Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Wednesday, August 16, 2017

Privacy: We Are All Internationalists Now

A Review of Ronald Krotoszynski, Jr., Privacy Revisited (Oxford 2016)

I began thinking seriously about privacy issues in 1984—appropriately, I suppose, given that year’s Orwellian connotations.

At the time, discussions about privacy law and policy tended to be highly parochial, in two senses.

First, they tended to be strongly geographically localized—for example, comparing the statutory privacy law of New York with the common law privacy of Michigan.

Second, they tended to be conceptually localized—for example, analyzing privacy as a protection afforded by tort law or as a right of substantive due process or as insulation from unreasonable searches and seizures or as a legislative restriction on institutional data usage.     

A cliché declares that the Internet changed everything. I’m skeptical about that claim, but at a minimum it clearly changed the workability of these parochial frameworks.

As an initial matter, the Internet forced us to think about privacy not just locally but globally.

Over time, the Internet transformed the vast majority of enterprises into entities with an international presence. For example, most local publishers became international publishers by virtue of their web presence.

Consider: when I entered practice in 1984, a consumer could get my client’s newspaper, The Detroit News, in Michigan, northern Ohio, and Windsor, Canada, and that was about it. Now its content is available to anyone, anywhere in the world, who can access its website.

Corporations and other enterprises suddenly had to start thinking about the requirements of foreign legal regimes—at least to the extent that they had assets or personnel abroad.

If these developments escaped anyone’s notice, that was corrected in 2014 when the Court of Justice of the European Union ruled in the so called "Google Spain case" that a Spanish citizen had a privacy right (often misnamed a “right to be forgotten”) that was enforceable against U.S.-based Google. As a result, Google has had to devote substantial resources to processing de-indexing requests from individuals hungry for more obscurity than the Internet otherwise offers them.

But these developments did not just unsettle our geographic parochialism. They also challenged the prevailing approach of separating privacy into distinct doctrinal compartments.

The court in Google Spain proceeded as if it had developed an overarching and unified theory of privacy that could be applied generally to lots of different kinds of information—literally, the entire universe of information available on the Internet.

In that sense, the ruling raised—even if indirectly—a number of foundational questions for all of us: Is that court’s theory viable and intellectually coherent? When we talk about privacy, are we talking about one thing or many things? Are there other possible unified theories of what privacy is and what it protects? Does U.S. privacy law reflect such a theory? Or does U.S. privacy law simply lump together under one label a variety of concepts that are, on close inspection, largely unrelated?

As a result of all this change, there is an urgent need for resources to help us think about privacy in the transnational context—and not just about the competing legal regimes, but also about the cultural and social norms that drive them and the vision of privacy that they reflect.

A number of books have made important contributions on this front; in my view, one of the best is Ronald Krotoszynski’s Privacy Revisited: A Global Perspective on the Right to Be Left Alone (Oxford 2016). It is, in my view, essential reading for anyone interested in the privacy field today.

Prefaces are often optional reading, but the preface to this book provides critical context for the discussion that follows. In it, Krotoszynski identifies a number of themes that should inform any comparative inquiry into privacy law and policy. I will mention a few here, framed as questions:

* What are the respective roles of legislatures and the courts in creating and interpreting privacy law?

*   Is privacy a negative or positive right?

*   Is proportionality analysis—that is, balancing—useful to privacy law?

*   Is privacy about dignity, reputation, personal honor, or all of these, or something else altogether?

*   Is privacy simply a civility norm? If so, is it appropriate to enforce it through the law?

*    Privacy from whom? The government? Private actors? Both?

*  Is privacy in tension with free expression or does it facilitate that right—for example, by resisting the surveillance state?

Different legal regimes have answered these questions in different ways.

After an introductory chapter that stresses the protean nature of privacy law and policy, the book embarks on its comparative project. The ensuing chapters take a close look at privacy law in the United States, Canada, South Africa, the United Kingdom, and as interpreted by the European Court.

A short review cannot explore these nuanced and well-researched chapters in detail. But it may be worth highlighting some of the provocative differences between U.S. and European privacy law that Krotoszynski discusses.

Let’s start here: U.S. privacy law is an assemblage of distinct doctrines protecting various interests that are, perhaps, not obviously related.

