Johannes Thumfart | Vrije Universiteit Brussel (original) (raw)

Book by Johannes Thumfart

Research paper thumbnail of Ist das Zoon Politikon ein Oxymoron? Zur Dekonstruktion des Begriffs von Biopolitik bei Giorgio Agamben auf der Grundlage einer Wiederlektüre des Aristoteles

Research paper thumbnail of Die Begründung der globalpolitischen Philosophie: Francisco de Vitorias Vorlesung über die Entdeckung Amerikas im ideengeschichtlichen Kontext

Papers by Johannes Thumfart

Research paper thumbnail of The democratic offset: Contestation, deliberation, and participation regarding military applications of AI

AI and Ethics, 2023

Authoritarian regimes' unrestricted collection of citizens' data might constitute an advantage re... more Authoritarian regimes' unrestricted collection of citizens' data might constitute an advantage regarding the development of some types of AI, and AI might facilitate authoritarian practices. This feedback loop challenges democracies. In a critical continuation of the Pentagon's Third Offset Strategy, I investigate a possible Democratic Offset regarding military applications of AI focussed on contestation, deliberation, and participation. I apply Landemore's Open Democracy, Hildebrandt's Agonistic Machine Learning, and Sharp's Civilian-Based Defence. Discussing value pluralism in AI ethics, I criticise parts of the literature for leaving the fundamental ethical incompatibility of democracies and authoritarian regimes unaddressed. I am focussing on the duty to disobey illegal orders derived from customary international humanitarian law (IHL) and the standard of 'meaningful human control', which is central to the partially outdated debate about lethal autonomous weapon systems (LAWS). I criticize the standard of 'meaningful human control' following two pathways: First, the ethical and legal principles of just war theory and IHL should be implemented in military applications of AI to submit human commands to more control, in the sense of technological disaffordances. Second, the debate should focus on the societal circumstances for personal responsibility and disobedience to be trained and exerted in deliberation and participation related to military applications of AI, in the sense of societal affordances. In a larger picture, this includes multi-level stakeholder involvement, robust documentation to facilitate auditing, civilian-based defence in decentralized smart cities, and open-source intelligence. This multi-layered approach fosters cognitive diversity, which might constitute a strategic advantage for democracies regarding AI.

Research paper thumbnail of Francisco de Vitoria and the Nomos of the Code: The Digital Commons and Natural Law, Digital Communication as a Human Right, Just Cyber-Warfare

Studies in the History of Law and Justice, 2017

This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, em... more This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, employing Skinner’s method of contextualization by critically extending it to contemporary contexts, as a form of “intended prolepsis” that generates a coherent system of international digital legal thought. The systematic importance of the commons in Vitoria’s thought is first underlined and then applied to current issues, for example cyber-wars, post-humanism and copyright, whilst giving a critical new reading of a broad range of Vitoria’s texts, such as De indis, De iure belli, De homicidio, De potestate civili and his commentary on Aquinas.

Research paper thumbnail of The (Il)legitimacy of Cybersecurity. An Application of Just Securitization Theory to Cybersecurity based on the Principle of Subsidiarity

Applied Cybersecurity & Internet Governance

The application of securitization theory to cybersecurity is useful since it subjects the emotive... more The application of securitization theory to cybersecurity is useful since it subjects the emotive rhetoric of threat construction to critical scrutiny. Floyd’s just securitization theory (JST) constitutes a mixture of securitization theory and just war theory. Unlike traditional securitization theory, it also addresses the normative question of when securitization is legitimate. In this contribution, I critically apply Floyd’s JST to cybersecurity and develop my own version of JST based on subsidiarity. Floyd’s JST follows a minimalistic and subsidiary approach by emphasizing that securitization is only legitimate if it has a reasonable chance of success in averting threats to the satisfaction of basic human needs. From this restrictive perspective, cyber-securitization is only legitimate if it serves to protect critical infrastructure. Whilst Floyd’s JST focuses exclusively on permissibility and needs instead of rights, I argue that there are cases in which states’ compliance with ...

