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Equustek, Blockchain and Uncensorable Search

This summer, the Supreme Court of Canada released its decision in the Google Inc. v. Equustek Solutions Inc. matter. As you may have read, one of the major concerns with the decision is that it has the potential to open the door for a new type of censorship on the Internet. For instance, this EFF article on the decision is named “Top Canadian Court Permits Worldwide Internet Censorship”.

For the purpose of this post, I don’t need to take a stand and tell you if I think this case was rightly or wrongly decided. That said, it’s fair to assume that most readers, like me, don’t like the general idea of censorship of the Internet, whether or not they agree with the majority’s decision in Equustek and that this decision actually opens the door to it.

While the Equustek saga started years ago, it’s an interesting coincidence that the Supreme Court issued a decision about Google and freedom of expression this particular summer. Let’s recap what happened since we switched rain boots for flip flops and then back again:

  • In late June, it was announced that Google was fined $2.4 billion euros in an antitrust case. Of course, any discussion of Google and censorship needs to take into account its enormous share of the Internet search market, as the majority in Equustek does at par. 18 of the decision
  • In early August, Google became mired in the mud of this story about its (now former) employee who condemned Google’s diversity initiatives in an internal memo (which was then leaked), only to become a free speech martyr within a certain crowd after his dismissal. The circle was completed when Julian Assange tweeted a job offer.
  • In late August, the New York Times reported that a member of a Google-funded think tank was dismissed after having criticized the tech giant. A Gizmodo journalist then related her own story about having noticed the disappearance from Google’s search results of an article she wrote about the company. She suggested that Google may have “deliberately manipulated search results to eliminate references to a story that Google doesn’t like”.[1]
  • In a good summary of this summer’s developments, Ars Technica concluded that Google was losing allies on both sides of the political spectrum: One side complains of Silicon Valley’s hostility to, and censorship of, the right. The other side fears monopolies.

While this was happening, the Bitcoin world also had quite an eventful summer. To sum up in one paragraph a very complicated matter that led to some acerbic online exchanges in recent months, Bitcoin wants to “scale up”. It seems everybody in the Bitcoin community thinks that something should to be done to allow the Bitcoin network to support more transactions, but there are two factions arguing about how to proceed:

  • Double the block sizes (from 1mb to 2mb) to include more transactions per block; or
  • Follow the roadmap laid out by leading Bitcoin developers (the Bitcoin Core team), which seeks to achieve scaling with more “subtle” changes (improving encryption methodologies and deploying things that sound like the name of particularly experimental Radiohead album—for instance “Merkelized Abstract Syntax Trees”).

This tweet by a leader in the Bitcoin community, and proponent of the second option, summed up the debate pretty well, I thought:

In other words, all agree to scale, but those who support the Bitcoin Core team believe scaling is secondary to the uncensorability of Bitcoin. It you’re not familiar with Bitcoin, perhaps the idea of uncensorable money (as opposed to, say, an uncensorable information medium) sounds strange to you. Basically, this means that no central entity controls Bitcoin. You can’t prevent people from holding or receiving Bitcoin because it’s literally like preventing people from remembering a passphrase. You can’t shut down Bitcoin because there’s no central database as it is distributed on millions of computers.[2]

Considering my intro about Google and Equustek, this begs the question: could the same uncensorability relying on blockchain technology, that underpins Bitcoin, be used to prevent censorship (either by search monopolies acting to protect their interests, court orders we/you/me disagree with, or government action)?

The answer is yes, and it’s already happening, both in fiction and in real life.

For instance, Namecoin presents itself as an “experimental open-source technology which improves decentralization, security, censorship resistance, privacy, and speed of certain components of the Internet infrastructure such as DNS and identities.”

To understand their aim, see this tweet from the Namecoin team in relation to recent events in Catalonia:

There are other blockchain-based initiatives that could lead directly to a decentralized web or that show how decentralization via blockchain can work. It’s difficult to separate the wheat from the chaff in this hyperactive field (especially with the ICO craze), but just to mention a few, see the following:

  • This press release from July entitled “Presearch, The Decentralized Search Engine Announces Crowdsale”;
  • Another press release announcing that “Archain Is Building an Uncensorable Internet Archive Inside a Cryptocurrency”;
  • Steemit, a blockchain based social network: https://steemit.com/ (although their message focuses more on fair distribution of revenues to users than uncensorability); and
  • This article on how the blockchain can help “traditional” websites, whether legal or not, stay in business when cut from advertizing revenues (because of market forces or “censorship”).

