August 18, 2016

The Struggle Between Free Speech and Privacy

It’s been a raucous few weeks of leaks, leaks, and more leaks. The DNC cybersecurity breach, the hack on George Soros’s foundation network, and now revelations that a hacking consortium has released source code for the NSA’s most sensitive hacking tools all round out a summer that elicits a reminiscent deja vu from this time last year (OPM, Ashley Madison, etc.). In the words of Emerson, Lake, and Palmer: welcome back my friends to the show that never ends. As cybersecurity one more heads into the limelight, privacy issues won’t be far behind. In fact, one Silicon Valley magnate is already stirring up that pot.

In a recent op-ed for The New York Times, Peter Thiel discussed being outed by Gawker, his support for Hulk Hogan’s ongoing legal battle against the online outlet, and digital privacy rights more generally. Of particular note was this argument: “A story that violates privacy and serves no public interest should never be published.” He fully admits, however, that “it’s not for [him] to draw the line.” Criticisms of Thiel’s motivations for supporting Hogan’s lawsuit aside, he does bring up an important issue: When free speech and privacy are at odds, which ought to prevail and under what circumstances? In other words, who should “draw the line” and where, precisely, should it be drawn?

The European Union answered both of these questions a few years ago, when the continent’s highest court ruled that citizens have the “right to be forgotten” online. The ruling demands that Google, upon request, remove links to sites that detail information that is “inadequate, irrelevant or no longer relevant or excessive … in the light of the time that had elapsed.” Originally, this ruling was confined to users accessing the search engine from EU countries. This past July, however, a French court ruled that the right to be forgotten applies to all Google domains across the globe. Google is currently in the process of appealing the court’s decision, arguing that “if French law applies globally, how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach?”

There is a certain tyranny in diminishing the information abundance of the digital age in order to protect amorphous “rights” to privacy. The real winners of such a law are not average citizens. As Daniel Castro notes in a 2014 op-ed: “It is the convicted sex offenders, disgraced politicians and board-sanctioned doctors of the world who stand to benefit the most as their past indiscretions are scrubbed from society’s collective memory.” He goes on:

It is unfortunate that privacy laws have degenerated from upholding the “right to be left alone” to an overbearing attempt at obscuring reality. And where will this end? If individuals have the right to erase public data about themselves, why stop with search engines? Did someone say something true about you on Facebook or Twitter? Time to file a complaint. Did you write something you regret in an email? Just require the email provider to track down and delete all copies of your message. You will never again need to worry about learning from your mistakes since you can just forget them.

Unlike Europe, In the United States’ tensions between privacy and free expression typically favor a presumption of free speech over privacy “rights.” So who is closer to striking the appropriate balance between these two values?

I’d argue, on the whole, that the United States tends towards the more ideal equilibrium.

The European model treats information about individuals as something akin to intellectual property. In America, by contrast, arguments for strong privacy regulations are far weaker. There are likely many reasons for this disparity in treatment of privacy—everything from different historical experiences to judicial systems that evolve along different pathways—but the key explanation shouldn’t rest on a presumption that Europeans simply respect privacy rights more than Americans. The many reasons for this disparity could be the subject of a blog post all its own. Rather than traversing down that rabbit hole, let’s instead look at one result of what happened as a result of American society emphasizing on the right to free expression over privacy: an innovation explosion.

In fact, innovationespecially in the digital economyis very dependent on a presumption of self-expression and free speech being more fundamentally valuable than privacy. In a 2002 policy paper for the Computer Law and Security Report, Professor Lucas Bergkamp discusses the issue of innovation with regards to the EU’s data protection policy. He notes:

Information is at the core of a market-based economy, which depends critically on the accessibility of data. Information is multi-dimensional. On the one hand, the free flow of information has increased productivity and the efficiency of production. Intelligent, creative use of personal data facilitates targeted direct marketing, thus reducing waste, increasing efficiency, and reducing the consumer’s search and information cost. The consumer receives better, faster, and cheaper service. The benefits of information have been empirically confirmed for consumer credit and financial services, and the mail order business.

On the other hand, consumers have security, control, and economic interests in their data, but value such interests differently, and are willing to trade-off privacy for economic value … Consumer privacy preferences not only differ widely, but also evolve over time and with the introduction of new products, services, and technology. Corporations have an interest in protecting their information, which represents its intellectual capital. Information sustains not only business decisions, but also political and social decisions. Privacy thus is a dynamic, multi-dimensional issue.

