Should a Canadian court be able to prevent U.S.-based Internet users from viewing search results based on an alleged violation of Canadian law, even if those search results are legal in the United States?

We don’t think so.  That’s why on Monday EFF asked a federal trial court in California to consider the First Amendment rights of Internet users and block enforcement of a Canadian court’s global de-listing order in the United States.

Our brief comes as part as the latest development in a Canadian dispute that led to an order requiring Google to remove U.S.-based search results worldwide. Google had fought the attempt to remove search results from users worldwide, but in June 2017, the Supreme Court of Canada ruled that Google could be forced to remove search results that allegedly violated Canadian law.

Out of options in Canada, Google has taken the fight back to the United States.  The company has asked a federal court to rule that the Canadian order violates Google’s First Amendment and statutory rights, and to block its enforcement in the United States.

Google’s request to the court in California is not surprising. In its opinion granting the global takedown, the Canadian Supreme Court said:

Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly.

By filing suit in the United States to block the order, Google appears to be doing just what the Canadian court suggested: gathering evidence that the injunction does not comply with U.S. law. As part of its suit, Google is seeking a preliminary injunction, a request that would allow the federal court to initially block the Canadian order on grounds that it likely violates Google’s rights and U.S. law. 

In our proposed amicus brief supporting Google’s injunction request, we argue that the Canadian Supreme Court’s decision conflicts with Internet users’ First Amendment rights because the Constitution protects their ability to access and receive information online. The brief also argues that the public interest weighs in favor of granting Google’s injunction because the Canadian order undermines Congress’ policy choice in enacting an important federal law, 47 U.S.C. § 230, often referred to as Section 230. The Computer & Communications Industry Association, Center for Democracy & Technology, and Public Knowledge also joined the brief.