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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Google is gearing

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Speaker 1: up for its first battles in a London court over

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Speaker 1: the so called right to be forgotten. Two cases will

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Speaker 1: test the boundaries between personal privacy and the public interest.

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Speaker 1: The anonymous plaintiffs described themselves in court filings as businessmen

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Speaker 1: and want the search engine to take down links to

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Speaker 1: information about their old convictions, one for conspiracy to account

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Speaker 1: falsely and the other for conspiracy to intercept communications. Google

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Speaker 1: says it will defend the public's right to access lawful information.

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Speaker 1: My guest is Craig Newman, chair of the Privacy and

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Speaker 1: Data Security Group at Patterson Bell, Nap Webb and Tyler Craig.

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Speaker 1: The e use Highest Court ESTA published the Right to

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Speaker 1: be forgotten in a precedent setting ruling in May. What

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Speaker 1: is it exactly? June? What the European Court of Justice

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Speaker 1: said was that if you're an EU resident and if

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Speaker 1: there's something out there on the Internet. That and this

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Speaker 1: is the words of the court, that's either inadequate, irrelevant,

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Speaker 1: or excessive. An EU resident has the right to ask

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Speaker 1: Google to take that link out of its search engine results. Now,

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Speaker 1: the judge in these cases has said the plaintiffs are

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Speaker 1: not celebrities or politicians and have been rehabilitated since their convictions,

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Speaker 1: and the cases are separate, but the issues are related.

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Speaker 1: What are the plaintiff's claims here? The plaintiffs claims are

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Speaker 1: that they both have criminal records about a decade old

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Speaker 1: in each case, and what they've said is that these

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Speaker 1: records are just tooled to be relevant anymore and they

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Speaker 1: shouldn't be subject to search results. I mean, the fallacy

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Speaker 1: in the argument is that there really is no right

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Speaker 1: to be forgotten, because what they're simply asking for is

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Speaker 1: the search engines to remove the results. The original source data,

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Speaker 1: whether it's in a newspaper or government website or news website,

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Speaker 1: it's still going to remain out there in the Internet.

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Speaker 1: They're simply trying to get the search engines to delete

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Speaker 1: those results when someone puts in their name. When you

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Speaker 1: say there is no right to be forgotten, where does

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Speaker 1: that put the EU you use highest courts decision that

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Speaker 1: there is such a right. Well, that's why it's such

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Speaker 1: a fallacy because what what essentially the EU Court is

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Speaker 1: saying is that he used an example of walking into

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Speaker 1: the New York City Public Library. Um, if you can

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Speaker 1: find a book on the shelf by your own effort,

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Speaker 1: that's fine. But the EU Court basically said, look, you

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Speaker 1: can't ask the librarian, you can't look in a card catalog,

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Speaker 1: an index, which is essentially the search engine. But if

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Speaker 1: you can find it on your own by going to

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Speaker 1: a news website, you can do that. So that that's

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Speaker 1: why it's almost a counterintuitive rulings. The data still remains

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Speaker 1: out there in the digital ether, just a question of

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Speaker 1: how to find it. So a Google spokeswoman said, we

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Speaker 1: work hard to comply with the right to be forgotten,

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Speaker 1: but we take great care not to remove search results

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Speaker 1: that are clearly in the public interest. What's Google's position

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Speaker 1: about these old convictions. Well, I think the statistics are

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Speaker 1: probably where we should start tune. It's interesting. In the

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Speaker 1: about three and a half years since the High Court ruling,

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Speaker 1: Google's received about two million requests to delete links for information,

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Speaker 1: and of those two million requests. They've granted about of them.

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Speaker 1: That's over links that have been taken down, and they've

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Speaker 1: denied at about sixty about fifty six of those requests,

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Speaker 1: So a fair number of those requests are are being granted. Really,

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Speaker 1: the real question for Google is applying a very ambiguous

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Speaker 1: legal standard two different sets of facts. This ultimately that's

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Speaker 1: a judgment call, and it begs a bigger question. You know,

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Speaker 1: our search engines really well suited to make these sorts

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Speaker 1: of judgment calls. Are regulators, are courts. So what is

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Speaker 1: Google saying in response? Google's view is that if these

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Speaker 1: individuals are allowed to have their private their information that

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Speaker 1: they believe is now outdated or embarrassing taken off search

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Speaker 1: engine results, that it actually creates somewhat of a misleading impression.

