Takeaways for Week 3 by Professor Dryer

 

EU Privacy

1. The EU views privacy much like they view property. Privacy rights thus protect that privacy the same way that they protect property. This means that citizens of the EU have many of the same rights to control their privacy as they do with their property.
2. Europe also tends to value privacy interests above free speech interests, which leads to stricter privacy protections at some expense of free speech rights.
3. One of the common ways that the Europe address privacy is by requiring affirmative consent before personal data may be collected by others. This means that a person must intentionally "opt in" to have their data collected rather than only having the ability to "opt out" with the default being opted in.

US Privacy

1. The US places immense value on free speech, which often comes at the cost of the prioritization of free speech over rights to privacy. 
2. There is no nationwide federal law governing privacy.  Most privacy laws are state enacted and the few federal privacy laws that exist are focused on specific topics like medical records or educational records. This leads to inconsistent and often unequal privacy protections depending on where a citizen lives.
3. While both the EU and the US have data collection protection laws for children, the US only requires parental consent to collect data if the child is under the age of 13.  In Europe, parental consent is required if the child is 16 or younger. 

EU "Right to be Forgotten"

The EU has instituted a "Right to be Forgotten" which includes two components.  First, a person may request a "holder" of personal information about an individual to remove the information if certain conditions are met and the holder must comply unless there is a public interest in the the information.  Second, a person may request a search engine to delink the information from a person's name if the information is "inadequate, irrelevant or excessive." There are several conditions that might override an individual's "right to be forgotten" which can be found here: EU Right to be Forgotten 

 Reasonable Expectation of Privacy

1. There exists a reasonable expectation of privacy only when a person's behavior indicates that they desired to keep something private.
2. If a person shows little or no intention to keep a fact private, then their reasonable expectation of privacy is waived, and that fact is no longer considered something that is private in nature, and thus not something that should be protected under privacy laws.
3. Raza, or the "Star Wars Kid," likely waived his reasonable expectation of privacy when he recorded himself on a tape that was not his own, and then left it unprotected for anyone to discover. This meant that, although he was bullied significantly for the video, there was likely no significant argument to removing it from YouTube to protect his privacy.

Private Company "Right to be Forgotten" Policies

Many companies have policies or community standards that protect the privacy of individuals in certain circumstances, even without government intervention. Examples include removing child pornography or the posting of intimate images with consent.

 Question of the Week: Should the U.S. Congress statutorily enact a "right to be forgotten"?

The class was divided on this issue with 6 students answering "yes" and 8 students answering "no."

We discussed whether is would be good or bad public policy to remove or delink an individual's past criminal behavior in specific factual contexts.  The factors to be considered included the age of the individual when the crime was committed, the nature and severity of the crime. the passage of time and whether the public has a continuing interest in knowing the information.