The difference between European and American privacy is typically framed as E.U. aspiration versus U.S. pragmatism:
- The E.U. views privacy as a source “right of personality" versus the U.S. mosaic of privacy torts;
- the E.U. has comprehensive, federal law versus U.S. spotty, sectoral statutes; and
- the E.U. has spotty enforcement at the nation-state level versus U.S. rigorous enforcement through private right of action, state enforcement through attorneys general, and federal regulation through the Federal Trade Commission.
As Don Cohn has said, “hell on earth is E.U. law and U.S. enforcement.” There’s some truth to these characterizations, but they miss the point. The E.U. and U.S. simply disagree on the priority of two key cultural values, disclosure and discretion — that is, freedoms of the public (i.e., speech, press, assembly) and freedoms of the person (i.e., equal treatment, privacy). We get mired in technocratic detail without recognizing this fundamental cultural difference.
Last week, the European data protection authorities came to Silicon Valley to discuss access and use of online personal data. The clash of values, between rights of the public and rights of the private, could not be more clear. At the Berkeley Law Privacy Forum, Peter Hustinx (European Data Protection Supervisor) said:
"When data have been published or have been shared and it is within your [company’s] power to get them back, you have to make reasonable effort to get the spirit back in the bottle."
Mr. Hustinx seems to be saying that even if information is published, there’s an obligation to re-cloak it. For example, if two Twitter users get into a heated fight (hey, it happens), and both agree to delete their exchange, Twitter should make “reasonable effort to get the spirit back in the bottle” and delete the tweets. But what if these public tweets are retweeted far and wide? Does Twitter have the obligation to delete them, too? I don’t think so.
What is noticeably absent from the E.U. perspective is the public’s right to history, knowledge, and lessons learned. Sure, a public fight often results in humiliation of the combatants (or at least the loser), but it’s a mistake to erase the experience from the public record. Many of life’s lessons have been learned by witnessing (or sometimes engaging in) playground, barroom, and online brawls.
What’s more, the duty to have our public mistakes remembered isn’t just important to our social fabric, it’s a key ingredient to technology innovation. Real entrepreneurs aren’t deterred by risking the embarrassment that comes with public failure. To paraphrase famed marketer Geoffrey Moore, please fail publicly so we can learn from your humiliation. We’ll forgive you and thank you.