Google Got Summoned: Digital Privacy and Political Speech in Canada

What happens when governments start chasing anonymous online critics?

 
Gavin Tighe and Stephen Thiele dive into the controversial use of administrative subpoenas by the US Department of Homeland Security to identify anonymous social media users critical of the Trump administration. 

The discussion explores the tension between freedom of speech, anonymity, national security, and government overreach, while drawing parallels between American constitutional history and modern online discourse. 

From pseudonyms used during the American Revolution to today’s debates over surveillance, online threats, Norwich orders, and political polarization, the hosts unpack the legal and ethical questions surrounding free expression in the digital age. 

The episode also examines how social media companies like Google navigate their responsibilities between protecting privacy and cooperating with law enforcement, while warning about the dangers of turning internet platforms into tools of political surveillance.
 
Listen For:

05:26 What exactly did the Department of Homeland Security demand from Google?

08:18 Why does the right to anonymous speech have deep constitutional roots?

21:25 How does a Norwich order differ from an administrative government summons?

24:29 When does using a government institution cross the line into political weaponization?

25:53 What responsibility do social media platforms have when harmful content appears online?

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Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Gavin Tighe (00:00):

Freedom of speech is really only important to protect what you don't want to hear. If I'm telling you something you like, I don't need a constitutional right to say it. You're not going to push back. I mean, the right is really only there to say stuff that people aren't too happy you said. Hello, welcome to Beneath the Law. Gavin Tighe here with Stephen Thiele. Stephen, how are you this fine evening?

Stephen Thiele (00:30):

I'm doing very well, Gavin. How are you doing?

Gavin Tighe (00:32):

Couldn't be better. Couldn't be better. It's finally the flowers are coming out. The leaves are coming back on the trees after a bitter and brutal winter here in Canada.

Stephen Thiele (00:42):

Well, and hopefully we have a nice summer, but spring has taken its time a little bit.

Gavin Tighe (00:51):

The throws of this winter are not going away easily.

Stephen Thiele (00:55):

I thought Canada had some tropical areas back in the dinosaur era.

Gavin Tighe (01:02):

Most of it definitely. I don't know. They're long gone. We could use a few tropical areas. I wouldn't mind that at all. Well, one of them, it is interesting because we have a case that we're going to talk about this week dealing with the long arm of the homeland security in the US. I guess it depends on your politics, but there is a segment of the population that believes that the Justice Department and various arms of the federal government are being weaponized to go after political opponents. Funny, both sides, I recall hearing very similar refrains from the Trump camp when they were not in power. Now we're hearing those same thing from the other side. I mean, it is troubling irrespective of which side you're on. The Justice Department should not, in any real democracy, in my view, should not be weaponized for political purposes.

(02:21):

It should be there impartial to enforce law, but it should never be seen to be an agent of a political view.

Stephen Thiele (02:34):

I agree with that. I mean, when that happens, you end up looking like Russia where we know what happens to political dissidents. They end up in prison and have to live their life behind bars or a cage simply for expressing a political opinion.

Gavin Tighe (02:56):

Right. So in the US, if America was founded on one principle, it was freedom of speech. I would actually argue that it may be the most important right that any citizen has because freedom of speech, of course, allows for all of the other rights to be exorcized. You give the right to speak out against injustice to others. You get the right to speak out on a political view in order to influence others to vote in a certain way. I mean, freedom of speech is really, to my way of thinking, really the foundational right of all other rights upon which any real democracy is built on.

Stephen Thiele (03:35):

Sure. But even within freedom of speech, there are limits. And I guess this is where the Department of Homeland Security is taking issue with potentially inflammatory political speech and is trying to root out to individuals who post things anonymously and by pseudonyms, here we are the day and age of the internet. Everybody has their opinion, but they hide behind fake names to give their opinions.

Gavin Tighe (04:10):

Well, I don't think that's anything new. I mean, the notion of anonymity and free speech have been certainly in the United States have been married from the start. I mean, I recall that many of the original pamphletiers, for example, in the time of the American Revolution were also operating by pseudonym because if they weren't, they ended up going off to some lovely gulag surrounded by red coats and bayonets.

