The Yale Journal Law Forum
Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the impetus and results of each these initiatives, highlights their promise and their limits, and offers a way forward. We are in many ways at an inflection point. There is, on the one hand, the risk of governments demanding access to all information anywhere and everywhere, in ways that will almost certainly result in reduced cybersecurity, privacy, and civil liberties for all. But on the other hand, there is a unique opportunity to set baseline standards and clear jurisdictional rules -thereby facilitating law- enforcement access while also protecting, and ideally elevating, speech, privacy, and other rights protections in the process.
Daskal, Jennifer, "Privacy and Security Across Borders" (2019). Articles in Law Reviews & Other Academic Journals. 1096.