Court judgments: watch

The right to be forgotten

1. People most often check a person’s name in a search engine: before a job interview, a deal or a first meeting. The search shows everything ever published about them, including old unpleasant stories that are long over. In 2014 the Court of Justice of the European Union decided whether a person can demand that such a link be removed from the results. The case shows what exactly can be removed and whom to ask.

2. The case began in Spain. On January 19 and March 9, 1998 the newspaper La Vanguardia, widely read in Catalonia, printed an announcement of a real-estate auction connected with the recovery of social security debts. The announcement named Mario Costeja González. The newspaper printed it on the order of the Ministry of Labour and Social Affairs, to attract as many bidders as possible. Later the newspaper’s pages went into its online archive.

3. Twelve years later a Google search for Costeja González’s name still showed those two pages, although the debt proceedings, he said, had long been closed. On March 5, 2010 he lodged a complaint with the Spanish Data Protection Agency, AEPD, against the newspaper and against Google. The agency rejected the complaint against the newspaper, because the announcement had been published lawfully. Google, however, it ordered to remove the data from its search results, and the company challenged that decision in court.

4. The Spanish court stayed the proceedings and on February 27, 2012 asked the Court of Justice of the European Union to interpret the EU directive on the protection of personal data. The directive was adopted in 1995, and search engines in their present form appeared later. There were two main questions: is a search engine responsible for personal data on other people’s pages that it merely finds, and must it remove a link at a person’s request.

5. The answer was not obvious. Google argued that its search treats all pages alike, does not single out personal data among them and does not control it, so a request should go to the publisher, who put the information online and can most easily remove it. Costeja González and the Spanish and Italian governments replied that the harm comes precisely from spreading it through search. The Advocate General, who prepares an opinion for the Court in the case, proposed answering that the directive gives no right to be forgotten.

6. On May 13, 2014 the Grand Chamber of the Court decided otherwise. A search engine collects data, organizes it, stores it and shows it to users, and that is processing of personal data. Its operator determines the purposes and means of that processing, so it is the controller, the one responsible for the processing. So where the conditions are met, it must remove from the results of a search by a person’s name the links to pages about that person, even when the page is lawful and stays online.

7. The Court explained this by the effect of search on private life. A search by name gives a structured overview of everything about a person online, and it adds up to a detailed profile of them; without the search engine that information would be hard to put together. So appearing in the results can interfere with privacy more seriously than the publication itself. Besides, true and lawfully published data can become irrelevant over time: by then the announcement was sixteen years old.

8. One objection remained: that European rules do not apply to an American company. The search engine is run by Google Inc. from the United States, while the Spanish Google Spain only sells advertising in it. The Court answered that the two activities are inextricably linked: advertising makes the search engine profitable, and the search engine provides the space for the advertising. So the data is processed in the context of the activities of the Spanish subsidiary, and European law applies.

9. Later the rule was written into law. Since May 25, 2018 the European Union has applied the General Data Protection Regulation, GDPR, and its Article 17 is titled “Right to erasure (‘right to be forgotten’)”. And on September 24, 2019, in Google v CNIL, a case against the French regulator, the Court settled the territory: the operator removes links in the versions of its search engine for all EU member states, but EU law does not require doing it worldwide.

10. The case is often retold as if a person could erase information about themselves from the internet. Yet the newspaper page stayed online: the agency rejected the complaint against the newspaper, and the Court did not consider it. The judgment concerns only links in the results of a search by the person’s name. And the right is not absolute: privacy is weighed against the public’s interest in knowing, so links about a person who plays a role in public life may stay.

11. Responsibility for personal data lies not only with whoever published it but also with whoever makes it easy to find: that is the main legacy of the case. In EU countries a person can send a request to the search engine operator and, if refused, turn to a data protection authority or a court. Expect a weighing, not automatic consent: the more public the person and the more recent the event, the lower the chances.

Your phone knows where you were

1. To stay connected, a cell phone keeps connecting to the nearest of its carrier’s towers, and the carrier records which tower and when. Over a few months these records add up to a detailed history of where a person has been. In Carpenter v. United States the US Supreme Court decided whether investigators can obtain that history from the carrier without a warrant. The answer shapes how well the data companies keep about us is protected.

2. The case began in 2011 in Detroit, where police arrested four men suspected of robbing electronics and cell phone stores. One of them confessed that over four months the group had robbed nine stores in Michigan and Ohio. He named fifteen accomplices and gave the FBI the phone numbers of some of them. That led investigators to Timothy Carpenter, and they set out to learn where his phone had been.

3. Prosecutors asked the court not for a warrant but for a simpler order under the Stored Communications Act. It required only reasonable grounds to believe that the records were relevant to an investigation. Two carriers handed over records for 127 days and for 2 more days: 12,898 location points in all, an average of 101 a day. At trial, maps of these points showed that Carpenter’s phone was near four of the robberies. He was sentenced to more than 100 years in prison.

4. Before trial Carpenter moved to suppress the carriers’ records because they had been obtained without a warrant. He relied on the Fourth Amendment to the US Constitution, which protects people, their houses, papers and effects against unreasonable searches and seizures. A warrant is a judge’s permission to search; under the Amendment it issues only upon probable cause and must particularly describe what is to be searched for. So the Court had to decide whether asking a carrier where a phone had been is a search.

