ABSTRACT
Recently, there has been a flurry of activity by states and countries to regulate the collection and use of personal data. These data regulations came into being as a response to widespread data breaches and the perceived market failure that organizations which collect and process personal data were not taking the steps necessary to protect the data from theft. However, these data regulations also place costly burdens upon these organizations. The author was once asked this question. ‘If California or the EU regulates data, does that mean that my company, which is not located in California or the EU, must comply with those regulations?’ Put another way, is all data California data? Consider the following. A citizen of California travels to Florida to watch a sporting event. While there, she provides personal data to her hotel (part of an international chain), to the sports venue operator (which operates multiple venues in the Southeast US), and to a local restaurant. After the event, she returns to her hotel and buys a gift for a friend back in California from an online vendor not located in the US. Are any of these transactions governed by California law? Are none of them? Because laws governing data vastly differ across the United States, determining data situs should become a preliminary question for courts in causes of actions involving the intangible. Assigning a situs to data determines whether there are ownership and property rights associated with the intangible and helps provide some certainty to businesses who collect and process data. Conflict of laws questions involve ‘the study of whether or not and, if so, in what way, the answer to a legal question will be affected because the elements of the problem have contact with more than one jurisdiction’. Data, as an intangible asset accessible by computers anywhere, frequently has contacts with multiple jurisdictions. This article will address the questions raised by attempting to site data in one or more jurisdictions.
Black, Steve, Where Does Data Live? (March 21, 2023), 72 DePaul Law Review 793 (2023).
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