Research paper thumbnail of Drawing a line: Digital transnational repression against political exiles and host state sovereignty

European Journal of International Security

Authoritarian regimes increasingly resort to surveillance and malware attacks to extend their coe... more Authoritarian regimes increasingly resort to surveillance and malware attacks to extend their coercive reach into the territory of other states and silence dissidents abroad. Recent scholarship has examined the methods of digital transnational repression and their detrimental effects on the fundamental rights and security of targeted individuals. However, the broader normative and security dimensions of these practices remain underexplored, especially with regard to the states hosting the affected exiles. Addressing this gap, our article investigates digital transnational repression as a potential violation of host state sovereignty. Mobilising emerging research on digital sovereignty and cybersecurity, we argue that digital repression can violate host state sovereignty in that it constitutes extraterritorial enforcement jurisdiction; interferes with open debate and national self-determination; impedes the host state's adherence to fundamental norms of international humanitarian...

Research paper thumbnail of A Chinese Precursor to the Digital Sovereignty Debate: Digital Anti-Colonialism and Authoritarianism from the Post–Cold War Era to the Tunis Agenda

Global Studies Quarterly

Governments all over the world are constructing discourses of digital sovereignty. However, the h... more Governments all over the world are constructing discourses of digital sovereignty. However, the history of this concept is understudied. This paper delves into the Chinese academic publications from 1994 to 2005, where concepts such as “network/cyber sovereignty” (网络主权) and “information sovereignty” (信息主权) began to emerge. The period is marked by the introduction of the internet in China in 1994 and the 2005 Tunis Agenda, a pivotal moment in the internationalization of demands for sovereignty over the internet. By reconstructing the post–Cold War geopolitical, economic, cultural, ideological, and regulatory context of the examined publications, we highlight the academic discourse as forming part of a sociotechnical imaginary of digital sovereignty, which is characterized by a peculiar mixture of the explicit critique of “cyber colonialism” (网络殖民主义), authoritarian positions, and the embrace of digitalization and its possibilities.

Research paper thumbnail of The norm development of digital sovereignty between China, Russia, the EU and the US: From the late 1990s to the Covid-crisis 2020/21 as catalytic event.

SSRN Electronic Journal, 2021

This contribution examines the impact of the COVID-crisis on the norm development process of digi... more This contribution examines the impact of the COVID-crisis on the norm development process of digital sovereignty in China, the EU, the US and Russia, investigating concepts such as digital sovereignty, technological sovereignty, internet sovereignty, data sovereignty, souverainete numerique, digitale Souveranitat, 网络主权 (“network sovereignty“), 信息主权 (“information sovereignty”) and Суверенный интернет (“sovereign internet“). It develops an intellectual history of the norm development of digital sovereignty, roughly following Finnemore and Sikkink’s three stages model. The first phase, norm emergence, lasts from the 1990s and the Patriot Act in 2001 to Russia’s laws on internet control in 2012. During this phase of the US’s largely uncontested digital hegemony, China is the prime norm entrepreneur of digital sovereignty, promoting 网络主权 (lit. “network sovereignty”). The second phase, norm cascade, begins with the Snowden revelations in 2013. This phase is characterized by an increasingly multipolar order. During this phase, the EU adopts a notion of digital sovereignty with a focus on economic aspects. And Russia’s notion of Суверенный интернет (lit. “sovereign internet”) is becoming increasingly radicalized. In Russia and France, illiberal accounts of digital sovereignty are supported by Carl Schmitt’s geopolitical theories. From 2016 to 2020, the US and the EU undergo a phase of norm universalization. Triggered by Russia’s interference with the US general election and Brexit in 2016, these countries and regions become aware that their political systems are vulnerable to manipulation. The COVID-crisis initiates the fourth and last stage of the norm development cycle, the stage of internalization. Processes of digital sovereignty are increasingly implemented, respectively they emerge in a bottom-up manner, with civil society playing an increasingly important role. However, this turn also makes clear that digital sovereignty in liberal societies is strongly characterized, respectively limited by the power of the private sector and restrictions on governmental power, such as federalism.

