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Two Americas: Cross-Border Data Requests Post-Dobbs

Aaron R. Cooper argues that cross-border data requests between states for abortion-related investigations may start to resemble cross-border requests between countries and trigger new conflicts of law following the Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health Organization. 

State law can constrain data requests for abortion-related investigations because the CSPs that control the data are often incorporated or physically located outside the border of the requesting state, and demands made of those CSPs therefore implicate another state’s jurisdiction. Some states, at least historically, have honored these out-of-state (or “foreign” state) requests, either adopting interstate domestication procedures to facilitate cross-border service and enforcement of criminal or civil process or, in some cases, even obligating in-state entities to produce data as if the request were issued under the receiving state’s law. This kind of approach to cross-border demands may make sense in a world where states fundamentally agree on what conduct is criminal. But, following Dobbs, that baseline agreement no longer exists. Instead, there is now a looming specter of evidentiary demands from a state that prohibits abortion (the “criminalizing state”), for an investigation into conduct that is not criminalized by—and perhaps is specifically protected by the public policy, law, and/or constitution of—a state where the data subject, the information, or the provider controlling that information is located (the “protective state”). In this regard, the post-Dobbs world presents an unprecedented scenario for the collection of electronic evidence across state lines, where the compulsory process issued by one state threatens or violates fundamental rights protected in another.

Content Moderation Tools to Stop Extremism

In the latest installment of Lawfare’s Digital Social Contract paper series, Dan Byman presents content moderation options for technology companies, discussing how they work in practice, their advantages, and their limits and risks.

Tensions and new problems will emerge from these efforts. The question of censoring speech will remain even if certain content remains up but is not amplified or is otherwise seen as limited. Companies also have incentives to remove too much content (and, in rarer cases, too little) to avoid criticism. Process transparency, a weakness for most companies, remains vital and should be greatly expanded so that users, lawmakers, researchers, and others can better judge the effectiveness of company efforts. Finally, some toxic users will go elsewhere, spreading their hate on more obscure platforms. Despite these limits and trade-offs, the options presented in this paper provide a helpful menu that companies can use to tailor their approaches so that they can offer users a more vibrant and less toxic user experience.

Trump Special Master Review: Enter Dearie

Before the Eleventh Circuit issued its opinion last night granting the Justice Department’s motion for a partial stay, Kel McClanahan predicted it would do so. And he analyzed what other issues would remain to be resolved by the special master, Judge Dearie.

Several observers, myself included, have pointed out that not all of the records seized by the FBI are likely to be categorized as either presidential or personal records; some will be considered agency records, which are not controlled by the Presidential Records Act and belong to the agency that created them. Cannon’s order does not appear to contemplate this possibility, and so Dearie will need to resolve that discrepancy and will likely recommend to Cannon that the order be amended to allow for this third category of records.