In the rapidly shifting, ever-evolving landscape of technology, legal disputes are as inevitable as they are complex. Litigating on behalf of tech companies calls upon a core skill of the common-law lawyer: taking old principles and applying them to a different terrain. The most effective tech litigators must understand this unique legal landscape, the nature of tech clients, and the broader ecosystem in which clients will wither or thrive.
The legal landscape facing tech companies is complex and nuanced—in large part due to a number of new laws that have been enacted to apply to these companies as they came into existence, and rose to prominence, in recent decades.
Chief among these tech-specific laws is section 230 of the Communications Decency Act, enacted in 1996. Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Section 230 thus makes online service providers immune from the content generated, created, posted, or shared by others. It also creates immunity for the online services providers’ decisions regarding which of such third-party content to keep, remove, or block on their sites. Further, it creates a safe harbor for internet companies for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” 47 U.S.C. § 230(c)(2).
Section 230 of the Communications Decency Act is a critical statute that has shaped the internet’s growth by providing immunity to online platforms from liability for user-generated content. This legal shield enables tech companies to operate and innovate without the constant threat of costly litigation over content they neither create nor endorse.
However, the statute is not immune from attempts to limit, or ambiguity regarding, its scope. As quickly as section 230 was enacted, creative plaintiffs sought to litigate around it. Most of those efforts were precluded, but a number of exceptions to immunity have been crafted, including when the online provider agrees to post, or remove, content (e.g., Barnes v. Yahoo, 570 F.3d 1096 (9th Cir. 2009)); when the online provider is responsible for the content (Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (en banc)); or when the platform itself, rather than the user content, is allegedly dangerous (Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021)).
Moreover, section 230 reflects a common theme in tech litigation: legislative solutions that address, and are attuned to, the technology of yesterday. Section 230 was crafted in a world of online bulletin boards. Its application to new technology, such as content-promoting algorithms used by large social media companies, raises new and controversial issues. See Gonzalez v. Google, 598 U.S. 617 (2023); Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023).
But just because section 230 was enacted against the backdrop of the technology of yesteryear, it remains a critical tool for defensive litigation and should be a core part of the case evaluation and strategy of nearly every technology dispute.
Beyond section 230, there is no comprehensive, uniform, federal law on data collection and user privacy. But with data as the lifeblood of the modern tech company, data generation and privacy protection have become hotbeds of legislative activities. As a result, tech companies are faced with a labyrinth of regulations across jurisdictions.
Starting with the California Consumer Privacy Act in 2018, there has been a surge of state-level privacy legislation. In 2023, consumer privacy laws went into effect in Colorado, Connecticut, Utah, and Virginia; and eight other states enacted similar laws, with new privacy laws now taking effect in Florida, Montana, Oregon, and Texas. While many of these laws are factually similar, they all have nuance and unique provisions leading to a patchwork regulatory regime.
A tech litigator needs to monitor, understand, advise, and be able to litigate within this patchy, inconsistent regulatory framework. Because it would be a Sisyphean task to know all the nuances of all of the privacy laws and regulations, a tech litigator would be well-advised to have a working knowledge of a couple of the core models, including the European Union’s General Data Protection Regulation and the California Consumer Privacy Act.
Another, less obvious, element of the legal landscape for tech companies lies in the framework surrounding employee mobility, human capital, and intellectual property.
The importance of human capital to the success of a tech company cannot be overstated. Some have persuasively argued that California’s relative freedom of human capital—driven by its strong policy generally precluding non-compete agreements—was a driving force in the growth of Silicon Valley. See Ronald Gilson, The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete, 74 N.Y.U. L.J. 575 (June 1999).
The worth seen in free-flowing human capital, along with the value placed on similar intangible resources, has led to an assault on non-compete clauses and other forms of restriction on employee mobility, including by the Department of Justice’s Antitrust Division, with its series of no-poach cases, and by the Federal Trade Commission, with its recent ban on non-compete agreements. See Fed. Trade Comm’n, Non-Compete Clause Rule, 89 Fed. Reg. 38,342 (May 7, 2024). With the ever-increasing rise of employee mobility, the tech litigator will need to resharpen litigation and intellectual property tools—e.g., reviewing confidentiality agreements and familiarity with trade secret misappropriation law—that will be deployed in the fierce competition over intellectual property and human capital.
Tech litigation requires more than knowledge of new laws that uniquely affect tech companies, however. It also requires application of old law to new facts. One of these established laws is no less than the First Amendment. Perhaps surprisingly, the First Amendment has a substantial role in tech company litigation.
The most obvious application of the First Amendment is in the effort by tech companies to resist efforts by the governments to mandate what information must be carried, or cannot be blocked, by technology companies. That issue was addressed by the U.S. Supreme Court this term in NetChoice, LLC v. Paxton (No. 22-555) and Moody v. NetChoice (No. 22-277). The issues of compelled speech are complex, and the clarification from the Supreme Court was most welcome.
