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24. David C. Drummond

24. David C. Drummond

 Ryan Anson/AFP— Getty Images

Hard choices for Google as judges grow bold on censorship

Jun 21, 2015

Google is in a tough spot. For years, it has met censorship demands in different countries by offering a local workaround. But now some judges have caught on and are asking the company to rip out search listings worldwide – a trend that is likely to embolden more courts to do the same.

Google (goog) is now left with few options, none of them great, according to people familiar with the company. What happens next will affect not only Google, but also free speech and the way people see the internet across the globe.

Google censorship goes global

Censorship on Google is hardly new of course. The company has long scrubbed links to certain criminal material like child pornography, and removed search results at the behest of copyright owners. It also censors country-specific Google sites to obey national laws like those in Germany – that's why, if you search for Nazi merchandise on German Google ("Google.de"), you won't find anything.

Recently, though, the scope of censorship has expanded as judges began to issue orders that demand Google wipe out search results not only on a country-specific Google site, but on all of Google. In Canada, for instance, a judge decided to resolve a trademark dispute between two companies by ordering the search giant to purge certain links on Google.com, rather than on Google.ca (where most Canadians go to search). This month, a divided appeals court upheld the ruling.

And in France, regulators ruled this month that Google must apply controversial "right to be forgotten" requests – where people ask to be removed from Google – on a "world-wide" basis. The upshot is that a search result must be ripped not only from Google.fr, but from the entire search engine; a delisting request by Pierre in Paris, for example, would mean the same search result would also disappear for Google users in Portland and Panama too.

Danny Sullivan, a long-time authority on Google, points out at MarketingLand that the recent decrees in France and Canada mean the end of a long-time arrangement under which the company "complied" with local censorship orders – even though anyone could skirt the orders by going to Google.com. Now, censorship really is censorship.

The implications are serious. As legal scholar David Post observes, the Canadian ruling could make the province of British Columbia a hotspot for "censorship tourism" where plaintiffs can obtain removal orders they can't get at home. (If this sound far-fetched, recall how U.K. courts long operated as a worldwide destination for "libel tourism").

Also alarming is that more judges could soon follow the example of France and Canada, and begin to issue worldwide orders too – an outcome that could quickly make swiss cheese out of many search listings. Meanwhile, the choice by democratic countries to expand Google censorship is also likely to provide moral cover to places like China and Russia, which systemically stifle free speech.

What will Google do next?

Google so far has said little in public about how it plans to react to the recent world-wide censorship orders in France and Canada. In the latter case, a company spokesperson would only say it is reviewing the decision, which suggests an appeal to the Supreme Court of Canada may be in the works.

People familiar with Google, meanwhile, gave the impression that the company is still weighing its strategy.

"I imagine Google is fairly concerned about both of these, but they’ve not really said anything that indicates a major freakout, that I’ve seen," Sullivan of MarketingLand said by email. He has also pointed out that Google has been getting more aggressive about "redirecting" users from Google.com to the the national versions of the sites.

According to a person close to Google, this move to "redirect" users is part of the company's attempts to persuade judges and lawmakers that applying any censorship orders on a national level is sufficient. This person, who spoke on condition of anonymity, suggested the company is hoping to demonstrate that, in countries like France and Germany, relatively few people now go to Google.com in the first place – which obviates the need for broader orders.

Given the recent decree in France, however, this strategy appears to be coming up short. The fallback strategy, then, is to employ a more technical solution: Using IP addresses (which reveal a person's location) to censor Google.com on a country-by-country basis. This would entail Google configuring its search results to detect that a person is in France – and blocking any offending search results accordingly on Google.com – while at the same time displaying the missing results to Google.com visitors in Norway, the United States, and elsewhere.

Google is not employing such measures yet, but comments by the company's top lawyer, David Drummond, suggest it is willing and able to do so. Speaking in Brussels last November, Drummond told an advisory council that Google can do IP-based censorship, but added that determined people could still use technical measures – presumably VPN's – to circumvent it (you can see his comments in this video at the 4 hour 27 minute mark).

This raises the question of what Google will do if neither of these measures – redirecting or IP-based censorship of Google.com – placate officials, and judges in France and Canada insist that their orders apply to everyone in every country. If that occurs, Google could either weigh the costs of a contempt-of-court order or otherwise just pull up stakes altogether in those countries, and hope the resulting outrage would lead users to demand a different solution. Or it could comply, and risk seeing its search results gutted as it applied national laws from every direction.

The situation is not at an end game yet: France may back down, and the Canadian Supreme Court may step in. But it's clear that Google's choices are getting harder, and the stakes are getting higher.

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