Martinned: http://writ.news.findlaw.com/ramasastry/20091117.html

OK, just skimmed it very fast. Was there something there that might avail Messrs. (herren?) Werle and Lauber in their attempt to erase the public record of the murder they committed? Didn’t appear that anything in the article would pertain to the facts of their case, and I can’t imagine the FTC having anything to say about Wikipedia’s blowing the murderers off.

Martinned:
Is Google also free to publish information about what books you read? Is Amazon?

There may be many ways to determine whether or not such a publication should be allowed or not, but the political process is perhaps the worst one imaginable. And of the possible awful political ways to do it, inventing an incoherent “right to privacy” that can be claimed to trump Google and Amazon’s very real speech rights would be perahps the worst of the worst such political ways.

There are costs and benefits to such privacy. If it’s important to me, I’m free to negotiate it. If it’s not important to Google, they are free to bind themselves to get my business.

The government forcing me to pay the costs of a “privacy” I may or may not want and am free to negotiate for if it is important to me and free to not pay the costs for it if it’s not, does me no favors.

Martinned: Is Google also free to publish information about what books you read? Is Amazon?

Unless there’s a contractual provision to the contrary, sure.

Martinned: Is Google also free to publish information about what books you read? Is Amazon?

Unless they’re restricted by some contractual agreement, why wouldn’t they be?

David Nieporent:
No, it doesn’t; it has nothing to do with Americans’ views about criminals. We know this because most commenters are unwilling to consider the possibility that someone might have a privacy right to stop any public fact from being published on the internet, whether related to a criminal record or not.We don’t think that people own facts and have a right to prevent other people from talking about them.

Is Google also free to publish information about what books you read? Is Amazon?

Martinned: That’s another structural difference between the US and Europe: policy towards criminals/people with a criminal record. The fact that Americans tend to have exactly zero empathy for anyone who ever went near a crime doesn’t only explain the difference in levels of sentencing, it also explains most commenter’s unwillingness to consider the possibility that someone with a criminal record might have a privacy right to stop that fact from being published on the internet.

No, it doesn’t; it has nothing to do with Americans’ views about criminals. We know this because most commenters are unwilling to consider the possibility that someone might have a privacy right to stop any public fact from being published on the internet, whether related to a criminal record or not. We don’t think that people own facts and have a right to prevent other people from talking about them.

Martinned: 2. The “ambtenaar van de burgelijke stand” (= the officer at city hall where you report births, and who is also responsible for performing and registering weddings and registering divorces) refuses to include names in the birth certificate that are inappropriate, or that are identical to existing family names, unless those are also common first names.
(...)

Informally, it appears the officer will refuse names that are unprecedented, i.e. that have never been used before, that are wholly made up. But if the parents object, the city still has to convince a judge that the legal standard of “inappropriate” (which, in the Dutch original, is limited to the meaning that has the connotation of indecent) has been met.

Not unless you misquoted; the legal standard also excludes names “that are identical to existing family names, unless those are also common first names.”

Moreover, notwithstanding your claim that parents can name their children anything they want, a bureaucrat can reject a name, and force the parents to go to court to get the name they want.

Martinned: No, now is my cue to explain that a rule that forbids parents from calling their children after condom brands is a de minimis restriction on liberty.

See? Every time it’s shown that Europeans don’t believe in liberty, your response is simply to denigrate liberty. But whether it’s “de minimis” or not, you must admit that your claim that parents can name their kids anything they want was wrong. And if you actually read the article I linked to, you’ll see that the condom example was a hypothetical proposed by some government bureaucrat, whereas actual examples are much more mundane.

But again, how is any of that “private”? You reveal your name and what you look like to hundreds of people every day. In other words, it’s public already.

Breathe... Now read what I wrote again. That information is private in the same way my home or my car or my office is private: It’s mine and no one else’s.

You’re merely restating your premise, not explaining it. How can facts be “yours and no one else’s”? How can you own facts?

And this purported “right to privacy” doesn’t even come close to withstanding such scrutiny.

Your loss.

