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5/17/2014
09:25 AM
Thomas Claburn
Thomas Claburn
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Rethink The Right To Be Forgotten

There are better ways to address discomfort with the truth than government-mandated lying.

The "right to be forgotten," recognized in Article 17 of the European Union's revision of its 1995 data protection rules, is at once admirable and asinine.

Forgetfulness is often a prerequisite for forgiveness, and there are many instances when an individual or an organization deserves forgiveness. It wouldn't be particularly helpful if a search for "IBM," for example, returned as its top result a link to a website about the company's business with the Nazi regime. Forgetfulness is enshrined in judicial practices like the sealing of court records for juvenile offenders. It has real social value.

European lawmakers are right to recognize this, but their attempt to force forgetfulness on Internet companies is horribly misguided. The right to be forgotten will cause real social harm, to say nothing of the economic and moral cost.

Google has felt the sting to this new right. On Tuesday, the European Court of Justice ruled that Google must delete "irrelevant" links from its search index because a Spanish man complained about two news articles that mentioned an old debt. The man sought the removal of the articles from the website of a Spanish newspaper and the removal of links in Google's index pointing to those articles.

The Spanish data protection authority allowed the newspaper to keep its articles, because the stories reported facts, but decided that Google had to remove its links to the articles. Google appealed and lost.

Now, as feared, others unhappy with information on websites indexed by Google are demanding that Google to make that information harder to find. They claim the information is no longer relevant and outdated. According to the BBC, Google has received information removal demands from: an ex-politician seeking reelection who doesn't want people to read about his behavior while in office; a man convicted of possessing child abuse images who doesn't want people to read about his conviction; and a doctor who doesn't want people reading negative reviews of his practice.

These individuals may not have claims supported by Article 17, which allows data to be retained for a legitimate purpose and is ostensibly not about erasing history or restricting the press. But this is only the beginning of an inevitable flood of such requests. And because the law allows fines that can reach up to 5% of annual revenue, companies are going to err on the side of caution.

In a Facebook post, EU Justice Commissioner Viviane Reding celebrated the court decision, noting that "The data belongs to the individual, not to the company. And unless there is a good reason to retain this data, an individual should be empowered – by law – to request erasure of this data."

Reding is asserting a dangerous new intellectual property right here. Granted Europe has a more expansive view of the scope of intellectual property than we do in America, but what she describes amounts to ownership of facts. And in place of the fair use doctrine as a defense against infringement, we have "a good reason" as a defense against demands to be forgotten.

What's "a good reason" and who decides? The question is a lot like "who's a journalist?" or "what's newsworthy?" There are no easy answers so whatever answer we use must be expansive. And because of the inescapable ambiguity of these questions, there's no consensus about how to determine when facts (or anecdotes) about a person are no longer relevant.

Is Google a publisher or an intermediary? For the purpose of legal liability, Google Search is the latter, but reality is more nuanced. Removing data from Google (or any search engine) has almost the same effect as removing it from the source website. The right to be forgotten makes information less accessible to the public.

The right to forget appears to be an obligation to lie. Google is reportedly working on a tool to help with the removal of links. The details have not been worked out but Google has two choices: Remove the links entirely or provide some indication that they have been removed. If the company goes with the former option, it will be deceiving the public because it will be returning less than completely accurate search results about the information on the Web.

The right to forget needs to be balanced against the right to remember and our social obligation to the truth. Toward that end, the proper way to address this issue is not through the creation of an unworkable intellectual property right but by altering Google's search algorithm.

Rather than accommodating demands for the removal of inconvenient truths, the European Union should encourage Google weigh the age of indexed pages more heavily, so that ancient history surfaces less easily. Properly calibrated, this would make it unlikely that decades-old misbehavior would appear in search results without cutting holes in online history. Thanks to its semantic understanding of online content, Google could even fine-tune its algorithm by treating serious incidents as more relevant and trivial infractions less so.

Insisting on a right to be forgotten in an age when machines remember everything just isn't realistic. Lawmakers should focus on shaping that memory rather than denying its existence.

Could the growing movement toward open-source hardware rewrite the rules for computer and networking hardware the way Linux, Apache, and Android have for software? Also in the Open Source Hardware issue of InformationWeek: Mark Hurd explains his "once-in-a-career opportunity" at Oracle.

Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful ... View Full Bio

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RPMFortune
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RPMFortune,
User Rank: Apprentice
5/17/2014 | 7:46:16 PM
Re: Misguided Ruling at Best
Th UK "Rehabilitation of offenders Act 1974" already provides for this. Where a convicted person has completed their sentence, than after a defined period of time, the record is expunged. There are exceptions depending on the type of crime, for example, sex offences, and for a persons profession such as doctors or teachers. Search engines could be required to observe the provisions of this Act.
JohnN713
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JohnN713,
User Rank: Apprentice
5/17/2014 | 6:55:57 PM
LOL
....or that the De Rothschilds....jews....lended Hitler money in the 1930's to build germany's war machine........
Brian.Dean
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Brian.Dean,
User Rank: Ninja
5/17/2014 | 5:37:01 PM
Re: This is Crazy
Agreed, such a law can only be enforced if only a handful of search engines are operational. And I wonder how such a law could stop results from being displayed if users were sharing a news story on social media, that's being picked up by a search engine as organic interest.
Brian.Dean
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Brian.Dean,
User Rank: Ninja
5/17/2014 | 5:26:55 PM
Re: Data Racket
I can see your reasoning and I think you made a good point about extortion. From the perspective of personal information ownership a different conclusion is drawn and from the perspective of social information ownership a different conclusion is drawn, for instance, if an individual is a neighbor to a con-artist (one that has managed to avoid the law) then the individual has a right to know about the activities of their neighbor in order to protect themselves, but if time has elapsed and their activities have changed (10 years, 20 years and so on) then, a lot of benefit is not provided to society by repeating irrelevant bygones.