Stephen Thiele (04:38):

Didn't Ben Franklin write under a pseudonym? Wrote letters. Yeah,

Gavin Tighe (04:41):

Because they had to. I mean, if you didn't write under a pseudonym, you got arrested. So I mean, one of the realities of that is the people who criticize those who write under pseudonym, well, the response from those writing under pseudonym would be, "I have to be under a pseudonym because I have to be afraid of people like you, " which is ultimately what we're talking about here. So what happened here was there was a summons issued by the Department of Homeland Security to Google to identify the owner of an email address that, as I understand, it was affiliated with a Twitter handle or X-handle or whatever they call it.

Stephen Thiele (05:26):

X-Handle, yep.

Gavin Tighe (05:26):

X-Handle. And that person was a very vociferous critic of the Trump administration

Stephen Thiele (05:33):

And he's a Canadian.

Gavin Tighe (05:35):

Well, it turned out he's Canadian, but they didn't know that. I mean, I'm assuming that the Homeland Security didn't know where he was domiciled. It turns out he's a Canadian. We know that because what has occurred here is I think the American Civil Liberties Association and not the first time is moving to enjoin Google from revealing the identity of this person. And in the course of that filing, which they filed in California, they disclosed that the owner of the email address and the poster on X who Homeland Security is interested in is in fact domiciled and lives in Canada, hasn't been in the United States in

Stephen Thiele (06:16):

10 years

Gavin Tighe (06:18):

And has nothing really to do with the United States in terms of the jurisdiction of the Department of Homeland Security. I suppose that's maybe part of the argument, but they're resisting it. And what's interesting is that it's not the first time. What I understand is that there's actually been a number of these lawsuits that have been brought by the American Civilities Association to resist these types of subpoenas, which were summonses, which apparently the Department of Homeland Security is issuing regularly to find out who are these critics of the Trump administration.

Stephen Thiele (06:53):

So Gavin, usually I follow politics and I didn't hear about this until you mentioned it to me a few days ago and I thought you have to be kidding. And so apparently the Department of Homeland Security in the United States has issued hundreds of these subpoenas to get the information. But what really surprised me, and I kind of chuckle at it because it seems odd, the summons is an administrative summons or what's called a customs summons issued under the 1930 Terrafact. And so, okay, I've got somebody posting something online and I'm using a statute that really has nothing to do with online postings. It has to do with the import and export of goods and they're using this summons to get record statements or declarations and it just makes no sense to me. And from what I understand, you said ACLU has issued a number of lawsuits and they've been very successful because as soon as they issue the lawsuit, the Department of Justice pulls back and withdraws the summons.

Gavin Tighe (08:18):

Yeah. Well, I mean, I think there's significant American constitutional authority on the right of free speech and the right of anonymity in regards to that. And I think that does date back to the constitutional history of free speech in the United States and the whole ... When the constitution was written, the framers would have been the very pamphleteers who hidden behind their pseudonyms. So there's been a long history of free speech and the right to anonymity when speaking one's political beliefs.

Stephen Thiele (08:59):

Well, political beliefs for sure. Look, I don't have any problem with the United States government. If somebody's posting messages that are hate messages or trying to incite violence, I don't have any problem with what the United States acting or even asking Canadian authorities to help or Google or others. And in fact, one of the segues here from this story is what is the responsibility of a social media host when somebody is posting those kinds of messages?

Gavin Tighe (09:34):

I agree. And I mean, there's plenty of means both under the criminal code, for example, and/or just straight up search warrant, but the criminal code, you can get a production order. If someone's posting, I'm going to murder someone or something. Yeah, absolutely. Law enforcement can find out who that person is and should do so very, very quickly because I mean, there's a real threat of harm. Or if someone who was ... So for example, if someone was posting on X that they wanted to kill the president, I mean, there would be no doubt that should be immediately complied with. Yeah,

Stephen Thiele (10:10):

That's a no-brainer.

Gavin Tighe (10:11):

Yeah. I mean, those types of things, I mean, in the civil context, defamatory postings, for example, you can go to court and get an order for production of who's the person defaming you online if they're hiding behind a pseudonym. Those are legitimate basises when that should be peeled back. I mean, I think what your point is, is that it's a little suspect when they're using what is basically a procedural statute, which doesn't seem to have any relationship to online political commentary, certainly by the date of its creation would indicate it didn't foresee that and using those types of procedural orders to gather information on what is said to be. And look, in fairness, I haven't read the post. I don't know what this person said or what any of the other people said, but-

Stephen Thiele (11:08):

I think what he wrote, Gavin, had to do with criticizing ICE agents in Minnesota with respect to the two people who were killed in Minnesota during the protests against ICE. And so if I understand from ... There are now many media reports about the lawsuit that has been brought that the X account was used to disparage ICE in a particular post that almost received something like a hundred thousand views. As you said, this Canadian hasn't entered the US in 10 years.

