Lawyer here
First - in the US, privacy is not a constitutional right. It should be, but it's not. You are protected against government searches, but that's about it. You can claim it's a core human right or whatever, but that doesn't make it true, and it's a fairly reductionist argument anyway. It has, fwiw, also historically not been seen as a core right for thousands of years. So i think it's a harder argument to make than you think despite the EU coming around on this. Again, I firmly believe it should be a core right, but asserting that it is doesn't make that true.
Second, if you want the realistic answer - this judge is probably overworked and trying to clear a bunch of simple motions off their docket. I think you probably don't realize how many motions they probably deal with on a daily basis. Imagine trying to get through 145 code reviews a day or something like that. In this case, this isn't the trial, it's discovery. Not even discovery quite yet, if i read the docket right. Preservation orders of this kind are incredibly common in discovery, and it's not exactly high stakes most of the time. Most of the discovery motions are just parties being a pain in the ass to each other deliberately. This normally isn't even a thing that is heard in front of a judge directly, the judge is usually deciding on the filed papers.
So i'm sure the judge looked at it for a few minutes, thought it made sense at the time, and approved it. I doubt they spent hours thinking hard about the consequences.
OpenAI has asked to be heard in person on the motion, i'm sure the judge will grant it, listen to what they have to say, and determine they probably fucked it up, and fix it. That is what most judges do in this situation.
Even in the "protected against government searches" sense from the 4th Amendment, that right hardly exists when dealing with data you send to a company like OpenAI thanks to the third-party doctrine.
Thanks. As an EU citizen am I exempt from this order? How does the judge or the NYTimes or OpenAI know that I am an EU citizen?
The court in question has no obligations to you at all.
The current legal stance in the US seems to be that you, not being a US person, have no particular legally protected interest in privacy at all, so you have nothing to complain about here and can’t even sue. The only avenue the EU would have to change that is the diplomatic one, but the Commission does not seem to care.
While the Constitution does not explicitly enumerate a "right to privacy," the Supreme Court has consistently recognized substantive privacy rights through Due Process Clause jurisprudence, establishing constitutional protection for intimate personal decisions in Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015).
> It has, fwiw, also historically not been seen as a core right for thousands of years.
Nothing has been seen as a core right for thousands of years, as the concept of human rights is only a few hundred years old.
"First - in the US, privacy is not a constitutional right"
What? The supreme court disagreed with you in Griswold v. Connecticut (1965) and Roe v. Wade (1973).
While one could argue that they were vastly stretching the meaning of words in these decisions the point stands that at this time privacy is a constitutional right in the USA.
Roe v. wade is considered explicitly overruled, as well as considered wrongly decided in the first place, as of 2022 (Dobbs).
They also explicitly stated a constitutional right to privacy does not exist, and pointed out that Casey abandoned any such reliance on this sort of claim.
Griswold also found a right to marital privacy. Not general privacy.
Griswold is also barely considered good law anymore, though i admit it has not been explicitly overruled - it is definitely on the chopping block, as more than just Thomas has said.
In any case, more importantly, none of them have found any interesting right to privacy of the kind we are talking about here, but instead more specific rights to privacy in certain contexts. Griswold found a right to marital privacy in "the penumbra of the bill of rights". Lawrence found a right to privacy in your sexual activity.
In dobbs, they explicitly further denied a right to general privacy, and argued previous decisions conflated these: " As to precedent, citing a broad array of cases, the Court found support for a constitutional “right of personal privacy.” Id., at 152. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference."
You are talking about the former, which none of these cases were about. They are all about the latter.
So this is very far afield from a general right to privacy of the kind we are talking about, and more importantly, one that would cover anything like OpenAI chats.
So basically, you have a ~200 year period where it was not considered a right, and then a 50 year period where specific forms of privacy were considered a right, and now we are just about back to the former.
The kind of privacy we are talking about here ("the right to shield information from disclosure") has always been subject to a balancing of interests made by legislatures, rather than a constitutional right upon which they may not infringe. Example abound - you actually don't have to look any further than court filings themselves, and when you are allowed to proceed anonymously or redact/file things under seal. The right to public access is considered much stronger than your right to not want the public to know embarassing or highly private things about your life. There are very few exceptions (minors, etc).
Again, i don't claim any of this is how it is should be. But it's definitely how it is.
I'd like to thank you for explaining this so clearly (and for "providing receipts," as the cool kids say).
>> Again, i don't claim any of this is how it is should be. But it's definitely how it is.
Agreed.
"Dobbs. They also explicitly stated a constitutional right to privacy does not exist"
I did not know this, thank you!
¯\_(ツ)_/¯ The supreme court overturned Roe v. Wade in 2022 and explicitly stated in their ruling that a constitutional right to privacy does not exist.
Yes. They went further and explicitly make the distinction between the kind of privacy we are talking about here ("right to shield information from disclosure"), and the kind they saw as protected in griswold, lawrence, and roe ("right to make and implement important personal decisions without governmental interference").
> It has, fwiw, also historically not been seen as a core right for thousands of years. So i think it's a harder argument to make than you think despite the EU coming around on this.
This doesn't seem true. I'd assume you know more about this than I do though so can you explain this in more detail? The concept of privacy is definitely more than thousands of years old. The concept of a "human right", is arguably much newer. Do you have particular evidence that a right to privacy is a harder argument to make that other human rights?
While the language differs, the right to privacy is enshrined more or less explicitly in many constitutions, including 11 USA states. It isn't just a "european" thing.
I understand what they mean. There's this great video [1] which explains it in better terms than I ever could. I've timestamped the link because it's quite long, but if you've got the time it's a fantastic video with a great narrative and presentation.