6 ms·

Such a law will not survive a Constitutional challenge. Just rent seeking by an incumbent.

by greatamerican 8y ago

dmoy 8y ago
Could you elaborate? Most of us are not super well versed in constitutional law.
- ocdtrekkie 8y ago
  The general claim people make suggesting things like Right To Be Forgotten or Right To Privacy is that it violates "free speech", and particularly, that via Citizens United, the US currently claims corporations have the right of free speech. Google believes, for instance, all limitations on how it provides search results as an infringement on Google's right to "say" whatever they want. Of course, we already have a variety of limitations on free speech, plenty of laws that restrict what companies and and cannot disclose about other entities, and GDPR would be no different.
  - kinsomo 8y ago
    > [a] Right To Privacy is that it violates "free speech" Copyright is settled law that definitely limits the kinds of speech people can engage in. Couldn't you construct a right to privacy by first saying an individual has an automatic ownership right to certain kinds of personal data [1], and that data can't be used without an appropriately constructed license [2]? [1] You might be able make this strong and compatible with the First Amendment, by treating machine-collected and person-collected data differently. A machine has no First Amendment right to speak about what it knows, while a person does. [2] The "appropriately constructed license" requirements could include GDPR-like definitions of consent.
    - ocdtrekkie 8y ago
      I, personally, do not believe there is any disagreement between the Constitution and GDPR. In fact, a right to privacy has long been inferred by combining traits of a few amendments: https://en.wikipedia.org/wiki/Right_to_privacy#United_States https://en.wikipedia.org/wiki/Right_to_privacy#United_States (Of course, that constructed right is a right to privacy specifically from government actions.) And generally, we've recognized that some rights such as speech, may need to have limits to avoid encroaching upon other rights, such as privacy.
kinsomo 8y ago
> Just rent seeking by an incumbent. I disagree with the immediate labeling of a potential consumer protection law as "rent seeking." Such an attitude totally excludes any improvement in the consumer privacy situation, unless it's an act of benevolence from adtech; which is to say that it totally excludes any privacy improvement ever.
duxup 8y ago
Based on what?
- SamReidHughes 8y ago
  When can Congress pass a law requiring newspapers to delete information it has collected about somebody?
  - CamTin 8y ago
    They've done so in other industries a couple times with HIPAA and FERPA. What makes newspapers different?
    - SamReidHughes 8y ago
      FERPA's tied to federal funding. The constitution specifically calls out for a "free press."
      - duxup 8y ago
        I don't think things like GDPR and "free press" are in conflict like you think they are.... at least you haven't explained how they are supposedly in conflict. HIPAA exists... and it doesn't prevent the press from using that information.
        SamReidHughes 8y ago
        Part of free speech is being able to gather and record information. Observation.
        duxup 8y ago
        The press can do that... that's allowed. I'm not sure your really have a good grasp on what any of these laws actually do, let alone 'free speech'. You keep alluding to complications that don't exist and don't explain what you're talking about.
CamTin 8y ago
These recently-discovered European "rights" are probably non-starters, but the ability to get a Google-takeout style package of your own data, and some reasonably protections regarding consent and the way your data is used would clearly Constitutional. We already force some industries to follow most of these precepts in other laws that haven't been challenged: credit agencies have to explain your credit score to you, HIPAA manages how medical data is used. The core of GDPR is really just expanding those laws to all companies. The only sticky one is really the "right to be forgotten," which just isn't a right, and possibly has constitutional (1st amendment) problems. IMO though, a "conservative GDPR" could get Republican backing by basically framing it as a question about property rights, which their base is all about: your data is valuable, and it's YOUR property, not Google's. Some of the other provisions could be sold as a "sunshine law" for big business. Also resumably, given US politics, there would be plenty of exemptions for small businesses (and industries that have strong lobbying firms). (note that I'm not a lawyer, so this may be bullshit)
- hannasanarion 8y ago
  If you actually read up on the "right to be forgotten" you will see that "free speech" is always an exception to it. You cannot demand to be forgotten in order to censure others.
  - methodover 8y ago
    The American interpretation of “free speech” is much more broad than in the EU. Here, laws banning hate speech or flag burning or corporate campaign donations are unconstitutional for example. Libel lawsuits are much harder to pull off here as well. A law requiring businesses and individuals to delete any personal data at the request of the data subject, as the GDPR requires, would have to be extremely narrowly written to survive constitutional muster here, I think. If I do business with you and write down your name, the GDPR requires that I delete your name if you ask me to (and even if you don’t if our relationship ends). That wouldn’t survive a First Amendment challenge here.
    - hannasanarion 8y ago