5. The answer was not obvious, because the government relied on an old rule known as the third-party doctrine: information a person voluntarily hands over to someone else, such as a bank or a phone company, the state can obtain without a warrant. In the 1970s the Supreme Court held so for bank records and dialed numbers. Cell-site records, the government insisted, are just such business records of the carrier. The court of appeals agreed and upheld the conviction.

6. On June 22, 2018 the Supreme Court sided with Carpenter by five votes to four. It held that acquiring cell-site records is a search within the meaning of the Fourth Amendment, so investigators generally need a warrant for it. The order the prosecutors used is not enough, because its standard is much lower. The judgment of the court of appeals was reversed and the case remanded for further proceedings. Chief Justice John Roberts wrote for the majority.

7. The Court declined to extend the old rule to these records and explained why. Dialed numbers or bank records reveal little about a person, while cell-site records add up to an almost complete chronicle of movements, because the phone goes with its owner both home and to the doctor. Carriers keep them for up to five years, so anyone’s past can be traced. Besides, the phone leaves this trail by itself, without any action by its owner, and getting by without a phone today is hard.

8. For investigators the judgment sets a new requirement: to compel a carrier to hand over a subscriber’s location history, they must go to a judge for a warrant and show probable cause. The simpler order is no longer enough for such records. The Court left an exception for exigent circumstances, such as pursuing a fleeing suspect, an imminent threat to people or a risk that evidence will be destroyed. Then the records can be obtained without a warrant.

9. For ordinary people what matters is the principle. Under the old rule, information a company keeps about you could usually be obtained by the state free of the Fourth Amendment’s limits. The Court said this does not work for a detailed chronicle of movements: the fact that a third party collects it does not strip it of protection. At the same time, the Court said, in the great majority of investigations the government will still be able to obtain records from companies without a warrant.

10. The Court itself called its decision narrow. It concerns records of past movements and does not answer whether a warrant is needed to track a phone in real time or to get a list of all phones that connected to one tower. The third-party doctrine for bank records and dialed numbers still stands, and the decision does not touch security cameras. Nor does it mean Carpenter was acquitted: the Court only reversed the court of appeals and sent the case back.

11. One thought is worth taking from the case: data about you does not lose protection just because a company keeps it, but the protection depends on how much detail it reveals about your life. When someone says US police can no longer find out where a phone has been, ask what exactly is meant: records from past months, tracking right now or a street camera. The Court answered only the first.

A judge against the state

1. A person in a dispute with a state body expects it to be decided by a judge who depends on neither side. In Oleksandr Volkov v. Ukraine that was missing when the state dismissed a judge himself. The European Court of Human Rights delivered its judgment in the case on 9 January 2013. The story shows the signs by which a hearing is checked for independence and impartiality.

2. Oleksandr Volkov became a judge in 1983, and in June 2003 he was elected to the Supreme Court of Ukraine. Dismissals of judges were then prepared by the High Council of Justice, a body of twenty members that made submissions on appointing and dismissing judges. At the end of 2008 and in March 2009 two of its members conducted inquiries and asked for Volkov’s dismissal for “breach of oath”. Some of the allegations concerned 2003 and 2006.

3. The council examined these requests in 2010, and the whole dismissal procedure took about three weeks. On 26 May the council, with Volkov absent, adopted two submissions for his dismissal and sent them to Parliament. On 16 June the Parliamentary Committee on the judiciary recommended the dismissal. On 17 June Parliament voted for it: under the Constitution then in force, a judge was dismissed by the body that had elected him.

4. Volkov challenged his dismissal before the Higher Administrative Court of Ukraine. On 19 October 2010 that court found one of the council’s two submissions unlawful but could not quash it: the law only allowed it to declare such an act unlawful. It found the second submission lawful and well-founded and saw no violations in Parliament’s vote. The dismissal stood, and on 30 March 2011 Volkov lodged an application with the European Court of Human Rights.

5. The European Court of Human Rights is an international court in Strasbourg where a person can bring a complaint against their own state, because that state has joined the Convention for the Protection of Human Rights and undertaken to abide by the Court’s judgments. Article 6 of the Convention guarantees a hearing by an independent and impartial tribunal: shielded from pressure by other branches of power, free of prejudice and of any reason to suspect it. The Court examined whether the bodies that dismissed Volkov met that test.

6. The Government of Ukraine argued that these bodies met the requirements. In its view the council decided by majority, so any bias of individual members did not change the result; the committee’s opinion did not bind Parliament, and judicial review cured any defects. Volkov replied that the case was decided by the same people who had started it, that there were hardly any judges among them, that MPs voted for absent colleagues, and that the court had no power to quash the dismissal.

7. The European Court found unanimously that the council itself fell short of these requirements. Of the sixteen members who voted, only three were judges. Two members who had conducted the inquiries and asked for the dismissal then voted on it, and one of them presided over the hearing. The Court recalled the rule: “justice must not only be done, it must also be seen to be done”.

