In 1996, the internet activist and former Grateful Dead lyricist John Perry Barlow famously declared to the governments of the world that they would have “no sovereignty” in cyberspace. Two decades later, it’s certainly true that the internet has made the world much more interconnected. But rather than fulfilling Barlow’s utopian vision for cyberspace independence, national governments are finding new ways to assert their jurisdiction over the global internet. We’ve already seen this jurisdiction creep with the European Union’s “right to be forgotten.” And now it’s happening again.
In its June Google v. Equustek decision, the Supreme Court of Canada upheld a British Columbia court ruling ordering Google to remove entire domains and websites from its global search index, which would block access to that information on a global scale, regardless of users’ locations and nationalities. In the case, B.C.-based Equustek Solutions accused distributor Datalink Technology Gateways of selling counterfeit products and requested that Google delist the website selling these goods from its search results. At issue was the geographic scope of delisting, for which the Supreme Court granted a globally enforced injunction against Google, even though Google was never a party to the underlying suit.
The Equustek case is not the first attack on the integrity and freedom of the internet. In May 2014, the Court of Justice of the European Union recognized EU citizens’ rights to request information about them be removed from search engine results when it is either inaccurate, inadequate or no longer relevant or when it is excessive in relation to the “purposes for which they were processed,” and when sufficient time has elapsed.
However, in the EU case, the underlying content remained intact on the internet. French authorities pushed the matter one step further in June 2015, when the French national data-protection authority demanded Google to apply delisting to all versions of its search engine. The authority’s rationale was that removing links only from European versions of Google’s websites did not sufficiently protect the right to be forgotten, since readers could still access non-EU versions.
The implications of these cases are tremendous and far-reaching, as they seem to allow a domestic judicial judgment to be enforced, at the expense of free expression,all around the world. Such precedents threaten a fundamental human right, which serves as the foundation underlying modern democracy and innovation and was articulated by Article 19 of the International Covenant on Civil and Political Rights as including the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.”
From a legal perspective, there are inherent limitations to any country’s jurisdiction. Permitting global application of domestic laws against private entities would lead dangerously toward over-enforcement and political chaos. While countries like Canada, France and Spain largely share the values enshrined in the U.S. Constitution’s First Amendment, many others do not. What if an authoritarian regime sought to delist or censor LGBT websites, or ban news articles criticizing its head of state? Such legal fragmentation could only result in a race to the bottom. In the end, multinational service providers will have no choice but to surrender. The internet could end up only as free and democratic as the worst laws of the most repressive countries.
From an ethical perspective, it’s not clear that the values of privacy and self-determination ought to outweigh those of transparency and free expression by default. Rather, there should be an interest-balancing process on a case-by-case basis. For instance, in the EU’s first right-to-be-forgotten case, the Spanish Data Protection Authority dismissed plaintiff Mario Costeja González’s complaint against a local newspaper after concluding that public interest favored accurate disclosures in a real estate auction over the plaintiff’s privacy interests.
It’s also important to understand that privacy expectations and levels of openness vary among countries, cultures and even generations. Today’s sensitive data may have different interpretations tomorrow. Rather than removing information, the best option to promote continuous dialogue and innovation is to sustain and add even more content to cyberspace. For example, online service providers could enable people to annotate information related to themselves, or indicate that “this is a disputed result” or that “this has been invalidated by a court,” which would keep users informed and alert. Wikipedia adopted such measures to ensure accuracy, credibility and accountability on its website.
In the Equustek decision, Justice Rosalie Abella ruled, “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.”
However, it is the borderless feature of the internet that has made cyberspace such a valuable forum for different nations and cultures to come together. Governments have already used soft power effectively to assert jurisdiction beyond the territorial boundaries in, for example, France’s LICRA v. Yahoo case. Despite strong arguments about a lack of jurisdiction, Yahoo eventually agreed to remove all auction listings for Nazi memorabilia globally to ensure that such listings weren’t available to French residents, as the French court demanded. The Equustek case is testing this balance once again.
Google now seeks an injunction in California District Court to keep the Equustek ruling from being enforced in the United States. Various civil society and internet trade groups have offered their support, but the fight is still ongoing. This should remind us all how easy it would be for governments around the world to unravel Barlow’s vision of the internet as an anarchic neutral zone for free expression, openness and commerce. It is not too late to defend these values, and patch the fractures that have begun to form in the foundations of cyberspace.
Image by Hannamariah