Professor Jennifer explains the fundamental differences between American and European privacy laws for The New Yorker.

On October 31, 2006, an eighteen-year-old woman named Nikki Catsouras slammed her father’s sports car into the side of a concrete toll booth in Orange County, California. Catsouras was decapitated in the accident. The California Highway Patrol, following standard protocol, secured the scene and took photographs. The manner of death was so horrific that the local coroner did not allow Nikki’s parents to identify her body.

“About two weeks after the accident, I got a call from my brother-in-law,” Christos Catsouras, Nikki’s father, told me. “He said he had heard from a neighbor that the photos from the crash were circulating on the Internet. We asked the C.H.P., and they said they would look into it.” In short order, two employees admitted that they had shared the photographs. As summarized in a later court filing, the employees had “e-mailed nine gruesome death images to their friends and family members on Halloween—for pure shock value. Once received, the photographs were forwarded to others, and thus spread across the Internet like a malignant firestorm, popping up on thousands of Web sites.”

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At the same time, the Court’s decision spoke to an anxiety felt keenly on both sides of the Atlantic. In Europe, the right to privacy trumps freedom of speech; the reverse is true in the United States. “Europeans think of the right to privacy as a fundamental human right, in the way that we think of freedom of expression or the right to counsel,” Jennifer Granick, the director of civil liberties at the Stanford Center for Internet and Society, said recently. “When it comes to privacy, the United States’ approach has been to provide protection for certain categories of information that are deemed sensitive and then impose some obligation not to disclose unless certain conditions are met.” Congress has passed laws prohibiting the disclosure of medical information (the Health Insurance Portability and Accountability Act), educational records (the Buckley Amendment), and video-store rentals (a law passed in response to revelations about Robert Bork’s rentals when he was nominated to the Supreme Court). Any of these protections can be overridden with the consent of the individual or as part of law-enforcement investigations.

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The American regard for freedom of speech, reflected in the First Amendment, guarantees that the Costeja judgment would never pass muster under U.S. law. The Costeja records were public, and they were reported correctly by the newspaper at the time; constitutionally, the press has a nearly absolute right to publish accurate, lawful information. (Recently, an attorney in Texas, who had successfully fought a disciplinary judgment by the local bar association, persuaded a trial court to order Google to delete links on the subject; Google won a reversal in an appellate court.) “The Costeja decision is clearly inconsistent with U.S. law,” Granick said. “So the question is whether it’s good policy.”

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