Research paper thumbnail of Francisco de Vitoria and the Nomos of the Code: The Digital Commons and Natural Law, Digital Communication as a Human Right, Just Cyber-Warfare

This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, em... more This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, employing Skinner’s method of contextualization by critically extending it to contemporary contexts, as a form of “intended prolepsis” that generates a coherent system of international digital legal thought. The systematic importance of the commons in Vitoria’s thought is first underlined and then applied to current issues, for example cyber-wars, post-humanism and copyright, whilst giving a critical new reading of a broad range of Vitoria’s texts, such as De indis, De iure belli, De homicidio, De potestate civili and his commentary on Aquinas.

Research paper thumbnail of From the Rhizome to the Heavy Tail: Concentration of the Digital Market, Concentration in the Individual, and the Rediscovery of Sovereignty

SSRN Electronic Journal, 2015

This contribution takes Deleuze's and Guattari's metaphor of the rhizome as paradigmatic ... more This contribution takes Deleuze's and Guattari's metaphor of the rhizome as paradigmatic for the radical egalitarian approach of early internet utopianism. The egalitarian utopia of the rhizome is contrasted with the extreme concentration of the really existing digital market. In order to explain the discrepancy between utopian expectations and real development, the paper cites Travers' and Milgram's work on the “small-world problem,” which leads to a general theory of the accumulation of the digital market by applying the concept of social networks with heavy-tailed distributions. In such a concentrated network, the question of sovereign power must inevitably arise along the lines of Schmitt's decisionism. The paper tackles this question of digital sovereignty by proposing the transformation of the entire noosphere into a single inalienable global fund.

Research paper thumbnail of Das ius gentium als Form der translatio imperii: Francisco de Vitorias Legitimation des spanischen Kolonialismus im Kontext der Arbeiten Miguel de Ulzurruns, Hernán Cortés’ und Bartolomé de las Casas’

Europa jenseits seiner Grenzen, 2009

Research paper thumbnail of Diskussionspapier: Welthandel als Religion: Zur Ökonomischen Theologie im Völkerrecht bei Hugo Grotius und Francisco de Vitoria

Theologie Geschichte, May 9, 2011

Research paper thumbnail of Ius gentium und universal monarchie in Amerika bei francisco de Vitoria, miguel de Ulzurrun, Hernán Cortés und Bartolomé de las Casas

Zeitschrift Der Savigny Stiftung Fur Rechtsgeschichte Kanonistische Abteilung, 2009

Research paper thumbnail of Kolonialismus oder Kommunikation

Kant und die Philosophie in weltbürgerlicher Absicht, 2013

Research paper thumbnail of On Grotius's Mare Liberum and Vitoria's De Indis, Following Agamben and Schmitt

Grotiana, 2009

The idea of free trade in Grotius's Mare liberum and his legal opinion De iure praedae has a ... more The idea of free trade in Grotius's Mare liberum and his legal opinion De iure praedae has a strong theological basis. Grotius called the right to travel and trade freely a ius sanctissimum, a 'sacrosanct law'. He also perceived the Freedom of the Seas as being a direct result of the will of God. This theological background was strategically necessary because Grotius developed the Mare liberum and the De iure praedae to argue against Spanish-Portuguese claims to a trade monopoly that also had theological underpinnings. But the theological aspect of Grotius's theory was also emphasized by the references he made to the Dominican friar Francisco de Vitoria's ius communicationis. This precursor to Grotius's Freedom of the Seas, which Vitoria had developed in his De indis, is connected to the legal justification of Christian mission and so has a clear theological connotation. In Grotius's work, Vitoria's concept of a universal right to Christian mission su...