The First Amendment has additional, more subtle, roles in tech litigation. For example, because the First Amendment applies to all exercises of state power—including common-law doctrines—it has a role in limiting some efforts to curb tech companies’ rights under section 230 or otherwise. More broadly, the U.S. Supreme Court has held that the “creation and dissemination of information are speech within the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). The “creation and dissemination” of data is an apt, if generalized, description of what most tech companies do, and courts are starting to grapple with the intersection of tech regulation and the First Amendment. See, e.g., NetChoice, LLC v. Bonta, No. 23-2969 (9th Cir. 2024). Of course, on the flip side, tech litigators need to have a familiarity with the First Amendment and the state action doctrine, as many plaintiffs seek to circumvent section 230 by claiming that tech company actions are state action and therefore governed by the First Amendment. The Supreme Court dealt with this issue as well this term. See Murthy v. Missouri, No. 23-411 (U.S. June 26, 2024).
Personal jurisdiction is another constitutional doctrine implicated by the activity of tech companies. The internet is available everywhere in the United States. Tech companies’ users are in every state. Courts grapple with the issue of how to handle virtual presence based on a doctrine that was developed in a world of physical presence and physical products. See Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the Interwebs, 100 Cornell L. Rev. 1129 (2015). The Supreme Court has repeatedly declined to provide guidance on the issue. E.g., Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 366 n.4 (2021) (“And we do not here consider Internet transactions, which may raise doctrinal questions of their own.” (citing and quoting Walden v. Fiore, 571 U.S. 277, 290, n. 9 (2014) (“[T]his case does not present the very different questions whether and how a defendant’s virtual ‘presence’ and conduct translate into ‘contacts’ with a particular State.”))). And some circuits are looking at the questions afresh. See Briskin v. Shopify, 101 F.4th 706 (9th Cir. 2024) (granting en banc review; supplemental briefing subsequently ordered on several topics, including “What rule or standard should govern our evaluation of whether there is specific personal jurisdiction over a defendant for a claim arising out of conduct on the internet?”).
The unsettled nature of personal jurisdiction and the internet drives home two points. First, tech clients would be well-advised to review and, as necessary, revise their terms of service regarding forum and jurisdiction. The Court in Ford reaffirmed that a company can “‘structure [its] primary conduct’ to lessen or avoid exposure to a given State’s courts.” Ford, 592 U.S. at 360. Second, regardless of the side of the v your client is on, don’t take personal jurisdiction for granted.
Even very traditional common-law regimes, such as contracts, take on a new twist in tech litigation. The enforceability of click-wrap agreements, whereby the user affirmatively provides consent, and browse-wrap agreements, whereby the user impliedly provides consent via use, is just one example of old contract questions that have been brought to life in new form.
So long as technology progresses at a remarkable rate, the legal tech landscape will continue to change alongside it, breathing life into the most traditional areas of law and giving life to law heretofore undeveloped. Emerging technologies such as artificial intelligence, blockchain, and the Internet of Things raise questions about liability, intellectual property rights, and user privacy that were unimaginable a few decades ago. While these questions come to the fore, tech litigators must also understand cutting-edge technologies and anticipate how they intersect with both existing and developing legal frameworks. To do all this, the effective tech lawyer must adopt a proactive approach to legal strategy and gain some level of comfort with operating at the vanguard of legal innovation.
Beyond the legal landscape, one must also understand the nature of the clients in the industry. Litigators litigate for clients. It is a truism that a litigator should know the client. That truism is doubly true for tech litigation.
Tech litigation spans the gamut of company size, focus, and dispute. Your client may be a Fortune 10 company. Or it could be a two-person start-up. The specific focus is infinitely varied. Social media, artificial intelligence, crypto, and search engines are obvious, but don’t forget about ride-sharing, self-driving cars, and shipping logistics. And tech goes even deeper: Consider on-demand restaurant supply, technology-enhanced home construction, dairy supply-chain software as a service, or nonprofit donation logistics.
This diversity in size, scope, and sophistication drives home a foundational point. Representing tech companies requires outside counsel to understand—and ideally use—the products that these companies develop. Put another way, effective litigation in the tech industry demands more than just legal expertise; it requires a solid understanding of the underlying technology or product, and an ability to speak the language of tech entrepreneurs is crucial. This dual expertise is necessary to accurately assess legal risks, competently advise on compliance, and effectively advocate in court. An immersive technical approach allows for a deeper appreciation of the product’s potential legal vulnerabilities and strengths.
That said, you do not need to have a technical background or a PhD to be a tech litigator. A lot of understanding how the tech may relate to litigation can be learned from deeply knowing the company. Meet with founders. Listen to the vision. Tour the lab. Review the pitch decks. Learn from engineers. Talk with your colleagues on the deal side. Use the app or software. Bottom line: Effective tech litigators know the tech.
In addition, there are several key features that are generally common across tech companies. In representing tech clients, it is important to understand these typical features and gauge how they apply to your specific client.
First, a core feature of many tech companies is that they are infused with an entrepreneurial spirit and have a high risk tolerance. This feature comes from many sources: Founders are typically visionaries with a deep passion for innovation and disruption. The companies are often staffed by employees who have been at other start-ups before or who are compensated by equity. The companies are funded by a venture capital industry that expects most companies to fail. All of these factors typically result in an organization that has a relatively high tolerance for risk. And that culture can persist even as the organization grows and scales.
