Monday, November 15, 2010

WSJ Crovitz: Forget any 'Right to Be Forgotten'

Don't count on government to censor information about you online.

L. Gordon Crovitz  WSJ  11/15/2010

The stakes keep rising in the debate over online privacy. Last week, the Obama administration floated the idea of a privacy czar to regulate the Internet, and the European Union even concocted a new "right to be forgotten" online.

The proposed European legislation would give people the right, any time, to have all of their personal information deleted online. Regulators say that in an era of Facebook and Google, "People should have the 'right to be forgotten' when their data is no longer needed or they want their data to be deleted." The proposal, which did not explain how this could be done in practice, includes potential criminal sanctions.

Privacy viewed in isolation looks more like a right than it does when seen in context. Any regulation to keep personal information confidential quickly runs up against other rights, such as free speech, and many privileges, from free Web search to free email.

There are real trade-offs between privacy and speech. Consider the case of German murderer Wolfgang Werle, who does not think his name should be used. In 1990, he and his half brother killed German actor Walter Sedlmayr. They spent 15 years in jail. German law protects criminals who have served their time, including from references to their crimes.

Last year, Werle's lawyers sent a cease-and-desist letter to Wikipedia, citing German law, demanding the online encyclopedia remove the names of the murderers. They even asked for compensation for emotional harm, saying, "His rehabilitation and his future life outside the prison system is severely impacted by your unwillingness to anonymize any articles dealing with the murder of Mr. Sedlmayr with regard to our client's involvement."

Censorship requires government limits on speech, at odds with the open ethos of the Web. It's also not clear how a right to be forgotten could be enforced. If someone writes facts about himself on Facebook that he later regrets, do we really want the government punishing those who use the information?

UCLA law Prof. Eugene Volokh has explained why speech and privacy are often at odds. "The difficulty is that the right to information privacy—the right to control other people's communication of personally identifiable information about you—is a right to have the government stop people from speaking about you," he wrote in a law review article in 2000.

Indeed, there's a good argument that "a 'right to be forgotten' is not really a 'privacy' right in the first place," says Adam Thierer, president of the Progress and Freedom Foundation. "A privacy right should only concern information that is actually private. What a 'right to be forgotten' does is try to take information that is, by default, public information, and pretend that it's private."

There are also concerns about how information is collected for advertising. A Wall Street Journal series, "What They Know," has shown that many online companies don't even know how much tracking software they use. Better disclosure would require better monitoring by websites. When used correctly, these systems benignly aggregate information about behavior online so that advertisers can target the right people with the right products.

Many people seem happy to make the trade-off in favor of sharing more about themselves in exchange for services and convenience. On Friday, when news broke of potential new regulations in the U.S., the Journal conducted an online poll asking, "Should the Obama administration appoint a watchdog for online privacy?" Some 85% of respondents said no.

As Brussels and Washington were busily proposing new regulations last week, two of the biggest companies were duking it out over consumer privacy, a new battlefield for competition. Google tried to stop Facebook from letting users automatically import their address and other contact details from their Gmail accounts, arguing that the social-networking site didn't have a way for users to get the data out again.

When users tried to import their contacts to Facebook, a message from Gmail popped up saying, "Hold on a second. Are you super sure you want to import your contact information for your friends into a service that won't let you get it out?" The warning adds, "We think this is an important thing for you to know before you import your data there. Although we strongly disagree with this data protectionism, the choice is yours. Because, after all, you should have control over your data."

One of the virtues of competitive markets is that companies vie for customers over everything from services to privacy protections. Regulators have no reason to dictate one right answer to these balancing acts among interests that consumers are fully capable of making for themselves.

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