These include autonomy interests (for example, protected by the substantive due process right to terminate a pregnancy), interests against government invasiveness (for example, protected by the fourth amendment right to be free from unreasonable searches and seizures), property interests (for example, protected by the claim of intrusion in tort law and by the law of trespass), interests related to the control over personal information (for example, protected by the public disclosure claim in tort law and by statutes like HIPAA and FERPA), and so on.

Given this wide range of purported privacy protections, one might assume that U.S. law would align fairly well with that of other regimes that have construed privacy rights expansively, like that being developed by the European Court. But that is not the case. To the contrary, as Krotoszynski observes, “In a very real sense, privacy in the EU and privacy in the United States have relatively little to do with each other.”

This is so in a variety of respects.

Because the Supreme Court of the United States has interpreted the First Amendment as providing such broad and resilient protection to free expression, that right trumps competing privacy interests much more often under U.S. law than European law.

Further, the U.S. has shown relatively little interest in some issues that have deeply concerned European authorities, such as data mining. This may be the result of distinctively American anxieties about government overreach into economically profitable activity.

The European Court has recognized a right to be “private in public.” This is a notion that a U.S. court would view as incoherent.  For example, Krotoszynski discusses the Egeland & Hanseid v. Norway case (where the court upheld a privacy claim by women who were convicted of three counts of murder and complained over having their picture taken outside the courthouse) and Sciaccia v. Italy (where the court upheld a privacy claim over the publication of a photo of an arrested defendant who had not consented to the picture). The results in these cases are all but unthinkable in an American court.

In Europe, both courts and legislatures have shown a willingness to enforce civility norms. America, in contrast, essentially has “no law of civility.”

And the European jurisprudence is largely driven by proportionality analysis: once the court finds that the right to privacy has been violated, then its role is to balance the degree of the infringement against the state’s justification for the regulation or action. For a variety of reasons, U.S. courts have generally been skeptical of ad hoc balancing tests, particularly where rights claims are involved.

It seems clear that everyone has more thinking to do.

Krotoszynski suggests in his conclusion that privacy and free speech interests are probably more reconcilable than our current jurisprudence recognizes.

But the E.U. approach is also far from perfect: there are good reasons to be concerned about applying balancing tests to matters of such import; such tests tend to yield uneven and unpredictable results, and we see this reflected in the apparent inconsistency of the E.U. decisions in this area.

This much is absolutely clear:

* Competing, and perhaps conflicting, privacy regimes will be bumping into each other with increasing frequency.

* We must talk with and learn from each other.

* We need the sort of excellent comparative work that Krotoszynski’s book embodies.  

* To borrow from the title of a book published twenty years ago about the emergence of multiculturalism: in the field of privacy, we must all be internationalists now.    

Tuesday, August 1, 2017

Privacy: Through the Rear Window

1954, a prophet foretold many of our current dilemmas in privacy law and policy. His name was Alfred Hitchcock. And the prophecy was his film, Rear Window.

In the movie, photographer L.B. “Jeff” Jefferies (played by James Stewart) finds himself with a broken leg and confined to a wheelchair. Stuck at home, but with plenty of telephoto lenses at his disposal, Jeff amuses himself by watching the world go by through the rear window of his apartment. His attention is increasingly drawn across the courtyard to the windows of his neighbors, whom he observes with deepening curiosity.

One night, Jeff hears a scream come from a nearby apartment occupied by a troubled couple, Lars Thorwald (played by Raymond Burr) and his wife. Later, he sees Thorwald take numerous nocturnal trips in and out of his building, always carrying a large sample case. The wife having vanished from sight, Jeff comes to believe that Thorwald murdered her, cut her into pieces, and is systematically disposing of the body.

Jeff involves his girlfriend Lisa, his visiting nurse Stella, and his policeman friend Lt. Doyle in his efforts to prove that Thorwald killed his wife. Thorwarld figures out what Jeff is up to and comes after him. Help arrives in the nick of time, saving Jeff from the murderous Thorwald, although not quickly enough to keep Jeff from falling out of the rear window and breaking his other leg.

Rear Window came out in 1954, decades before we started worrying about the high tech surveillance state, how the Internet monitors our behaviors, and the collection and dissemination of big data. But when I recently watched the film I was struck by how poetically it anticipates the dilemmas we now face.

