'You’ve never had the ‘right to be forgotten’

Tags: Opinion

The European court’s decision is not meant for data obliteration

'You’ve never had the ‘right to be forgotten’
CURIOUS CASE: The right of others to remember, not the right to be forgotten, should be the standard, even in Europe
A recent ruling by Europe’s top court has given its people a “right to be forgotten.” Google and other search engines must now delete “inadequate, irrelevant, or no longer relevant, or excessive” information from search queries when a European individual requests it, even when the info is true. This isn’t a classic case of censorship: the “offending” pages produced by newspapers and other websites will go untouched. Google and the other search engines just won’t be allowed to link to them.

The court has largely left to the search engines how best to handle requests to decouple the names of petitioners from search results served, which has already produced major confusion, as well as a comically passive-aggressive response from Google, which has received more than 70,000 requests in the opening round, with 1,000 said to be arriving daily.

How did a right to be forgotten become enshrined, even in a place as retrograde as Europe? If you’ve lived in a village or even a small town, you probably learned the hard way that privacy has never existed in the original state of nature. Everybody in a small town knows that you drink, how much you drink, and what brand, thanks to that rumour-mongering liquor-store clerk. They know where you sleep at night, who you sleep with, and whether your nights are restful or rambunctious because the local pharmacy tech gossips about your Ambien and Viagra prescriptions. The librarian knows what books you’ve checked out of the local library, the local merchants recall having rejected your overextended credit card, and they all swap this information like chattering birds on a wire.

That big, fat, distributed dossier can’t be suppressed. Traditionally, the best way to escape small-town nosiness was to light out for the nearest city, where personal information couldn’t be collected so cheaply and couldn’t be shared as efficiently. It also helped, of course, that the city’s million other inhabitants care not at all about you, and your neighbours barely know you exist. When you did get caught doing something embarrassing, the newspapers and court records might trap it in ink. Those who possess good memories might remember your indiscretion and blab about it. But retrieving that information and maintaining it was too damned expensive. The only American institution that justified the cost of keeping close tabs on the personal lives of the human hordes was the Federal Bureau of Investigation, whose agents and hired clipping services followed thousands.

But the bliss of being an unknown cog in a big city turned out to be temporary glitch, remedied by technology. In the early 1970s, LexisNexis arrived to digitise news and court cases, driving down the cost of information retrieval and encouraging newspapers and other information sources to add their troves to the pile, which it resold at high prices. Not long after, credit bureaus commenced swallowing financial data about the public by the terabyte and regurgitating it for clients. The commercial web, which arrived in the mid-1990s, drove the cost-curve of information retrieval down and also democratised it to the point that you can download human backstories by the millions —many of them revealing —after keystroking a few search terms into Google.

The “right to be forgotten” movement is based on several mistaken assumptions, besides the notion that such a right ever existed. The forgotteneers seem to think that your reputation is something that belongs to you. In fact, your reputation is the shifting composite of what other people think of you. What other people think of you can be changed by words and deeds, but I doubt if you can improve your reputation much by knocking some select search results out of Google. Especially if people find out you’ve been cleansing the results!

Likewise, petitioning search engines in Europe to remove embarrassing search results won’t prevent the curious from using US-based search engines to discover your past, or from using Nexis to retrieve press clips, or from inspiring an American firm to set up shop offering European clients comprehensive dossiers about Europeans whose search results have been scrubbed. (Oddly, the right-to-be-forgotten movement has yet to agitate against the European governments, which hold oceans of information about their residents but have no responsibility to forget. If I were seeking info-relief, that’s where I’d strike first.)

Instead of looking at the right to be forgotten as information obliteration, think of it as an exercise in digital information regulation. It’s mostly a feel-good exercise for those who feel victimised by their revealing or sordid pasts, and a make-work project for the curious. The European court decision — so far, at least — has merely dialled back into an earlier decade the costs of researching the personal histories of those who successfully protested. The information still exists, it’s just more costly to salvage.

According to legal scholar Jeffrey Rosen, we shouldn’t get over-excited about European legal decisions. “Europeans have a long tradition of declaring abstract privacy rights in theory that they fail to enforce in practice,” he wrote in 2012, and the likelihood that such measures could be adopted in the US are slim to none. That said, the right to free speech isn’t much of a right if it doesn’t also include a right to access publicly available information without having to pay a legal toll. The right of others to remember, not the right to be forgotten, should be the standard, even in Europe.


(Jack Shafer is a Reuters columnist covering the press and politics)


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