Sensitivity to this overall culture—and to the client’s specific risk tolerance—is critical in order for the tech litigator to provide pre-litigation advice, to calibrate litigation strategy, and to evaluate informal resolution. While a company may be willing to pursue or defend aggressive legal positions, it is the litigator’s responsibility to assess the potential outcomes and ensure that the company’s actions are strategically and legally sound.
Second, a key ethos of technology companies is disruption—taking something that has long been done and applying a disruptive technological solution to make it better. Uber and Lyft are quintessential examples. The tech litigator should bring that same mindset to representing a tech client and be eager to embrace disruption, and that involves rethinking how to use the tools of litigation in creative ways to best advocate for the client.
Third, the disruptive nature of tech companies means they often start with brilliant ideas and rapid development cycles without a clear understanding of the legal risks associated with their operations. This trailing legal sophistication is not due to a lack of intelligence or diligence; rather, it comes from a focus on technological development over legal compliance. The challenge for any tech litigator is educating and guiding these companies through the complexities of the law in a way that is both accessible and actionable. Playing catch-up requires speed, nimbleness, and the ability to gauge the correct level of precision necessary to answer the client’s questions and address the relevant issues. The client may not know when it needs the generally right—and quickly delivered—answer or the exhaustively researched, long-analyzed memo; it is the tech litigator’s job to know what the client needs and to deliver it.
Fourth, many tech companies—especially in the start-up or growth phase—are leanly staffed. If they have a general counsel or in-house counsel at all, they are more likely focused on the day-to-day legal issues facing the company: governance and fundraising, employment and transactions. This approach, while efficient and often effective in a start-up environment, presents particular challenges when litigation arises. The tech litigator cannot be a typical outside counsel, relying on fellow in-house litigators to calibrate and translate for the business. Rather, the tech litigator often needs to play both roles—in-house and outside counsel—in order to effectively represent the client.
Mastering the legal landscape and knowing your client are still not enough to be an effective advocate in tech litigation. Because litigation is, at its core, an art of persuading neutral decision-makers, one must also understand the audience—a critical component in the tech ecosystem.
Judges are generalists, and jurors are members of the community. Neither will be able to spend but a fraction of the time spent by a tech litigator in knowing the client and the technology. Some judges or jurors are very tech savvy, others not so much. Thinking early and often about how to explain the technology—translating the complex into the understandable—is of ever-growing importance in the field. Particularly with technical, complicated concepts, think creatively about how to do this. Tech tutorials are appropriate not just for patent cases, and dry tech tutorials are not appropriate for any case.
In educating decision-makers, the tech litigator also must keep in mind any potential biases at play. In particular, a significant and often overlooked challenge in litigating for rapidly growing tech companies is the risk of hindsight bias. Hindsight bias involves an inclination to see events in a certain light—such as having been predictable and obvious—after they have occurred. In the context of litigation, this can lead to unfair judgments and expectations about a company’s past conduct based on its current capabilities and resources. This cognitive bias can affect the way the actions and decisions of a tech company are judged in a litigation context. As tech companies typically experience exponential growth, actions that were reasonable when the company was in its nascent stage, before it became publicly traded, for example, can be unfairly scrutinized through the lens of what the company has since become, rather than what it was at the time those decisions were made.
This bias can take a number of forms. For instance, on a substantive level, the Federal Trade Commission’s current challenge of Facebook’s acquisition of Instagram is a good case study. Facebook (now known as Meta) acquired Instagram in 2012, but the Federal Trade Commission’s challenge to that acquisition is based on what has subsequently occurred, especially the growth and popularity of Instagram. Even more often, this bias is manifested in routine litigation issues such as document preservation and management, compliance and record-keeping, and similar ancillary areas.
Given this bias, a core approach in representing tech companies must involve demonstrating to the court or the jury the context in which past decisions were made. It requires a detailed presentation of the company’s growth trajectory, its resources, and the industry standards at the time, to paint an accurate picture of what was reasonably foreseeable and practical. This involves collecting and presenting historical data, including financial records, internal communications, and industry benchmarks, to present a snapshot of the company’s reasonable capabilities during the period in question.
Educating the court about the nature of technological innovation and the inherent uncertainties of starting a tech business is also crucial. This education can help counteract hindsight bias by setting a realistic framework for judging the company’s past actions. It emphasizes that the rapid growth and the current status of the company should not influence the legal assessment of earlier, often less regulated, stages.
The audience includes members of the public (or, to the litigator, potential jurors) as well. Public opinion and media coverage can have a significant impact on legal proceedings involving tech companies. The court of public opinion is quick to judge and, in the current climate, often in an anti-tech way. Tech litigators must be cognizant of how their advocacy fits within the broader climate the company operates within and become adept at working with media and communications teams for the overall good of the company.
Just as tech companies are disruptive in the product space, tech litigation is disruptive in the legal arena. But for the effective tech litigator, that disruption is a matter of degree, not kind. An effective tech litigator—like any effective litigator—masters the law, knows the client, and understands the audience.
