May 20, 2014

"Perhaps the European Court of Justice wants to equal the US Supreme Court in a display of poor judgment". I cannot say this better than John Gapper (*). His column was on the recent decision of the EU Court to force Google to remove links to Mario Costeja González' past problems (1). Please compare this controversial call for calibrated censorship to the dismal dismissal of legitimate demands for eprivacy by the US Court.

Yet justice demands we understand why Justice appears to be blind not only to the parties' influence, but to the realities of technology as well. In a well functioning democracy judges should not make, only interpret, the law. But how can it be the case when the legislative power itself happens to be paralyzed, riven wholesale by the religious cold war between hedonists of the left and hedonists of the right and bought out retail by pronaocratic interests in what Edward Luce calls "the dangerous tightening of the oligarchic grip on [...] democracy" (**).

Justice is not helped either by the narrow focus intrinsic to its proceedings. Take the Aereo case currently before the US court. It concerns the distribution of copyrighted information. Absent any consistent legal framework, the justices are quite aware their decision to address the very special situation Aereo designed will create a precedent applicable in Judge Breyer's words to "all kinds of other technologies" (2), as varied as valuable.

This defect mostly afflicts the American legal tradition. The French-inspired approach adopted by Europe is no less troublesome. Personal data must remain "adequate, relevant and not excessive in relation to the purposes for which they are collected" (3). So remote from reality, this lofty principle acts as a blank slate. Is selling my private Internet interactions to advertisers less excessive than providing free links to Mr González' public record?

Still it would be dangerous to limit our observations to fruitless whining. Short of restoring democracy, we may find Justice wanting, but its travails can illuminate the fundamental issues which face the Information Age.

Read Farhad Manjoo for a well thought out comment on Aereo (***). While the case bears on public performance rights rather than reproduction rights, Farhad Manjoo dismisses this legalistic, if vital, distinction by simply speaking of "licensing". For him, the real fact is that "a handful of copies [...] in a few data centers" are enough to service "millions of customers on demand". When, to avoid "expensive and restrictive" licensing fees, Aereo creates one copy per customer, each using a little personal antenna, "for all its cleverness, [it] is also a gimmick", in view of its technically inefficiency.

What Farhad Manjoo underlines is the irreversible divorce between the technical and the legal sides of copy management. If it remains as tightly wedded as before to physical embodiments with regards to neither physics nor social norms, no law can soundly encourage information providers.

On behalf of his clients, Paul D. Clement too suggests Aereo is a gimmick. But isn't his idea to outlaw outsourcing when recording one's first copy but not subsequent ones, so as to separate Aereo from other Cloud services, but a gimmick based from another "clever distinction", to quote him?

I once suggested how to cap the infinite greed of publishers. For basic services where technical efficiency calls for some form of monopoly, the required balance between social solidarity and human greed, is achieved with classifying providers as utilities. The fundamental issue here is that technical progress constantly redefines what should be a basic service, yet no company in good standing ever welcomes to become a utility.

Some solutions defy logic. Witness how the FCC now wants to ensure Net Neutrality (4), its past position having been invalidated by a US Court (5). The data carriers would now be free to give content providers priority for a fee in exchange for maintaining a free basic service for all. But as soon as a limited asset, such as bandwidth, is shared by an unlimited number of suppliers, those who pay inevitably close part of the service opened to those who do not pay. Pragmatic fairness requires the two services to have no infrastructure in common, truly a pipe dream.

If bad laws blind Justice as a whole, justices are rarely duped as individuals. See how the issue of scale weighs heavily on the scales of Justice. Why else would "10,000 dime-sized antenna" give Chief Justice Roberts pause? Would he lose any sleep if Aereo were operated by some New York coop instead of being a city wide service? But where to fix the border and how to move it to account for technical progress?

Nowhere is the failure to scale up the laws more fateful than for eprivacy. All data aggregators rightly argue they are doing nothing illegal in observing our every move and selling this information to the highest bidder. They are just more efficient. If Aereo is suspected to have crossed a threshold into illegality while Amazon or Axciom are allowed to amass personal data on everyone, it only proves that in a pronaocracy economic might makes right.

The Aereo case also raises a fourth issue, the rise of metadata. Read Farhad Manjoo again when he praises LyveHome as an answer to those "worried about the privacy implications [...] of a large cache of storage online" (****). Suppose Aereo hooked up with LyveHome to record one's copy on one's home device, wouldn't those "10,000 antenna" be a technically efficient way to guarantee broadcast viewers both clear signal reception and protection against corporate spies intent on observing how they watch television?

It is time to return to the EU decision. Jonathan Zittrain shrewdly calls "the right to be forgotten" "too important and too subtle a policy matter to be legislated by a high court" (*****). But what if the European decision, "both too broad and curiously narrow", were better than it looks?

First the EU Court implicitly distinguishes personal data, the original reporting of Mr González' legal troubles, from the metadata compiled by Google in the instance, i.e. links to primary data. Second it explicitly takes scale into account, in both quality and quantity, in examining the influence of search engines on "the rights of the data subject". Third it burdens this kind of data controllers with public duties which imply their being similar to a utility.

Influenced by the American bias for surveillance over censorship, critics claim the limited censorship called for by the court to be clumsy if not ludicrous. But its decision is not about censorship. More subtly, it aims as raising ever so slightly the cost of searching for personal data. In the US, the same goal is achieved by having individuals pay companies like Reputation.com to obfuscate search engine results. ePrivacy is all about money.

I simply wish the US Supreme Court can emulate the EU Court and make the most of its poor prospects of achieving Justice.

Philippe Coueignoux

• (*) ......... People do not have the right to erase the web's memory, by John Gapper (Financial Times) - May 15, 2014
• (**) ....... Hedge funds are testing the quality of US democracy, by Edward Luce (Financial Times) - May 12, 2014
• (***) ..... The Cloud Roots for Aereo, but People Need Better, by Farhad Manjoo (New York Times) - April 25, 2014
• (****) ... Organizing Your Photos, Cloud-Free, by Farhad Manjoo (New York Times) - May 15, 2013
• (*****) . Don't Force Google to 'Forget', by Jonathan Zittrain (New York Times) - May 15, 2013
• (1) Google versus Mario Costeja González, a decision by the European Court of Justice, May 13, 2014,
• (2) ABC versus Aereo, oral arguments before the US Supreme Court, April 22, 2014,
• (3) European Directive 95/46/EC, on personal eprivacy rights, November 23, 1995
• (4) New Rule Making Proposal for an Open Internet, by the FCC, May 15, 2014
• (5) Verizon versus the FCC, a decision by the US court of appeal for the District of Columbia, January14, 2014