[AfrICANN-discuss] Trying to balance privacy, free speech on Internet

[Anne-Rachel Inné]

Trying to balance privacy, free speech on Internet

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/10/BUJ31N4R67.DTL&type=business

James Temple

Friday, February 10, 2012

Should people have the right to delete information about themselves online?

Before you answer, consider two scenarios.

One: A victim of domestic violence discovers her address pops up when her
name is searched online. Should she be allowed to force Google to remove
those details from the company's results?

Two: A prominent politician has an affair. Should he have the right to
force news sites to wipe that embarrassing information from their archives?

The wide gap between these situations - and about a million imaginable
scenarios in between - begins to map out the legal minefield the European
Commission is charging through. Late last month, the executive body for the
European Union proposed a strict set of privacy rules that included a
"right to be forgotten."

The regulations must be approved by member states, but the language sent a
jolt through companies such as Google and Facebook, which have built
business models dependent on user data and could face multimillion-dollar
fines for infractions.

Scholars, lawyers and privacy advocates are also scrambling to sort through
the implications of the rules, which set up a pitched battle between the
right to privacy and freedom of expression online.
Privacy symposium

This morning, Stanford Technology Law Review is hosting a symposium on
First Amendment Challenges in the Digital Age, which will explore the topic
in the opening panel with experts from academia and private industry. (Full
disclosure: I'll be moderating that discussion.)

There are plenty of scenarios where a right to be forgotten seems
uncontroversial. Many agree we should be able to remove anything we
voluntarily choose to post online, like pictures or status updates.

To take the cliche example, it seems unfair to many that a young job
applicant should forever be haunted by that beer bong picture he or she
posted to Facebook at age 16.

Plenty of people also argue we should have the right to tell a credit card
company, search engine or ad network to expunge us from their digital
records, particularly if they're spamming us or using our personal
information in ways we find invasive.

But what happens when the information we freely posted gets shared or goes
viral? And what about information that others post about us that is
truthful but unflattering?
Definitions challenging

It is difficult to craft rules that allow people to delete this sort of
sensitive information about themselves without risking some of the critical
social benefits that come from journalism, historical research, artistic
expression and scientific inquiries.

The European Commission proposals include carve-outs for these categories,
but it's easier to write those words on paper than to define them in the
real world. For instance, can any judge or regulatory body be counted on to
fairly and consistently determine who's a journalist, artist, scientist or
historian?

"It's hard after you read the language to think that there won't be a huge
amount of litigation," said Jeffrey Rosen, law professor at George
Washington University <http://www.sfgate.com/education-guide/>.

Clearly, there are definitional challenges ahead.

Does setting up a blogger page make someone a journalist worthy of extra
protections? Is Twitter a modern-day newswire?

Google is a private company that also engages in scientific research on
artificial intelligence and machine translation - much of it using data it
derives from users. Does that qualify under the European Commission's
exceptions for "processing for historical, statistical and scientific
research purposes"?

It's also difficult to judge today what will be historically significant as
time goes by. If Barack Obama <http://www.sfgate.com/barack-obama/> had a
blog or Twitter account at age 18, it would provide fascinating grist for
scholars (or critics). But under a right to delete, he could have wiped his
tracks from the digital record the day before starting his first political
campaign.

Some legal observers worry these individual challenges could add up to an
even bigger risk: Internet companies opting to censor anything borderline
to avoid the risk of a 2 percent annual revenue fine for an infraction,
which would add up to $760 million for Google.

"The right to forget could chill speech on the Internet more than any
regulation that's been proposed so far," Rosen said.

In many ways, the long legal histories of Europe and the United States have
led the regions to starkly different interpretations of the appropriate
balance between privacy and free speech.

To oversimplify, U.S. courts tend to defer to the free flow of information
except in the most blatant cases of obscenity, whereas European judges tend
to prioritize the potential harm to individuals.
Europe's philosophy

Georgetown University Professor Franz Werro, in the 2009 paper "The Right
to Inform v. The Right to be Forgotten: A Transatlantic Clash," pointed out
that Swiss law prevents the media - or anyone else - from identifying a
person in connection to their criminal past after a certain period of time.

The government of Spain ordered Google to stop indexing information about
90 citizens who filed complaints, according to the New York Times. They
include a domestic violence victim who met the description at the start of
this story, as well as a woman who "thought it was unfair" that a Google
search turned up her arrest from years ago.

Paul Schwartz, faculty director for the Berkeley Center for Law &
Technology, has studied the origins of this legal chasm. In an interview,
he said European - particularly German - perceptions are rooted in 19th
century philosophers such as Georg Wilhelm Friedrich Hegel, as well as the
way private information was used against citizens under communist rule and
dictators like Adolf Hitler.

"Americans just feel more comfortable with this rough-and-tumble social
discourse," he said.
Seeking a balance

But some U.S. privacy advocates have called for stronger rules here, too.

Chris Conley of the American Civil Liberties Union of Northern California
argued for the "Right to Delete" in a 2010 paper. He said free speech could
be adequately protected if the rules are limited to data that are
"primarily informational" as opposed to "expressive."

He acknowledged that matters such as online anonymous speech and freedom of
the press present tricky conflicts, but articulates a strong rationale for
continuing the search for an appropriate balance.

Without a right to delete, "we may lose our ability to invent and reinvent
ourselves, and instead find ourselves constrained by actual records of our
past or feared records in our future," he wrote.

"The right to privacy, a right many consider fundamental to our society,
may be rendered impotent if our private actions can be reconstructed from
countless permanent records."

Dot.commentary runs three times each week. Follow @jtemple on Twitter, or
e-mail jtemple at sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/10/BUJ31N4R67.DTL

This article appeared on page *D - 1* of the San Francisco Chronicle
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