On one hand, the film shows us the advantages of closely observed human activity. In one of the film’s subplots, Jeff watches over a young female neighbor who becomes increasingly desperate and potentially suicidal. And, of course, it is only through Jeff’s surveillance that the police are able to arrest Thorwald, a character played by Raymond Burr with such brilliant menace that he seems like the very embodiment of creepiness.

On the other hand, Jeff has some creepiness of his own.

Lt. Doyle cautions Jeff that there are parts of other people’s lives we’re not meant to see. He’s right, of course, but Jeff keeps watching anyway. The habit of surveillance is more easily got than got rid of.

Also, although some of Jeff’s snooping ends up serving a greater social good, along the way he takes in a lot of information that serves no higher end than his own idle curiosity. Like many systems of data capture, his telephoto lenses sweep with stunning overbreadth and without discretion.

Further, for all his looking out, Jeff does not want people looking in. At one point when Lt. Doyle is visiting Jeff he notices Lisa’s open suitcase with her lingerie visible. Jeff bristles at the intrusion.

And one of the most chilling moments in the film occurs when Thorwald, realizing that he’s been watched, peers across the courtyard and through the rear window into Jeff’s apartment. Jeff draws violently back into the shadows, the observer recoiling at the thought of being observed.

Of course, Jeff can look through all of these windows because his neighbors opened them to get some fresh air during an oppressively hot summer. And we might say that by doing so they assumed the risk that someone would get a glimpse into things they normally keep hidden from the world at large. It’s like a cinematographic representation of agreeing to a website’s privacy terms.

Indeed, it calls the same sorts of questions. Do these people realize how much of their privacy they’ve surrendered? Do they understand that someone is watching them through the enhanced capacities of a telephoto lens? Is the opening of the windows a reasoned calculation, or an act of blind trust, or a capitulation to the realities of comfort and convenience? It is, after all, easier to throw open the window and take your chances than it is to try to protect your privacy—so it was in 1954, so it is today.

There is surely a required reading list for those interested in privacy law and policy. In an upcoming blog post, I will review a book that I think belongs on that list: Privacy Revisited: A Global Perspective on the Right to Be Left Alone by Professor Ronald J. Krotoszynski, Jr., of the University of Alabama School of Law.

But perhaps there should be a required “watching list”—the pun is intended—as well. If so, then in my judgment Rear Window should be near the top. Cue it up and grab your popcorn—but only after you’ve drawn the shades. 

Tuesday, July 18, 2017

Can Neurophysics Inform Free Speech Theory?

In a recent op-ed in The New York Times, Northeastern University Psychology Professor Lisa Feldman Barrett argues that some forms of repugnant speech are the functional equivalent of physical violence and that this principle can help us draw lines between acceptable and unacceptable speech on college campuses and elsewhere.

I am sympathetic with many of the views Professor Barrett expresses in her piece.

Like Professor Barrett, I recognize that speech has serious real-world consequences on our college campuses and elsewhere.

And, like her, I strongly disagree with those who characterize our students as being coddled or infantilized simply because we are interested in making a welcoming and inclusive learning environment available to them.

Indeed, I began giving something like "trigger warnings" regarding certain material in my classes thirty years ago, long before the phrase came into use. I did not do so out of "political correctness" or because I thought of my students as "snowflakes," but because it seemed to me like good and considerate pedagogy.

Nevertheless, I depart from Professor Barrett in some important respects.

Professor Barrett's intriguing argument goes like this: certain speech can cause stress; as a matter of scientific fact, prolonged stress can result in serious physical harm (making us sick, altering our brains, killing off neurons, even shortening our lives); therefore, the use of some words is effectively an act of violence.

I defer to Professor Barrett on the scientific underpinnings of her argument.

And I concede that her argument aligns with my own experience. Indeed, anyone who has lived through maturity has likely spent some time on the receiving end of stress-inducing speech and will have sensed first-hand some of its deleterious physical effects.

To this extent, her syllogism seems to me not just logically sound but empirically apt.

But we part company when Professor Barrett argues that these scientific findings provide empirical guidance for which kinds of controversial speech should and should not be acceptable on campus and in civil society.

She contends that the guidance turns on the difference between "abusiveness" and "offensiveness." The latter category, she maintains, is acceptable while the former is not.

