Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google

Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Insight of Paul Mishkin

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a public institution resides in the latter, the legal legitimacy of the law as a principled unfolding of professional reason inheres in the former. Mishkin came to believe that although the law required both forms of legitimacy, there was nevertheless serious tension between them, and he dedicated his scholarly career to attempting to theorize this persistent but necessary tension, which he conceived almost as a form of antinomy. In this article we pay tribute to Mishkin\u27s quest for understanding. We argue that the tension identified by Mishkin is significant and unavoidable, but that it is also exaggerated because it presupposes an unduly stringent separation between professional reason and popular values. In our view the law/politics distinction is both real and suffused throughout with ambiguity and uncertainty. The existence of the law/politics distinction creates the possibility of the rule of law, but the ragged and blurred boundaries of that distinction vivify the law by infusing it with the commitments and ideals of those whom the law purports to govern

Racist Speech, Democracy, and the First Amendment

The curse of racism continues to haunt the Nation. Everywhere we face its devastation, the bitter legacy of, in William Lloyd Garrison\u27s prophetic words, our covenant with death and ... agreement with Hell. This is the living consequence of the history that has produced us. We cannot overcome that history without changing ourselves and therefore also our legal order. Since Brown v. Board of Education vast stretches of our law have passed through the flame of this challenge. The question is always what to preserve, what to alter. Now it is the turn of the first amendment. Largely inspired by Richard Delgado\u27s article, Words That Wound, the past few years have witnessed an extraordinary spate of articles analyzing the constitutionality of restrictions on racist speech. This analysis is not merely academic. Motivated by an alarming increase in racist incidents, universities throughout the Nation have turned toward the task of restraining racist expression. The justification for these restraints, and their relationship to first amendment values, has become a matter of intense controversy

The Two Modes of Visual Processing: Implications for Spatial Orientation

The roles of the focal and ambient visual systems in spatial orientation are discussed. The two modes are defined and compared. The contribution of each system is illustrated through examples such as spatial disorientation/motion sickness, vehicle guidance/night driving, visual narrowing under stress/cortical brain damage, and aircraft instrumentation. Emphasis is placed on the need for testing procedures for the ambient system

Maxwell's theory on a post-Riemannian spacetime and the equivalence principle

The form of Maxwell's theory is well known in the framework of general relativity, a fact that is related to the applicability of the principle of equivalence to electromagnetic phenomena. We pose the question whether this form changes if torsion and/or nonmetricity fields are allowed for in spacetime. Starting from the conservation laws of electric charge and magnetic flux, we recognize that the Maxwell equations themselves remain the same, but the constitutive law must depend on the metric and, additionally, may depend on quantities related to torsion and/or nonmetricity. We illustrate our results by putting an electric charge on top of a spherically symmetric exact solution of the metric-affine gauge theory of gravity (comprising torsion and nonmetricity). All this is compared to the recent results of Vandyck.Comment: 9 pages, REVTeX, no figures; minor changes, version to be published in Class. Quantum Gra

Free edge strain concentrations in real composite laminates: Experimental-theoretical correlation

The magnitude of the maximum shear strain at the free edge of axially loaded theta (2)/-theta(2)(s) and (+ or - theta(2) (s) composite laminates was investigated experimentally and numerically to ascertain the actual value of strain concentration in resin matrix laminates and to determine the accuracy of finite element results. Experimental results using moire interferometry show large, but finite, shear strain concentrations at the free edge of graphite-epoxy and graphite-polyimide laminates. Comparison of the experimental results with those obtained using several different finite element representations showed that a four node isoparametric finite element provided the best and most trouble free numerical results. The results indicate that the ratio of maxium shear strain at the free edge to applied axial strain varies with fiber orientation and does not exceed nine for the most critical angle which is 15 deg

A New Pathway for the Preparation of Highly Qualified Teachers: The Master of Arts in Teaching (MAT)

This article reports on the development and initial implementation of a Master of Arts in Teaching (MAT) degree, an accelerated graduate program that encourages and scaffolds individuals with existing disciplinary expertise in entering the teaching profession. First, the context for developing the program is outlined. Next, the unique structure of the 15-month program, which consists of three blocks, is described. Expectations about students are then shared, quality control features of the program are highlighted, and the lessons we learned about program development and implementation are detailed. Finally, thoughts about the future of this program and others of its type are shared based upon our experience