Gavin Tighe (11:49):

Be going there very soon. Take away.

Stephen Thiele (11:51):

Well, look, look, I don't have any problems in terms of traveling to the US. I mean, I've got good friends there and their government is ... Yeah, but their government is running an agenda that they believe is helping the United States of America. 100%. So that's fine. I don't have any problem with that.

Gavin Tighe (12:17):

No,

Stephen Thiele (12:17):

I mean, I think

Gavin Tighe (12:18):

That's one of the key points is that freedom has been ... I can't recall which American justice said it, but freedom of speech is really only important to protect what you don't want to hear. I mean, if I'm telling you something you like, I don't need a constitutional right to say it. You're not going to push back. I mean, really, the right is really only there to say stuff that people aren't too happy you said. If it were otherwise, you wouldn't need a right. It would be a hit song. Everyone would want to hear it.

Stephen Thiele (12:57):

Yeah. Look, I mean, we're speaking a little bit with respect to the postings a little bit out of context because we haven't read them.

Gavin Tighe (13:05):

No.

Stephen Thiele (13:05):

And I don't know- And they weren't

Gavin Tighe (13:06):

Part of the application that was filed in California, which is-

Stephen Thiele (13:09):

No.

Gavin Tighe (13:10):

... nor were they referred to. And I mean, I think that that's very, very important. I think context really does matter.

Stephen Thiele (13:15):

Yeah. And my understanding from, I guess, the court filing in California is the representation is that there's nothing threatening or particularly harassing within these postings. But look, again, from a security perspective, maybe it is something that somebody should be following in terms of this person is posting something now that is not threatening, but will they post something in the future that's threatening? So I don't know how that quite works on the security end, but maybe that's the concern of Homeland Security.

Gavin Tighe (13:55):

No, and I don't know. All we're going on when we read this is really what the claim says.

Stephen Thiele (14:04):

So

Gavin Tighe (14:04):

We're seeing a very biased frankly version. I mean, we don't know what the postings were, but taking it on its face for what they say it is. If indeed it is nothing more than criticism of a government institution from a particular political point of view, then yeah, it's somewhat troubling that any government, I don't care which government it is, would be kind of taking names and numbers in regards to a list of now we know who our critics are. And I think that in fairness, that's the narrative that the applicant seeks to put before the court, that's certainly what they're saying. And that narrative is on its face troubling if it's true.

Stephen Thiele (15:01):

But you know what, Gavin, I'm going to take us into the Canadian context. Politics used to be done a lot differently here in terms of you could actually have discussions and conversations with members of the other parties and now you almost can't. It's like if you're a conservative, the liberals hate you and you can't have conversations with liberals. Yo certainly can't have any conversations with the NDP. I mean, here in Ontario, our producer will love this. She's calling that our premier be imprisoned.

Gavin Tighe (15:43):

Lock them up.

Stephen Thiele (15:44):

It was shocking. It was absolutely-

Gavin Tighe (15:47):

Where have I

Stephen Thiele (15:47):

Heard that before? Yeah, exactly.

Gavin Tighe (15:50):

It's full circle.

Stephen Thiele (15:52):

So people have become very entrenched. If you're on the other side, you're the worst thing around.

Gavin Tighe (16:02):

Yeah, no, I think it's an interesting point that you make because one of the things I think that's very, very important to recall is we live in this age where people have never been more enabled to communicate. It's never been easier to communicate in the history of the human race than it is right now. Just technologically, I can talk to somebody in Botswana, right? I mean, think about that. I mean, 200 years ago, I would've been sailing on a ship for four months to give them a letter. So we live in an age where it's so much easier to communicate, but nobody is communicating. It's almost as if, and it's become to the point where everybody is in their own echo chamber and they're so used to hearing viewpoints that agree with them that the notion that someone is disagreeing with you has become almost a personally offensive aspect of it.

(16:59):

I mean, I see it in the practice of law. I mean, we're paid to espouse an opinion or we're paid and we're professionals. We act for a client who's adverse and interested to the other side's client and lawyers will take the fact that you take a position that is contrary to their client's position as like a personal insult. I mean, well, it's the nature of exactly what we do, which is to debate in an adversarial situation. One side makes their pitch, the other side makes their pitch. And out of that comes some better synthesis of the two positions that take both into account. You've got to listen to the other side's argument in order to deconstruct it, in order to take the parts of it that are persuasive and adopt maybe those and then add to the points that you want if you want to be successful in the argument.