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Speaker 1: Because if you plug someone's name into a Google search

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Speaker 1: engine in the EU and you find no results, you're

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Speaker 1: going to the only inferences that there's no information out there.

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Speaker 1: So you take an example of say a doctor, and

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Speaker 1: you've gotten you resident doing some diligence on whate or

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Speaker 1: not they want to go to a particular doctor. That

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Speaker 1: person has had some nefarious contact with the law in

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Speaker 1: the past. I certainly want to know about it, and

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Speaker 1: under this court ruin that doctor would have the right

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Speaker 1: to petition Google and eventually the local data authorities to

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Speaker 1: take that information down. So this is the first time

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Speaker 1: an English court is going to decide this issue of

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Speaker 1: the right to be forgotten. But tell us about Google's

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Speaker 1: battles in European courts and with privacy regulators over the principle.

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Speaker 1: Just Street sure the bigger issue and they I think

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Speaker 1: the bigger fight is being fought in France because they're

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Speaker 1: Google is fighting with the French data protection authorities and

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Speaker 1: this ultimately as a question that will be before the

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Speaker 1: European Court of Justice later this year as to how

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Speaker 1: broad this right to be forgotton goes. The Google position

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Speaker 1: now is that they're trying to confine these rulings to

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Speaker 1: each individual country. But France's view is there should be

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Speaker 1: a global right to be forgotten. So if an EU

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Speaker 1: resident makes a request to delete their name or their

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Speaker 1: search results from an engine, the French government wants it

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Speaker 1: to be applied globally, and that I think that's a

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Speaker 1: stretch point that's going on now. George Brock, a journalism

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Speaker 1: professor at City University of London said, Google has been

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Speaker 1: opaque about its approach to making these decisions about taking

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Speaker 1: things down that are supposedly connected to the right to

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Speaker 1: be forgotten. Are there any standards that are obvious because

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Speaker 1: here you have um a case where the English law

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Speaker 1: is designed to rehabilitate offenders by putting these things in

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Speaker 1: the background. It's actually a clash of privacy cultures because

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Speaker 1: in Europe, and there's yellow professor who's written quite a

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Speaker 1: bit about that, the right of privacy is rooted in

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Speaker 1: the sense of personal honor and wanting to have standing

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Speaker 1: in your community, and any embarrassing search results, even if

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Speaker 1: they're absolutely true, can undermine this this cultural norm. And

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Speaker 1: obviously in the United States we take a polar opposite

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Speaker 1: view of privacy with our free speech rights and freedom

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Speaker 1: of the press. So you really are view viewing this

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Speaker 1: through the lens of two different continents with with startling

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Speaker 1: different privacy norms. Just briefly about thirty seconds the trial.

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Speaker 1: One trial will start on February second, on March thirteenth,

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Speaker 1: So that does that mean the judge is going to

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Speaker 1: be considering the actual facts in his determination of each

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Speaker 1: person's case. It's not just the broad issue right, So

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Speaker 1: in each of the two separate trials June, the judge

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Speaker 1: is going to have to apply this this okay legal

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Speaker 1: standard from the European Court of Justice and decide in

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Speaker 1: each case which involves separate businessmen whether those links are inadequate,

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Speaker 1: irrelevant or excessive. And what a judge in in the

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Speaker 1: UK might decide, interestingly, could differ from what a judge

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Speaker 1: in another U country might decide. So ultimately, it's a

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Speaker 1: judgment judgment called that the courts are now going to

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Speaker 1: have to make. All right, thank you for being here, Craig.

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Speaker 1: That's Craig Newman, a partner partner at Patterson Bell Now.