Research paper thumbnail of Ideengeschichte – Archäologie – Topik. Von der Methodendebatte Skinners und Foucaults zurück zu den Ideen

Ansätze und Methoden zur Erforschung politischen Denkens, 2013

Research paper thumbnail of The Norm Development of Digital Sovereignty between China, Russia, the EU and the US: From the Late 1990s to the COVID Crisis 2020/21 as Catalytic Event

Data Protection and Privacy

Research paper thumbnail of Post-Territorial Technologies and Companies Question Regulatory State Monopolies

The Microsoft Ireland case has been heard by the Supreme Court in the beginning of 2018 and dropp... more The Microsoft Ireland case has been heard by the Supreme Court in the beginning of 2018 and dropped due to the introduction of the CLOUD Act in May 2018, which has been issued in order to resolve the fundamental problems at the core of this case. This contribution focusses on two key features of this development: the conflicting and often chaotic approaches to the notion of sovereignty of many of the actors involved and the remarkable move of a private company such as Microsoft to trigger regulation at a time, in which companies, technologies, data flows and governments transgress borders, challenging territorial comprehensions of the world order. Table of contents Introduction and reflection on the difficulty of classical territorial concepts ............ 374 1. Microsoft Ireland’s context, motives and arguments: the Snowden shadow at work? ................................................................................................................. 380 2. Microsoft Ireland and ...

Research paper thumbnail of The Microsoft Ireland case, the CLOUD Act and the cyberspace sovereignty trilemma

Research paper thumbnail of Public and private just wars: distributed cyber deterrence based on Vitoria and Grotius

Research paper thumbnail of The democratic offset: Contestation, deliberation, and participation regarding military applications of AI

AI and Ethics, 2023

Authoritarian regimes' unrestricted collection of citizens' data might constitute an advantage re... more Authoritarian regimes' unrestricted collection of citizens' data might constitute an advantage regarding the development of some types of AI, and AI might facilitate authoritarian practices. This feedback loop challenges democracies. In a critical continuation of the Pentagon's Third Offset Strategy, I investigate a possible Democratic Offset regarding military applications of AI focussed on contestation, deliberation, and participation. I apply Landemore's Open Democracy, Hildebrandt's Agonistic Machine Learning, and Sharp's Civilian-Based Defence. Discussing value pluralism in AI ethics, I criticise parts of the literature for leaving the fundamental ethical incompatibility of democracies and authoritarian regimes unaddressed. I am focussing on the duty to disobey illegal orders derived from customary international humanitarian law (IHL) and the standard of 'meaningful human control', which is central to the partially outdated debate about lethal autonomous weapon systems (LAWS). I criticize the standard of 'meaningful human control' following two pathways: First, the ethical and legal principles of just war theory and IHL should be implemented in military applications of AI to submit human commands to more control, in the sense of technological disaffordances. Second, the debate should focus on the societal circumstances for personal responsibility and disobedience to be trained and exerted in deliberation and participation related to military applications of AI, in the sense of societal affordances. In a larger picture, this includes multi-level stakeholder involvement, robust documentation to facilitate auditing, civilian-based defence in decentralized smart cities, and open-source intelligence. This multi-layered approach fosters cognitive diversity, which might constitute a strategic advantage for democracies regarding AI.

Research paper thumbnail of Francisco de Vitoria and the Nomos of the Code: The Digital Commons and Natural Law, Digital Communication as a Human Right, Just Cyber-Warfare

Studies in the History of Law and Justice, 2017

This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, em... more This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, employing Skinner’s method of contextualization by critically extending it to contemporary contexts, as a form of “intended prolepsis” that generates a coherent system of international digital legal thought. The systematic importance of the commons in Vitoria’s thought is first underlined and then applied to current issues, for example cyber-wars, post-humanism and copyright, whilst giving a critical new reading of a broad range of Vitoria’s texts, such as De indis, De iure belli, De homicidio, De potestate civili and his commentary on Aquinas.

