By Jenny Whalen-Ball
U-M Law
Is one person’s secret another person’s news? The answer lies at the heart of a debate that reaches into courtrooms, newsrooms, and political chambers around the world.
The discussion continued at the University of Michigan Law School on Sept. 22, where legal scholars, policy makers, and journalists joined students and faculty at “International Perspectives on Privacy and Free Expression: Concepts, Conflicts, Consequences.” The one-day conference sought to explore the evolving relationship between privacy and free expression in the United States and abroad.
“Issues of privacy have never had so strong a claim on our scholarly consideration and practical concern,” said Professor Len Niehoff. “Every day, governments, institutions, and corporations make decisions that affect our privacy. Every day, we find ourselves in increasingly urgent need of legal, policy, and normative answers to the questions that meteoric advances in technology have thrust upon us.”
Although questions outnumbered answers, panelists drew from their rich and varied backgrounds to offer observations and predictions as to how the conflict between privacy and free expression will play out in and among the world’s legal regimes.
Offering an industry perspective, Microsoft privacy attorney Laura Lemire explained how her company has to balance its own views against those of the nations in which it operates.
“We are operating all over the world where there are different values and legal regimes,” Lemire said. “We try to balance privacy and free expression. But our job, our responsibility is to follow the law. We push back if we get requests to take content down and follow the [requesting nation’s] legal process if we get requests for data.”
But the line between privacy and free expression is blurry, so too for journalists who, as former Newsweek correspondent Lynette Clemetson noted, write for global audiences whether they intend to or not. “Everything you publish now is global,” said Clemetson, who now serves as the Charles R. Eisendrath Director of Wallace House, home of the University’s Knight-Wallace Fellowships for Journalists.
This globalization demands that today’s journalists keep privacy top of mind for their own safety, as well as that of their sources.
“I don’t think about privacy with a capital ‘P,’” said Mark Magnier, China economics editor at The Wall Street Journal. “It’s about power. You have to think about your sources. How can I tell this story without jeopardizing someone’s life?” In other words, an American journalist cannot only be concerned with freedom of expression when that freedom may put his Chinese source’s privacy—and life—at risk.
So are privacy and freedom of speech complementary or conflicting values? “That is the $60,000 question,” said University of Alabama School of Law Professor Ronald Krotoszynski. The answer is a deeply unsatisfying “yes.”
While the relationship between privacy and free expression may not be resolved any time soon, either in the United States or abroad, National Public Radio First Amendment counsel Ashley Messenger urged conference attendees to adopt an alternate frame when considering the issue in the future.
“As technology has evolved, the way people think about privacy has changed,” Messenger said. “How do we deal with different international regimes that privilege different values? In 20 years, no one has figured out whose law should apply. But the ethical considerations are stronger than the legal, and, ethically, we have some common ground.”
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