As far as internet privacy, everyone uses similar language and appears to want the same end goal. Firms like Google and Facebook are arguing that they are supportive of principles of digital privacy like what Europe is advocating. US-based experts argue that there are many laws in place that amount to online privacy. Is the issue a philosophical one? Here are some statements to see if any assumptions can be identified:
Ultimately, responsibility for deleting content published online should lie with the person or entity who published it. Host providers store this information on behalf of the content provider and so have no original right to delete the data. Similarly, search engines index any publicly available information to make it searchable. They too have no direct relationship with the original content.
Speaking yesterday at a conference on digital privacy taking place in London, Facebook’s Simon Milner, director of public policy in the UK and Ireland, said: “The right to delete your online data is an important one, the right to erasure is a key principle. However, the right to be forgotten… raises many concerns with regard to the right of others to remember and to freedom of expression. It is important this can be implemented in practice, but as drafted the current proposal risks introducing measures which are both unreasonable and unrealistic.
EU is not impressed:
Reding added: “The European rules [will] apply to every company … which operates in the internal market. The EU is a large market with 500 million citizens. If you want to take advantage of this goldmine, then apply the rules. Facebook and such providers like the one-stop shop. They like the fact that the rules are the same everywhere. There’s no opt-out. This is an internal market regulation. It’s a decision that will be taken by majority rule.”
Viviane Reding, the EU justice commissioner, said: “At present a citizen can request deletion only if [data is] incomplete or incorrect. We want to extend this right to make it stronger in this internet world. The burden of proof shall be on the companies. They will have to show that data is needed.”
So first we see how privacy is not being discussed in isolation, with other rights such as freedom of expression being invoked by Facebook, Incidentally, this freedom of expression online was affirmed by the United Nations in 2012, with online expression being declared a human right. For Google, they emphasize individual responsibility and ‘ownership’ being emphasized by Google. Second are different views on the relationship between businesses, enterprises and the government. Reding’s frame is that the individual should be protected from unreasonable private sector practices. That businesses should conform to US Law.
A 2004 report published in The Yale Law Journal explores the philosophical conceptions between privacy in Europe and USA. The argument presented is that, “American law shows a far greater sensitivity to intrusions on the part of the state, while continental [European] law shows a far greater sensitivity to the protection of one’s public face.” (my emphasis)
My initial reaction to this is that while American’s may be hostile to state involvement, there is a tendency to enable contract law. One can read about this in detail in the book Liberalizing the European Media, by Shalini Venturelli, Professor of International Communication at American University. In one of her chapters, Venturelli details how privatization of law, state, constitutional law and public goods have forced the balance of content regulation regimes heavily in favor of pre-political contract law as favored by global corporations. Efforts at legislating a right to be forgotten might be a potential schism in the intellectual property rights regime between European legislators, and powerful US-based multinational corporations (along with their sympathetic American legal intelligentsia) –at least as far as data privacy is concerned.