Rethink The Right To Be Forgotten - InformationWeek

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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 They claim the information is no longer relevant and outdated.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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Charlie Babcock
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Charlie Babcock,
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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.
Andrew Binstock
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Andrew Binstock,
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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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