The troubling intersection of national courts and international censorship
Should national-level courts routinely assume or impose their jurisdiction on international entities when it comes to content? That’s the question Daphne Keller of Stanford University’s Center for Internet and Society posed on the center’s blog yesterday, and it’s a perplexing one.
As Keller points out, a Canadian appeals court recently ordered Google to remove certain search results from its services all around the world. Law professor Michael Geist dissects some of the ways this decision is unsettling:
The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.
Keller observes that the French Data Protection Authority asserts similar globe-spanning authority with regard to “right to be forgotten” cases.
If we think the value of the Internet lies to some large extent in its borderless character (by default, any Internet user can see, for the most part, what people in other countries publish on the Internet), we have to worry about two possibilities:
- That any court in any country may be able to impose content-censorship obligations on any sufficiently international platform (which could be a search engine, a website or even a blog).
- That blocking content at the national or regional level, which Google has been doing with some right-to-be-forgotten demands, will lead to a balkanized Internet.
Keller notes that the second option raises its own set of deep, complicated policy questions:
Does the harm averted by the forum country’s IP blocking order in one case offset long-term harm from further balkanizing the Internet? Is blocking Internet access to foreign businesses consistent with the forum country’s trade policies? What are the costs to online speech and innovation as the Web becomes gradually less worldwide in nature? If the forum country can re-architect the Internet to isolate its citizens from banned content, is it so wrong for China or Iran to do the same? Would architectural barriers to online ‘travel’ take us back to a world where only the wealthy can experience other legal content regimes, by physically traveling to them – and do we want that?
Thinking about the international dimension of these Internet choices is something that comparatively few policymakers—on the national level, certainly, but also on the international level—have done. I think we need to address that absence and begin proactively to discuss the implications of courts (or legislators, or regulators) imposing their jurisdiction internationally. If we don’t think these issues through in advance, some of these cases may come back to bite us.
