Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Google is gearing
Speaker 1: up for its first battles in a London court over
Speaker 1: the so called right to be forgotten. Two cases will
Speaker 1: test the boundaries between personal privacy and the public interest.
Speaker 1: The anonymous plaintiffs described themselves in court filings as businessmen
Speaker 1: and want the search engine to take down links to
Speaker 1: information about their old convictions, one for conspiracy to account
Speaker 1: falsely and the other for conspiracy to intercept communications. Google
Speaker 1: says it will defend the public's right to access lawful information.
Speaker 1: My guest is Craig Newman, chair of the Privacy and
Speaker 1: Data Security Group at Patterson Bell, Nap Webb and Tyler Craig.
Speaker 1: The e use Highest Court ESTA published the Right to
Speaker 1: be forgotten in a precedent setting ruling in May. What
Speaker 1: is it exactly? June? What the European Court of Justice
Speaker 1: said was that if you're an EU resident and if
Speaker 1: there's something out there on the Internet. That and this
Speaker 1: is the words of the court, that's either inadequate, irrelevant,
Speaker 1: or excessive. An EU resident has the right to ask
Speaker 1: Google to take that link out of its search engine results. Now,
Speaker 1: the judge in these cases has said the plaintiffs are
Speaker 1: not celebrities or politicians and have been rehabilitated since their convictions,
Speaker 1: and the cases are separate, but the issues are related.
Speaker 1: What are the plaintiff's claims here? The plaintiffs claims are
Speaker 1: that they both have criminal records about a decade old
Speaker 1: in each case, and what they've said is that these
Speaker 1: records are just tooled to be relevant anymore and they
Speaker 1: shouldn't be subject to search results. I mean, the fallacy
Speaker 1: in the argument is that there really is no right
Speaker 1: to be forgotten, because what they're simply asking for is
Speaker 1: the search engines to remove the results. The original source data,
Speaker 1: whether it's in a newspaper or government website or news website,
Speaker 1: it's still going to remain out there in the Internet.
Speaker 1: They're simply trying to get the search engines to delete
Speaker 1: those results when someone puts in their name. When you
Speaker 1: say there is no right to be forgotten, where does
Speaker 1: that put the EU you use highest courts decision that
Speaker 1: there is such a right. Well, that's why it's such
Speaker 1: a fallacy because what what essentially the EU Court is
Speaker 1: saying is that he used an example of walking into
Speaker 1: the New York City Public Library. Um, if you can
Speaker 1: find a book on the shelf by your own effort,
Speaker 1: that's fine. But the EU Court basically said, look, you
Speaker 1: can't ask the librarian, you can't look in a card catalog,
Speaker 1: an index, which is essentially the search engine. But if
Speaker 1: you can find it on your own by going to
Speaker 1: a news website, you can do that. So that that's
Speaker 1: why it's almost a counterintuitive rulings. The data still remains
Speaker 1: out there in the digital ether, just a question of
Speaker 1: how to find it. So a Google spokeswoman said, we
Speaker 1: work hard to comply with the right to be forgotten,
Speaker 1: but we take great care not to remove search results
Speaker 1: that are clearly in the public interest. What's Google's position
Speaker 1: about these old convictions. Well, I think the statistics are
Speaker 1: probably where we should start tune. It's interesting. In the
Speaker 1: about three and a half years since the High Court ruling,
Speaker 1: Google's received about two million requests to delete links for information,
Speaker 1: and of those two million requests. They've granted about of them.
Speaker 1: That's over links that have been taken down, and they've
Speaker 1: denied at about sixty about fifty six of those requests,
Speaker 1: So a fair number of those requests are are being granted. Really,
Speaker 1: the real question for Google is applying a very ambiguous
Speaker 1: legal standard two different sets of facts. This ultimately that's
Speaker 1: a judgment call, and it begs a bigger question. You know,
Speaker 1: our search engines really well suited to make these sorts
Speaker 1: of judgment calls. Are regulators, are courts. So what is
Speaker 1: Google saying in response? Google's view is that if these
Speaker 1: individuals are allowed to have their private their information that
Speaker 1: they believe is now outdated or embarrassing taken off search
Speaker 1: engine results, that it actually creates somewhat of a misleading impression.
Speaker 1: Because if you plug someone's name into a Google search
Speaker 1: engine in the EU and you find no results, you're
Speaker 1: going to the only inferences that there's no information out there.
Speaker 1: So you take an example of say a doctor, and
Speaker 1: you've gotten you resident doing some diligence on whate or
Speaker 1: not they want to go to a particular doctor. That
Speaker 1: person has had some nefarious contact with the law in
Speaker 1: the past. I certainly want to know about it, and
Speaker 1: under this court ruin that doctor would have the right
Speaker 1: to petition Google and eventually the local data authorities to
Speaker 1: take that information down. So this is the first time
Speaker 1: an English court is going to decide this issue of
Speaker 1: the right to be forgotten. But tell us about Google's
Speaker 1: battles in European courts and with privacy regulators over the principle.
