Conflict of Laws Has Caught Up with Silicon Valley. Now Silicon Valley Needs to Catch Up on Conflict of Laws (Guest Blog Post)

By guest blogger Marketa Trimble

On October 24 and 25, 2016, the Center for Internet and Society at Stanford Law School hosted a conference entitled “Law, Borders, and Speech.” The excellent, thought-provoking conference featured panels of U.S. and international speakers, a number of whom were from Silicon Valley internet companies. Most of the participants have dealt with matters of international conflict of laws (prescriptive jurisdiction, adjudicatory jurisdiction, choice of applicable law, and enforcement) for a number of years. The conference marked a milestone in Silicon Valley’s relation to this field of law, and at the same time might have sent some warning signals to conflict-of-laws experts.

The conference showed that the conflict-of-laws field has caught up with U.S. internet companies. After years of what seemed to the outside world to be a period of denial, internet companies now appear to have awakened to the idea – or at least to have acknowledged the idea – that conflict of laws does play a crucial role on the internet. Whether as a byproduct of the start-up culture – or of the force of the internet megaplayers – until recently, internet companies seemed to have substantially ignored conflict of laws. For example, their user agreements have implemented only slowly some signs of localization – the adjustments to varied national laws that are based on the countries of the users.

Not that the internet companies have had no experience with conflict-of-laws matters – in fact, the localization of user agreements was prompted by legal challenges in foreign countries that exposed the companies to international conflict-of-laws questions. Nevertheless, until recently, the companies showed little interest in any comprehensive treatment of conflict-of-laws matters. Now, however, many developments confront internet companies with fundamental questions of jurisdiction, choice of law, and enforcement; examples of the developments include the implementation of the “right to be forgotten” by the European Union countries, the Microsoft (Data Stored in Ireland) decision in the United States (a petition has been filed for rehearing and rehearing en banc), and the Equustek decisions in Canada concerning jurisdiction over a search engine and the territorial scope of a court-ordered search engine delisting (an appeal is pending before the Supreme Court of Canada).

What the apparent awakening in Silicon Valley will mean for conflict of laws as an area of law remains to be seen. As legislators, including legislators in foreign countries, know, when Silicon Valley megaplayers take on an issue, they generate enough momentum to produce significant outcomes – what kinds of outcomes depend on how receptive the legislators are to listening to Silicon Valley’s desiderata. What might alarm conflict-of-laws experts is the reference made at least once during the Stanford conference about the possibility of including conflict-of-laws issues in some trade treaty. A number of intellectual property (“IP”) law experts have commented on the problems that were created by the inclusion of IP law in trade treaties (see, for example, Frankel & Dreyfuss here); one can only imagine what conflict-of-laws experts might think about their field – famously complicated or even borderline esoteric – being taken over by trade negotiators. The idea seems particularly troubling, given the absence during the conference of discussions of pre-existing and detailed expert works on conflict of laws and the internet, including those undertaken, for example, under the auspices of the Hague Conference on Private International Law, the American Law Institute (e.g., here), and the European Max Planck Group on Conflict of Laws in Intellectual Property (here).

Conflict of laws as a field of law has been catching up with the internet very slowly. Although many judges, attorneys, and legal scholars have dealt with and written about conflict of laws on the internet (including Dan Svantesson here), many issues remain unresolved. To make things worse, not enough is being done to prepare future lawyers for conflict of laws with respect to the questions that the internet generates. As I have noted elsewhere, “[a]lthough globalization generates more cross-border legal issues today than it did ever before and conflict of laws should be one of the most important tools in the toolbox of a modern lawyer, only about half of U.S. state bar associations test conflict of laws on their bar examinations; with few exceptions conflict of laws courses cover mostly interstate and federal-state conflicts.” Editions of leading U.S. conflict-of-laws casebooks from just a few years ago included very few internet decisions; some casebooks relegated internet cases to special separate sections as if they were an obscure topic that should be left for the last classes of the semester. Although other courses, such as courses on internet law (for example Goldman here) and some courses on international intellectual property law (for example Goldstein & Trimble here), fill in some of the gaps, they are far from providing a comprehensive treatment and far from reaching all future lawyers.

Now that conflict of laws has caught up with Silicon Valley and is forcing internet companies to rethink the problems that occupy this fascinating field of law, conflict-of-laws experts should catch up on the internet: they should better educate themselves about internet technology; they should prepare law students for a practice in which the internet is a common, and not a special or unusual, feature; and they should prevent conflict of laws from becoming a fragment of larger trade negotiations in which multifaceted, intricate, and crucial conflict-of-laws policy considerations can easily be overlooked or ignored.