Martinned:
No, what you’re talking about is a clash between an individual right and “society’s right”. What I’m talking about is a clash between the liberty rights of two individuals.

You really think it’s fair to respond to my argument by attacking my example of it? The exact same argument could be made about the victim’s individual right to justice. And, of course, free speech is attacked with an individual “right not to be offended” and a “right not to have one’s religion denigrated” and so on.

Someone who wants to take away a right can always call whatever it is that makes them want to take away a right itself a right. They then have a “clash of rights” and can decide that the right they want to take away loses. Such arguments must receive strict scrutiny, and if the purported winning right does not withstand the scrutiny, the argument is shown to be a sham to take away the very real right.

And this purported “right to privacy” doesn’t even come close to withstanding such scrutiny.

Blue: It has nothing to do with our attitudes about crime. You’re research paper analogy, for example, is just as absurd.

Now that you mention it, my impression is that you, specifically, don’t get the concept of an analogy. I could explain it, but that’s what we have wiki for. (One clue: When someone proposes an analogy, they’re not saying the two are exactly the same, but only that they’re the same in certain respects that are relevant to the problem at hand.)

If Werle or Lauber were buying a unit in my co-op building, I’d like to know, and think I shouldn’t have to jump through hoops to find out, what crime(s) they committed and those details that came out in open court.

That’s another structural difference between the US and Europe: policy towards criminals/people with a criminal record. The fact that Americans tend to have exactly zero empathy for anyone who ever went near a crime doesn’t only explain the difference in levels of sentencing, it also explains most commenter’s unwillingness to consider the possibility that someone with a criminal record might have a privacy right to stop that fact from being published on the internet.

Ken Arromdee:
They’re on parole, and parole usually requires demonstrating remorse, so yes to that.

Do you base that assertion on actual knowledge, or do you just imagine it to be so? If the former, please tell the rest of us how we can confirm the “parole usually requires demonstrating remorse.” Would it surprise or disturb you to learn that the last member of the Bader-Meinhof crew, a truly nasty group of terrorists, was recently released from prison without even feigning remorse?

As for the rest, I don’t care.

That’s fine, but it doesn’t mean that no one else should care and want to know.

You can’t make a law which says “some crimes that are classified the same way by the law may be treated differently if there are mitigating circumstances”–if the law could recognize the mitigating circumstances it wouldn’t have classified the crimes the same way to begin with.All you can do is make it for everyone.

Surely you are not maintaining that two people cannot be convicted of “crimes that are classified the same way by the law” yet “be treated differently if there are mitigating (or aggravating) circumstances,” because that ain’t so. In capital cases, possible “aggravating” (e.g., tortured the victim) and “mitigating” (e.g., youth) factors must be weighed, and if a death sentence goes up on appeal, as it almost certainly will, the appellate court will look carefully at that weighing of “aggravating” and “mitigating” factors.

Maybe what you mean is that the “elements” of a crime determine the classification, and we don’t refer to those elements as “aggravating”/“mitigating” factors, though they might be seen as such. If you cause the death of another without legal excuse (e.g., you acted in self-defense or were insane and hence incapable of the necessary mens rea), it matters a great deal whether you intended their death or their death came about as the result of your willful recklessness and indifference to the safety of others. The former is penalized more severely than the latter, though the latter may imply more dangerousness, that is greater likelihood of future violence and threat to others. If Werle or Lauber were buying a unit in my co-op building, I’d like to know, and think I shouldn’t have to jump through hoops to find out, what crime(s) they committed and those details that came out in open court. Under very exceptional circumstances a court might seal the record, but only under very exceptional circumstances should it do so, and that decision should be reviewable by a higher court if challenged, as newspapers are wont to do.

Martinned: I think the better analogy is to copyrights. I still own the things I write even after I put them on SSRN. Putting an article on SSRN just means I consent to certain uses. If a newspaper downloads my article from SSRN, that doesn’t mean they are thereby allowed to print it. (Assuming they would want to.) What is so strange about me also owning my private information, meaning that I get to control — subject to limitations set by law, etc. — what others get to do with private information about me, regardless of how they obtained this information?

