• by Wendy Davis  @wendyndavis, July 25, 2017

Canada's highest court recently upheld a controversial order requiring Google to remove certain results from its worldwide search listings. Now, Google is asking a federal judge to rule that that the Canadian order is unenforceable in the U.S.

"Without a declaration from a United States court that enforcement of the Canadian order in the U.S. is unlawful, Google believes that Equustek will continue to pursue enforcement of the Canadian order," the company writes in a complaint filed Monday in San Jose, California. "Google now seeks a declaration from this court that will protect its rights."

The battle over the search results dates to 2012, when technology company Equustek asked a judge in British Columbia to order Google to remove search results for Datalink Technologies -- which allegedly stole trade secrets from Equustek and engaged in counterfeiting.

The Canadian issued a worldwide injunction prohibiting Google from displaying search results for Datalink. That order was upheld last month by Canada's Supreme Court.

The digital rights groups Electronic Frontier Foundation, which weighed in on Google's side, criticized the Canadian court's ruling.

"The court’s decision will likely embolden other countries to try to enforce their own speech-restricting laws on the Internet, to the detriment of all users," the EFF wrote. "It’s not difficult to see repressive regimes such as China or Iran use the ruling to order Google to de-index sites they object to, creating a worldwide heckler’s veto."

Google argues in its new court papers that enforcing the Canadian court's order in the U.S. would violate free speech principles. Among other arguments, Google says that the First Amendment prohibits injunctions that are not "narrowly tailored" to achieve a substantial interest.

"The existence of the Datalink websites is, and remains, a matter of public record," Google writes. "Equustek cannot show that it has no alternatives available other than enjoining Google’s search results outside of Canada."

Google adds that Equustek has not sought injunctions against other search engines and social media sites and has not stopped Amazon from selling Datalink products.

Google also argues that the order shouldn't be enforced because it's "repugnant" to public policy in the U.S. "The ... standard applied by the Supreme Court of Canada did not come close to satisfying well-settled United States law for imposing injunctions," Google writes.

"The Canadian court placed the burden on Google, a non-party, to disprove Equustek’s rights in every country outside of Canada, rather on Equustek, the plaintiff in the action, to prove its entitlement to removal of search results in each country in which it sought removal," Google writes. "Moreover, the Canadian standard took no account of the 'public interest' at all."

While Google says it's trying to protect the company's rights, it's uncertain how this lawsuit will do so, according to Santa Clara University law professor Eric Goldman. That's because even if Google prevails, it's not clear that a victory in the U.S. would prevent a Canadian court from holding the company in contempt, Goldman says.

"There could still be Canadian enforcement actions that would not be governed by U.S. law," he says.