Law, Borders, and Speech: Black Letter Law

This piece is exerpted from the Law, Borders, and Speech Conference Proceedings Volume. The conference, convened by Stanford's Center for Internet and Society, brought together experts from around the world to discuss conflicting national laws governing online speech -- and how courts, Internet platforms, and public interest advocates should respond to increasing demands for these laws to be enforced on the global Internet. For two weeks in January 2018, we will be posting these materials on the CIS Blog. The Proceedings Volume itself contains these and other resources, including reading lists, conference slides, and results of participant surveys. It is Creative Commons licensed for re-use in teaching materials and elsewhere.

Summary:

The topic of how well the tool of black letter law works in the Internet law setting is of course huge, and associated with obvious definitional challenges. To point to but one; how ought we define “black letter law” in our present legal culture where legal rules necessarily must take account of the technical reality in which they operate? Indeed, given Wikipedia’s definition of “black letter laws” as laws that are “the well-established technical legal rules that are no longer subject to reasonable dispute,” one may legitimately question whether we can speak of any real black letter law within our field of enquiry. Fortunately, however, the panel was asked to approach only the more concrete topic identified in the description above.

 

As the organizers no doubt had predicted, the angles adopted by the presenters were diverse, which sparked a fruitful and vibrant discussion, both amongst the panel members and with the broader audience. To truly do justice to the richness of the discussion would necessitate a transcript being produced.

 

Here, my humble aim is to bring attention to a selection of particularly interesting topics that were discussed. Thus, I am seeking to reflect the discussion rather than merely my own personal views on the topics discussed.

With the powerful regulatory influence of technology, we have been made to realize that black letter law certainly has its limits. There is no point in denying this, and useful models have been developed illustrating that law is just one part of a bigger regulatory picture. However, it is perhaps the case that, at least in the past, we have underestimated the power of black letter law, in that we have overestimated the impact of difficulties of enforcing judgments across borders. Our focus has been on the idea that States need the cooperation of foreign States to have their judgments enforced in those foreign States, and since the underlying structure for such cooperation generally is weak, lacking cross-border enforcement mechanisms undermines the role of black letter law.

 

The problem with this reasoning is that it focuses on foreign enforcement of extraterritorial claims, overlooking the power of domestic enforcement of extraterritorial claims. Courts and other bodies (such as Data Protection Authorities) are increasingly determined to impose their laws on Internet conduct, and the reality is that there are many different types of “market destroying measures” they can take domestically to achieve an impact extraterritorially. To see that this is so, one need only consider the number of instances where States have shut down, in their territories, entire platforms operated from abroad. Overall, this is a harmful trend characterized by excessive State responses. However, one can easily imagine less draconian “market destroying measures” being applied. Thus, applied appropriately, and in a measured, proportionate manner, the underlying jurisdictional idea of States exercising “market sovereignty” over the market they control is much preferable to the biggest threat to the Internet—inappropriate global blocking/deletion orders. 

 

At any rate, one key point here—for our context—is that when speaking of law, as in black letter law, we need to acknowledge that law has teeth and can, most of the time, not be ignored.

 

While we can conclude that black letter law still matters, and is likely to continue to matter, we must also acknowledge that black letter law often fails to provide sufficient certainty; and this is particularly noticeable in the context of fast-moving information technology. If we also consider that the law often “outsources” decision-making powers to technology companies, the scale and scope of the problems associated with this uncertainty becomes clear.

 

For individuals, the problem is obviously manifested in that their rights may not be adequately protected. For the governments, this problem undermines their authority as well as their efficiency as regulators. Finally, for the technology companies, the problem is that they are placed in the unenviable position of being asked to interpret and apply unclear laws. And every decision they make in their interpretation and application of those unclear laws may subsequently be scrutinized by courts or authorities and be held to be mistaken, subjecting them to penalties and bad press. 

 

Law makers, including courts, must do more to achieve clear and predictable laws that at the same time are sufficiently flexible; a great challenge no doubt, but this must nevertheless be the aim. 

 

Where the laws of, let us say, France are only affecting what can be accessed online in France, there is a clear link between the State’s coercive power and the effect of that power being exercised. One of the biggest challenges today is that too often courts and other bodies do not seek to play within such limits. There is a tendency to require global de-listing or blocking for just about every violation of local law. Of course, global blocking has a role to play for some types of content (such as child pornography materials), but not as a default position for every violation of local law.

 

Courts need to be much more careful. To address this, we need to pay much more attention to what we may refer to as “scope of jurisdiction”. In addition to talking about personal jurisdiction and subject matter jurisdiction, we should discuss scope of jurisdiction, as in the question of what is the appropriate geographical scope of orders rendered by a court that has personal jurisdiction and subject matter jurisdiction? 