Such a law will not survive a Constitutional challenge. Just rent seeking by an incumbent.

dmoy 8y ago

Could you elaborate? Most of us are not super well versed in constitutional law.

ocdtrekkie 8y ago
The general claim people make suggesting things like Right To Be Forgotten or Right To Privacy is that it violates "free speech", and particularly, that via Citizens United, the US currently claims corporations have the right of free speech. Google believes, for instance, all limitations on how it provides search results as an infringement on Google's right to "say" whatever they want. Of course, we already have a variety of limitations on free speech, plenty of laws that restrict what companies and and cannot disclose about other entities, and GDPR would be no different.
- kinsomo 8y ago
  > [a] Right To Privacy is that it violates "free speech" Copyright is settled law that definitely limits the kinds of speech people can engage in. Couldn't you construct a right to privacy by first saying an individual has an automatic ownership right to certain kinds of personal data [1], and that data can't be used without an appropriately constructed license [2]? [1] You might be able make this strong and compatible with the First Amendment, by treating machine-collected and person-collected data differently. A machine has no First Amendment right to speak about what it knows, while a person does. [2] The "appropriately constructed license" requirements could include GDPR-like definitions of consent.
  - ocdtrekkie 8y ago
    I, personally, do not believe there is any disagreement between the Constitution and GDPR. In fact, a right to privacy has long been inferred by combining traits of a few amendments: https://en.wikipedia.org/wiki/Right_to_privacy#United_States https://en.wikipedia.org/wiki/Right_to_privacy#United_States (Of course, that constructed right is a right to privacy specifically from government actions.) And generally, we've recognized that some rights such as speech, may need to have limits to avoid encroaching upon other rights, such as privacy.

kinsomo 8y ago

> Just rent seeking by an incumbent. I disagree with the immediate labeling of a potential consumer protection law as "rent seeking." Such an attitude totally excludes any improvement in the consumer privacy situation, unless it's an act of benevolence from adtech; which is to say that it totally excludes any privacy improvement ever.

duxup 8y ago

Based on what?

SamReidHughes 8y ago
When can Congress pass a law requiring newspapers to delete information it has collected about somebody?
- CamTin 8y ago
  They've done so in other industries a couple times with HIPAA and FERPA. What makes newspapers different?
  - SamReidHughes 8y ago
    FERPA's tied to federal funding. The constitution specifically calls out for a "free press."
    - duxup 8y ago
      I don't think things like GDPR and "free press" are in conflict like you think they are.... at least you haven't explained how they are supposedly in conflict. HIPAA exists... and it doesn't prevent the press from using that information.
      - SamReidHughes 8y ago
        Part of free speech is being able to gather and record information. Observation.
        duxup 8y ago
        The press can do that... that's allowed. I'm not sure your really have a good grasp on what any of these laws actually do, let alone 'free speech'. You keep alluding to complications that don't exist and don't explain what you're talking about.

CamTin 8y ago

These recently-discovered European "rights" are probably non-starters, but the ability to get a Google-takeout style package of your own data, and some reasonably protections regarding consent and the way your data is used would clearly Constitutional. We already force some industries to follow most of these precepts in other laws that haven't been challenged: credit agencies have to explain your credit score to you, HIPAA manages how medical data is used. The core of GDPR is really just expanding those laws to all companies. The only sticky one is really the "right to be forgotten," which just isn't a right, and possibly has constitutional (1st amendment) problems. IMO though, a "conservative GDPR" could get Republican backing by basically framing it as a question about property rights, which their base is all about: your data is valuable, and it's YOUR property, not Google's. Some of the other provisions could be sold as a "sunshine law" for big business. Also resumably, given US politics, there would be plenty of exemptions for small businesses (and industries that have strong lobbying firms). (note that I'm not a lawyer, so this may be bullshit)

hannasanarion 8y ago
If you actually read up on the "right to be forgotten" you will see that "free speech" is always an exception to it. You cannot demand to be forgotten in order to censure others.
- methodover 8y ago
  The American interpretation of “free speech” is much more broad than in the EU. Here, laws banning hate speech or flag burning or corporate campaign donations are unconstitutional for example. Libel lawsuits are much harder to pull off here as well. A law requiring businesses and individuals to delete any personal data at the request of the data subject, as the GDPR requires, would have to be extremely narrowly written to survive constitutional muster here, I think. If I do business with you and write down your name, the GDPR requires that I delete your name if you ask me to (and even if you don’t if our relationship ends). That wouldn’t survive a First Amendment challenge here.
  - hannasanarion 8y ago