Jeffrey Toobin has an interesting piece in this week’s New Yorker on the effort of individuals to get information about themselves or their loved ones deleted from the internet.
Toobin’s set piece is a chilling story of the family of Nikki Catsouras, who was decapitated in a car accident in California. The images of the accident were so terrible that the coroner wouldn’t allow Catsouras’s parents to see the body.
Two employees of the California Highway Patrol, however, circulated photographs of the body to friends. Like oil from a spill, the photos spread across the internet. Aided by Google’s powerful search engine—ghoulish voyeurs could type in terms like “decapitated girl,” and up would pop the links—the ooze could not be contained.
Celebrities who take naked selfies, ex-cons hoping to make a clean start, victims of unfounded accusations, the parents of a woman killed in a gruesome accident: all of us have an interest in not having certain information or images about us or people we care about shared on the internet. Because it provides such a powerful sluice for the spread of that information and those images, Google has become the natural target of those who wish to protect their privacy from the prying or prurient eyes of the public.
In Europe, Toobin reports, the defenders of the right to privacy—really, the right to be forgotten, as he says—have had some success. In the spring, the European Court of Justice upheld the decision of a Spanish agency blocking Google from sharing two short articles about the debts of a lawyer in the newspaper La Vanguardia. While the newspaper could not be ordered to take down the articles, the Court held that Google could be “prohibited from linking to them in any searches relating to” the indebted lawyer’s name. As Toobin writes:
The Court went on to say, in a broadly worded directive, that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”
While the decision has quite a bit of support in Europe, it has been widely criticized in the United States as a violation of the First Amendment, threatening both freedom of speech and freedom of the press. Where the right to privacy is held to be “a fundamental human right” in Europe, claims Stanford scholar Jennifer Granick, Americans are more sensitive to issues of freedom of expression; they prefer to deal with the privacy issues, if they do deal with them at all, in a piecemeal fashion. Europe’s position, as Toobin explains, comes out of the continent’s long experience with state surveillance, with governments making use of personal data in ways that presumably the American state has not.
As Toobin goes onto explain, Americans can legally protect themselves from unwanted scrutiny or embarrassment on the internet through a different legal instrument: copyright law.
Because Google is extremely sensitive to the legal claims of those who own specific words or images, it steadfastly refuses to link to copyrighted materials and images (or allow people to post copyrighted videos on YouTube, which it owns.) So if a celebrity were to take a selfy, or if the Catsouras family owned the photographs of their daughter—they tried, unsuccessfully, to get the California Highway Patrol to give them the copyright—Google could be forced, or persuaded, to stop linking to any sites that posted them. That threat of copyright violation can be very effective.
In August, racy private photographs of Jennifer Lawrence, Kate Upton, and other celebrities were leaked to several Web sites….Several of the leaked photographs were selfies, so the women themselves owned the copyrights; friends had taken the other pictures. Lawyers for one of the women established copyrights for all the photographs they could, and then went to sites that had posted the pictures, and to Google, and insisted that the material be removed. Google complied, as did many of the sites, and now the photographs are difficult to find on the Internet, though they have not disappeared. “For the most part, the world goes through search engines,” one lawyer involved in the effort to limit the distribution of the photographs told me. “Now it’s like a tree falling in the forest. There may be links out there, but if you can’t find them through a search engine they might as well not exist.”
I don’t have much of an opinion about the fundamental issue in the article: the battle between the right to privacy and freedom of speech. Toobin presents the various arguments on all sides of the question, and it’s pretty clear that the European approach, favoring the right to privacy, raises many difficult legal and institutional issues.
What I’m more struck by is how little traction the right to privacy has in the United States, as compared to the claims of copyright.
I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is a property right.
The right to privacy, of course, is historically intertwined with property rights: in the Griswold decision, for example, which struck down Connecticut’s ban on contraception, Justice Douglas cited the Third Amendment, which forbids the quartering of soldiers in private homes, as the basis for a broad constitutional right to privacy. Even so, the right to privacy is not nearly as dependent on the claims of property as is copyright, which is a variant of intellectual property (patents and so forth).
Where copyright is designed to protect a person’s ownership over a text or image on the theory that that ownership benefits the public—if an author can reap the full monetary benefits from the production or sale of a text or image, she will be encouraged to produce those texts and images—the right to privacy is designed to protect a person’s claims against the public. Copyright protects a person’s property by conscripting it on behalf of the public (at least in theory); privacy shields a person from the public.
It’s interesting that an allegedly individualistic US is less sensitive to these issues of privacy than an allegedly collectivistic Europe, but the rights of privacy in the cases Toobin cites don’t involve any property rights. Save the damage to one’s reputation, which might gain some traction from the law if a person were powerful, but gets virtually none when a person is not.
The whole discussion reminds me of another Justice Douglas opinion: his concurrence in Heart of Atlanta Motel v. United States. In that case, the Supreme Court upheld Title II of the Civil Rights Act. That provision made it illegal for restaurants, inns, and public accommodations to discriminate on the basis of race. The Court claimed that Title II was a legitimate exercise of Congress’s power under the Commerce Clause. The majority held that Congress had the power to regulate interstate commerce, that the travel of African Americans to and from the South involved interstate commerce, and that ending segregation in these public accommodations would facilitate such travel.
In his concurring opinion, Douglas conceded that Congress had the right to use its interstate commerce powers in these ways, but he was discomfited by the Court’s resting Title II on that basis. He would have preferred to rest it on Congress’s power under the 14th Amendment.
Though I join the Court’s opinions, I am somewhat reluctant here, as I was in Edwards v. California, 314 U.S. 160, 177, to rest solely on the Commerce Clause. My reluctance is not due to any conviction that Congress lacks power to regulate commerce in the interests of human rights. It is, rather, my belief that the right of people to be free of state action that discriminates against them because of race, like the “right of persons to move freely from State to State” (Edwards v. California, supra, at 177), “occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.” Ibid. Moreover, when we come to the problem of abatement in Hamm v. City of Rock Hill, post, p. 306, decided this day, the result reached by the Court is, for me, much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual, not with the impact on commerce of local activities or vice versa.
But American being America, commerce ruled. And rules. Like property.
What was it those two dudes said? “In bourgeois society capital is independent and has individuality, while the living person is dependent and has no individuality.”