Speaker 1: Just Street sure the bigger issue and they I think
Speaker 1: the bigger fight is being fought in France because they're
Speaker 1: Google is fighting with the French data protection authorities and
Speaker 1: this ultimately as a question that will be before the
Speaker 1: European Court of Justice later this year as to how
Speaker 1: broad this right to be forgotton goes. The Google position
Speaker 1: now is that they're trying to confine these rulings to
Speaker 1: each individual country. But France's view is there should be
Speaker 1: a global right to be forgotten. So if an EU
Speaker 1: resident makes a request to delete their name or their
Speaker 1: search results from an engine, the French government wants it
Speaker 1: to be applied globally, and that I think that's a
Speaker 1: stretch point that's going on now. George Brock, a journalism
Speaker 1: professor at City University of London said, Google has been
Speaker 1: opaque about its approach to making these decisions about taking
Speaker 1: things down that are supposedly connected to the right to
Speaker 1: be forgotten. Are there any standards that are obvious because
Speaker 1: here you have um a case where the English law
Speaker 1: is designed to rehabilitate offenders by putting these things in
Speaker 1: the background. It's actually a clash of privacy cultures because
Speaker 1: in Europe, and there's yellow professor who's written quite a
Speaker 1: bit about that, the right of privacy is rooted in
Speaker 1: the sense of personal honor and wanting to have standing
Speaker 1: in your community, and any embarrassing search results, even if
Speaker 1: they're absolutely true, can undermine this this cultural norm. And
Speaker 1: obviously in the United States we take a polar opposite
Speaker 1: view of privacy with our free speech rights and freedom
Speaker 1: of the press. So you really are view viewing this
Speaker 1: through the lens of two different continents with with startling
Speaker 1: different privacy norms. Just briefly about thirty seconds the trial.
Speaker 1: One trial will start on February second, on March thirteenth,
Speaker 1: So that does that mean the judge is going to
Speaker 1: be considering the actual facts in his determination of each
Speaker 1: person's case. It's not just the broad issue right, So
Speaker 1: in each of the two separate trials June, the judge
Speaker 1: is going to have to apply this this okay legal
Speaker 1: standard from the European Court of Justice and decide in
Speaker 1: each case which involves separate businessmen whether those links are inadequate,
Speaker 1: irrelevant or excessive. And what a judge in in the
Speaker 1: UK might decide, interestingly, could differ from what a judge
Speaker 1: in another U country might decide. So ultimately, it's a
Speaker 1: judgment judgment called that the courts are now going to
Speaker 1: have to make. All right, thank you for being here, Craig.
Speaker 1: That's Craig Newman, a partner partner at Patterson Bell Now.
Speaker 1: Last quarter, the former director of the Consumer Financial Protection Bureau,
Speaker 1: Richard Cordray, requested two hundred seventeen point one million dollars
Speaker 1: in operating funds from the Federal Reserve. In his January
Speaker 1: seventeenth letter to Federal Reserve Chair Janet Yellen, the acting
Speaker 1: director of the Consumer Financial Protection Bureau, Nick mulaney, writes,
Speaker 1: this letter is to inform you that for second quarter
Speaker 1: of fiscal year eighteen, the Bureau is requesting zero dollars.
Speaker 1: This let's call it non request is unprecedented in the
Speaker 1: history of the consumer watchdog agency. Mulvaney also said that
Speaker 1: all the bureau's activities are being put under review. Former
Speaker 1: Massachusetts Attorney General Martha Coakeley said, because of this shift,
Speaker 1: many state attorneys general are jumping in to fill the gap,
Speaker 1: even looking at former staffers from the CFPB to come
Speaker 1: into their offices. I think the CFPB is going to
Speaker 1: cut way back. I think you've already seen certain state
Speaker 1: ages recognize that they may try to take on some
Speaker 1: of the efforts to protect consumers. Under the statutory scheme,
Speaker 1: ages have the authority to bring certain suits on behalf
Speaker 1: of their states and on consumers. Coakeley says New Pennsylvania
Speaker 1: a g has put in a division modeled on the CFPB,
Speaker 1: joining me Is Dallier him Andez, professor at the University
Speaker 1: of Connecticut School of Law and founding staff mender of
Speaker 1: the CFPB Dolliate. Wilvaney writes that no additional funds are
Speaker 1: necessary to carry out the authorities of the bureau because
Speaker 1: the agency has one seventy seven point one million dollars
Speaker 1: in reserve, and he intends to spend down the reserve
Speaker 1: with expenses of about one million dollars. Does that sound reasonable, Well,
Speaker 1: I mean it sounds reasonable in the sense that this
Speaker 1: is what he wants to do to to basically, UM
Speaker 1: have the bureau do a lot less and um uh.
Speaker 1: And so if you're doing a lot less, so it
Speaker 1: better be a lot cheaper. UM. So it's just it's
Speaker 1: it's really signaling UM, you know, not that we needed
Speaker 1: anymore UM signals really, but it's just further example of
Speaker 1: UM how much he wants to basically neuter the agency.
