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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.
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:
– that the Internet cannot be allowed to be a lawless space;
– that cross-border online interaction fills a valuable function;
– that we presently are experiencing a state of ‘hyper-regulation’; and
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.)
I think you are misunderstanding the perceived problem here, Mr President. No one is saying that you broke any laws. We are just saying it is a little bit weird that you did not have to.'- John OliverThe Daily Show, 10 June 2013'John Oliver formulated in this context the very question about the limits, about the use and abuse, of the law and of the state's power when it comes to global mass surveillance practices. Where does lie the 'thin red line' between the two legitimate yet seemingly competing interests: national security and privacy? [...] The result we present to the reader might seem merely another book about the Snowden affaire and the fall of Safe Harbor, but these two have been (only) an inspiration. Our object of interest is the protection of data privacy in relations between Europe and Americas as a challenge for democracy, the rule of law and fundamental rights. [...] The present book is very clearly an anthology - it is a compilation of diverse contributions, from different perspectives, within a broad topic. Our aim with this volume is to highlight a selection of particularly 'hot' questions within the topic of trans-Atlantic data privacy relations as they look at the end of 2016. [...] In the final chapter, we draw out and highlight those themes we see emerging within the body of this work. We eventually attempt to suggest a few lessons de lege ferenda.- from the Preface by the editors'Under the 'Lisbon Treaties', which are in force since 2009, the European Union regards itself as a distinct political entity, which is not a federation of Member States, but it is held together - as Luuk van Middelaar says - with a unique invisible glue". This connection is grounded with shared goals. One of them - expressed both in the Treaty on the Functioning of the European Union (Article 16) and in the Charter of Fundamental Rights of the European Union (Articles 7 and 8) is a unique obligation to protect personal data. Stating that everyone has the right to the protection of personal data concerning them the European Union feels obliged to observe how safe is the data both held in its territory and transferred outside thereof'- from the Foreword by Wojciech R. WiewiórowskiAssistant European Data Protection Supervisor'Privacy and data protection are topics of international significance. While the EU-US relationship gets a great deal of attention there are also many crucial issues of a more global nature. This book includes contributors of international stature who deal with Snowden and Safe Harbour but also go beyond them to address some of the key topics affecting privacy at the international level. The topics are timely and the authors highly qualified and the book will be of interest to anyone interested in privacy and data protection law and policy.'- Dr Christopher KunerCo-Director Brussels Privacy Hub Vrije Universiteit Brusseleditor-in-chief International Data Privacy Law
It's true that not a day passes without new pieces of paper entering the Registry, papers referring to individuals of the male sex and of the female sex who continue to be born in the outside world ….
Jos é Saramago, All the Names (1997)
… a splash quite unnoticed this was Icarus drowning William C Williams,
‘Landscape with the fall of Icarus’ (1962)
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.