What a ridiculous analogy. If you put something up on SSRN you cannot stop me from:
1) Naming you as the author;
2) Expressing praise or criticism of your work;
3) Using your work to build new knowledge in work of my own;
4) Quoting sections of your actual text under fair use.

Clearly we can stop talking any time, as there is no agreement possible here. Those of us on the other side simply deny that a person has a “liberty right” in suppressing information about themselves that is already public knowledge.

Might I modestly propose that we leave off kicking this poor horse, and move onto something where consensus might be achieved, like perhaps gun control? :-)

Was it also your cue to ignore the more substantial restrictions, such as names that sound too much like surnames, or “boys” names being given to girls? No to mention that fact that up until just last year the restrictions were much more strict?

But really, the details are not nearly so interesting to me as the fact that the “list” exists at all.

David Schwartz: And you can negate any right this way. No government is going to violate rights when it has no reason whatsoever to do so. It’s going to do so when it has some reason, legitimate or not. All it has to do is call that reason a right, claim a conflict of rights, and then declare that the actual right loses the conflict for the very reason it wanted to violate the right in the first place.Want to violate the right to a speedy trial while claiming to respect it? Easy. Just figure out why you want to violate it — say, to make sure criminals don’t get away with their crimes because the State needs lots of time to get the perfect case. Call that a right, say “society’s right to see that its laws are justly enforced”. Then claim the two rights conflict — society can’t justly enforce its laws in some cases if the accused gets a speedy trial. Then declare the speedy trial right loses for the very reason you wanted to violate it (why would you want to violate if not because you thought that what you got from violating it was more important than respecting it?). There you go, you can claim to respect the right without actually doing so.The whole point of these things being actual *rights* is that they don’t yield to purported rights. If the alleged counterbalancing right doesn’t hold up to strict scrutiny, then the actual right is being trampled.Because this purported “right to privacy” is such a transparent sham, the claim that it has to be balanced against the very real right to speak the truth in public discourse is a mere excuse to trample the real right. It is not about privacy, but about “privacy”. It is not about private facts but “private” facts. Something is private because nobody knows it and you take effective steps to keep it secret, not because it’s about someone. Privacy is the right not to disclose private information, not the right to stop others who rightfully acquired public information from sharing it with others in public discourse.I agree, the US way is not gospel. But this simply is *not* a conflict of rights. That is the excuse for trampling on a real right, and that’s almost always the excuse.

No, what you’re talking about is a clash between an individual right and “society’s right”. What I’m talking about is a clash between the liberty rights of two individuals.

Kirk Parker: Martinned,Regarding names, we aren’t talking about what you “call” someone, but rather what you are allowed to put on the birth certificate (or whatever official registry takes the place of that.) Back in the 80s we had both Swiss and Dutch colleagues tell us that such names had to come from an official list. Is this no longer the case? Or was it never the case and we simply misunderstood what they were saying?

I’ve never heard of such a list, neither here nor in any other country, but let me check...

[...]

The whole issue of names, etc. is part of the family law chapter of the Civil Code (i.e. book 1). Art. 4 of the current Dutch civil code states, in my translation, as follows:

1. Everyone has the first names given to him in his birth certificate.
2. The “ambtenaar van de burgelijke stand” (= the officer at city hall where you report births, and who is also responsible for performing and registering weddings and registering divorces) refuses to include names in the birth certificate that are inappropriate, or that are identical to existing family names, unless those are also common first names.
(...)

Informally, it appears the officer will refuse names that are unprecedented, i.e. that have never been used before, that are wholly made up. But if the parents object, the city still has to convince a judge that the legal standard of “inappropriate” (which, in the Dutch original, is limited to the meaning that has the connotation of indecent) has been met.

At the risk of invading the privacy of Werle and Lauber, may I ask if you know how they went about murdering their victim? Were there any extenuating or mitigating circumstances? Did they demonstrate remorse for their crime? Was one a “bystander” while the other actually killed the victim, or did they both participate directly?

They’re on parole, and parole usually requires demonstrating remorse, so yes to that.

