The Right to Be Forgotten is Censorship By Another Name

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Tue, Sep 29 - 9:00 am EST | 2 years ago by
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    Free Radical - Right to be Forgotten

    New technologies continue to tear down barriers and bring people closer together than ever before, but society in response is struggling to grapple with the social ramifications of evolving privacy expectations. That includes how we respond to the unexpected release of information about the private lives of our fellow citizens, particularly when it reveals behaviors that may be socially frowned upon but not legally punishable. The same challenges are also reflected in many current policy debates. Unfortunately, some of the efforts being undertaken in the name of privacy are dangerous and ill-conceived.

    In May of 2014, the Court of Justice of the European Union agreed with a Spanish man who complained that it was an infringement of his privacy for old stories that contained references to his home once being repossessed to still show up when his name was Googled. It declared a right of citizens to petition search engines to remove links to stories containing “irrelevant” or “outdated” information about themselves.

    Over the next 12 months, Google received more than 250,000 such requests, approving just over 40 percent and effectively burying almost a million pages into obscurity. The sites still exist, but without inclusion in search engines they might as well not. The protections carved out by the EU Court of Justice has since come to be referred to as a “right to be forgotten.”

    Note that there is no requirement that the information requested for delisting necessarily be inaccurate or misleading. Instead, search engines are being forced into acting – at considerable expense – as judges over what truths the public deserves to know, undermining their primary value as aggregators of information and denying the public access to potentially useful information.

    But European authorities also don’t necessarily trust Google’s judgment. In Britain, there were 183 complaints to the nation’s Information Commissioner’s Office (ICO) about requests which Google denied during the 12-month period. The ICO agreed with Google’s decision in most circumstances, but said that Google “hasn’t got it quite right” in 48 instances and asked for those cases to be reviewed again. Some Google agreed to reverse, but the ICO threatened to use “enforcement powers” to strong-arm Google into removing the rest if they refused to do so voluntarily. That effectively puts government bureaucrats in charge of deciding what information is of public value, and to which the people should be allowed access.

    The practical challenges for building a 1984-style internet memory hole border on the comically absurd. When Google informed a British paper that it had been forced to remove links to a story about a shoplifting by the perpetrator, the paper understandably found the censorship itself to be newsworthy and wrote about it, thereby undermining the entire point. The ICO responded by demanding Google remove links to the new articles, too. How can this cycle of censorship and its subsequent coverage end? The answer, apparently, is memory holes all the way down.

    It’s no coincidence that this problem has emerged in Europe, where free speech is not valued highly relative to the United States. Unfortunately, it may not remain there. Agitators are already calling for similar suppression efforts within the U.S., and the French last week declared that the conjured “right to be forgotten” must be applied by Google globally, not just within the European Union, and they are threatening significant fines if Google fails to comply.

    Of course, Google can – and should – tell France to go pound sand and not offer its services to the nation. But that would be denying itself future revenue. Moreover, the danger is that other nations will follow suit, or that governments will band together and form an information restricting cartel that leaves Google and any other global search engine with no choice but to implement the regime globally, essentially denying all users across the world access to any information that even one bureaucratic commission considers “outdated” or “irrelevant.”

    There are a great many faults to be found in this sort of recognition and enforcement of a “right to be forgotten.”

    For one, it expands the idea of what constitute a ‘right’ beyond its breaking point. True rights are not only grounded in our natural inheritances as human beings, but make no demands upon others beyond non-infringement. The right to life requires only that we not be killed. The right to speech that we not be silenced. The so-called “right to be forgotten,” however, requires that some entity filter information and judge its worth and then deny others access to it based upon that determination. As tech executive Andrew McLaughlin correctly observed, it would be more honestly called a “right to force others to forget” – which is itself the second issue: long established rights are being eviscerated in the name of enforcing the new “right to be forgotten.”

    Privacy as an idea does not encompass what proponents of these policies claim. It strains credulity to assert that individuals have some inherent say in how information about them used. In certain circumstances, such as when information is given to another party, like a website, in exchange for a service, individuals certainly have the right to condition that exchange upon certain restrictions. But while implicating the idea of privacy, that’s actually a contract right.

    Privacy only exists in environments that are actually private. Descriptions of public actions belong not to the subjects of those actions, but to those doing the describing. One can no more demand that such information not be shared once public then one can demand while walking down the street that others turn away so as to avoid being seen.

    But the issues go beyond the theory of rights and privacy. The EU’s attempt to institutionalize internet amnesia would – if widely adopted – result in a variety of practical, negative outcomes.

    Although intended to benefit regular people whose actions are least likely to be of public interest, any implementation system is likely to favor those with the power and resources to make the most use of it. Furthermore, even if the tool is not outright captured by politicians and the powerful – those about whom the public has the most need for information – there’s no way to predict what information might be of use in the future.

    Today’s nobody could be tomorrow’s candidate for office, yet for the “right to be forgotten,” the public has no corollary “right for that which was forgotten to be remembered if later it is found to be of public benefit.” The idea that anyone can possibly judge the future value of any information, in other words, is yet another “fatal conceit.” Far better to let all information flow and the chips fall where they may.

    It’s understandable that many are considering the privacy implications of modern technology. We don’t yet fully know the extent to which the internet and other developments have fundamentally altered social interactions. We know more about one another than ever before, and that poses challenges when we hold on to old ways of thinking. But the solutions to those challenges will come in the form of adapting social and cultural norms, not policies that foolishly seek to turn the clock back on the information revolution.

    Photo by BartekSzewczyk / Getty Images

    Brian Garst is an advocate for economic and individual liberty. He works as Director of Policy and Communications at the Center for Freedom & Prosperity, a free market think-tank dedicated to preserving tax competition. His writings have been published in major domestic and international papers, and he is a regular contributor for Cayman Financial Review. He also blogs at BrianGarst.com and you can find him on Twitter @BrianGarst.

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