Free Speech, Google and the SCC: Jeremy Opolsky Co-Authors Globe and Mail Op-Ed

December 20, 2016

What role should technology companies play in policing the Internet? Associate Jeremy Opolsky is the co-author of an editorial for the Globe and Mail that addresses that question—as well as the many other issues at stake in a challenge Google has recently brought to the Supreme Court of Canada. Below is an excerpt of the article.

In deciding the case, the Supreme Court will need to consider the extent to which courts may compel technology companies to act as intermediaries in combatting illegal activity. This is a contentious topic, as we saw earlier this year in the United States when Apple resisted a court order requiring it to co-operate with the FBI in circumventing security features of an iPhone belonging to one of the shooters in the San Bernardino, Calif., attack. The legal battle quickly became a charged public drama.

In its court papers, Apple argued that U.S. federal courts “have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations.” The tech community agreed, and numerous companies rushed to support Apple.

While the FBI eventually managed to crack the phone on its own, the parallels to the Google case are striking.

Like Apple, Google is an innocent third party that views itself as being pressed into service by the legal system to thwart a wrongdoer. While court orders against innocent third parties are nothing new under Canadian and U.S. law, the question before the Canadian Supreme Court is when such orders – which usually involve discreet tasks such as gathering documents or freezing bank accounts – effectively deputize tech companies into state agents with law-enforcement responsibilities.

Moreover, Google is concerned by the prospect that court orders from a single jurisdiction can require the search engine to change its worldwide results. This is particularly troubling, given that Google is neither incorporated nor has any offices in British Columbia. Courts in Canada may have jurisdiction over, but Google has more than 100 localized websites – from Andorra to Zimbabwe – and it is rightly uneasy about the Canadian courts purporting to edit them all.

Certainly, Canadians would not want their Google search results to be subject to the laws of every country where Google may be accessed, including those with authoritarian regimes that routinely stifle free speech.

Read the full article here.


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