The idea of a distributed, decentralized, uncensorable web (and the associated decentralized search engine) is as fantastic an idea as it is a scary one. It’s not a new one either if you consider the history of P2P networks and websites like Pirate Bay, but such websites all have some centralized components and, as a result, authorities have been more or less successful fighting even the most hidden of them. A blockchain based website would be a more difficult beast to slay.

On the bright side, taking the web out of Silicon Valley may be healthy. For all the great new products and services that have been enabled by California’s tech hotbed, I can’t help but be at least a little sad that we allowed the first truly global network (the internet that is) to quickly be dominated by giants with an arguably larger footprint in their respective areas that what we would tolerate in any other field of business. It’s worse to think that they almost all have their headquarters in the same 1000 km2 of the planet. While I’m not as pessimistic (not at all in fact), I don’t entirely disagree with this for instance. A decentralized web sounds like some kind of counterbalance. To those in repressive countries, it might be much more than this.

At the same time, one only needs to look at what’s happening on sites like Silk Road or Alphabay to grasp how an uncensorable web is also a pretty scary proposition.

The good and bad news, depending on whether you are scared or enthused, is that we’re not there yet. There are challenges, such as fighting network effect to get a critical mass of users, and the cost of distributed storage, but I generally think that some decentralized and uncensorable version of the web is inevitable. It might not be the one we will use to search for turkey stuffing recipes, but we’ll get there.

Now, to go back the Equustek decision …

Those who today bemoan the extraterritorial application of a court order and the risks that it may become a precedent for web censorship may one day miss the time when you could actually obtain a court order that had any effect on the internet.

The minority judges in Equustek stated: “A court may decline to grant an injunction on the basis that it would be futile or ineffective in achieving the purpose for which it is sought.” I think we’re not necessarily that far from a world where courts will have to decline to grant most web-related injunctions based on this principle especially against third-parties, as was Google in the Equustek and Datalink litigation.

I predict that courts will lose power to influence what’s happening online. This is already happening with governments struggling with just taxing and regulating foreign online services. Imagine what kind of “deal” you will be able to make with a decentralized Netflix when you already feel you lack jurisdiction over non-decentralized players. I speculate that governments could be tempted to increase their powers over individuals, considering their lack of control over the result of their citizen’s actions once unleashed in a decentralized web. Among other things, this may lead to more surveillance, less protection against it, and more reliance of criminal law to suspend activities absent injunctive recourses against third-parties (ISPs, search engines, etc.).

Finally, there are much less problematic uses of a decentralized web: an uncensorable legal information database is one that’s particularly close to home. When I saw how quick information related to topics like climate change, civil rights, healthcare, disappeared from U.S. government websites immediately after (or on) Inauguration Day, I couldn’t help thinking that we were lucky not to have to rely only on government websites to have access to copies of the U.S. Code or key decisions (in relation to a certain travel ban for instance). As a matter of fact, the (Cornell) Legal Information Institute’s website has been flooded with visits at different times since January. The problem is that, as seen with the Catalonia situation referred to in Namecoin’s tweet above, “standard” websites are vulnerable when central powers disagree with their content.

[1] Note that the journalist admits she has no evidence of foul play (it’s almost impossible to get any from the outside) and that Google responded to the story and denied having tampered search results.

[2] If the internet is banned in your country, I could still theoretically send you bitcoin to an address you would have created offline and communicated to me by snail mail, assuming you downloaded the required software before your country cut the internet. You could then check via satellite that I sent you the money at the prescribed address.

Comments

  1. Great piece!

    With the decentralized blockchain, we seem to be reaching another phase in the dance between a free net and censorship.

    Most legal readers will find the Court’s conundrum familiar: how can courts parlay their analog powers of injunctive relief (censorship) in a digital era where agents and assets skirt effortlessly around jurisdiction and where technology offers an endless bag of tricks to make a mockery of any court’s stuffy imprimatur?

    Because big, tangible, centralized actors like Google still have offices where they can be found, courts still hold a cudgel in their hands. But how will the courts wield a club against the enemy that has no form?

    This is the threat that legal readers need to understand and I’m glad you linked the blockchain topic to the Equustek case.

    While there are tons of ICOs and teams working on similar disruptive technologies, here’s one video by LBRY that helps explain one of the ways this threat to the courts and censorship is very real: https://www.youtube.com/watch?v=DjouYBEkQPY

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