Research paper thumbnail of The (Il)legitimacy of Cybersecurity. An Application of Just Securitization Theory to Cybersecurity based on the Principle of Subsidiarity

Applied Cybersecurity & Internet Governance

The application of securitization theory to cybersecurity is useful since it subjects the emotive... more The application of securitization theory to cybersecurity is useful since it subjects the emotive rhetoric of threat construction to critical scrutiny. Floyd’s just securitization theory (JST) constitutes a mixture of securitization theory and just war theory. Unlike traditional securitization theory, it also addresses the normative question of when securitization is legitimate. In this contribution, I critically apply Floyd’s JST to cybersecurity and develop my own version of JST based on subsidiarity. Floyd’s JST follows a minimalistic and subsidiary approach by emphasizing that securitization is only legitimate if it has a reasonable chance of success in averting threats to the satisfaction of basic human needs. From this restrictive perspective, cyber-securitization is only legitimate if it serves to protect critical infrastructure. Whilst Floyd’s JST focuses exclusively on permissibility and needs instead of rights, I argue that there are cases in which states’ compliance with ...

Research paper thumbnail of Drawing a line: Digital transnational repression against political exiles and host state sovereignty

European Journal of International Security

Authoritarian regimes increasingly resort to surveillance and malware attacks to extend their coe... more Authoritarian regimes increasingly resort to surveillance and malware attacks to extend their coercive reach into the territory of other states and silence dissidents abroad. Recent scholarship has examined the methods of digital transnational repression and their detrimental effects on the fundamental rights and security of targeted individuals. However, the broader normative and security dimensions of these practices remain underexplored, especially with regard to the states hosting the affected exiles. Addressing this gap, our article investigates digital transnational repression as a potential violation of host state sovereignty. Mobilising emerging research on digital sovereignty and cybersecurity, we argue that digital repression can violate host state sovereignty in that it constitutes extraterritorial enforcement jurisdiction; interferes with open debate and national self-determination; impedes the host state's adherence to fundamental norms of international humanitarian...

Research paper thumbnail of A Chinese Precursor to the Digital Sovereignty Debate: Digital Anti-Colonialism and Authoritarianism from the Post–Cold War Era to the Tunis Agenda

Global Studies Quarterly

Governments all over the world are constructing discourses of digital sovereignty. However, the h... more Governments all over the world are constructing discourses of digital sovereignty. However, the history of this concept is understudied. This paper delves into the Chinese academic publications from 1994 to 2005, where concepts such as “network/cyber sovereignty” (网络主权) and “information sovereignty” (信息主权) began to emerge. The period is marked by the introduction of the internet in China in 1994 and the 2005 Tunis Agenda, a pivotal moment in the internationalization of demands for sovereignty over the internet. By reconstructing the post–Cold War geopolitical, economic, cultural, ideological, and regulatory context of the examined publications, we highlight the academic discourse as forming part of a sociotechnical imaginary of digital sovereignty, which is characterized by a peculiar mixture of the explicit critique of “cyber colonialism” (网络殖民主义), authoritarian positions, and the embrace of digitalization and its possibilities.

Research paper thumbnail of The norm development of digital sovereignty between China, Russia, the EU and the US: From the late 1990s to the Covid-crisis 2020/21 as catalytic event.

