Two continents, two courts, two approaches to privacy

Publication Type: 
Other Writing
Publication Date: 
April 27, 2015

At 3:20 a.m. on August 24, 2014, the strongest earthquake in a quarter-centuryrocked the San Francisco Bay Area, causing damage widely estimated at between $300 million and $1 billion.

The quake spared Silicon Valley and other areas farther south, where many of the world's biggest tech companies--including Twitter, Google, Facebook, Apple, and Yahoo!--are based. Yet proximity means that the region is subject to the same tectonic perils, which is likewise true of a dangerous rift in the increasingly volatile digital information landscape: In both cases, disruption in one region points to potential trouble elsewhere, even if the effects are not immediately felt.

The most pressing danger facing California's tech companies involves shockwaves from the rupture of doctrinal tensions between two legal Western philosophies that have long been under pressure.

The first, a distinctly American notion of free speech and privacy that tends to sacrifice the latter to the former, is all but unique in the world, providing unmatched protection for news and other information in the public interest. This can lead to uncomfortableresults in which speech of questionable merit remains untouchable by the state. Born of the American colonists' experiences with occupying British forces, the underlying philosophy is that in a so-called "marketplace of ideas," good ideas will prevail. These principles are applied so broadly that U.S. courts haveheld that search engine results are a form of free speech.

By contrast, European courts and lawmakers tend to take a more ad hoc approach that sometimes sacrifices newsworthy information to individual privacy. This approach also has its rationale: "The privacy protections we see reflected in modern European law are a response to the Gestapo and the Stasi," Fred H. Cate, a law professor at Indiana University's Maurer School of law, told The New York Times in 2010.

Two cases decided in 2014--Riley v. Californiadecided by the U.S. Supreme Court, and Google Spain v. AEPD and Mario Costeja González, decided by the Court of Justice of the European Union--illustrate the schism between these two philosophies. Each case also represents a break from traditional ways of viewing these complex issues. Taken together, they create uncertainty about the delicate balance of free expression, privacy, and the power of states to surveil and censor journalists and the platforms they use.

Read the full post at the Committee to Protect Journalists website