 

Courts must realize that there is a correlation between the strength of their claim for personal jurisdiction and the legitimacy of the scope of jurisdiction, as in the geographical scope of the remedy they order. And in fact, for example in EU law we can already see scope of jurisdiction being clearly discussed as a matter of jurisdiction. 

 

However, this may obviously also be characterized as a problem that falls within the area of remedies law. While jurisdiction and choice of law issues address these questions at the beginning of a lawsuit, remedies law approach them at the end of the litigation, when damages and injunctions are set. 

Jurisdiction and choice of law analysis addresses questions about online speech and borders at the beginning of a lawsuit. Remedies law can do so at the end, when damages and injunctions are set.

It is a principle of remedies law that injunctive relief must be appropriately tailored, which can include geographic tailoring. After finding a violation and deciding that equitable relief is warranted, a court ought to explicitly consider whether its injunction should apply only to the particular party, to a single office, or more broadly. The choice of remedies thus offers another opportunity for lawyers to argue that a court's exercise of authority should be geographically limited. In this context, it is important to explore the principles underlying the norm of limited injunctive relief, and how these might be applied to online activity that crosses national borders. 

 

We ought to move past the substantive issues, and even the choice of remedies issue of whether an injunction will be appropriate, to think deeply about the range of possible forms that this injunction might take. Because at the end of the day, who wins matters, but what matters even more is what the court is going to do about it. How broadly will the court's order be designed? Prohibiting (or compelling) exactly what conduct? For how long? Where? These are questions of injunctive scope. Attorneys should be thinking about these questions from the very beginning of litigation. Some of these possibilities will be acceptable to your client. Others will not be acceptable. It can be a disaster if the judge drafts an injunction uninformed by your arguments as to what scope is appropriate. On the other hand, if you have in mind what you want that injunction to say (even if you lose) you can advance arguments from the very beginning to limit the damage. Thus, it seems reasonable to suggest that companies litigating online speech issues ought to think carefully about injunctive scope as part of their strategy. And arguments about diverging values on freedom of expression and privacy, and the technicalities of global takedown can help push courts to draft a more narrowly framed injunction when they feel they need to order some kind of restriction on speech.

 

Thus, this is clearly a problem where remedies experts and jurisdiction experts need to work together.    

 

The important impact of cultural differences has already been hinted at in the above. More broadly, however, it can be argued that legal solutions are not necessarily the best ones (which admittedly undermines the role to be played by black letter law). This is exemplified in that, arguably, the most challenging conflicts today are not merely between tech companies and governments, or between different governments, but between user groups that are increasingly polarized; that content issues are increasingly not about what is legal, but about what is acceptable or civil. And as users are global, they have different views. 

 

Perhaps we can prevent some of these problems from coming to court if there is greater humility and sensitivity to differing values. This debate still contains echoes of John Perry Barlow’s cyberanarchy sentiment that the Internet ought to be immune from regulation. This is perhaps rooted in a uniquely American sentiment of "sticks and stones may break my bones, but names will never hurt me." 

 

It is troubling to some that so many Americans in this space take it as a point of pride to refuse to seriously entertain European sensibilities about (data) privacy and Holocaust denial. Or the social context for Indian blasphemy law also alluded to during the conference. Is this principled leadership in the defense of universal values, or a Silicon Valley parochialism? For companies who bear the social responsibility for Internet freedom worldwide, it is essential to be open to "foreign" views on the appropriate scope of freedom of expression, to seriously consider them, and to engage in a dialog with a spirit of humility and awareness of our own local perspectives.

Many Americans take it as a point of pride to refuse to seriously entertain European sensibilities about privacy and Holocaust denial, or the social context for Indian blasphemy law. Is this principled leadership in the defense of universal values, or Silicon Valley parochialism?

In this context, it should also be noted that, surrounding factors—such as how is the US seen, and how is the relevant technology company in question perceived—influence whether courts around the globe will seek to exercise jurisdiction over US technology companies. Thus, it is possible that a general stronger willingness to accommodate foreign views—going beyond mere legal compliance—will limit the risk of the relevant technology company being pursued by the, often limited, enforcement resources of foreign states. At the same time, US technology companies must obviously carefully evaluate whether the foreign cultural values in question are so far detached from the company’s values so as to make it impossible to accommodate them. In the latter case, they may conclude that it is best to entirely avoid the relevant market. 

 

Finally on this, in devising a litigation strategy, US technology companies must be mindful of the fact that, courts’ desires to allow local plaintiffs to litigate locally is closely linked to conceptions of sovereignty. Thus, it may often be prudent to not only dispute jurisdiction, but to also tackle the underlying substantive legal issue. Indeed, in some cases, it may be strategically unwise to make what otherwise is a domestic dispute into a cross-border issue by disputing jurisdiction where the company in question has a substantial presence on the relevant market. 