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Speaker 1: Last quarter, the former director of the Consumer Financial Protection Bureau,

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Speaker 1: Richard Cordray, requested two hundred seventeen point one million dollars

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Speaker 1: in operating funds from the Federal Reserve. In his January

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Speaker 1: seventeenth letter to Federal Reserve Chair Janet Yellen, the acting

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Speaker 1: director of the Consumer Financial Protection Bureau, Nick mulaney, writes,

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Speaker 1: this letter is to inform you that for second quarter

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Speaker 1: of fiscal year eighteen, the Bureau is requesting zero dollars.

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Speaker 1: This let's call it non request is unprecedented in the

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Speaker 1: history of the consumer watchdog agency. Mulvaney also said that

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Speaker 1: all the bureau's activities are being put under review. Former

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Speaker 1: Massachusetts Attorney General Martha Coakeley said, because of this shift,

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Speaker 1: many state attorneys general are jumping in to fill the gap,

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Speaker 1: even looking at former staffers from the CFPB to come

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Speaker 1: into their offices. I think the CFPB is going to

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Speaker 1: cut way back. I think you've already seen certain state

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Speaker 1: ages recognize that they may try to take on some

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Speaker 1: of the efforts to protect consumers. Under the statutory scheme,

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Speaker 1: ages have the authority to bring certain suits on behalf

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Speaker 1: of their states and on consumers. Coakeley says New Pennsylvania

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Speaker 1: a g has put in a division modeled on the CFPB,

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Speaker 1: joining me Is Dallier him Andez, professor at the University

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Speaker 1: of Connecticut School of Law and founding staff mender of

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Speaker 1: the CFPB Dolliate. Wilvaney writes that no additional funds are

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Speaker 1: necessary to carry out the authorities of the bureau because

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Speaker 1: the agency has one seventy seven point one million dollars

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Speaker 1: in reserve, and he intends to spend down the reserve

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Speaker 1: with expenses of about one million dollars. Does that sound reasonable, Well,

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Speaker 1: I mean it sounds reasonable in the sense that this

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Speaker 1: is what he wants to do to to basically, UM

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Speaker 1: have the bureau do a lot less and um uh.

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Speaker 1: And so if you're doing a lot less, so it

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Speaker 1: better be a lot cheaper. UM. So it's just it's

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Speaker 1: it's really signaling UM, you know, not that we needed

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Speaker 1: anymore UM signals really, but it's just further example of

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Speaker 1: UM how much he wants to basically neuter the agency.

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Speaker 1: The day before this, the CFPB announced that it was

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Speaker 1: dropping a lawsuit against a group of online pay day

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Speaker 1: lenders and that that suit shook the industry when it

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Speaker 1: was filed last year. It gave no reasons for dropping

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Speaker 1: the lawsuit. Can you make an educated guess as to why, um? Well,

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Speaker 1: on the law not really it was UM, you know,

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Speaker 1: assuming their allegations are correct, it was a pretty strong case,

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Speaker 1: I thought, UM. And so that's what kind of showed

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Speaker 1: the industry because that basically the lawsuit was against UM

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Speaker 1: companies that had used American Indian tribes as UM you know,

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Speaker 1: for lack of better term, a front um for UM

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Speaker 1: for their activities and alleging basically that because UM, they

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Speaker 1: were doing their work in American Indian territory, they weren't

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Speaker 1: subject to state regulation, and so they could charge easers

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Speaker 1: interest rates and UM and operate without licenses in those

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Speaker 1: states in which they were operating. And so that, you know,

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Speaker 1: if they could do that, that's great for them. But

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Speaker 1: I think the Bureau had a very good case that

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Speaker 1: that UM was not uh you know, that that wasn't

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Speaker 1: legal in this particular case, based on their allegations. So

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Speaker 1: why are they dropping it? Well, it goes right in

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Speaker 1: hand with UM their other notice UM recently that they're

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Speaker 1: going to revisit the payday lending rules that the Bureau

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Speaker 1: had just proposed UM just before Mulvaney became you know,

