Canadian ruling dictating Google’s worldwide search results is far from unprecedented

A little over 20 years ago, Grateful Dead lyricist John Perry Barlow penned a manifesto that served as the basic blueprint for Silicon Valley cyber-libertarian ideology for two decades. Premised on the notion that the Internet (capitalized here since Barlow definitely treated it as a space rather than as a tool for communication), freed from government interference and the application of laws, would produce a more perfect society in which disputes would be resolved through dialogue rather than force or mandate, he famously wrote in his 1996 Declaration of Independence of Cyberspace.

 

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

 

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us … Cyberspace does not lie within your borders … Ours is a world that is both everywhere and nowhere, but it is not where bodies live … Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”

 

{mosads}Barlow may have been an inspired poet, but was no prophet. His vision of enlightened self-governance not only failed to materialize, but served as ideological cover for conduct that resulted in manifest social harms. It reinforced a cultural orthodoxy premised around the negative freedoms treasured by a small group of privileged Americans living in Northern California, largely uninformed by communities of color or by women. And due, at least in part, to the fact that no at-risk communities were meaningfully involved in shaping it, the self-governance premised on this ideology failed to understand risk.

 

 

Barlow, perhaps understandably since he was writing before the advent of broadband or the emergence of Silicon Valley internet giants, failed to grasp how the Internet (as in the communication tool, not a mythical place) would become the central vehicle in the business and personal lives of global society, and not merely a forum for civic minded debate. In 1996, he wrote: “Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.” 

 

While it may have been forgivable in 1996 to be unable to accurately foresee the role of the internet, it is unforgivable in 2017 to pretend that this is an accurate reflection of the world we inhabit. I raise Barlow not to make him the story, but to underscore the vitality of his vision which continues to inform the ideas and advocacy of many in this space who decry any internet-based restriction as a form of censorship inconsistent with the DNA of the internet itself. But those positions rest on a vision of a theoretical internet which bears little similarity to the one we know. An internet of Backpage, of ISIS recruitment, of cyber-bullying, of phishing, of ransomware and revenge porn, of cyber-espionage, of trafficking in counterfeit and pirate content. Achieving an internet that captures its potential to enhance social, cultural and economic well-being requires more than self-governance, and is predicated on the technology neutral application of laws to internet-based conduct.

 

Fortunately, governments, policy makers and many non-governmental organizations are increasingly aware that it is long past time to jettison the baggage of Barlow’s cyber-libertarianism. Or perhaps, more accurately, that in order to achieve the kind of flowering of diverse human creativity and expression at the foundation of Barlow’s vision, we need to address misconduct regardless of the modality employed to effect it. This understanding that freedom is dependent upon the application of rules—or that restraint and a recognition of interdependence empower meaningful freedom, has been increasingly expressed and has formed the foundation of government and private actions for some time now. Back in January of 2012, Assistant Secretary of State, Michael Posner observed at the annual State of the Net conference that: “Let me state for the record that international law applies to online behavior. Full stop. We do not need to reinvent international human rights law, or our enduring principles, to account for the Internet. No deed is more evil—or more noble—when it is committed online rather than offline.” In furtherance of this understanding, governments around the world have taken action to ensure the application of law to online behavior, all of which brings us around to the [now buried] headline—the recent decision of the Canadian Supreme Court in Google v. Equustek.

 

Google, channeling Barlow’s “we are everywhere and nowhere,” challenged the right of Canadian courts to issue an injunction that had effect in jurisdictions other than Canada. The Canadian Supreme Court quickly dispelled this, holding that: “Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates—globally.” In four short sentences, the Supreme Court of Canada turned Barlow’s “absence of borders” into a mandate for taking technology-neutral action in defense of its territorial sovereignty.

 

And the court had little trouble dismantling another of the pillars of the Barlow theology—namely that any Internet conduct is a form of protected expression. Google and its amici argued that a requirement to de-index sites that trafficked in infringing materials was inconsistent with freedom of expression. The court held: “This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”

 

The decision in Equustek doesn’t answer all questions, and courts and policy makers globally will need to continue to closely examine the proper scope of national jurisdiction with respect to conduct that impacts multiple jurisdictions. Indeed, as I’ve written before, “I’m not unsympathetic to Google’s concerns. As a player with a global footprint, Google is legitimately concerned that it could be forced to comply with the sometimes-oppressive and often contradictory laws of countries around the world. But that doesn’t make it — or any other Internet company — unique. Global businesses have always had to comply with the rules of the territories in which they do business … There will be (and have been) cases in which taking action to comply with the laws of one country would place a company in violation of the laws of another. But principles of comity exist to address the problem of competing demands from sovereign governments.”

 

In short, the decision of the Canadian Supreme Court is a powerful and practical step in the growing maturation of Internet governance. Much has been accomplished in the twenty plus years since Barlow’s Declaration, and the Internet has transformed human existence in ways that were unimaginable, both for good and for bad. Capturing the benefits and minimizing the prejudice requires an open mind and the capacity to embrace change in normative principles that are rooted in observations of behavior.

 

Neil Turkewitz is a senior policy counsel for intellectual property and digital economy at the International Center for Law and Economics.

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