As for the rest, I don’t care. You can’t make a law which says “some crimes that are classified the same way by the law may be treated differently if there are mitigating circumstances”–if the law could recognize the mitigating circumstances it wouldn’t have classified the crimes the same way to begin with. All you can do is make it for everyone.

David M. Nieporent:
How can it be a “liberty interest” to prevent people from telling the truth about you?It’s not your “life” that you’re seeking “control” over, but facts.You of course have the right to choose what traces you leave behind — by not killing someone. Once you’ve done that; you’ve made your choice to leave that “trace.”It’s ludicrous to suggest that if you punch me in the face, you have some “liberty interest” in keeping me from telling other people about it.

And you can negate any right this way. No government is going to violate rights when it has no reason whatsoever to do so. It’s going to do so when it has some reason, legitimate or not. All it has to do is call that reason a right, claim a conflict of rights, and then declare that the actual right loses the conflict for the very reason it wanted to violate the right in the first place.

Want to violate the right to a speedy trial while claiming to respect it? Easy. Just figure out why you want to violate it — say, to make sure criminals don’t get away with their crimes because the State needs lots of time to get the perfect case. Call that a right, say “society’s right to see that its laws are justly enforced”. Then claim the two rights conflict — society can’t justly enforce its laws in some cases if the accused gets a speedy trial. Then declare the speedy trial right loses for the very reason you wanted to violate it (why would you want to violate if not because you thought that what you got from violating it was more important than respecting it?). There you go, you can claim to respect the right without actually doing so.

The whole point of these things being actual *rights* is that they don’t yield to purported rights. If the alleged counterbalancing right doesn’t hold up to strict scrutiny, then the actual right is being trampled.

Because this purported “right to privacy” is such a transparent sham, the claim that it has to be balanced against the very real right to speak the truth in public discourse is a mere excuse to trample the real right. It is not about privacy, but about “privacy”. It is not about private facts but “private” facts. Something is private because nobody knows it and you take effective steps to keep it secret, not because it’s about someone. Privacy is the right not to disclose private information, not the right to stop others who rightfully acquired public information from sharing it with others in public discourse.

I agree, the US way is not gospel. But this simply is *not* a conflict of rights. That is the excuse for trampling on a real right, and that’s almost always the excuse.

Regarding names, we aren’t talking about what you “call” someone, but rather what you are allowed to put on the birth certificate (or whatever official registry takes the place of that.) Back in the 80s we had both Swiss and Dutch colleagues tell us that such names had to come from an official list. Is this no longer the case? Or was it never the case and we simply misunderstood what they were saying?

(Now is your cue to explain how when you said that Europeans could choose, you didn’t mean choose freely.)

No, now is my cue to explain that a rule that forbids parents from calling their children after condom brands is a de minimis restriction on liberty.

But again, how is any of that “private”? You reveal your name and what you look like to hundreds of people every day. In other words, it’s public already.

Breathe... Now read what I wrote again. That information is private in the same way my home or my car or my office is private: It’s mine and no one else’s.

How can it be a “liberty interest” to prevent people from telling the truth about you? It’s not your “life” that you’re seeking “control” over, but facts. You of course have the right to choose what traces you leave behind — by not killing someone. Once you’ve done that; you’ve made your choice to leave that “trace.” It’s ludicrous to suggest that if you punch me in the face, you have some “liberty interest” in keeping me from telling other people about it.

Let’s just agree to disagree about this one. My point is this thread was merely to explain that the US way of doing things is not gospel, i.e. not the only way. I don’t know enough about German law to be able to say whether the plaintiffs will succeed, I’m not even entirely sure about Dutch law. (I think under Dutch law they may well win, assuming the jurisdiction issue is sorted out.)

Martinned: No, I’m under the impression that parents can chose whatever names they like in every country worth comparing the US to. (I can’t vouch for China, but I’m not sure if that matters.)

You’re mistaken. Germany has similar types of rules.

(Now is your cue to explain how when you said that Europeans could choose, you didn’t mean choose freely.)