He goes on to address the information-as-intellectual-property argument that implicitly underlies much of what is packed into the right to be forgotten perspective across the pond. In short, they argue that there’s not an exceptionally strong case to make to grant an individual “a property right in data merely because the data pertains to” the individual in question. They go on:

Granting data subjects property rights in all data pertaining to them fails to recognize that the person that collects the data makes investments in collecting and manipulating the data, thus creating economic value. Sophisticated data controllers use the data that they collect to generate new data.

And herein lies one of the likely sources of the huge disparity in total market capitalization of technology firms in the EU versus here in the United States. Add to that the fact that the world’s top five companies are all American tech firms (see accompanying graph, courtesy Bloomberg), and a clearer image starts to emerge regarding why, as some might ask, American society tends to place greater emphasis on free speech and expression over a more fundamental “right to privacy.”


But let’s put innovation and economic growth aside for a moment. Shouldn’t we want a more fundamental right to privacy, even if it comes at the cost of some free expression, economic growth, or greater innovation? I’d argue no for a number of reasons.

First, a cultural predisposition valuing free speech is important for ensuring trial and error experimentation and learning. Censorship, in any form, imperils criticism, which in turn limits the ability of societies to find the best ideas for solving the many problems we confront. The more leeway people have in censoring information about themselves, the less likely we are to learn from past mistakes—as individuals and society as a whole.  

Second, it is notoriously difficult to measure specific “harms” that emerge as a result of privacy violations, especially as it relates to commercial data acquisition. As a result, predicating policies that protect the amorphous bundle of rights associated with privacy is a far more difficult task. (I go into greater detail regarding harm-based remedies for privacy violations in a previous blog post, which you can view here.) Even the exposure of consumer data in high-profile hacks like those seen at Sony and Target, have yielded little evidence that any concrete material harms resulted from the cyber breaches. On the other hand, there is very clear evidence that suggests increased privacy protections by default can have profoundly negative consequences for innovation and economic growth.

Third, curbing free speech in favor of privacy interests limits the emergence of a robust marketplace of ideas. Curb free speech and expression enough and the ability for people to exchange information is also curtailed. Alternatively, if you protect the ability for people to express themselves freely, information flows more freely. As a result, the truth of potentially spurious claims about individuals, or outdated or otherwise inaccurate information, is more likely to come out. Squelch those voices, however, and what you’re left with is a reliance on a system where information asymmetry is the norm, rather than the exception. Such a system results in sclerosis of the non-economic spheres of human interaction: information exchange, creativity, and self-expression wither and die.

Finally, there are numerous social, technological, commercial, and legal remedies that invariably surface to deal with the many different and varied privacy preferences of individuals. One-size-fits-all regulatory solutions seldom work out, even if they’re pursued with the best of intentions. Such approaches come at the cost of embracing a dynamic and responsive, if sometimes turbulent, social ecosystem. As Virginia Postrel writes in The Future and Its Enemies:

Dynamic systems are not merely turbulent … They respond to the desire for security; they just don’t do it by stopping experimentation. Rather, they enable people to create their own corners of the universe, their own “artificial” pockets of stability within the broader dynamic world.

In other words, a strong defense of free speech doesn’t preclude individuals with less risk tolerance for privacy invasions from making choices—either personal or in the marketplace—that can enhance their preference for greater anonymity. Unfortunately, the opposite is not true. A greater focus on privacy necessitates a devaluation of the right of individuals to disseminate information, and to speak freely and openly.

When confronted with a choice between more privacy protections or greater protection for free speech we should, every time, choose the latter. Self-expression diminishes information asymmetries, drives innovation and economic growth, engenders a robust marketplace of competing ideas, and helps foment trust throughout society through means of effective identification. Do we have to choose between an absolute right to privacy and unfettered free expression? There are trade offs with towing an extreme position on either polar end of the debate. However, as I argued earlier, the United States seems to have taken the more ideal approach, tending towards largely unwavering support for free speech in all but the most extreme situations. Where individual privacy preferences diverge, numerous means will emerge to cater to those more privacy-conscious individuals.

We should never embrace a right to be forgotten. Rather, we should embrace the right to have our voices heard, to share information, and participate in a dynamic marketplace of ideas.