Professor Barrett argues that offensiveness is acceptable because "it is not bad for your body or brain." She gives as examples of offensiveness: "fleeing from a tiger, taking a punch, or encountering an odious idea in a university lecture."

This triumvirate of examples puzzles me. It seems to me that taking a punch is, indeed, bad for your body. It also seems to me that fleeing from a gruesome mauling death at the teeth and claws of a tiger is, as stressful events go, right up there. And talking about an "odious idea in a university lecture" in the same breath as these other two experiences seems to treat as functionally identical things that are plainly different.

In any event, Professor Barrett goes on to distinguish these acceptably offensive things from unacceptable abusiveness. She appears to leave abusiveness undefined here, although she clearly believes it has a great deal to do with duration.

The problem with abusiveness, as she describes it, is "long stretches of simmering stress"; "a lot of time in a harsh environment"; and "constant, casual brutality." By her terms, abusiveness seems to be worse because we marinate in it, which I suppose makes sense.

But the omission of a definition here is a critical failing. Marinate in what? Is abusiveness just offensiveness that lasts longer? Or is it something else? And, if it is something else, then what is it?

Furthermore, this part of her argument appears to offer yet another unsatisfying mixing of things that are fundamentally unalike. She refers to a "harsh environment" and "constant, casual brutality" in the same passage. But are harshness and brutality really the same? It seems to me that clearly they are not.

At this juncture, Professor Barrett declares that the principle she has described distinguishes the acceptably offensive speeches of Charles Murray, who contends that genetic factors help account for racial disparities in I.Q. scores, and who in her view should be allowed on campus, from the unacceptably abusive speeches of Milo Yiannopoulos, who she describes as a "provocateur" and "hatemonger," and who in her view should not be allowed on campus. "There is nothing to be gained from debating [Yiannopoulos]," she declares, "because debate is not what he's offering."

I find this argument deeply confusing in numerous respects.

Is it the case that we cannot debate provocateurs and hatemongers? Why? Isn't that one way in which we expose hateful ideas for what they are?

Even if we acknowledge that debate does not always dispose of hateful ideas as quickly or effectively as we would like, are its failings really worse than the dangers of censorship? What has become of Justice Brandeis's famous injunction that the remedy for bad speech is "more speech, not enforced silence?"

Also, isn't it possible that a student sitting in one of Murray's lectures would come out of it feeling abused and wallowing in stress? Indeed, isn't it plausible that the pretensions of legitimacy that attend a speech by Murray make his statements more damaging than the unhinged rantings of Yiannopoulos?

Plus, if duration is key, then why does an hour-long speech by Yiannopoulos's qualify as abusive?

And there's this: according to Professor Barrett's argument, as I understand it, an hour spent listening to the drivel of Yiannopoulos is more traumatic than flight from an attacking tiger. I fully appreciate the outrage that Yiannopoulos evokes in many people. But I am personally not much persuaded by this ranking of relative stressors.

Sympathetic as I am to many of her points, in the end I do not find Professor Barrett's argument a helpful tool in the debate over campus speech or in the mediation of the competing concerns.

Almost thirty years ago, the Supreme Court of the United States in Hustler Magazine, Inc. v. Falwell overturned a jury verdict in favor of the televangelist Jerry Falwell against Hustler Magazine. The jury had found Hustler's parody of Falwell to be "outrageous" and so subject to punishment. The Court declared "outrageousness" to be too vague and subjective a standard by which to determine when speech is protected and when it is not.

In my view, a distinction between acceptable offensiveness and unacceptable abusiveness fares no better.

It does not save us from our current perils and confusions.

It just leads us into new ones.

Sunday, July 16, 2017

Ethics, Addiction, and Vocational Discernment in the Law

Our ethical responsibilities as lawyers are interconnected--so our ethical violations tend to be interconnected as well.

Consider: If we are failing in our duty to diligently represent our client (ABA Model Rule 1.3), then we are probably also failing in our duty to provide competent representation (ABA Model Rule 1.1). This makes it more likely that we will fail to fulfill our duty of communication (ABA Model Rule 1.4), because we will be disinclined to let our clients know that we're not doing their work well or not doing it at all. Putting our own interests before those of our client in this way gives rise to a conflict of interest (ABA Model Rule 1.7)--indeed, a conflict of the worst kind because the client will not know it has arisen and will be powerless to address it. If the client suspects something has gone wrong and asks about it, we may be tempted to mislead or even lie to the client (ABA Model Rule 7.1). And so on and so on.

