Monday, May 26, 2014

In Europe, a “Right to Be Forgotten”

       Jeb Magruder died this month at age 79, in relative obscurity four decades after serving time in prison for his role in the Watergate scandals. After he got out, Magruder got religion and went on to serve as a Presbyterian minister for churches in three states.
      Those who lived through Watergate or later became obsessed with it were well familiar with the details of Magruder’s pre-redemption life. Others, however, presumably resorted to a Google search of Magruder’s name — the Internet age technique for biographical research.
       If a European court has its way, however, people like Magruder with unsavory conduct in their pasts may be able to bury such information in an Orwellian memory hole. In a precedent-setting decision for countries in the European Community, the European Court for Human Rights ruled this month [May 13] that, when requested, Google generally must block access to private information about a subject’s distant past unless the public has a “preponderant interest” in the information.
       In effect, the European court ruled that individuals have “a right to be forgotten.” The ruling came in a case brought by a Spanish lawyer, Mario Costeja González, who complained that Google linked his name to news coverage of a 1998 foreclosure proceeding against him. Costeja González contended that Google had to “delink” the news stories because the proceedings “had been fully resolved for a number of years” and any reference to them now was “completely irrelevant.”
       In the United States, the ruling drew mostly critical reaction. “Americans will find their searches bowdlerized by prissy European sensibilities," Stewart Baker, a privacy and computer security expert and former assistant secretary for policy at the U.S. Department of Homeland Security, told The Associated Press.
       "Privacy rights shouldn’t be a tool to rewrite history,” David Vladeck, a Georgetown Law School professor and former consumer protection official with the Federal Trade Commission, told The Washington Post. “Who gets to decide whether all these links get deleted?”
       At first blush, the European ruling seems unlikely to be followed in the United States, where the First Amendment guards against government-enforced restrictions on access to information already in the public domain. In fact, however, the Supreme Court has two precedents — in different contexts and different decades — that look somewhat favorably on a privacy-based right to be forgotten.
       In the earlier of the cases, the Supreme Court ruled in 1979 that a libel plaintiff could be treated as a private instead of a public figure despite a news-covered contempt of court citation two decades earlier. Ilya Wolston sued Reader’s Digest for publishing a book in 1974 that referenced his conviction for refusing to appearing before a grand jury investigating Soviet espionage.
      Unanimously, the court ruled in Wolston v. Reader’s Digest Ass’n that Wolston could take advantage of the lower burden of proof for private figures in his suit. In the main opinion, the court held that Wolston had never voluntarily become a public figure, but two of the justices joined the decision only on the ground that Wolston was entitled to private-figure status because of the passage of time.
       A decade later, the Supreme Court backed the privacy rights of criminal defendants and arrestees in a Freedom of Information Act case involving the FBI’s computerized data base of “rap sheets.” In U.S. Dep’t of Justice v. Reporters’ Committee for Freedom of the Press (1989), the court rejected a news organization’s efforts to check the FBI data base for an individual under investigation for political corruption in Pennsylvania.
      The court acknowledged that the FBI collected the rap sheet information from what are generally public records maintained by state and local law enforcement agencies. But the court ruled that individuals identified in the FBI data base had a privacy interest in “the practical obscurity” of whatever criminal records they might have in any of the thousands of jurisdictions across the country.
      The ruling in the Reporters Committee case is closely analogous to the European decision in the Google case. The European court is not requiring Spanish newspapers to delete the news coverage of the case against Costeja González, but requiring Google not to link to that coverage in effect allows Costeja González to reclaim the “practical obscurity” of his past financial difficulties.
      Privacy law in the United States is not as expansive as in Europe, even though the United States gave birth to the right of privacy in an influential law review article written in 1890 by Samuel Warren and the future Supreme Court justice Louis Brandeis. In the 120 years since, the Supreme Court and lower courts have wavered on how far to go in restricting access to information in the name of a “right to be let alone.”
      In the Internet era, that right is exponentially harder to protect, but the European court is trying with a ruling that individual countries will be tasked with putting into effect. Despite robust First Amendment protections, some U.S. courts might be tempted to try as well. Jonathan Zitrain, a professor of law and computer science at Harvard, suggests that the European court could have required Google not to delink old news but to allow individuals to add linkable replies. Whatever happens in Europe, the hope is that information remains free here in the United States.

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