On May 13, the European Union’s highest court struck what appeared to be a significant blow for privacy, ruling that Google could be forced to delete links and other sensitive information about a user upon his or her request. In an age of rampant identity theft and data breaches, as well as more sinister, personal examples of private data going public such as revenge porn, this was a win worth celebrating. And it has many questioning if such a law could ever pass in the United States.
The short answer: No. “The publication of truthful fact, in a public forum, is robustly protected by the first amendment,” says Lee Rowland, a staff attorney with the ACLU’s Speech, Privacy and Technology Project. From a strictly legal perspective, the EU’s “right to be forgotten” decision would be a clear violation of the constitutional right to free speech. “The first amendment protects speech that is a matter of public concern. It’s not only the right to speak about it but also to hear about it,” Rowland explains.
Consider, for example, the details of the case that triggered the EU’s unappealable decision.
A Spanish attorney failed to pay his taxes and had to sell off property in a public auction. A newspaper ran the details of said auction, as newspapers do. That information made its standard way to the Internet, and Google did what Google does, supplying linked search results to it.
There was nothing illegal about the newspaper’s publication of the auction results. And as personally embarrassing as those details may have been to the attorney, Rowland believes the public has a right to know that a practicing lawyer is a confirmed tax cheat. “Imagine if there were a plastic surgeon with a legal history of doing terrible things to people’s faces,” Rowland says. “Wouldn’t you as a consumer want to be able to find evidence of those lawsuits?”
Then again, most of the people championing the EU decision aren’t disgraced lawyers hoping to scrub their own sins from the Internet. The positive response has to do with shifting the balance of power online and issuing takedown orders to companies—like Google—that collect and disseminate our private information without permission. Blunt and unconstitutional as it might be, an equivalent U.S. ruling or law could also cripple revenge porn sites, forcing them to remove nude photos and images at an individual’s request, without discussion or delay.
It’s a solution that even dedicated anti-revenge porn groups don’t want. “It’s about the expectation of privacy,” says Danielle Citron, a law professor at the University of Maryland and board member of the Cyber Civil Rights Initiative (CCRI).
The EU ruling punishes Google for indexing publicly available information, which could be of enormous value to the Spanish attorney’s current or prospective clients. That attorney has not only relinquished his expectation of privacy, but there’s good reason (arguably) for the public to have access to what the newspaper lawfully published. And while the EU has no equivalent of the first amendment, U.S. law almost always tilts in favor of free speech as a founding bulwark against entrenched, institutional corruption.
In the case of revenge porn, however, “there’s no free speech interest in publishing nude photos,” Citron says. “If someone shares nude images or permits them to be taken, when those are released, the wrong is the intentional violation of that confidentiality, not the search engine’s reproduction of it.”
The real solution, according to Citron, is to enforce laws that are already in place—in many revenge porn cases, photos are actually obtained through hacking the victim’s phone or computer—as well to pass extremely narrow legislation that specifically targets individual privacy breaches while also giving the first amendment a wide berth. The CCRI helped draft an anti-revenge porn bill in Maryland (which was unanimously approved by the Maryland’s House of Delegates this past March and is currently with the state’s senate) that more clearly defines the illegal activity and corresponding penalties. “That law would punish a very narrow set of privacy violations that have a profound impact on victims lives,” Citron says.
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Yet she also believes that the new law falls short by not including a provision that would allow for the takedown of a victim’s photos and videos beyond the offender’s site. So even if those files vanish in one place, they could live on throughout the Internet.
Unrelated to revenge porn, Citron would also support regulations or legislation that allow users to demand that data brokers—the companies that track our activity online and resell that data to advertisers and other third parties—delete that collected information, on the grounds that it’s not public or of public interest.
If those sound suspiciously like requests for some version of the EU ruling—with its expansive demands for link deletion—welcome to the complex, circuitous world of digital privacy. But the key issue is, once again, the expectation of privacy. Nude photos and online spending habits are private. Proof that a lawyer was found guilty of breaking the law is not. Unlike the right to free speech, which is relatively easy to define and quite literally the first concern of the U.S. Constitution, the right to privacy is a necessarily complicated concept defined by context and exceptions. And while the two rights can come into direct conflict, freedom of speech tends to bolster privacy, allowing news outlets to cover the NSA’s more nefarious spying activities, for example.
Neither the CCRI nor the ACLU are claiming that stateside privacy laws are perfect. Citron is pushing for an update to the federal cyberstalking law that would demand a takedown of specific victim-related data if the offender is found guilty (a topic addressed at length in her book, Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment, due out this August). And Rowland is concerned about privacy violations that lead back to the government, including the public release of mugshots, even for individuals who were booked but never convicted.… Read the rest