Free Speech, Privacy, and the Web that Never Forgets

Thank you so much and good morning. It is a great pleasure to be here. As Paul Ohm said, my interest in the fascinating subject of how to reconcile free speech and privacy, in an age when the Web never forgets, began with a conversation that we had about a year ago. Paul’s work— and the center he’s established here—have been invaluable in exploring the tensions between free speech and privacy on the Internet, and I can’t think of a better place to talk about these challenging issues. So I am much looking forward to our conversation. Keynote address sounds a little grand, but I’m at least supposed to set the stage for our discussions. And, what I want to say is this: new media technologies are presenting wrenching tensions between free speech and privacy. Around the world citizens are experiencing the difficulty of living in a world where the Web never forgets, where every blog and tweet and Facebook update and MySpace picture about us is recorded forever in the digital cloud. This experience is leading to tangible harms, dignitary harms, as people are losing jobs and promotions. But—and this is a big “but”—law is not always a good remedy for these harms. Although there are proposals in Europe and around the world to create new legal rights of oblivion that would allow us to escape our past, these rights pose grave threats to free speech.1 And if forced to choose between my privacy instincts and my free speech instincts, I have no hesitation in this case in choosing free speech over privacy. So if there are to be remedies for the problem of digital forgetting, my sense is that the most promising ones involve technology and norms and not law. Let’s begin with a reluctant icon of the problem of digital forgetting, because it’s hard to talk about a privacy problem without putting a face to it. The privacy icon that is bringing home to people the