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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 They claim the information is no longer relevant and outdated.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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anon5491259013
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anon5491259013,
User Rank: Apprentice
5/17/2014 | 2:10:13 PM
Far more important than DMCA
Corporations are the first to scream when someone uses their "intellectual property" in a manner they don't like.  Just think of this as a "Privacy Takedown Notice."
qwerpa
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qwerpa,
User Rank: Apprentice
5/17/2014 | 2:11:25 PM
Data Racket
The author seems to believe that your data and life belong to a multi-national corporation. Europe's court says your data and life belong to you. In the era of big data, what's to stop google from acting like a neo-mafia and extorting you for money or else they will publish their file on you? This decision is the first step to protect citizens from predatory big data miners.
PaulS681
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PaulS681,
User Rank: Ninja
5/17/2014 | 2:29:39 PM
Re: Data Racket
Google isn't collecting data... it is simply indexing pages to search on. Are we saying Goofle is actually publishing the info??? Thats not how I see it.
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. 

 
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.
PaulS681
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PaulS681,
User Rank: Ninja
5/17/2014 | 2:26:34 PM
This is Crazy
This is crazy... What about all the other search engines that are out there? They are just telling Google to do this?
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.
TRUTHinHistoryiseveryonesright
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TRUTHinHistoryiseveryonesright,
User Rank: Apprentice
5/17/2014 | 2:35:25 PM
Truth in History, it should NEVER be rewritten
"By revising history, therefore, one has the ability to specifically craft that ideological identity. Because historians are credited as people who single-mindedly pursue truth, revisionist historians capitalize on the profession's credibility and present their pseudohistory as true scholarship. By adding a measure of credibility to their work, their ideas are more readily accepted in the public mind. To an extent, historical revisionism is recognized as 'truth-seekers' finding different truths to fit the needed political, social, or ideological context." <- Historical revisionism
qwerpa
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qwerpa,
User Rank: Apprentice
5/17/2014 | 2:51:20 PM
Re: Re: Data Racket
Well yes in Europe google is classified as a publisher I believe.

But Google does far more than serve pages. It intimately tracks how you navigate the web in order to build a profile on you to sell to advertisers. They know a lot. If there is no law restricting what they can do with that information, it can get very scary, very quickly.
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!
JeffL817
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JeffL817,
User Rank: Apprentice
5/17/2014 | 2:40:14 PM
Misguided Ruling at Best
Individuals who have a grievance about the misuse of personal information must fight this battle at the source of the information.  Laws should make this easier forthe public to avoid the need for costly litigation. Blocking an automated search engine from returning results from published data soiurces will lead to selective censorship and be imposssible to regulate fairly and in the best interests of the public at large.
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.
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. 

 
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.
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.
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.
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........
LastC318
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LastC318,
User Rank: Strategist
5/17/2014 | 9:51:33 PM
the right to be forgotten is a fundamental freedom
we forget the most fundamental rights when money is involved.  pursuit of happiness includes the right to control personal information.  but, people who sell your personal information are actually selling you, and it's theft without your permission.  the right to be forgotten is just the first salvo of defending human rights against corporate greed.  it won't end until we regain control of our lives.  that includes the right to be removed from every database that does not have our permission.  corporations have no right to keep files on citizens.  the information is not their property.  information belongs to the individual who is the ultimate source of that information.  the right to be forgotten is the right to say no.  freedom is the right to say no.  freedom is right after life as a human right.  selling other people's lives is the lowest form of commerce.  think before you accept it.  your life is being sold right now to people you don't know.  the lives of everyone in your family are being sold.  businesses large and small, with no obligation to be ethical or legal, have your most personal information.  and they are selling it to whoever gives them money, for whatever purpose the buyer chooses. 
anon1205288491
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anon1205288491,
User Rank: Apprentice
5/17/2014 | 10:32:06 PM
Re: the right to be forgotten is a fundamental freedom
How about the right to know if the charactor of the person being searched? Withoug the right to know then politicians could hide their true charactor and be reelected to the detrament of the public. But now because if this law a person can hide any information that they don't want the public to know. There is no way to parse this information to determine which information is allowed except the person who does not want it out in the public. If the courts decide that there will have to be a court hearing on any information even then the person wanting to hid information will be able to prevent it from being revealed until it would do the public any good to know it. 