Basically, it is complicated and I see it as a time-weightage problem -- one that needs to be addressed in such a manner that a good equilibrium point is found.
petell
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petell,
User Rank: Apprentice
5/17/2014 | 5:12:37 PM
No more witch hunts
The right to be forgotten will cause real social harm

Humanity has got by with the "harm" of not remembering every trivial detail about every human being for throusands of year. The new fashion, brought about by social media, is merely a vain "blip" in that long-help practice. It  only becomes necessary to demand the removal of personal information because what is out there is being misused so egregiously.


So yes, let's delete everything on the internet about every individual - with the possible exception of on-the-record data about people while they hold public office. It will make no difference to anyone except the terminally nosey, prying and insecure and will mean that we can go about our business without having every single comment being held up to scrutiny by self-appointed moral judges, who remove every shred of context in their quest for a McCarthy-style witch hunt against the whole world.
CristianA821
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CristianA821,
User Rank: Apprentice
5/17/2014 | 5:04:18 PM
wow. compelling argument
Imagine some sensitive info about you (not someone else, YOU!) is made public on the internet. Contacting the website directly to take it down does not work. How else can you make this unavailable? I mean if it appears when you Google your full name. Seriously, what other option do you have to take down this information?

 

I think that the argument that everyone has against the right to be forgotten is in fact the complacency and comfortableness of people being able to Google anything on anyone ELSE.

 

But if it were something about you out there, that would be really harmfull and that you would have no other way to take it down than having it removed from Google´s search results, you would change your opinion on the spot.

 

So please stop being hypocritical and try being emphatic for just a second.
cbjameson
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cbjameson,
User Rank: Apprentice
5/17/2014 | 4:39:06 PM
Right to Privacy and what Google remembers
Part of knowing what not to report in search results is remembering what not to report.  Of necessity, search engines will retain "secret" files of that information.  I'm not sure that's a good thing.

And, might the liability of search engines extend to the same information presented in images? in audio? other languages?

Right to Privacy is a good idea, but not a good law - one of many ideas in that category.
rbrband
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rbrband,
User Rank: Apprentice
5/17/2014 | 4:24:38 PM
Re: Re: Data Racket
Google is not merely a search engine anymore--it's also more than one OS (Chrome and Android)--and, so much more. (People may not have noticed recently: They complain that Microsoft is an easy hacker-target--so is Google (and likely IOS) now, too.)

Forget it!: First, I'd say to become a master of disguise: Attempt to fake your credentials and IDs. (That's easy enough--given how comically stupid and insecure they are--thanks to our national "Culture of Cheap! By the way, make the "Culture of Cheap" your best friend!)  

Desert your families--you don't need them--they don't need you!: Disappear--redo your lives--reappear! (Become a carpenter in a broken-down cabin deep in the woods, manage a nursery, a flower shop, a surf shop, or an apiary! Heck, become the next "Grizzly Adams"--help me set up my still in WNC! Herd some goats in Mexico! Make weird wooden stringed instruments and lutes--and, flutes! Walk the earth as "Caine" did in "Kung Fu!" "Use your minds creatively!" "Create your own reality!"  It's not that hard!: "Anything is possible!" Now, get right on it!
Andrew Binstock
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Andrew Binstock,
User Rank: Author
5/17/2014 | 3:34:08 PM
Omitting links is not tantamount to lying
"The right to forget appears to be an obligation to lie."

I don't see any equivalence of these two. There are many, many types of information that are not available to the public and yet we don't term them as lying:

- Sealed juvenile records (as you mentioned)

- Personnel records

- Health records

- Grand jury testimony

All of these contain important information that some segment of the population might have a strong interest in knowing. The fact that we can't access that information doesn't in any way suggest lying. It's not even misleading.

We have come to accept that in these matters, absence of evidence is not evidence of absence. We should always have that view of Google searches. 

 
Andrew Binstock
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Andrew Binstock,
User Rank: Author
5/17/2014 | 3:21:24 PM
Re: Data Racket
"Google isn't collecting data."

Have you never looked at a cached Web page on Google servers? In addition to caching the pages, the search engines contains the data chopped up into indexable segments that the search engine then uses to return results. Google very definitely collects data on the content it links to. 

"Are we saying Goofle is actually publishing the info?"

Yes. It's not terribly different than publishing a directory. Were hard-copy phone directories, which simply listed names and phone numbers, not published? The fact that it's links rather than phone numbers doesn't mean that the information is not published. 

 
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