Martinned:
My bad, I should have been clearer. It is “private” information not because no one knows about it, but because it uniquely identifies and/or uniquely refers to one single individual. It’s not that he killed someone that is private, but his name, what he looks like, etc.

But again, how is any of that “private”? You reveal your name and what you look like to hundreds of people every day. In other words, it’s public already.

Ownership of this right derives from the control that I, as an individual, should have over my life. It’s a liberty interest, referring to the traces I choose to leave behind as I move through society. I can have a Facebook page if I choose to, but others can’t use my “private information” to make me a public profile.

How can it be a “liberty interest” to prevent people from telling the truth about you? It’s not your “life” that you’re seeking “control” over, but facts. You of course have the right to choose what traces you leave behind — by not killing someone. Once you’ve done that; you’ve made your choice to leave that “trace.” It’s ludicrous to suggest that if you punch me in the face, you have some “liberty interest” in keeping me from telling other people about it.

neurodoc:
Where is what otherwise? You are not under the misimpression that in the United States parents can only chose names for their children from a list of names officially approved by the state, are you?

No, I’m under the impression that parents can chose whatever names they like in every country worth comparing the US to. (I can’t vouch for China, but I’m not sure if that matters.)

David Nieporent:
First, because it’s not private information.It’s public information.

My bad, I should have been clearer. It is “private” information not because no one knows about it, but because it uniquely identifies and/or uniquely refers to one single individual. It’s not that he killed someone that is private, but his name, what he looks like, etc.

Ownership of this right derives from the control that I, as an individual, should have over my life. It’s a liberty interest, referring to the traces I choose to leave behind as I move through society. I can have a Facebook page if I choose to, but others can’t use my “private information” to make me a public profile.

Martinned:
And where, pray tell, is it otherwise?

Where is what otherwise? You are not under the misimpression that in the United States parents can only chose names for their children from a list of names officially approved by the state, are you?

neurodoc:
How many Americans would accept being limited in the names they could give their children to ones formally approved by their government? I don’t know whether this should be viewed as a “privacy” issue, but it certainly goes to our notions of individual rights and freedom to chose for ourselves.

And where, pray tell, is it otherwise?

Ken Arromdee:
Germany has a felony murder law.If it’s anything like a typical felony murder law, it means that if you’re robbing a bank with a note and no real weapon and the police shoot your partner, you’re now a murderer.

There’s a nice bit of comparative law right there: The felony murder rule is of common law origin, and if I’m not mistaken most common law juristictions outside the US don’t have it anymore, either. Over here in Europe we consider it an outrage against justice.

How would the privacy matter with respect to him have played out in Germany, if such a singular case would be imaginable there?

Ken Arromdee:
Germany has a felony murder law.If it’s anything like a typical felony murder law, it means that if you’re robbing a bank with a note and no real weapon and the police shoot your partner, you’re now a murderer.The analogy to the sex offender registry is that the government is making the classification, and doing so in such a way which pretty much encourages the public to take it out of context.Or are you suggesting that “murder” is defined so specifically that a person in Germany upon learning that someone is a murderer, would never think it’s more serious than it really is?And even if this is true for murder, do you think it’s true for every single crime that the law is trying to conceal?

At the risk of invading the privacy of Werle and Lauber, may I ask if you know how they went about murdering their victim? Were there any extenuating or mitigating circumstances? Did they demonstrate remorse for their crime? Was one a “bystander” while the other actually killed the victim, or did they both participate directly?

No matter the answers to those questions, if you know them, you believe that Werle and Lauber did not forfeit their privacy interests in this matter when they committed their crime? Do you think such information should have been kept from the public all along, or only after they were released from prison, arguably having “paid their debt to society”? Should all legal records be placed under seal, or their convictions expunged since they served their sentence, and that would better protect their privacy interest that you exalt above a public right to “remember”?

Mithras: Martinned, you’ve done yeoman work here, but I think it’s wasted.It’s dispiriting to see American lawyers be so parochial that they can’t even think back to their conflict of laws classes. (Reminder: Legal systems differ, and you won’t get very far by starting off with the premise that one is superior to another before you understand them both.) It’s even worse to see a law professor — tenured at an elite institution, who is supposedly some sort of notable intellectual and a political moderate — engaging in simpleminded xenophobia.