SSRN Electronic Journal, 2021

This contribution examines the impact of the COVID-crisis on the norm development process of digi... more This contribution examines the impact of the COVID-crisis on the norm development process of digital sovereignty in China, the EU, the US and Russia, investigating concepts such as digital sovereignty, technological sovereignty, internet sovereignty, data sovereignty, souverainete numerique, digitale Souveranitat, 网络主权 (“network sovereignty“), 信息主权 (“information sovereignty”) and Суверенный интернет (“sovereign internet“). It develops an intellectual history of the norm development of digital sovereignty, roughly following Finnemore and Sikkink’s three stages model. The first phase, norm emergence, lasts from the 1990s and the Patriot Act in 2001 to Russia’s laws on internet control in 2012. During this phase of the US’s largely uncontested digital hegemony, China is the prime norm entrepreneur of digital sovereignty, promoting 网络主权 (lit. “network sovereignty”). The second phase, norm cascade, begins with the Snowden revelations in 2013. This phase is characterized by an increasingly multipolar order. During this phase, the EU adopts a notion of digital sovereignty with a focus on economic aspects. And Russia’s notion of Суверенный интернет (lit. “sovereign internet”) is becoming increasingly radicalized. In Russia and France, illiberal accounts of digital sovereignty are supported by Carl Schmitt’s geopolitical theories. From 2016 to 2020, the US and the EU undergo a phase of norm universalization. Triggered by Russia’s interference with the US general election and Brexit in 2016, these countries and regions become aware that their political systems are vulnerable to manipulation. The COVID-crisis initiates the fourth and last stage of the norm development cycle, the stage of internalization. Processes of digital sovereignty are increasingly implemented, respectively they emerge in a bottom-up manner, with civil society playing an increasingly important role. However, this turn also makes clear that digital sovereignty in liberal societies is strongly characterized, respectively limited by the power of the private sector and restrictions on governmental power, such as federalism.

Research paper thumbnail of Francisco de Vitoria and the Nomos of the Code: The Digital Commons and Natural Law, Digital Communication as a Human Right, Just Cyber-Warfare

This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, em... more This chapter concentrates on a contemporary reading of Vitoria’s De Indis for the digital age, employing Skinner’s method of contextualization by critically extending it to contemporary contexts, as a form of “intended prolepsis” that generates a coherent system of international digital legal thought. The systematic importance of the commons in Vitoria’s thought is first underlined and then applied to current issues, for example cyber-wars, post-humanism and copyright, whilst giving a critical new reading of a broad range of Vitoria’s texts, such as De indis, De iure belli, De homicidio, De potestate civili and his commentary on Aquinas.

Research paper thumbnail of From the Rhizome to the Heavy Tail: Concentration of the Digital Market, Concentration in the Individual, and the Rediscovery of Sovereignty

SSRN Electronic Journal, 2015

This contribution takes Deleuze's and Guattari's metaphor of the rhizome as paradigmatic ... more This contribution takes Deleuze's and Guattari's metaphor of the rhizome as paradigmatic for the radical egalitarian approach of early internet utopianism. The egalitarian utopia of the rhizome is contrasted with the extreme concentration of the really existing digital market. In order to explain the discrepancy between utopian expectations and real development, the paper cites Travers' and Milgram's work on the “small-world problem,” which leads to a general theory of the accumulation of the digital market by applying the concept of social networks with heavy-tailed distributions. In such a concentrated network, the question of sovereign power must inevitably arise along the lines of Schmitt's decisionism. The paper tackles this question of digital sovereignty by proposing the transformation of the entire noosphere into a single inalienable global fund.

Research paper thumbnail of Das ius gentium als Form der translatio imperii: Francisco de Vitorias Legitimation des spanischen Kolonialismus im Kontext der Arbeiten Miguel de Ulzurruns, Hernán Cortés’ und Bartolomé de las Casas’

Europa jenseits seiner Grenzen, 2009

Research paper thumbnail of Diskussionspapier: Welthandel als Religion: Zur Ökonomischen Theologie im Völkerrecht bei Hugo Grotius und Francisco de Vitoria

Theologie Geschichte, May 9, 2011

Research paper thumbnail of Ius gentium und universal monarchie in Amerika bei francisco de Vitoria, miguel de Ulzurrun, Hernán Cortés und Bartolomé de las Casas

Zeitschrift Der Savigny Stiftung Fur Rechtsgeschichte Kanonistische Abteilung, 2009