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Speaker 1: acting director. So Mulvaney is putting the entire operation of

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Speaker 1: the CFPP under review. Besides the payday loans. What areas

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Speaker 1: is he targeting for change or even repeal? UM? It

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Speaker 1: seems like everything is up for grabs. UM. The other

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Speaker 1: recent things. Then he put a hold on prepaid prepaid

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Speaker 1: card rules that were actually finalized in and the Bureau

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Speaker 1: had put a hold on them to basically tweak them

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Speaker 1: and get more commons from the industry. UM and they

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Speaker 1: seem like they were they were going to be effective

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Speaker 1: in April of this year. UM. And they would have

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Speaker 1: protected consumers for very basic things, so things like if

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Speaker 1: you lost the losers or have your card stolen. Um,

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Speaker 1: you know, there would be some protections for you which

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Speaker 1: aren't there now. Uh. They know, requiring for iters to

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Speaker 1: make the accounts easily be accessible and to basically have

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Speaker 1: better accounts error and resolution uh procedures. I mean that's like,

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Speaker 1: that's the stuff you have if you don't have a

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Speaker 1: pretty bad card, if you have a debit card or

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Speaker 1: credit card. UM. So in a way, the consumers who

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Speaker 1: have these prepaid cards sent to be people who do

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Speaker 1: not have regular bank accounts um. And you know they're

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Speaker 1: using them as bank accounts. So they're scrapping these rules

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Speaker 1: which are just um, you know, really affecting the most

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Speaker 1: vulnerable among us um. Uh. And the deck collection rules

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Speaker 1: are not rules. UM. They also we're doing a det

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Speaker 1: collection uh information gathering and basically he scrapped that too.

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Speaker 1: So he he changed the CFPBS mission statement last month,

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Speaker 1: and part of the change was adding helping consumer finance

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Speaker 1: markets work by regularly identifying and addressing outdated unnecessary or

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Speaker 1: unduly burdensome rules. How long? How long I mean he's

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Speaker 1: say he's going to be in there at least three years.

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Speaker 1: It would take a long time to undo the regulations

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Speaker 1: that are in place. Now, what did I mean that

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Speaker 1: has to be public, common period, etcetera. Or is it

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Speaker 1: easier than that? Well, I mean, I think you can

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Speaker 1: do a lot, uh, you know, before you can do

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Speaker 1: a lot in a short period of time. He's doing

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Speaker 1: it already, Like so one of the things he's done

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Speaker 1: is basically true UM at least I don't think it's

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Speaker 1: finalized yet, but he wants to basically shut down a

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Speaker 1: lot of the UM information gatherings that the Bureau is

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Speaker 1: doing UM in various ways. And so it's basically the

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Speaker 1: the idea that you know, we're going to regulate by

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Speaker 1: closing our eyes, covering our ears and pretending, uh that

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Speaker 1: nothing's happening to avoid learning bad things some people that

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Speaker 1: we should UM that we should too or we should

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Speaker 1: examine because they're valuating the law. UM. So if you do,

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Speaker 1: you know, if you do that and you basically choose

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Speaker 1: not to bring cases that maybe meritories or perhaps not

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Speaker 1: even to investigate them, you don't really need to change

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Speaker 1: all the rules. UM. You know, you're basically affecting, uh,

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Speaker 1: affecting both the morale and the personnel that you get

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Speaker 1: UM an agency, UM, and the institutional history. And you're

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Speaker 1: also affecting how the marketplace reacts because then they think,

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Speaker 1: you know, we can get away with more because the

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Speaker 1: the bureau is not interested in basically checking up on us,

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Speaker 1: which is their entire purpose. UM. What he did with

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Speaker 1: the changing of the miser statement it really is just

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Speaker 1: another uh signaling to the agency to consumers, UM that uh,

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Speaker 1: you know, this is not I'm gonna have to stop

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Speaker 1: you there. We'll we'll pick this up some other time.

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Speaker 1: That's Daliajimenez, professor at the University of Connecticut School of Law.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brolso

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Speaker 1: this is Bloomberg