'Right to be forgotten' ruling creates a quagmire for Google et al

[jimmy olsen]

Don't see how this will work. 

http://www.theguardian.com/commentisfree/2014/may/13/right-to-be-forgotten-ruling-quagmire-google

'Right to be forgotten' ruling creates a quagmire for Google et al
EU court's decision will sound good to those who want old photos and articles deleted, but the reality will be more complex

        James Ball   
        theguardian.com, Tuesday 13 May 2014 11.51 BST   
     
Google offices
Deciding privacy issues on a case-by-case basis will require huge teams of compliance staff in every tech company. Photograph: Christian Hartmann/Reuters

It's a rare person who doesn't have something about themselves they would like taken off the internet, whether it's trivial (that picture from the office party) or grave (that news article about those people you killed).

So on the face of it, a new ruling from the EU's court of justice upholding the "right to be forgotten" looks like good news. As the debate around privacy, identity, and ephemerality has raged around the Snowden disclosures for the past year, the idea of putting the genie back in the bottle, and making old photos, articles and notes hard to find once more, will be for many an appealing one.

But behind the lustre lies a much more difficult situation. The EU court's ruling relates to a long-running dispute around a 1998 newspaper article relating to the repossession of a Spanish man's home. The court ruled that the newspaper had acted in the public interest in reporting the news, but that Google's offering a link to the article in search results represented an infringement of his privacy – and so the search giant should delete the result.

The court didn't establish an absolute right to vanish: "a fair balance" should be sought between the public's right to access given information and the "data subject's" right to privacy and data protection.

This creates a real quagmire for any company offering up information online: after how long does a bankruptcy ruling become something that should be private? Is that different if the subject is a celebrity or a politician? What if they offered the information voluntarily (or sold their story) in the first place? How about drug use, or prostitution, or murder? What if a person stands for public office a few years after having their search records scrubbed?

If nothing else, deciding such issues on a case-by-case basis will require huge teams of compliance staff in every tech company (and probably most media companies), and will tie up courts on the limits of each provision for years to come.

This is before we even get close to the trickier issues. Google was found to be subject to the EU court's decision because it has an established operation in Spain, within the union. This was despite the data being held and search results processed elsewhere. Most major tech giants are based in the US – which thanks to the first amendment, is very unlikely to require companies to restrict search results (ie what they can "publish") due to overseas privacy requirements.

The results could become exceedingly strange: will people searching from the US be able to see the "private" data of EU citizens, while natives of those countries cannot? Or will companies with no EU footprint be able to serve up results, but those with sales offices in EU countries be required to censor them?

The result is either an eerie parallel with China's domestic censorship of search results, or a huge incentive for tech investment to get the hell out of Europe. Neither, presumably, is a remotely desirable result.

Privacy is rightly recognised as an important right. The permanence of the internet is a concern to many, especially given the level of surveillance and intrusion on the network. In time, new social norms will help: once everyone's teenage follies – including the hiring manager's – are accessible, it becomes much harder to hold them against potential hirees.

In the meantime, social networks and activity are shifting from the permanent – Facebook – to the transient – Snapchat – showing that technology and culture are already starting to fix the permanence problem. That's a much better way: privacy is great, but it needs baking in from the start. Trying to clumsily reverse-engineer it into the system through law is an act of hubris.

[Tamas]

Don't see how this will work. 

The Europeans with the money and/or power to push it through will be protected from having their shit on the Internet, while the common man will not. So politicians and businessmen with things to hide will benefit and freedom of speech will suffer.

That's Europe for you in a nutshell I guess.

[Josquius]

What counts as irrelevant and outdated is the question for ne. I can see it doing some good with people who were in minor trouble of some sort and made the papers.... But isn't it right this be public record?

[derspiess]

I thought Google already had an opt-out policy:

http://www.theonion.com/video/google-opt-out-feature-lets-users-protect-privacy,14358/

[Josephus]

this is interesting. We've had this problem at work (I work at a newspaper), with people calling up saying they want certain articles about themselves taken down. Example, someone who was charged for fraud, now out of prison, saying that it's not helpful to his job search when the first thing that comes up on google for his name is our article about him being found guilty. We've resisted those sorts of things, my argument being...It's a newspaper article. You can't change that.

[Barrister]

this is interesting. We've had this problem at work (I work at a newspaper), with people calling up saying they want certain articles about themselves taken down. Example, someone who was charged for fraud, now out of prison, saying that it's not helpful to his job search when the first thing that comes up on google for his name is our article about him being found guilty. We've resisted those sorts of things, my argument being...It's a newspaper article. You can't change that.

And I've always thought that I want someone who has been convicted of fraud to have to explain that conviction to future employers.