When you read enough attorney discipline decisions you notice an unmistakable pattern: these failings usually start small; then they expand and multiply; and then they cascade.

These breaches have numerous causes. As in all professions, some lawyers simply are not honest or smart enough to do what they're doing. Others are sufficiently honorable and intelligent, but they get into trouble because their workload has become unmanageable or because they are going through an unusually challenging time, such as a divorce or a physical illness or the death of a loved one.

As a recent and important piece in the New York Times highlights, still others fall into difficulties because of depression, alcoholism, and drug abuse. The statistics concerning these struggles are alarming and there are good reasons to believe that the numbers may understate the magnitude of the problem. To add a further layer of complexity, it would seem that these are not so much causes as symptoms--indicators of some other cause that drives so many members of our profession toward despair and the frantic search for relief from it.

My own view--informed by more than thirty years of interacting with practicing and aspiring lawyers--is that a primary cause of this despair is the absence of "fit" between (a) who the person is, at some deep and immutable level, and (b) what they are expected and required to do in their position within the  profession. A straightforward example may help: an individual who is ill at ease with conflict will be pretty miserable as a litigator, even if he or she is bright and hard-working enough to get the job done.

This is not to say that the individual should have chosen to be something other than a lawyer--although in particular instances that may be the case. To the contrary, a profession that includes so many different roles--big firm specialist or small town generalist, in-house advisor or public defender, patent analyst or estate planner, legislative drafter or child rights advocate--arguably has at least one place in it for almost everyone of good character and reasonable intellectual heft. Rather, it is to say that much of the despair that practicing lawyers experience may be attributable to a mismatch between the individual attorney and the space within the profession into which he or she has wandered.

I think there is some good news on this front. When I began practicing in 1984, there was very little lawyer mobility. A lawyer who moved from one firm to another or one segment of the profession to another was viewed with suspicion. The stigma attached to such shifts is largely a thing of the past.

Also, clinical and practice simulation courses in law schools help give students a clearer idea of how they might want to spend their time as a professional. Over the years, I have spoken with numerous students who thought they'd like to practice in a particular area--until they had the chance to test-drive that practice through a clinic, simulation, or internship. This sent them looking for alternatives and, in most cases in my experience, the student was able to find at least one that proved to be a better fit.

This is all well and good, but clearly more should and can be done. Here is one modest proposal.

From time to time, I teach a seminar at the University of Michigan Law School called Law & Theology. In the course, we try to determine whether there are lessons that lawyers, judges, and legal scholars can learn from the way that theologians think about things that (for lack of a better term) bedevil us as well. For example, theologians--like members of the legal profession--have to think about the proper approach to textual interpretation, the appropriate balance between justice and mercy, how we decide which people and documents have authority, the place of the poor of a system that may otherwise favor the rich, and so on and so on. In that course, we try to figure out how the wranglings of theologians with these issues can help and inform our own.

In the last class session, the students and I think together about the concept of "vocational discernment." This idea, which has a significant presence in many religious traditions, relates to the process by which an individual determines his or her place in the life of faith. Is the person called to be clergy? What kind of clergy--a local pastor, or a hospital chaplain, or a teacher in a religious school, or a music director? A lay leader? A follower? How does someone go about making such a decision? How will someone know if they've reached the right conclusion? Or is "knowing" even a reasonable aspiration? In many religious traditions, vocational discernment is a critical--even revered and essential--step toward deciding on a professional direction.

The discussion in this last class always leads us in many different directions. Toward the end of the conversation, though, every group of students reaches this conclusion: they wish they had engaged in this analysis and discussion earlier in their legal education--perhaps even before they had entered law school. With virtual unanimity, they conclude that taking vocational discernment seriously--and talking about it out loud--shed some helpful light on their path.

In my own view, this is one of the great unmet challenges of our profession: devising a program of vocational discernment for those who feel called to practice law. If done correctly, it would yield a happier and more fulfilled legal profession--and therefore better lawyers and better representation for their clients. After all, these things, too, are interconnected.

What would vocational discernment for prospective lawyers look like? How would it be conducted? Who would do it? What are the relevant questions for an aspiring lawyer to ask her- or himself? What can we realistically demand of and expect from such an undertaking?