In essents this is just what malfactors have hoped for forever. 
LastC318
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LastC318,
User Rank: Strategist
5/17/2014 | 11:02:27 PM
Re: the right to be forgotten is a fundamental freedom
first, i notice you post as anonymous.  second, you can't spell for shucks.  and, third, you propose the rest of us give up our freedom for your security.  that makes you a hypocrite.  one of the many who thinks they have a right to other peoples lives.  you don't.  the challenge is this.  post your true identity and the personal information of every member of your family.  you say i have a right to know.  let's see it.  by the way, the 'public right to know' is fiction.  there is no such right.  remember, he who gives up his freedom for security deserves neither.
twnick01
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twnick01,
User Rank: Apprentice
5/18/2014 | 12:26:18 AM
Dumb idea
Suggesting that google should alter their general search algorithm to comply with judicial rulings in particular jurisdictions is asinine. They would be out of business in less than a year, from the middle east alone.

What google should do, since they don't want to be making subjective judgement calls all the time, is simply allow anyone to request any link be taken down in the EU jurisdiction, and then block that link forever when accessed from the EU. It would become apparent fairly quickly, even to the imbeciles in the EU governing bodies, that forcing google to censor data based on the whims of anyone and everyone will make online information rather skewed, and less than useful for general searches. At the same time, google can recommend Tor for EU users who want unfiltered results, and/or an explicitly non-EU portal (if that would comply with the law).

That would be the least obtrusive approach, and have the benefit of being fairly easy to abolish once the EU governing people extract their heads from their asses.
smartin230
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smartin230,
User Rank: Apprentice
5/20/2014 | 9:09:21 AM
Rights to META data
I contend that we as human beings , have a constitutional right to assume our meta data is our own and can only be shared with our permission. This idea , while in its infancy , hopefully will get stronger. When talking about META data, I mean data tags such as website cookies, date , time and location stamps from wireless/cell phone use, travel information from government sources such as toll booths and airplane security checkins. There is whole host of meta data that I can not even comprehend or even list here, but there is every reason to believe we live in the most intrusive big brother society in the history of man. It will only get worse in less we stand up and at least have an open discussion about what google's relevance is. Everybody loves to google a subject but when do you draw the line with what is considered personal and what is public. Right now there is NO line. I am suggesting that meta tags are mine and mine alone. I do not want any individual, company or government to be able to track who, what or where I am.PERIOD. This means advertisers...but that is really just the innocent front of this whole Alice in wonderland rabbit hole. GOOGLE and the Government are two sides of the same intrusive coin there to "help" you. Run away fast.
JonNLakeland
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JonNLakeland,
User Rank: Moderator
5/27/2014 | 1:52:15 PM
Re: Rights to META data
Meta data is not mentioned in the constitution.
smartin230
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smartin230,
User Rank: Apprentice
5/27/2014 | 2:50:47 PM
Re: Rights to META data
Ha!  Now we are getting somewhere.  This is exactly what i was hoping someone would say.  Thanks

shows you are reading and thinking! Thank you for your comment.There needs to be a constitutional amendment protecting my "meta" data, just like there is for personal property and property rights.  I am saying there is little difference between property rights and "online" property rights.  I should not have to sacrifice my constitutional rights to MY data to use the internet.  Should I?  I am saying my META DATA is MINE and MINE alone...not even the government should own the data...or at least there should be some agreement to destroy the data after a period of time.  Why hasn't someone come up with a way to process a transaction that allows the data to be destroyed.  Like SNAP CHAT or whoever does that with photos.  Even if that data is held for 7 years...that's better than infinity.

