Personal privacy and free expression in the online world often are seen as competing interests, but they are not incompatible and actually work together, according to a leading scholar and advocate in electronic privacy law.
Marc Rotenberg, president and chief executive officer of the Electronic Privacy Information Center, made that case Thursday when he delivered the 26th annual University Senate Davis, Markert, Nickerson Lecture on Academic and Intellectual Freedom.
“My view has always been that privacy and freedom of expression are deeply intertwined, that you can’t actually have true intellectual freedom without the ability to protect privacy,” said Rotenberg, who also is a professor at the Georgetown University Law Center.
Acknowledging his view is controversial, he walked his audience in the Law School’s Honigman Auditorium through the details of a 2014 case before the European Court of Justice — Google vs. Spain, which Rotenberg referred to as “the right to be forgotten.”
In that case, a Spanish citizen had filed for bankruptcy and subsequently paid off his debts, but not before the bankruptcy was reported in a local newspaper. Many years later, after the paper’s archives had been digitized online, the man asked that the information be removed, arguing it was no longer relevant.
The court ruled the newspaper did not have to remove the information, but that Google, the internet search engine that linked to it, had to remove the link. Effectively, the ruling determined search companies, not the press, should carry the legal responsibility for publishing private information, Rotenberg said.
The ruling was widely criticized in the United States as an assault on freedom of expression, but Rotenberg disagreed.
“I believe they fundamentally misunderstood, not only what the case was about, but also what the significance of this case is for the future of free expression in the online world,” he said.
He said the ruling in many ways aligns with existing U.S. laws and efforts to prohibit the disclosure of certain private facts. He cited the ability to expunge certain legal findings, and the current “ban the box” movement that seeks to prevent employers from asking job applicants if they’ve been arrested, regardless of whether they were charged or found guilty.
“If you’re concerned about the ability of people to meaningfully participate in the employment process without being immediately excluded by systems … then you begin to understand the very powerful impact the disclosure of these private facts can have on a person’s life,” Rotenberg said.
He also argued that the Google vs. Spain ruling “is good not only for privacy and not only for freedom of expression, but also for the evolving architecture of the internet.”
Twenty years ago, it was assumed internet users would directly access myriad news sites and information sources on the web. But since then, internet searching has become centralized around one primary portal. Rotenberg said that is where liability should be focused — whether it’s Google or any other central search engine — and not on the end-user news sites.
“If we are thinking about the future of information online, it is the robust accessibility of many distributed voices in many locations that’s actually vital to the future of freedom of expression,” he said. “If we end up in a world where all information is acquired through only one portal, I do not think that’s a world in which free expression can prosper.”
The annual lecture is named for three former U-M faculty members — Chandler Davis, Clement Markert and Mark Nickerson — who invoked their constitutional rights when called to testify before the House Un-American Activities Committee in 1954. All three were suspended from U-M. Markert subsequently was reinstated, and Davis and Nickerson were dismissed.
