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The limitations of privacy

It was a bright cold day in May, and the clocks were striking 14-and-a-half, as a crowd full of Princeton students, alumni, teachers and relatives filtered into McCosh 50 yesterday to hear the panel “Big Brother is Watching: Is Privacy a Thing of the Past or Can It Be Reclaimed?” moderated by Princeton professor Ed Felten. While the panelists almost unanimously agreed on the merits of privacy and the importance of retaining it, the concept of having too much privacy was not fully addressed.

As the panelists suggested, privacy determines how we act. Regardless of what we do, there are always things that we prefer to remain private, even if they are not incriminating or scandalous. The fear that the government may know what we are doing or saying in the confines of our home can lead to a dangerous chilling effect, where our content, tone and language are censored for fear of being observed.

Justice Louis Brandeis, considered the father of modern privacy jurisprudence, emphasized this in his dissent for Olmstead v. United States (1928), declaring “the right to be let alone” as “the most comprehensive of rights and the right most valued by civilized men.” While Brandeis’ opinion failed to persuade the other justices to require the government to obtain a search warrant for wiretapping in the 1920s, his argument lived on, defining the legal atmosphere of privacy for the next several decades.

Individual privacy is essential for any democracy. But we must be wary of reacting aggressively to threats to our privacy, especially in light of the recent Snowden revelations of the extent and scope of the NSA. Privacy, invaluable to any society, cannot blindly overrule our other rights and values.

This is best demonstrated with the recent Court of Justice of the European Union ruling Google Spain v. AEPD and Mario Costeja Gonzalez (2014), which claimed that EU citizens had a “right to be forgotten.” According to the ruling, information considered “inadequate, irrelevant or no longer relevant or excessive … in the light of the time that had elapsed” had to be removed on search engines like Google.

Granted, at first glance this appears great. The ability to remove humiliating photos or false information may seem like a valuable asset, aiding victims of domestic abuse who may want to hide from their spouse and want to start a new life or celebrities victim to harsh and untrue rumors that quickly spread on social media sites like Twitter. However, this approach opens the door for misapplication, allowing users to censor data just because it is unflattering or uncomfortable, even if it’s true.

While the ruling did claim that information about public figures and information of “preponderant interest” should remain accessible, the abstractness of these terms leaves it up to judges to arbitrarily try to decide whether an individual is “public” enough or whether information is important enough not to remove. This can only open a Pandora’s box of inconsistency, with judges ruling on the basis of bias or preference.

To be fair, the United States is not one to boast about the status of its privacy law. Currently through intermediary protection under Section 230 of the Communications Decency Act, there is little incentive for United States online content providers to remove incriminating or scandalous information beyond the fear of being beat by a competitor who is more efficient in protecting user privacy. Yet sites like Facebook, with little competition (sorry Google+) have little to be concerned about. Out of the majority of cases handled in the federal circuits courts, only a few decisions like Barnes v. Yahoo! (9th circ. 2009) have ruled against online intermediaries and that only being in the case of an intermediary promising to remove the content and failing to do so later on.

On the other hand, the European court’s decision creates an incentive for risk-adverse companies to remove information any time it receives a request. Removing the content is easier and safer than trying to deal with the legal fees and publicity that come with trying to challenge the “preponderant interest” standard.

Both sides undoubtedly have their flaws. That being said, it is important to realize that neither has pure immunity — based on the idea of being able to say anything freely — nor pure privacy — based on the idea of having complete control over one’s information. Rather, policymakers need to balance the two to come to a compromise that protects citizens, removing false rumors, while at the same time not detrimentally hampering debate by censoring information just on the basis of it being unflattering or embarrassing. Addressing the fear of government overextension with the NSA must not rob the public of its right to know.

Ben Dinovelli is a Wilson School major from Mystic, Conn. He can be reached at bjd5@princeton.edu.

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