As we say at the beginning of our own vocational discernment exercise: let the conversation begin. 

Tuesday, September 16, 2014

A Parable on Race, Statistically Rendered

On June 18, 1964, Juanita Brooks was walking home through an alley.  She used a cane and was pulling behind her a wicker carryall that contained her purse and the groceries she had just purchased.  Someone rushed up behind her, knocked her down, and grabbed her purse.  Ms. Brooks saw a young woman running from the scene.  Other witnesses saw a woman running as well, and observed as she jumped into a car that sped off.

This may seem like the most mundane of crimes, but it led to a decision from the Supreme Court of California that appears in major Evidence textbooks.  The fiftieth anniversary of these events offers an appropriate occasion to pause and ponder the case and what it may be able to teach us today.

The case is People v. Collins, 68 Cal. 2d 319 (1968) and finds its way into standard Evidence texts because of the uncommon way in which a prosecutor tried to solve a fairly common problem.  The prosecutor's dilemma was that the witnesses to the crime provided conflicting testimony that made the identification of the defendants as the perpetrators less than certain.  So the prosecutor came up with a strategy he thought might help his case. 

The witnesses seemed to agree that the woman was Caucasian and had blondish hair in a ponytail, the driver of the car was a Black male with a mustache and beard, and the car was medium-to-large and yellow.  The alleged perpetrators had these same characteristics.  Defendant Janet Collins was a white woman with blondish hair that she often wore in a ponytail.  Defendant Malcolm Collins was an African American male and, though he had no beard at the time of trial, he could of course have shaved it off.  They owned a yellow Lincoln.  The prosecutor thought the probabilities were with him: what are the odds, he wondered, that I have the wrong defendants?

To try to convey this to the jury, the prosecutor called an expert statistician to testify.  The statistician explained the "product rule," which holds that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each event will occur.  Thus, the probability of rolling two 2's successively on a die is 1/36: that is, 1/6 x 1/6.

The prosecutor then gave the statistician a number of individual probabilities; the odds of an automobile being partly yellow are 1 in 10, the odds that a man has a mustache are 1 in 4, the odds that a woman has blonde hair are 1 in 3, the odds that a woman wears her hair in a ponytail are 1 in 10, and so on.  The statistician multiplied all of these together and arrived at the conclusion that there was only 1 chance in 12 million that any couple possessed the distinctive characteristics of the defendants--whom the jury promptly found guilty.

Unfortunately, there were numerous errors in this methodology.

First, the prosecutor simply made up the individual probabilities that he gave the statistician.  There was no reason to believe that any of them were correct, let alone all of them.

Second, the product rule only applies where the events being multiplied are mutually independent.  But many of the facts used in this calculation overlapped--for example, some blonde women have ponytails.

Based on these and other flaws in the calculation, the Supreme Court of California held that it was error to admit the evidence.

Textbooks include Collins because it provides excellent fodder for a discussion of the ways in which unreliable mathematical evidence can unfairly prejudice a jury.  The California Supreme Court repeatedly notes the persuasive power of mathematics--"a veritable sorcerer in our computerized society" that can "cast a spell" over a jury, a discipline rich in the "mystique" of certainty.  It is easy to understand--and fun to discuss--how the use of such phoney mathematics could have confused and misled the jury in violation of Federal Rule of Evidence 403.

Still, stopping our analysis there seems unsatisfying.  After all, one might reasonably question whether the jury placed much weight on the 1 in 12 million number.  In his closing argument, the prosecutor acknowledged that the individual statistics were just his "estimates" and he invited the jury to substitute their own if they preferred.  It isn't clear that the jury would have been bewitched by the ostensible certainty of a mathematical formula under these circumstances.  In addition, Collins tells us little about how a court would probably approach this issue today.  Most courts today would bar such expert testimony through the swift and simple application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In my judgment, Collins was and remains interesting and relevant for a different reason related to a different potential source of jury prejudice.  That issue is revealed by a close look at a footnote in the Collins decision, where the California Supreme Court recounts the various odds that the prosecutor presented to the jury.  In that table, one "probability" clearly stands out, dramatically different from all the others: the odds that you would have an interracial couple in a car, the prosecutor submitted, were 1 in 1000.