Professor Volokh certainly doesn’t need me to speak up on his behalf, least of all to defend him against crap like “who is supposedly some sort of notable intellectual and a political moderate.” But I must ask, what do you have for “xenophobia”? I see nothing. You really should retract that baseless and outrageous accusation, but I don’t expect you will.

I’m sure that all of the individuals defending the privacy right here would agree that we should stop talking about Adolf Hitler. While his crimes were indeed grand, he is now dead. There is no sort of punishment the German government could have done above that, and therefore we should forget his crimes.

On the contrary. Adolf Hitler hasn’t paid his debt to society. The fact that he is now dead and can’t be punished further means that he can’t pay–not that he has paid.

And carefully defined (and contested) distinctions are made between first–degree murder and what is counted less grievous illegal taking of a life, e.g., manslaughter.

Germany has a felony murder law. If it’s anything like a typical felony murder law, it means that if you’re robbing a bank with a note and no real weapon and the police shoot your partner, you’re now a murderer.

The analogy to the sex offender registry is that the government is making the classification, and doing so in such a way which pretty much encourages the public to take it out of context. Or are you suggesting that “murder” is defined so specifically that a person in Germany upon learning that someone is a murderer, would never think it’s more serious than it really is? And even if this is true for murder, do you think it’s true for every single crime that the law is trying to conceal?

Martinned: @Neurodoc: Would you maybe like to explain why you don’t approve of Ken Arromdee’s analogies?

I think that I and others (e.g., PatHMV) have done that. But if we haven’t, doesn’t the burden of showing an analogy to be apt fall on the person who would argue on the basis of the analogy they propose? I fail to see where Ken Arromdee (or anyone else here) made a case that there was much in common between the government not blocking publication of the names of individuals convicted of murder after their sentences were served and the government publishing and publicizing lists of those who years before “urinated behind a bush.”

Suppose the discussion is about dogs. I pop up to observe that there are a number of commonalities between dogs and cats (e.g., most dogs and cats, though not all, have fur), and in turn cats and mice have some of those same things in common (e.g., most cats and mice, though not all, have fur). If I would now try to rebut someone else’s case about dogs with observations and arguments related to mice, would the other person have to deny any shared commonalities among dogs and cats and mice, or engage with my observations and arguments related to mice if they are defeat my “logic”? Or is it my burden to show that the evidence regarding mice (e.g., reasoning based on molecular biology work done on mice, but never done on dogs) is pertinent?

PatHMV:...I remember talking with a Swede once who was livid over some claimed American intrusion into “privacy” (never actually defined, of course). I pointed out that his country required cradle-to-grave registration of every single person in the country, mandating by law that each person notify the central government of every address change within something like 2 weeks of moving. But that was different, he explained, because their government was doing it only for good things, like providing welfare benefits.

How many Americans would accept being limited in the names they could give their children to ones formally approved by their government? I don’t know whether this should be viewed as a “privacy” issue, but it certainly goes to our notions of individual rights and freedom to chose for ourselves.

Ken Arromdee: It also classified the murderer as a murderer. What if he killed an intruder in self-defense? (which I doubt is legal in Germany) The public just sees “murder”, they don’t know that this murder isn’t as threatening to the neighbors as some other type of murder. Not seeing the difference between various types of murder is a lot like not seeing the difference between various types of sex crime.

Yes, and that classification is the result of the most rigorous process we can humanly produce, namely a trial, with the government bearing the burden of persuasion, an extraordinarily heavy burden in criminal cases, “guilty beyond a reasonable doubt.” And carefully defined (and contested) distinctions are made between first–degree murder and what is counted less grievous illegal taking of a life, e.g., manslaughter. (“Self-defense” is usually an excuse, and if accepted by the court, then the accused is not held to be a “murderer.”)

You don’t know this, that’s why you think the Werle and Lauber matter is analagous to the business of being listed on a sex-offender registry for having urinated behind a bush?