Research paper thumbnail of Kolonialismus oder Kommunikation

Kant und die Philosophie in weltbürgerlicher Absicht, 2013

Research paper thumbnail of On Grotius's Mare Liberum and Vitoria's De Indis, Following Agamben and Schmitt

Grotiana, 2009

The idea of free trade in Grotius's Mare liberum and his legal opinion De iure praedae has a ... more The idea of free trade in Grotius's Mare liberum and his legal opinion De iure praedae has a strong theological basis. Grotius called the right to travel and trade freely a ius sanctissimum, a 'sacrosanct law'. He also perceived the Freedom of the Seas as being a direct result of the will of God. This theological background was strategically necessary because Grotius developed the Mare liberum and the De iure praedae to argue against Spanish-Portuguese claims to a trade monopoly that also had theological underpinnings. But the theological aspect of Grotius's theory was also emphasized by the references he made to the Dominican friar Francisco de Vitoria's ius communicationis. This precursor to Grotius's Freedom of the Seas, which Vitoria had developed in his De indis, is connected to the legal justification of Christian mission and so has a clear theological connotation. In Grotius's work, Vitoria's concept of a universal right to Christian mission su...

Research paper thumbnail of Ideengeschichte – Archäologie – Topik. Von der Methodendebatte Skinners und Foucaults zurück zu den Ideen

Ansätze und Methoden zur Erforschung politischen Denkens, 2013

Research paper thumbnail of The Norm Development of Digital Sovereignty between China, Russia, the EU and the US: From the Late 1990s to the COVID Crisis 2020/21 as Catalytic Event

Data Protection and Privacy

Research paper thumbnail of Post-Territorial Technologies and Companies Question Regulatory State Monopolies

The Microsoft Ireland case has been heard by the Supreme Court in the beginning of 2018 and dropp... more The Microsoft Ireland case has been heard by the Supreme Court in the beginning of 2018 and dropped due to the introduction of the CLOUD Act in May 2018, which has been issued in order to resolve the fundamental problems at the core of this case. This contribution focusses on two key features of this development: the conflicting and often chaotic approaches to the notion of sovereignty of many of the actors involved and the remarkable move of a private company such as Microsoft to trigger regulation at a time, in which companies, technologies, data flows and governments transgress borders, challenging territorial comprehensions of the world order. Table of contents Introduction and reflection on the difficulty of classical territorial concepts ............ 374 1. Microsoft Ireland’s context, motives and arguments: the Snowden shadow at work? ................................................................................................................. 380 2. Microsoft Ireland and ...

Research paper thumbnail of The Microsoft Ireland case, the CLOUD Act and the cyberspace sovereignty trilemma

Research paper thumbnail of Public and private just wars: distributed cyber deterrence based on Vitoria and Grotius

Research paper thumbnail of The Microsoft Ireland Case and the Cyberspace Sovereignty Trilemma. Post-Territorial Technologies and Companies Question Territorial State Sovereignty and Regulatory State Monopolies

Research paper thumbnail of Legal arguments used in courts regarding territoriality and cross-border production orders

New Journal of European Criminal Law

This contribution reflects on recent cases involving cross-border data production orders such as ... more This contribution reflects on recent cases involving cross-border data production orders such as Yahoo Belgium, Skype Belgium and Microsoft Ireland. Cross-border data production orders are found to generally involve conflicts regarding sovereignty and enforcement jurisdiction and to frequently include voluntary cooperation of companies for which the legal framework is lacking (Introduction). The Lotus principle, which recognizes a broad extraterritorial jurisdiction to prescribe and limits extraterritorial enforcement jurisdiction, is reconsidered concerning those issues (see the ‘International law pragmatism for jurisdiction to prescribe, but not for jurisdiction to enforce’ section) and the use of mutual legal assistances, which should be the rule, is discussed with four caveats (see the ‘Four caveats to territorial sovereignty and the need for MLAs: Unclarities and politics’ section). Twelve typical arguments are identified, which are employed in courtrooms when cross-border data...