Like all the others, this statistic had no foundation in fact.  But it would have left an impression with the jurors that the other statistics did not: these defendants were social outliers; each had done the highly unusual thing of marrying someone from another race; perhaps they felt comfortable breaking other "rules" as well.  In 1964--years before the Supreme Court would, in Loving v. Virginia, 388 U.S. 1 (1967), strike down laws banning interracial marriage--this would have been a subtext at the trial.  The 1 in 1000 statistic would have fed the narrative. 

Indeed, the statistic subtly underscores the message by referring to the odds of an interracial "couple" in a car.  But, of course, the witnesses did not know whether they were seeing a "couple."  They just knew they were seeing a male and a female in the same vehicle.

I think that Collins is moderately interesting, and of limited continuing relevance, as a "statistics-gone-bad" case.  But I think it is profoundly intriguing and persistently important as a case about race.  In Collins, race is wholly invisible, and also completely present.  It is, to appropriate Gilbert Ryle's wonderful phrase, the "ghost in the machine," the primary driver of the potential prejudice of the evidence and the court's anxieties, and yet spectral, sublimated, and suppressed.

Indeed, one of the few references the court makes to race has a stunning irony to it: the court entertains the possibility that eyewitnesses may have been mistaken because the woman in the car might have been a light-skinned "negress."  In other words, it might turn out that this wasn't an interracial couple after all.

In my view, Collins remains engaging and significant not as a case, but as a parable.  As with all parables, it yields more than one lesson.  But, surely, it offers us this lesson if none other: the most troublesome dialogues about race may be those that we will not even see or confess we are having.

Thursday, May 15, 2014

The European Court of Justice, Google, and "Imbalancing Tests"

On Tuesday of this week, the European Court of Justice issued a ruling that has been described as upholding a "right to be forgotten." More specifically, the court held that the operator of a search engine (in this case, Google) qualifies as a data "controller" for purposes of the European Privacy Directive of 1995; that such an operator is therefore subject to European privacy laws like the Directive; and that those laws--at least as they currently stand--require an operator to honor an individual's request to take down a link that violates that individual's right to privacy. In this case, the link connected the complainant with some debt issues that he had encountered many years before and that he claimed had become "irrelevant." A summary of the ruling can be found here.

The court seemed untroubled by the fact that all of the various pieces of data connected by the search engine were publicly available. The court shrugged this off, noting that absent the search engine it would in many cases be substantially more difficult to associate one piece of online data with another.

The court also seemed unmoved by the fact that all of the various pieces of data might be (and, in this case, were) true. This is not inherently inconsistent with United States law--tort claims like public disclosure of embarrassing private facts rest upon the wrongful sharing of truthful information. But our First Amendment jurisprudence recognizes that we need to tread particularly carefully when we engage in the regulation or punishment of the dissemination of accurate facts--a perspective that seems largely, if not entirely, absent from the European Court of Justice opinion.

Perhaps the most troublesome aspect of the court's decision, however, relates to the solution it offers where it does see some potential concerns. Although the court suggests that in most instances an individual's claim of privacy should prevail, it acknowledges that in some cases other considerations--like the public interest in having information about a political figure--will outweigh that claim. In other words, when it comes to worries about the repression of publicly important information, the court consoles itself with the idea that the search engine operator will apply a balancing test to sort things out.

If this is indeed what the court has in mind then it is a dangerous and deeply flawed approach. Among other things, it transforms search engines into censorship engines.

But here is perhaps the greatest failure of this model: it fails to recognize that "balancing test" is a misnomer. Despite the common use of the term, we never reach decisions by "balancing." "Balancing" suggests that everything is weighed equally; the scales are in the same position. That is not a decision. That is indecision. That is not where we end. That is where we begin.

Decisions are made by achieving an imbalance. One thing is given greater weight than another; it wins; and this determines our next steps. In this sense, appeals to a balancing test are a dodge because they fail to answer the critical question: what matters more to us?

Under our First Amendment jurisprudence, what matters more to us is that people have as much information as possible--subject to some necessary and grudging exceptions. We think this makes us better and more informed participants in the democratic process. We think this respects us as individuals and allows us to pursue our interests, passions, and questions of conscience without interference from a higher authority that thinks we're striking the wrong "balance."