The trouble is that the notion of a "right to forget" is completely new.  Google isn't doing anything new here - you could always go back and look at old newspapers in the library.  Google just makes the process of finding old news dramatically easier.

If there is a "right to forget" does that extend to libraries as well?

[crazy canuck]

this is interesting. We've had this problem at work (I work at a newspaper), with people calling up saying they want certain articles about themselves taken down. Example, someone who was charged for fraud, now out of prison, saying that it's not helpful to his job search when the first thing that comes up on google for his name is our article about him being found guilty. We've resisted those sorts of things, my argument being...It's a newspaper article. You can't change that.

Good on you Josephus.  There is so much misinformation available on the net I think that archives like those provided by newspapers are very valuable resources.

[Tamas]

What counts as irrelevant and outdated is the question for ne.

As I said, it is a neat flexible little ruling. If you have the pull, you can bend it your way. But it is not precise enough to be valid across the board.

[Ideologue]

What counts as irrelevant and outdated is the question for ne. I can see it doing some good with people who were in minor trouble of some sort and made the papers.... But isn't it right this be public record?

Now in the EU it may be different, but in the US criminal records are searchable and available to the public at either no charge (e.g., you can literally look my ass up on the Internet if you know the counties I've lived in, or brute force it with a search of each county in SC) or for a minor cost (pay $25 to SLED and you can get a full rap sheet, no fuss, no muss).  The only exceptions are juvenile crimes, expungments, and iirc there's a ridiculously long time limit, like ten years, till they drop off of SLED's radar, but you can still look 'em up in the county.

There was a bill last year in the SC legislature to sharply limit access, but it got shot down.

[Iormlund]

In Spain your criminal record is secret and will be purged in time. Only certain employers can (and should) ask you to provide it (IIRC mostly about regulated professions).

So you do have a right to be forgotten.

[grumbler]

In Spain your criminal record is secret and will be purged in time. Only certain employers can (and should) ask you to provide it (IIRC mostly about regulated professions).

So you do have a right to be forgotten.

So in Spain, you not only have the right to a secret criminal record (an interesting concept in and of itself; if someone is murdered, the family will never know who killed their loved one?) and automatic expungement of old offenses, but a right to be forgotten as well?  Where is this right articulated?  How many years until, say, a bank loan is forgotten? 

[Ideologue]

We have rights to a bank loan being forgotten too.  They're called statutes of limitation and/or repose.  I was the beneficiary of one through my mom's estate.

I assume Iorm doesn't mean that Spain lacks public trials or anything like that, but that the record after conviction isn't easily searchable.

[grumbler]

We have rights to a bank loan being forgotten too.  They're called statutes of limitation and/or repose.  I was the beneficiary of one through my mom's estate.

Insofar as I know, those are merely limits on the time the bank has to file suit, not limits on the time a person owes a debt.  If the creditor files suit for payment and the court issues a judgement against the debtor, does the debtor still have a right to be forgotten?

I assume Iorm doesn't mean that Spain lacks public trials or anything like that, but that the record after conviction isn't easily searchable.

That would be different from a secret criminal record.  If a criminal record is secret, no one except those with the requisite need to know can even know about it.

[Ideologue]

We have rights to a bank loan being forgotten too.  They're called statutes of limitation and/or repose.  I was the beneficiary of one through my mom's estate.

Insofar as I know, those are merely limits on the time the bank has to file suit, not limits on the time a person owes a debt.  If the creditor files suit for payment and the court issues a judgement against the debtor, does the debtor still have a right to be forgotten?

If the creditor files suit for payment after X years, the case is dismissed for failure to state a claim.  (I think it's a 12(b)(6) motion anyway, someone who's practiced law in the past three years can correct me if I'm wrong.  It's disposed of at an early stage anyway.)  It's as much a legal, notional "right to be forgotten" as a sealed criminal record.

That would be different from a secret criminal record.  If a criminal record is secret, no one except those with the requisite need to know can even know about it.

I'm sure Spain's courts of the star chamber are packed.

[grumbler]

We have rights to a bank loan being forgotten too.  They're called statutes of limitation and/or repose.  I was the beneficiary of one through my mom's estate.

Insofar as I know, those are merely limits on the time the bank has to file suit, not limits on the time a person owes a debt.  If the creditor files suit for payment and the court issues a judgement against the debtor, does the debtor still have a right to be forgotten?

If the creditor files suit for payment after X years, the case is dismissed for failure to state a claim.  (I think it's a 12(b)(6) motion anyway, someone who's practiced law in the past three years can correct me if I'm wrong.  It's disposed of at an early stage anyway.)  It's as much a legal, notional "right to be forgotten" as a sealed criminal record.

Stricken as non-responsive.

I'm sure Spain's courts of the star chamber are packed.

Okay?