Overview and Commentary
Ronald Krotoszynski, John S. Stone Chairholder of Law, The University of Alabama
Moderator: Montré Carodine, Associate Professor of Law, The University of Alabama
Krotoszynski: potential virtues of a comparative law perspective. All of the papers reflect assumptions/understandings from domestic privacy regimes, which won’t necessarily hold true across national boundaries. Doesn’t mean to suggest we should create global law of privacy or look for platonic ideal of privacy. Claim only that knowledge of foreign regimes could assist us in evaluating contemporary arrangements.
Haggerty worries that reasonable expectation standard will undervalue privacy as surveillance expands. Maybe not—substantive outcomes matter more than legal frameworks. Language can be misleading. Reasonable expectation need not be descriptive; could be normative/aspirational, as Canada has held it is.
We are not prisoners of tech. France: employers can’t routinely surveil employees, even to avoid shirking and ensure adequate productivity. Cultural tide is strong enough to resist. Vigorously enforced. Suppose Wal-Mart put cameras in employee bathrooms to monitor productivity—Wal-Mart has a similar interest in that stall. Yet that’s culturally unthinkable, and the legal reaction would be swift. (I wish I were this confident of that.)
SCt of Canada decoupled privacy protection from property ownership—student can claim privacy in data on a computer owned by her school. US has more often tied privacy to property. Nomenclature matters less than scope and substance of the rights protected. Germany doesn’t protect privacy, but it does protect dignity and personal honor. Interests sounding in privacy in US terms are more reliably/robustly protected there. A society that expects privacy gets more, not as reasonable expectations but as a matter of political economy. In the US, free speech has more cultural/social relevance and thus gets more protection—a function of social/cultural expectations. Privacy has more relevance in Europe than here, opposite of free speech.
Austin’s focus on consent v. power, and the role of private actors. In ECJ, human rights have both positive and negative dimensions, and aren’t necessarily bounded by property/state action. State’s duty to safeguard fundamental rights could matter: everyone has a right to respect—creates a positive obligation in EC. Many US state constitutions have a right to public education clause. Our general tradition of negative rights doesn’t mean it’s the only possibility.
Anonymity: societies vary in their tolerance for anonymity/pseudonymity. Can assist those without power. But there’s a dark side to anonymous speech too—empowering gov’t to propagandize population with false identities. Lyrissa Lidsky has written on problems of using sock puppets to push gov’t views—TSA has been accused of doing this on its own websites and on sites like Flyertalk. Impedes democratic discourse. Koch Bros. also use anon/pseudon speech to hide their starting points. Trust in gov’t affects willingness to accept regulations designed to force speakers to disclose their identities. US citizens distrust gov’t and view speech regulations with distrust. Canada etc. don’t mind as much. (This account of distrust is coherent as limited to speech but can’t explain what’s going on with surveillance. This is the gov’t we distrust so much, the one reading all our emails? Conversely, the Europeans don’t seem all that trusting on surveillance.)
World without rules about pseudon. speech might undermine discourse more than empower it, given the power of corporations. Might undermine confidence in all speech online—never know if NSA is texting you. Could preclude gov’t/corporations from engaging in anonymous speech. Predictively, though, SCt isn’t likely to tolerate that given its rulings on compelled commercial speech. If we had to choose a world that allowed everyone anonymity, we might be worse off. If there are political benefits to misattributing speech by powerful, they will use this modality to their full extent. Cost and difficulty of securing a ballot initiative, for example, make it much easier for Costco etc to do it than for grassroots activism. It’s easily to romanticize the web, but it’s also a means of mass communication for gov’t and corporations. We need to be clear eyed in associating net social costs.
(But no one in the US ever proposes “net” regulations in that sense. Like Google+’s real name policy with all its exceptions/failures to see how it was allowing some people to do what it was barring others from doing, the regulations are always more situation specific. South Korea’s real name policy is not on the table here. (And a good thing too!) I think we’ve heard quite a lot about the harms of anonymous speech; I’m also interested in putting other uses on the table, especially given that powerful entities will misuse identification as well as anonymity, as the Koch case amply demonstrates. I’m also not really sure why the First Amendment would protect pseudonymous gov’t speech, though that gets into complicated gov’t speech doctrine; at the very least I have trouble understanding why the First Amendment would precludea law against deceptive gov’t speech, as right now the CIA is barred from propagandizing American citizens.)
Some cultures accept public defecation and sexual activity. Thus privacy norms aren’t cross cultural. But even so we can learn from other nations’ privacy laws.