The date, time and place of a transaction is MINE.  Not a companies.  You could say it is a "shared" data point between the consumer (me) and the producer/retailer.  But that "shared" right is a ONE TO ONE, not a ONE TO MANY.  So any data that is between me and somebody else can only STAY between me and that person....NOT THE WHOLE DARN INTERNET! 

Ok, this is complicated.  Not a perfect solution, but the idea that I am spewing data all the time and there is someone there collecting that data without my knowledge or at least without my explicit permission....and then is retaining that information is totally scary and totally big brotherish  and totally a humanity control mechanism and totally GOOGLE and Amazon....it is not a nice "personal" feature of a Website to remember ever single search I do and remind me of it and send me emails about it.   It is an invasion of my personal space and my right to be forgotten. 

So yes, lets talk about legislation at the highest levels to address this huge loophole.
smartin230
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smartin230,
User Rank: Apprentice
5/20/2014 | 9:20:07 AM
Meta data use
For example why do I need to "login" to post something? Why is this really not an open forum? We don't even question having to log in to sites now a days. Well I am. Does any one really read the legal disclaimer and service usage policy, does anyone really click "no" . Why do we have to go through that big farse, every one hates clicking yes but we have really no choice. Sure we could click "no" and not agree to the terms but then we are excluded. Why can't we , as individuals have that same "right of use" when it comes to our own data.
Charlie Babcock
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Charlie Babcock,
User Rank: Author
5/20/2014 | 8:43:56 PM
Machine on the Internet can't forget
The legistors of the right to be forgotten are trying to roll back history. They have in no way attempted to recognize the long memory tails of search engines and for that matter online publications. Publications using paper may publish the facts and not be subject to the right to be forgotten. Online publications....what, must meet a different standard? Search engines must reprogram the history they find to cover up mandated parts? The right to be forgotten is one thing in a legal process, where old sins should not be admitted as evidence. But for the evidence to be erased entirely... that's what's neither implementable or enforceable in a fair way. A good column by Tom.
Tony A
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Tony A,
User Rank: Strategist
5/21/2014 | 6:58:48 PM
Sensitive Souls
The problem is this: we have a sense of what belongs to us - what is "us" - that comes from 10,000 years or so of civilization in which information is relatively easily forgotten - because people and their memories die, because paper records are hard to access, because old newspapers are lost, because books go out of print. Now we are suddenly (20 years or less) confronted with a world in which every single piece of information is relatively easily digitized, preserved and recalled. The EZ Pass lane you went through at 10:53 a.m. on a Tuesday morning 15 years ago, that horrible college ID photo, your thumbprint (or the algorithm that represents it) and the Google search for kinky porn that you executed two hours ago. The characters I'm typing right now and the coffee I bought at Starbucks a few minutes ago. It can all be recorded and stored, and much of it is. So who has a right to see/use/delete/subpoena/profit from/provide access to all of this? What bothers me about the perspective of this column is what seems to be the implicit answer "everyone". But while we may all agree that privacy and identity and anonymity will be affected in some way by modern technology, we are not ready to relegate every bit and byte of information about ourselves to the status of "facts" that the public has an inherent right to. The phrase "right to be forgotten" is a bit misleading: the real question is who has the moral right to obtain or retain this data. Even if Google has a moral responsibility to display whatever they find (which is not so clear) there is a question of who had the right to put it online in the first place. And surely if someone had no right to put something online, and therefore has a responsibility to remove it, there must be some responsibility for anyone who picked it up from that source to remove it too. So I do not agree that appeals to "facts" and "history" and other such good things automatically entitle search engines to publish every link they have ever found. A more nuanced approach is necessary; whether this new ruling provides that is another question, but since we seem to be at sea with data privacy we have to start somewhere.
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