Hey all. Ian Lopez here with your weekly dose of technology’s collision course with law. Innovation often comes with growing pains, and we’re seeing that play out in an EU case over extending “right to be forgotten” protections across national borders, something naysayers claim could be bad news for freedom of expression. Also on the agenda—how voting can’t seem to fit into the digital age, and a recap of an active week for cryptocurrency.

What’s on your radar? Drop me some tips, suggestions, or just a quick line at ilopez@alm.com or @IanMichaelLopez.



A Global Right to be Forgotten: A Vehicle for Censorship?

“Completely unenvisageable”—that’s how Google summed up its view of extending the EU’s “right to be forgotten” across the globe in a hearing before the European Court of Justice Tuesday. The hearing is part of the beleaguered tech giant’s appeal of a French regulator’s 2015 order to apply right to be forgotten protections to websites regardless of from where they’re accessed.

The crux of what’s at stake: If the court decides against Google, all search companies (aka not just Google) will need to ensure info delisted in Europe is delisted elsewhere.

Google is far from elated about the idea, and told EU judges the French regulator was “out on a limb.” But what is interesting is Google’s line of reasoning, which hinges on the potential for delisting requests—or calls for Google to wipe info—to amount to “a tool for censorship,” as the BBC put it.

Google told a 15-judge panel that carrying out a French regulator’s request would mean “endless conflicts” with countries not recognizing the EU’s right to be forgotten, and “unreasonably” interferes with freedoms around information sharing and expression. 

FWIW, Google’s reasoning has some history—GC Kent Walker previously blogged about how an enforcement-without-borders approach to right to be forgotten “runs contrary to the basic principles of international law,” opening the doors for “less democratic regimes” to “impose their values on citizens in the rest of the world.”

Google is finding allies in civil rights groups, a plus given the EU court’s “unusual move,” as Forbes put it, in hearing their opinions. The EU’s executive arm also sided with Google. Thomas Hughes from human rights group Article 19 did a nice job summing up the concern for the justices, claiming the case could could threaten global free speech.

He added: “European data regulators should not be allowed to decide what internet users around the world find when they use a search engine.”

➤ Think ahead: The EU court is expected to issue a non-binding opinion on Dec. 11followed by the actual opinion in 2019. Critics warn a decision against Google could curb freedom of expression for citizens in less democratic countries.

Photo: Shutterstock.com

Protocol: Four Things to Know

➤ Nod From New York. Two types of digital cash got the OK to operate in New York from the state’s Department of Financial Services. The tokens—issued by Paxos Trust Co and Gemini Trust Co.—fall under the stablecoin definition: i.e. pegged to a stable asset. In this case, it’s the U.S. dollar. In DFS Superintendent Maria Vullo’s telling, the agency’s approval is indicative of how providers can innovate while regulators regulate. As my colleague MP McQueen reports, a condition for the coins’ approval was their issuers’ guarantee that cryptocash is “exchangeable” for a U.S. note, along with “conditions for monitoring and recordkeeping.” What’s more, DFS is making the organizations keep a watchful eyefor foul play, like money laundering or terrorist financing.

➤ Coins for Commissioners. Speaking of odes from regulators, those across the Atlantic last week signaled their own intent to chart a legal framework around the nascent marketplace. European Commission Vice President Valdis Dombrovskisgave a rather optimistic speech Friday describing crypto assets as “here to stay,” with “the potential to emerge as a viable form of alternative financing.”That means a need for more regulation, though what form that might take is up for grabs. The challenge, Dombrovskis said, is to “categorize and classify” assets in the marketplace, and interestingly, new rules outside those already governing the financial market aren’t out of the question.

➤ Government GC Goes Crypto. With crypto outfits getting their time in the regulatory spotlight, ramping up the old legal team might be high on the to-do list. So where did Circle, the crypto financing company behind a sort of investing app for the everyman, go to grab its front line for legislative hurdles? Turns out it’s the government. The company nabbed former DHS acting general counsel Gus Coldebella for its first ever CLO, with its co-founders coining his experience “critical” in working with legislators in the promotion of “smart legal frameworks that encourage the growth of the Internet of Value” (their words, not mine) in a recent blog. But Coldebella isn’t the only former government heavy hitter on Circle’s staff. As my colleague Dan Clark reports, also on staff are a previous high-ranking official at the U.S. Office of the Comptroller of the Currency, as well as a former SEC counsel.

➤ Crypto Arbitrators? It’s far from far fetched, and JAMS is getting a head start in staking out a new market in the alternative dispute resolution space. The group is taking a plant-the-flag approach with a new practice group focusing on disputes around cryptocurrencies, blockchains and smart contracts, all of which are no strangers to litigation or the business of law, but haven’t really leaked into the arbitration space. I called JAMS’ Kimberly Taylor to see what this looks like in action, and she told me that JAMS is having “behind the scenes conversations” in developing protocols for such disputes across industries. In her view, “a lot of companies are trying to determine how this great technology is going to be applicable in their environment.”

Venmo For Voting? Not Quite Yet

In a time where everything from splitting a restaurant bill to hailing a car can be done on an app, experts posit we’re not quite ready for online voting.

That assessment comes from the National Academies of Sciences, Engineering and Medicine, which issued a report citing janky equipment and less-than-stellar funding as reasons to stick to, as Phil Muncaster writes in InfoSecurity Magazine“human-readable paper ballots.”

Now, online voting has been around for some time in some states, and sounding the alarm over it is far from new. Estonia has over a decade of web voting under its belt. And the report for its part isn’t saying unplug and call it a day, suggesting “risk-limiting audits,” i.e. checking a selection of ballots to check they make sense statistically.

The committee calls for Congress to lend a helping hand as well, whether it be dolling out funds for modernizing voting apparatuses and cyber capabilities or calling for officials to fork data on failures and difficulties to the U.S. Election Assistance Commission. DHS is being called to task as well, with the report urging them (and the Election Assistance Commission) to detail cybersecurity best practices for election system vendors.

➤ Takeaway: The possibility may be there, but the time isn’t right for online voting. But upping security tactics and dated hardware could go a long way in bringing internet voting just a few clicks away.

That’s it for this week! Stay tuned for What’s Next!