8. The later stages did not cure these defects. Parliament voted for the dismissal while most MPs were absent: those present used the voting cards of absent colleagues, although the Constitution requires MPs to vote in person. The administrative court could not quash the dismissal, and its chamber had been formed by a court president whose five-year term had already expired. The law set no limitation period for dismissal for breach of oath, so the judge had to defend himself over events of 2003.

9. Besides the right to a fair hearing, the Court found a violation of the right to respect for private life, because the dismissal affected the applicant’s professional relationships, his reputation and his family’s material well-being. Normally the state itself chooses how to remedy a violation. Here the Court held that a new hearing under the existing system would achieve nothing and indicated a specific measure: Ukraine must reinstate the applicant as a Supreme Court judge at the earliest possible date and urgently reform its system of judicial discipline.

10. The judgment became final on 27 May 2013. On 25 December 2014 Parliament, in a separate resolution enforcing the judgment, declared the dismissal resolution no longer in force as regards Volkov. On 2 June 2016 the Constitution was amended: since then a decision to dismiss a judge is taken by the High Council of Justice in a new composition, ten of whose twenty-one members are elected by the Congress of Judges, and breach of oath is no longer among the grounds for dismissal.

11. The judgment does not mean that judges cannot be dismissed: the European Court assessed the procedure, not whether Volkov had breached his oath. Nor did it quash Parliament’s resolution; Parliament itself declared it no longer in force. Four questions from this case apply to any proceedings: who decides, whether the accuser also votes, whether there is a limitation period, and whether a court can overturn the decision.

Beer and equality

1. The law sorts people into groups all the time: by age, by income, by place of residence. Sometimes it sorts them by gender, and then the question is how weighty a reason the state must give for doing so. The US Supreme Court answered it in 1976 in a case about low-alcohol beer from Oklahoma. The case shows how a court tests a rule that treats men and women differently.

2. Oklahoma law called beer of up to 3.2 % “nonintoxicating” and allowed it to be sold to women from the age of eighteen, but to men only from twenty-one. In 1972 the state set the age of majority at eighteen for both sexes but kept the exception for this beer. For three years a young woman could buy it and a young man her age could not.

3. On 20 December 1972 two people sued in federal court in Oklahoma: a young man named Craig, who was not yet twenty-one, and Ms. Whitener, who held a license to sell this beer. The defendant was the state’s governor, Boren, hence the name of the case. The plaintiffs asked the court to declare the age difference discrimination against men and to bar its enforcement. In 1975 a three-judge court ruled against them.

4. By the time the case reached the Supreme Court, Craig had turned twenty-one. The ban no longer applied to him, so the Court did not consider his claim. The seller kept the case alive. The Court held that she had standing, the right to ask for a ruling in this particular dispute: the law was addressed to sellers, and she had either to lose customers or risk sanctions and her license. So she was allowed to assert her customers’ rights as well.

5. The suit relied on the Fourteenth Amendment to the US Constitution: its Equal Protection Clause forbids a state to deny anyone the equal protection of the laws. Every law singles someone out, so courts weigh the reason, and the level of scrutiny is how closely they do it. At the time there were two levels: for most laws a rational basis was enough, and classifications by race got the strictest scrutiny. Where gender belonged was disputed.

6. Oklahoma justified the difference by traffic safety and submitted statistics. Its 1973 arrest figures for driving under the influence showed 427 young men aged eighteen to twenty and only 24 young women, almost eighteen times fewer. A roadside survey of drivers in Oklahoma City showed that young men more often drove after drinking beer. The trial court found this enough for such a law.

7. The Supreme Court read the same data differently. Those arrested were 2 % of young men that age and 0.18 % of young women, so the law restricted all hundred because of two in a hundred. No study dealt with 3.2 % beer itself, which the state called nonintoxicating. And the law banned selling the beer, not drinking it: an eighteen-year-old girlfriend could buy it for a young man. Gender proved too imprecise a marker.

8. On 20 December 1976 the Court reversed the lower court by seven votes to two; Justice Brennan wrote the opinion of the Court. It stated the test for such laws: classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. The Court accepted traffic safety as an important objective. The link failed: banning sales of weak beer to young men did little for safety.

9. This test is stricter than a rational basis and milder than the scrutiny of racial classifications. Justice Rehnquist, who dissented, called it “intermediate”, and the name stuck: by 1988 the Court itself wrote of three levels of scrutiny. In 1996 it used the same formula to hold that Virginia violated the Constitution by excluding women from its military institute. The burden of justification rests on the state.

10. The judgment is narrower than it is often retold. The Court did not equate gender with race, and the justices said so explicitly. It did not set an age for buying beer: the state could choose any age as long as it was the same for everyone. And Ruth Bader Ginsburg was neither a judge in this case nor counsel at the hearing: the report names her as co-author of the American Civil Liberties Union’s amicus brief supporting the plaintiffs.

11. The beer case leaves two questions you can ask of any rule that sorts people into groups: what purpose it serves, and whether the sorting actually leads there. Figures about a group do not answer the second question on their own: two percent say nothing about the other ninety-eight. This is how both a statute and a rule in your own organization are tested.