CorpCounsel.com recently spoke with constitutional law scholar, writer, and legal commentator Jeffrey Rosen about his new book, Constitution 3.0: Freedom and Technological Change, and the role of corporate legal departments in making significant judgment calls on issues of privacy and free speech. In part one, he discussed how Google and other tech companies have led the charge on deciding free speech standards. Today, the conversation continues with what Rosen sees as a looming, “dramatic clash between U.S. and European laws when it comes to privacy and reputation and defamation.”
Below is part two of an edited version of that interview (part one is here).
CorpCounsel: Where do you see those battle lines being drawn between U.S. and European law?
Jeffrey Rosen: I think we’re about to see a titanic battle over something that the Europeans are calling ‘the right to oblivion.’ It’s proposed by the French, and it’s very French. It seems straight out of Sartre. The idea is that if you post pictures of yourself on Facebook or MySpace, and later come to regret it because you’ve been fired or are embarrassed, you should be able to take the pictures down, and the Internet service provider should be forced to comply.
From the Americans’ perspective, this right to oblivion really is hard to reconcile with our free speech values. We generally don’t believe that you have the right to selectively delete your past, or to remove legal—but embarrassing—content. Europeans have a very different notion. They have strong legal enforcement for dignitary rights and the idea that you have a right to your image, or the integrity of your personality.
I think the enforcement is going to be very challenging. When I asked the French data commissioner how he meant to enforce it, he suggested the creation of something like an ‘International Commission of Forgetfulness,’ which would decide on a case-by-case basis what stays up and what goes down. And I can imagine lots of counter-suits in the U.S. over that. When you have a really basic clash of values, between Europe and America, and when many of the companies are based in America, I think that this is going to keep corporate counsel very, very busy indeed.
CC: Did you come across any ideas for what might remedy these situations?
JR: The solutions I’ve been most impressed with are technological. When we think about the right to oblivion, I think a better alternative is the model of having expiration dates for data. Facebook could, if it chose, allow us to specify more easily how long we want pictures or posts to last—a day, or a month, or forever. If that kind of option were available more broadly, then there’d be less need for removing stuff after the fact.
CC: It sounds so beautifully simple. Are any companies that you know of doing that right now, voluntarily?
JR: Yes, one of the first was a company with the wonderful name TigerText. It promised disappearing text messages and it was named, the founder said, before the Tiger Woods text messaging scandal. They allowed on a small, small scale the ability to say whether you wanted the text message to last for a day, or an hour, or forever. More recently, there’s a German company called X-Pire, which is experimenting with this, and there are researchers that are perfecting the idea of ‘rusting’ encryption keys, which is the technology that makes it possible to read material for a certain amount of time and not after.
So I’m hopeful that the technology will soon be available to really make this scaleable, as they say, and available for prime time. Then it’ll just be another challenge for the corporate counsel of Facebook and Google and other companies about whether they want to make this part of their default settings, or make it easy to download apps that can allow disappearing data. Or whether their business models instead depend on most data staying up for longer, rather than shorter, times because of the desire to sell ad space on it. In which case, they might make a decision that would serve their business models, but would not serve the cause of privacy and liberty.
CC: In the meantime, how should in-house counsel be thinking about their responsibilities as they confront these challenges?
JR: I think it’s helpful for corporate counsel—especially those working at companies that have great control over speech and privacy—to realize that they have a responsibility not merely to serve the bottom line, economically, but also to think about the effect of their actions on basic constitutional values.
It’s also helpful not to be unrealistic about the need to be guided by fiduciary responsibilities. If companies like Google and Facebook and the many other technology companies that work with them are not sensitive to these values, they may find that there’s an economic backlash. Google’s good brand, for example, depends on being perceived as a company that cares about these values. So these are not the kind of questions that are the exclusive concern of constitutional law professors or civics classes. They’re now questions that really should be at the center of corporate counsel thinking.
See also: “How Technology is Making Corporate Lawyers More Powerful,” CorpCousel, December 2011.
