The Internet has no Delete Button: Limits of the Legal System in Protecting Anonymity
It is futile to try to stay anonymous by getting your name or data purged from the Internet, once it is already out there. Attempts at such censorship have backfired repeatedly and spectacularly, giving rise to the term Streisand effect. A recent lawsuit provides the latest demonstration: two convicted German killers (who have completed their prison sentences) are attempting to prevent Wikipedia from identifying them.
The law in Germany tries to “protect the name and likenesses of private persons from unwanted publicity.” Of course, the Wikimedia foundation is based in the United States, and this attempt runs head-on into the First Amendment, the right to Free Speech. European countries have a variety of restrictions on speech—Holocaust denial is illegal, for instance. But there is little doubt about how U.S. courts will see the issue; Jennifer Granick of the EFF has a nice write-up.
The aspect that interests me is that even if there weren’t a Free Speech issue, it would be utterly impossible for the court system to keep the names of these men from the Internet. I wonder if the German judge who awarded a judgment against the Wikimedia foundation was aware that it would achieve exactly the “unwanted publicity” that the law was intended to avoid. He would probably have ruled as he did in any case, but it is interesting to speculate.
Legislators, on the other hand, would do well to be aware of the limitations of censorship, and the need to update laws to reflect the rules of the information age. There are always alternatives, although they usually involve trade-offs. In this instance, perhaps one option is a state-supplied alternate identity, analogous to the Witness Protection Program?
Returning to the issue of enforceability, the European doctrine apparently falls under “rights of the personality,” specifically the “right to be forgotten,” according to this paper that discusses the trans-atlantic clash. I find the very name rather absurd; it reminds me of attempting not to think of an elephant (try it!)
The above paper, written from the European perspective, laments the irreconcilable differences between the two viewpoints on the issue of Free Speech vs. Privacy. However, there is no discussion of enforceability. The author does suspect, in the final paragraph, that the European doctrine will become rather meaningless due to the Internet, but he believes this to be purely a consequence of the fact that the U.S. courts have put Free Speech first.
I don’t buy it—even if the U.S. courts joined Europe in recognizing a “right to be forgotten,” it would still be essentially unenforceable. Copyright-based rather than privacy-based censorship attempts offer us a lesson here. Copyright law has international scope, due to being standardized by the WIPO, and yet the attempt to take down the AACS encryption key was pitifully unsuccessful.
Taking down a repeat offender (such as a torrent tracker) or a large file (the Windows 2000 source code leak) might be easier. But if we’re talking about a small piece of data, the only factor that seems to matter is the level of public interest in the sensitive information. The only times when censorship of individual facts has been (somewhat) successful in the face of public sentiment is within oppressive regimes with centralized Internet filters.
There are many laws, particularly privacy laws, that need to be revamped for the digital age. What might appear obvious to technologists might be much less apparent to law scholars, lawmakers and the courts. I’ve said it before on this blog, but it bears repeating: there is an acute need for greater interdisciplinary collaboration between technology and the law.