"If there is any fixed star in our constitutional constellation," Justice Jackson famously declared in the Barnette case, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ..."

The notion that employees of search engines, high and petty, will decide what is and isn't important for us to know based on the imbalance they strike is a deeply unsettling one and should trouble our sleep.  


Wednesday, May 14, 2014

The Optimistic Experiment

We occasionally gain special insight into an issue when we look at two stories in combination.

Two different cases decided by two different courts on Tuesday of this week give us a powerful lens into competing conceptions of freedom of expression--indeed, into competing conceptions of who human beings are and of how we think and behave.

On Tuesday, Europe's highest court--the European Court of Justice--issued an important ruling in a case brought by one Mario Costeja, a Spanish lawyer. Costeja was upset because a Google search of his name disclosed legal notices published in the online version of a Spanish newspaper that detailed debt problems he had encountered in 1998. Costeja argued that the debt issues had been resolved long ago and were no longer relevant to anything. He contended that Google had an obligation to remove--at his request--the link between his name and these notices.

The European Court of Justice agreed with Costeja and ruled that his privacy interests prevailed, even though Google had done nothing but connect two otherwise publicly available pieces of information--his name and the notices. The breadth and implications of the decision, which has engendered considerable eye rolling and head scratching, are unclear. A New York Times article asked: "Should a businessman be able to expunge a link to his bankruptcy a decade ago? Could a would-be politician get a drunken-driving arrest removed by calling it a youthful folly?"

On that same day, New York State's highest court--its Court of Appeals--struck down a state statute making it a felony to communicate with someone "in a manner likely to cause annoyance or harm." That case involved the conviction of one Raphael Golb, a real estate lawyer with a Ph.D. in comparative literature from Harvard who is the son of Norman Golb, a noted scholar of the Dead Sea Scrolls. In essence, the younger Golb had engaged in an extended campaign of harassment against his father's academic rivals that included accusations of plagiarism.

The Court of Appeals upheld Golb's misdemeanor convictions for criminal impersonation and identity theft (he had opened e-mail accounts in the names of some of his father's rivals and had sent messages confessing wrongdoing that appeared to come from them). But the court struck down his convictions under the "annoyance" statute, finding the law unconstitutionally vague and overly broad. As a New York Times article summarized: "Mere annoying speech, the lingua franca of many New Yorkers, was not enough."

These two rulings obviously reflect different conceptions of free speech, of its importance in the order of things, and of how it fares when it conflicts with claimed privacy interests--or, as Warren and Brandeis put it in a seminal law review article, the "right to be let alone."

But I think that the most interesting aspect of these cases is that they reflect fundamentally different views about the fortitude of human beings and about our ability to process information thoughtfully.

The European Court of Justice takes the pessimistic view.

Having people know about a sixteen-year-old debt problem doesn't seem like any great burden in the grand scheme of things. Nevertheless, the Court of Justice evidently sees us as such frail creatures that it's too much for us to bear. Perhaps the court was influenced by the fact that the complaining party was a lawyer, a species notorious for its delicacy.

Furthermore, it would seem as though most people who learned about the sixteen-year-old debt issue would see it for what it is: a matter of little or no continuing relevance. The assumption that people will make too much of facts is a dark commentary on human nature. It is as though the European Court of Justice declared, in that famous line of Jack Nicholson's, "You can't handle the truth!"

The New York Court of Appeals takes the optimistic view.

The court obviously acknowledged that the conduct in question was annoying. Indeed, compared with Costeja's case, this was Olympic-level annoying. But under our First Amendment jurisprudence that's the beginning--not the end--of the analysis.

Our First Amendment jurisprudence embodies a collection of assumptions: being annoyed goes with living in the world as we find it; we're actually pretty tough and resilient; we can take it; we're better off deciding for ourselves what's relevant and what isn't. The First Amendment has considerable confidence in the proposition that we can handle the truth--indeed, that we can even handle some untruth--and rejects the cynicism of the censor.

Will our experiences always validate the optimistic view? Of course not.

Will we be keenly disappointed from time to time? You can count on it.

Will this approach always yield the best results? Not a chance.

As Justice Holmes declared in his famous dissent in the Abrams case, this "is an experiment, as all life is an experiment." And, as experiments go, it can be loud, unsettling, and annoying.

But, very often, that's how we know the experiment was a success.