 

It has been noted that territoriality and extraterritoriality are claims of authority, or of resistance to such claims that are made by particular actors with particular substantive interests to promote. Consequently, territoriality (or territoriality of law and order) is not a ‘natural’ state of affairs, but a legal construction created to protect certain interests. Furthermore, however ill-suited it may be for the global (online) market place (see further below), territoriality remains the norm or the default standard for legitimate authority. Under this thinking, anything extraterritorial is prima facie considered something ‘outside the norm’ and carries with it a strong whiff of illegitimacy.

 

The presumption against extraterritoriality is applied by the judiciary to interpret legislation and tells us that legislation applies to persons and matters within the territory of the state, but not to persons and matters outside the territory, unless the legislation evinces a contrary intention. Even though the presumption would appear to be highly pertinent in Internet cases—given that each State’s regulation of online activity always has some extraterritorial effect—this principle has so far figured very rarely in Internet cases. 

 

In the standard Internet jurisdiction case, judges simply find that the foreign online content or service provider has to comply with local law on the basis that a local injury is caused or a local interest is affected by the foreign actor or activity. This means that the law and its application to the facts is either not treated as ‘extraterritorial’ at all (i.e., we are only regulating what occurs on our territory) or alternatively, the presumption is displaced, based on the thinking that the law’s territorial overreach is justified as a legislative effort that simply seeks to redress a domestic injury caused by foreign conduct.

 

The most significant function of the presumption against extraterritoriality is that it advocates caution and restraint in extraterritorial regulatory assertions, saying that in the vast majority of cases it is inappropriate to extend the law and litigation to matters that lie outside the State’s territory. Thus, the presumption is driven by the potential conflict of different laws and in recognition of each nation’s sovereign authority and the desire for a harmonious global working order. 

 

Looking at cases such as various US cases from 1996, to LICRA v. Yahoo! in France in 2001  and Gutnick in Australia in 2002,  to the recent Equustek Solutions Inc. v. Jack in Canada in 2014,  it would appear that the desire for a harmonious global working order has been rather limited amongst the courts to date. Typically too, the presumption against extraterritoriality is displaced in three different ways by Article 3 of the European Union’s General Data Protection Regulation (entering into force in May 2018). 

 

While on a technical legal level the result of this position signals the effective expiry of the relevance of the presumption against extraterritoriality, in broader regulatory terms the presumption reflects and embodies a global order based on state law. Where everybody regulates everything (or at least in principle asserts the right to do so) or where a system of regulatory allocation is entirely predicated of might over right (i.e. enforcement jurisdiction), its practical or principled utility and efficacy is under threat.

 

Where France does not just regulate France but also the rest of the world and where this principle is extended to every other State, a State-based system of law and order has broken down and lost its raison d'être. From a more close-up, constructive perspective, the routine non-applicability or displacement of the presumption in transnational Internet cases requires its re-thinking and a re-framing. Such re-thinking would aim to reintroduce a measure of restraint and caution into competence assertions, so much so that not every foreign online provider who has contacts with local residents is always exposed to local law.

 

Perhaps the biggest problem we have in black letter law is that our law on jurisdiction is grounded in the territoriality principle—the territoriality principle is the jurisprudential core of our thinking on jurisdiction. But it should not be. We all know that the territoriality thinking is a bad fit for cyberspace, but it is also increasingly obvious that the territoriality principle is a bad fit for the real world; just consider areas such as human rights law, environmental law, air law and so on. So the good news, if it can be seen to be news, is that we do not need to show that cyberspace is different; cyberspace is just one more illustration of the problems with the territoriality principle as such.

 

One proposed alternative jurisprudential framework for our thinking on jurisdiction is for us to focus on: substantial connection, legitimate interest and a balancing of interest. This has obvious parallels with what you find in the US Restatements, and for example in the comity thinking, in the doctrine of forum non conveniens, etc. Without exactly replicating any particular previous doctrine this proposal builds on established thinking and should therefore be easier to digest.

 

Some people will say that this is all fine but what we really need are practical solutions, not abstract theories. But what they then are missing is that where we apply a practical solution in a difficult case, we are often forced to interpret that practical solution in light of our underlying theoretical framework—in building terms, our theoretical framework is the foundation, and we all know what happens if we build on a flawed or weak foundation, we get into trouble and that is where we are now due to having built our jurisdictional thinking on the territoriality principle.

 

So only by starting with a new foundation for jurisdiction can we make sensible jurisdictional rules for the Internet.  

All that remains for me to do here is to again thank the organizers of this terrific event, and to, 20 years belatedly, congratulate Professor Johnson and Professor Post on writing such an interesting article. There are few other articles that are equally deserving of sparking an event like this, and unfortunately, too many of the concerns to which they brought our attention remain unresolved today.