Everything Online Cannot Be Speech:  The Equustek Story

Suppose you invent something.  A box that makes bitter vegetables taste like candy so kids will eat them. You call it KandyKale.  Then, along comes an imposter, who steals your tech and infringes your intellectual property, and then sets up a bunch of websites that hijack the customers looking for your product in order to sell them the KandeeKale knock-off, which they produced by stealing from you in the first place. Not only would you sue the KandeeKale operators, but you might ask the court to order a search giant like Google to delist the websites while your litigation ensues.

That pretty much sums up the nature of the complaint by Canadian tech manufacturer Equustek against Datalink, which allegedly stole Equustek’s trade secrets then took the counterfeit business “virtual” after a Vancouver court ordered Datalink to stop operating in the province.  As a normal matter of procedure in its fight against the alleged counterfeiters, Equustek sought, and was granted, injunctive relief by a British Columbia court in June of 2015. This included an order that Google de-index, on a worldwide basis, the sites dedicated to selling the counterfeit products.  The decision was upheld by the Canadian Supreme Court.

Google has asked a California district court to enjoin the enforcement of the Canadian order in the U.S., principally on the grounds that the Canadian court “offends” the First Amendment and the Communications Decency Act under U.S. law.  According to the motion filed by Google, Equustek states that it cannot afford to fight the search giant’s appeal in U.S. court, which is both credible and notable. Google rejects Equustek’s assertion that it operates “above the law,” noting that it is in compliance with the order while appealing enforcement. But in regard to this story, is worth considering how any independent business might hope to litigate in a similar dispute with the one company that owns nearly all search and online advertising worldwide.

Why does it matter?  Because at some point, we’re going have to reckon with the fact that every transaction that occurs online cannot be treated as speech.  To conclude otherwise is to sublimate the rights of individuals and small businesses to the whims of corporations that are simply too big to fight.  Although it is true that a Google search result is information and that Google is not breaking any laws by providing that information, this cannot be where the law and policy conversation ends.  When the information provided—perhaps it is even paid for—materially supports criminal conduct, are we truly so confounded by the murkiness of cyberspace that we can only conclude that no legal remedies apply because it’s all speech?

That’s certainly what Wikimedia would have us believe based on the brief it filed on September 15 in support of Google’s position in the Equustek case.  Long on hyperbole and short on substance, most of the brief’s eleven pages are dedicated to extolling the virtues of free speech as a human right, which I imagine the California court already understands.  But on the subject of comity (i.e. the need for the courts of one nation to respect the laws of other nations), Wikimedia employs what reads to me like a lot of misdirection with variations on the following theme:

“Global orders for the removal of content impose one country’s idea of freedom of expression on citizens of the rest of the world. Some countries have high bars for protecting free speech and the right to receive information. And some countries do not share the values expressed in the United States Constitution or international human rights law. If United States courts enforce removal orders from nations like Canada, Germany, and France, perhaps they will also remove content when ordered by Turkey, Russia, or China.”

Essentially, Wikimedia asserts (as does Google) that if global takedown orders like the one in Equustek become common practice, we run the risk that nations which do not respect rights like free speech and free press will dictate terms to those that do. If this seems hyperbolic, it is.  Because the argument assumes that U.S. jurisprudence is ill-equipped to distinguish between information that is exclusively speech and information that materially supports conduct that Americans agree is criminal.  This despite the fact that the U.S. maintains one of the most liberal free speech doctrines in the world, and our courts have been weighing exactly these matters longer than any other nation in existence.

It is fundamental to the principle of comity in this case that a U.S. court would likewise consider this type of injunction in Equustek a reasonable remedy because Datalink’s activities allegedly violate intellectual property laws that we likewise support in this country.  Conversely, by the same principles of comity, there is no reason whatsoever to jump to the conclusion that a U.S. court would capriciously offend our most sacred laws, namely the First Amendment, in order to enforce a ruling made by a nation whose sense of law is radically divergent from our own.

Wikimedia is guilty of overstating its own importance in the world and that of the internet in general as a conduit of information.  If the current political climate has not sobered many citizens to the reality that “information” can be a siren call to smash on the rocks of ignorance, I’m not sure what it will take.  Meanwhile, as real life is now unavoidably transacted in the the global market of cyberspace, the assumption that the internet must remain a universe beyond legal boundaries will continue to fail ordinary citizens and entrepreneurs in the interest of securing legal immunities for some of the world’s richest corporations.

The ineffably twisted logic still plaguing policy in cyberspace is represented by the very first sentence of the Introduction to the Wikimedia brief.  “This case involves an order issued by a Canadian court to compel Google to remove truthful information from its search results—not just in Canada, but around the globe,” it says.  Indeed.  “Truthful information” that just happens to link consumers to a company that is allegedly selling counterfeit goods. A fairly young child, still refusing to eat his kale, can make the distinction. So, it is reasonable to hope that U.S. courts can do the same.

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