<h1>Trying to balance privacy, free speech on Internet</h1>
<p class="byline"><a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/10/BUJ31N4R67.DTL&type=business">http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/10/BUJ31N4R67.DTL&type=business</a></p>
<p class="byline">James Temple</p>
<p class="date">Friday, February 10, 2012</p>
<span id="articlebody"><p>Should people have the right to delete information about themselves online? </p>
<p>Before you answer, consider two scenarios.</p>
<p>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?</p>
<p>Two: A prominent politician has an affair. Should he have the right
to force news sites to wipe that embarrassing information from their
archives?</p>
<p>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." </p>
<p>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.</p>
<p> 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.</p>
<h3 class="subhead" style>Privacy symposium</h3>
<p>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.) </p>
<p>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.</p>
<p> 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. </p>
<p>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. </p>
<p>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?</p>
<h3 class="subhead" style>Definitions challenging</h3>
<p>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.</p>
<p>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? </p>
<p>"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 <a href="http://www.sfgate.com/education-guide/">University</a>.</p>
<p>Clearly, there are definitional challenges ahead.</p>
<p>Does setting up a blogger page make someone a journalist worthy of extra protections? Is Twitter a modern-day newswire?</p>
<p>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"?</p>
<p>It's also difficult to judge today what will be historically significant as time goes by. If Barack <a href="http://www.sfgate.com/barack-obama/">Obama</a>
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.</p>
<p>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.</p>
<p>"The right to forget could chill speech on the Internet more than any regulation that's been proposed so far," Rosen said. </p>
<p>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. </p>
<p>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. </p>
<h3 class="subhead" style>Europe's philosophy</h3>
<p>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. </p>
<p>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.</p>
<p>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. </p>
<p>"Americans just feel more comfortable with this rough-and-tumble social discourse," he said.</p>
<h3 class="subhead" style>Seeking a balance</h3>
<p>But some U.S. privacy advocates have called for stronger rules here, too.</p>
<p>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."</p>
<p>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.</p>
<p>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.</p>
<p> "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."</p>
<p class="dtlcomment">Dot.commentary runs three times each week. Follow @jtemple on Twitter, or e-mail <a href="mailto:jtemple@sfchronicle.com">jtemple@sfchronicle.com</a>.</p>
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<p id="url"><a href="http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/10/BUJ31N4R67.DTL">http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/02/10/BUJ31N4R67.DTL</a></p>
<p id="pageno">This article appeared on page <strong>D - 1</strong> of the San Francisco Chronicle</p>