Evan Schuman's StorefrontBacktalk

Other consumer-protection rules in the European pipeline include regulations that cover how and when a company must report a data breach, others that specify how long customers have to cancel orders when ordering from an E-tailer in another EU country (14 days) and the maximum time the E-tailer has to deliver the goods (a month).

In principle, those rules won’t affect U.S. E-tailers shipping to Europe, just as the patentless status of 1-Click in Europe theoretically won’t affect European E-tailers with U.S. customers. And that may be true (although both patent lawyers and governments can try to reach outside their jurisdictions).

In practice, though, many U.S. retailers use foreign subsidiaries to simplify E-Commerce issues. Does that subject a U.S. E-Commerce site to those EU cookie laws, even if that’s not the site a European customer is intended to order through?

What about U.S. retailers that use companies like FiftyOne to handle currency and customs issues for overseas customers? Does that create a strong enough connection that EU cookie law kicks in? If a third party provides the same type of service without a formal connection to the retailer, could that drag a U.S. retailer into European trouble?

Now flip that: What if a U.S. retailer decides to get around U.S. E-Commerce-related problems, including threats from patent holders ranging from Amazon to Microsoft co-founder Paul Allen, by moving its E-Commerce servers to Europe? After all, Europe is now a 1-Click-free zone. Would those E-tailers have to comply with EU cookie laws if they’re only selling to customers in the U.S., not to those in Europe?

Or what happens if those servers are in the cloud? They might be in the U.S. or in Europe or even somewhere else. Which laws apply then?

If U.S. and European E-Commerce laws were reasonably close—or at least getting closer—this might be academic. But that’s not the case, and there’s no reason to think these two big markets will line up more closely in the future without a lot of effort.

That means the prospect of either pulling back from any cross-border sales or trying to satisfy both sets of requirements. In some areas, like reporting security breaches, going global may be unavoidable. But when it comes to patents and cookies, that’s going to be a hard choice to make.