IGF 2019 Pre-Event #9
The Clash of Codes. Conflicts of Laws in Government Data Access and How to Resolve Them

Microsoft Germany GmbH


Conflicts of laws (viz. legal contradictions between different national legal regimes) are not a new phenomenon, but they are becoming a particularly crucial issue in the age of global digital communities and services. In the realm of international data governance, the US Cloud Act and the European E-Evidence-Proposal serve as striking examples: The legal regime created via these new frameworks will be substantially shaped by the interplay between state data access competences with extraterritorial reach on one hand, and blocking statutes, aiming at preventing such access, on the other hand. The resulting “Clash of Codes” in this case is not accidental, but politically intended. This raises the question how to resolve such manufactured conflicts.
The decade-old “international comity” doctrine aims to provide a legal recourse to resolve such conflicts of law. However, comity remains a rather general and vague principle and is often “poorly understood” (William S. Doge). Moreover, from the perspective of an affected institution, it provides insufficient legal certainty to effectively render a solution.
Against the background of the US Cloud Act and the European E-Evidence proposal, the proposed workshop will discuss possible ways to resolve internationals conflicts of laws. Can an advanced comity doctrine serve as an answer? Or will political solutions in the form of new treaties or even supranational legal frameworks be necessary?
Potential introductory speakers:
 Tiina Astola, General Director, DG Justice, European Commission.
 Bettina Brückner, Judge at the German Federal Court of Justice
 Prof. Dr. Joe Cannataci, Chair in European Information Policy & Technology Law, University of Groningen
 Prof. Jennifer Daskal, American University Washington College of Law & Center for Strategic and International Studies.
 Andrea Jelinek, Chair European Data Protection Board