Stephen Thiele (17:52):

Although that used to be the fundamental of democracy. Well,

Gavin Tighe (17:56):

It's the fundamental of any debate. I mean, the surest way to lose an argument is not to listen to what the other side says.

Stephen Thiele (18:01):

Correct.

Gavin Tighe (18:02):

I mean, if you don't understand what they're saying, how on earth can you criticize them?

Stephen Thiele (18:10):

It's so foreign to me in terms of the way that I always treated politics, which is kind of why I've stepped away from a lot of politics. Because they get so personal. Yeah, because they're not

Gavin Tighe (18:23):

Used to, because they live in their little silo and they're so not used to hearing anyone that could possibly disagree with them. It's crazy to me. I think that no one has a monopoly on good ideas and sometimes the other side, oh my God, sometimes the other side of the political spectrum has a good idea.

Stephen Thiele (18:45):

But if

Gavin Tighe (18:45):

They're giving ideas-, but sometimes they do.

Stephen Thiele (18:48):

No, but I think the problem with politics today is people criticize without giving ideas and they're just so negative and there's no constructive criticism. And I think that's become a significant problem. Everybody's just yelling at each other without any kind of constructive plan. We see that in politics too much today. I don't even know in terms of what policies the other side has. I think I said that to you the other day with our federal opposition. They're criticizing Mark Carney over what he's doing, but what ideas are they promoting? And actually I don't understand what they're saying anymore. And so I'm personally turned off.

Gavin Tighe (19:35):

Yeah. Everybody starts to sound like Charlie Brown's teacher at a certain point in

Stephen Thiele (19:38):

Time. Yeah. Wah, wah, wah, wah,

Gavin Tighe (19:40):

Wah. You listen to that constant-

Stephen Thiele (19:43):

Exactly.

Gavin Tighe (19:43):

I think people ultimately voters are ... It's a turnoff. I mean, I think at a certain point people ultimately are looking for better solutions, not just saying the other side solutions are bad. Okay, what's a better answer? And I mean, I think people are looking for positivity and messaging to a significant degree, it's good. Okay. Negativities and you criticize native side is fair game. But I think if you really want to make political strides, you have to put forward a positive message to your voter base. That is saying, "This is how I'm going to move your pieces down the board."

Stephen Thiele (20:25):

Right. If I'm going to be critical of Mark Carney or Premier Ford or President Trump, that's one thing, but I should put something positive forward or ideas forward to attract. I shouldn't just be pushing on negative hot buttons. Right. One of the things that you touched upon, and I think it's important, you touched upon the Norwich order a little bit and we should talk about that because in this case, the summons, in my view, it's just the wrong summons or the wrong process. Now I understand that in some cases that after withdrawing the summons, the Department of Homeland Security actually gets a grand jury order to try and get the information. But in Canada or in Canadian courts, we have a process called a nor which order.

Gavin Tighe (21:25):

I mean, I think there's a fundamental distinction between what this process that is the subject of this California lawsuit and a Norwich order or a production order or a search warrant, those are orders that are granted from a judicial authority. In other words, the government or the plaintiff goes before a judge and says, "This is what this person is doing. It justifies intrusion into their privacy so that we know who they are for whatever reason. Give me an order to the third party ISP or whatever to identify this person." And then it's left to the judge to say, "Well, either you meet the test or you don't." I think what these summonses that we're talking about, they're forms that the government has that can fell out and here you go, your summons. They're not a judicial order and then no judicial officer has ever vetted them.

(22:20):

Isn't that the whole point?

Stephen Thiele (22:22):

Right. But the point of the Norwich order is someone who makes anonymous postings that are defamatory in nature will not be protected by the court. And the oral order is a court

Gavin Tighe (22:35):

Order.

Stephen Thiele (22:36):

Right.

Gavin Tighe (22:37):

And the person in front of a judge- You make your argument, you say, "This is what they've said. I want to sue them for libel. I got to know who I'm suing." On its face, it's defamatory. Judge says, "Yeah." I mean, ISP reveal the identity of this poster so we'll know who the defendant is. So isn't that the whole point of a narrative order?