Speaker 1: The day before this, the CFPB announced that it was
Speaker 1: dropping a lawsuit against a group of online pay day
Speaker 1: lenders and that that suit shook the industry when it
Speaker 1: was filed last year. It gave no reasons for dropping
Speaker 1: the lawsuit. Can you make an educated guess as to why, um? Well,
Speaker 1: on the law not really it was UM, you know,
Speaker 1: assuming their allegations are correct, it was a pretty strong case,
Speaker 1: I thought, UM. And so that's what kind of showed
Speaker 1: the industry because that basically the lawsuit was against UM
Speaker 1: companies that had used American Indian tribes as UM you know,
Speaker 1: for lack of better term, a front um for UM
Speaker 1: for their activities and alleging basically that because UM, they
Speaker 1: were doing their work in American Indian territory, they weren't
Speaker 1: subject to state regulation, and so they could charge easers
Speaker 1: interest rates and UM and operate without licenses in those
Speaker 1: states in which they were operating. And so that, you know,
Speaker 1: if they could do that, that's great for them. But
Speaker 1: I think the Bureau had a very good case that
Speaker 1: that UM was not uh you know, that that wasn't
Speaker 1: legal in this particular case, based on their allegations. So
Speaker 1: why are they dropping it? Well, it goes right in
Speaker 1: hand with UM their other notice UM recently that they're
Speaker 1: going to revisit the payday lending rules that the Bureau
Speaker 1: had just proposed UM just before Mulvaney became you know,
Speaker 1: acting director. So Mulvaney is putting the entire operation of
Speaker 1: the CFPP under review. Besides the payday loans. What areas
Speaker 1: is he targeting for change or even repeal? UM? It
Speaker 1: seems like everything is up for grabs. UM. The other
Speaker 1: recent things. Then he put a hold on prepaid prepaid
Speaker 1: card rules that were actually finalized in and the Bureau
Speaker 1: had put a hold on them to basically tweak them
Speaker 1: and get more commons from the industry. UM and they
Speaker 1: seem like they were they were going to be effective
Speaker 1: in April of this year. UM. And they would have
Speaker 1: protected consumers for very basic things, so things like if
Speaker 1: you lost the losers or have your card stolen. Um,
Speaker 1: you know, there would be some protections for you which
Speaker 1: aren't there now. Uh. They know, requiring for iters to
Speaker 1: make the accounts easily be accessible and to basically have
Speaker 1: better accounts error and resolution uh procedures. I mean that's like,
Speaker 1: that's the stuff you have if you don't have a
Speaker 1: pretty bad card, if you have a debit card or
Speaker 1: credit card. UM. So in a way, the consumers who
Speaker 1: have these prepaid cards sent to be people who do
Speaker 1: not have regular bank accounts um. And you know they're
Speaker 1: using them as bank accounts. So they're scrapping these rules
Speaker 1: which are just um, you know, really affecting the most
Speaker 1: vulnerable among us um. Uh. And the deck collection rules
Speaker 1: are not rules. UM. They also we're doing a det
Speaker 1: collection uh information gathering and basically he scrapped that too.
Speaker 1: So he he changed the CFPBS mission statement last month,
Speaker 1: and part of the change was adding helping consumer finance
Speaker 1: markets work by regularly identifying and addressing outdated unnecessary or
Speaker 1: unduly burdensome rules. How long? How long I mean he's
Speaker 1: say he's going to be in there at least three years.
Speaker 1: It would take a long time to undo the regulations
Speaker 1: that are in place. Now, what did I mean that
Speaker 1: has to be public, common period, etcetera. Or is it
Speaker 1: easier than that? Well, I mean, I think you can
Speaker 1: do a lot, uh, you know, before you can do
Speaker 1: a lot in a short period of time. He's doing
Speaker 1: it already, Like so one of the things he's done
Speaker 1: is basically true UM at least I don't think it's
Speaker 1: finalized yet, but he wants to basically shut down a
Speaker 1: lot of the UM information gatherings that the Bureau is
Speaker 1: doing UM in various ways. And so it's basically the
Speaker 1: the idea that you know, we're going to regulate by
Speaker 1: closing our eyes, covering our ears and pretending, uh that
Speaker 1: nothing's happening to avoid learning bad things some people that
Speaker 1: we should UM that we should too or we should
Speaker 1: examine because they're valuating the law. UM. So if you do,
Speaker 1: you know, if you do that and you basically choose
Speaker 1: not to bring cases that maybe meritories or perhaps not
Speaker 1: even to investigate them, you don't really need to change
Speaker 1: all the rules. UM. You know, you're basically affecting, uh,
Speaker 1: affecting both the morale and the personnel that you get
Speaker 1: UM an agency, UM, and the institutional history. And you're
Speaker 1: also affecting how the marketplace reacts because then they think,
Speaker 1: you know, we can get away with more because the
Speaker 1: the bureau is not interested in basically checking up on us,
Speaker 1: which is their entire purpose. UM. What he did with
Speaker 1: the changing of the miser statement it really is just
Speaker 1: another uh signaling to the agency to consumers, UM that uh,
Speaker 1: you know, this is not I'm gonna have to stop
Speaker 1: you there. We'll we'll pick this up some other time.
Speaker 1: That's Daliajimenez, professor at the University of Connecticut School of Law.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brolso
Speaker 1: this is Bloomberg