterpiece of Bruegel a suitable allegory for our concluding idea for this book The underlying observation that stands out from our reading of the foregoing 26 chapters to this volume is that of the entanglement of data privacy in the entirety of trans-Atlantic relations Yet we have observed that in these relations the protection of data privacy – to a large extent – recklessly falls victim of ignorance and indifference, similarly to the fate of Icarus as painted by Bruegel.

We have explained in our Preface that our main impetus for this book had been the Snowden affaire We have aimed with this book to explore the status quo of trans-Atlantic data privacy relations challenging the notions of democracy, the rule of law (Rechtsstaat) and fundamental rights.