Stephen Thiele (22:55):

Exactly. And I think it's important for our listeners to know that your anonymity or your pseudonym may not protect you from that kind of an order. No,

Gavin Tighe (23:08):

That's

Stephen Thiele (23:09):

Right. It's interesting and you said the court authority is important because my understanding of what has happened here with our Canadian who's been posting political messages is that this subpoena is basically just administrative. It's not issued through a court. Right,

Gavin Tighe (23:30):

Right, right. So that's the whole point of, that's why I'm saying it's like a desk warrant that's issued not by a judge but just by some bureaucrat. And that's, I think, the fundamental problem is that I think that things like freedom of speech and those are not ... Like I said, you don't have the right to issue threats online even behind the scenes. I mean, the law will not protect you. You don't have the right to defame people online, but there's a process whereby it's not just anyone who's going to be able to get your information. And I mean, just flipping it around, I mean, I recall reading stories where conservatives in the United States were saying that the IRS was being weaponized, that they were getting audited disproportionately and that the IRS was being used as a political weapon to terrorize them through a disproportionate number of audits of conservatives.

(24:29):

I mean, that's the problem. You can't use government institutions to put forward a political agenda and weaponize it against your political adversaries. And similarly here, I mean, you can't use a Department of Homeland Security can't just be issuing subpoenas just because they don't like what somebody is saying online. I mean, they can go and get an order. I have no problem with that and they should. If they think that they're being defamed or if somebody's threatening them or if there's some unlawful activity that they need to investigate, I think there's tons of, certainly it would be in Canada, of remedies that they would have to get that, get a search warrant or something of that nature to find out who's doing it and they should do it. They should find out who's doing it.

Stephen Thiele (25:13):

Yeah. And with respect to this particular case, my understanding is Google's been quite resistant at this stage and that's their general position. Yeah,

Gavin Tighe (25:24):

They drag

Stephen Thiele (25:24):

Their feet. They don't do

Gavin Tighe (25:25):

Anything.

Stephen Thiele (25:26):

No, they don't do anything. But as we saw in the Tumblr Ridge case, some of these social media businesses really do need to sit back and develop policies as to how they monitor things that they allow to go onto their social media sites and develop policies as to when they should be contacting law enforcement.

Gavin Tighe (25:53):

Yeah, no, for sure. I mean, I think, look, to some extent, the internet is like the old bathroom wall and people write on it whatever they want, but there is a point where if you're aware of something threatening on there, or if you're aware of something that could cause somebody to get hurt and you don't do it, you sit back and say, "Wow, not my problem." I think that is a problem.

Stephen Thiele (26:20):

No, I think that's irresponsible.

Gavin Tighe (26:22):

Yeah, I agree. But there's a fine line between when you have an obligation to report what is effectively a threat of criminal conduct to being kind of the informant for, "Hey, I'm going to give you a list of ... I'm going to give lists of people who searched this or I'm going to give the government this list of people who, for example, contributed to the trucker convoy. I'm going to give you the list of all those

Stephen Thiele (26:52):

People.

Gavin Tighe (26:52):

" That I find trouble. I mean, I may not agree with that, but I don't think it's the job of the internet service companies like Google to become the Gestapo of whomever is in power at the moment. I don't agree with that either. So it is a very, very fine line between responsibility and becoming kind of the surveillance state.

Stephen Thiele (27:19):

Although in other countries, that is the concern that they are collecting your data.

Gavin Tighe (27:27):

Well, they're not only collecting it, they're harvesting it-

Stephen Thiele (27:30):

And they're using it.

Gavin Tighe (27:31):

And selling it. I mean, there's a reason why if you search holidays in Hawaii, all of a sudden you start getting all these emails like surfboard shops in Waikiki. I mean,

(27:46):

There's no coincidences on the internet in any event and much, much more. Another episode where we're just kind of getting into this brave new world where the old law is trying to keep up with the new tech and man, it has got a long way to catch up. So even if you're an internet service provider though, remember, no one is above the law and everyone is beneath it. So Stephen, thanks again, Doug Downs, thanks for a great job on production. Please rate us where you get your podcast. Please tell anyone who might be interested in our banter about legal issues and cases as they come up and refer them over. We're always looking for new ideas for new shows, topics, concerns. If you have criticisms, if you don't agree with what we're saying, love to hear it. We love debate and you can't have a debate with somebody who agrees with you.

(28:37):

So please, if you disagree with us, love to hear from you. Stephen, till next time, Adios.

Stephen Thiele (28:42):

Thanks, Kevin.