I wrote, I while ago, about “the power of Google” and its role in the discussion surrounding the “right to be forgotten” ― a person’s right to force search engines to remove links to information about that person that is “inadequate, irrelevant or excessive,” whatever these things mean, even if factually true. Last week, the “right to be forgotten” was the subject of an excellent, debate ― nuanced, informative, and with interesting arguments on both sides ― hosted by Intelligence Squared U.S. I encourage you to watch the whole thing, because there is really too much there for a blog post.
I will, however, sketch out what I think was the most persuasive argument deployed by the opponents of the “right to be forgotten” ― with whom, admittedly, I agreed before watching the debate, and still do. I will also say a few words about the alternative solutions they proposed to what they agreed is a real and serious problem ― the danger that the prominence of a story about some stupid mistake or, worse, an unfounded allegation made about a person in search results come to mar his or her life forever, with no second chances possible.
Although the opponents of the “right to be forgotten,” as well as its proponents (I will refer to them as, simply, the opponents and the proponents, for brevity’s sake), made arguments sounding in high principle as well as more practical ones, the one on which the debate mostly focused, and which resonated most with me concerned the institutional arrangements that are needed to implement the “right to be forgotten.” The way it works ― and the only way it can work, according to one of the opponents, Andrew McLaughlin (the CEO of Digg and a former Director of Public Policy for Google) ― is that the person who wants a link to information about him or her removed applies to the search engine, and the search engine decides, following a secretive process and applying criteria of which it alone is aware. If the request is denied, the person who made it can apply to privacy authorities or go to court to reverse the decision. If however, the request is granted, nobody can challenge that decision. Indeed, if the European authorities had their way, nobody would even know that the decision had been made. (Telling the owner of the page to which a link is being delete, as Google has been doing, more or less defeats the purpose of the “right to be forgotten.”)
According to the opponents, this has some very unfortunate consequences. For one thing, the search engines have an incentive to err on the side of granting deletion requests ― at the very least, this avoids them the hassle of fighting appeals. One of the proponents, Chicago professor Eric Posner, suggested that market competition could check this tendency, but the opponents were skeptical that, even if users know that one search engine tends to delete more links than another, this would make any noticeable difference to its bottom line. Mostly, the proponents argued that we can rely on the meaning of the admittedly vague terms “inadequate, irrelevant or excessive” to be worked out over time, so that the decisions to delete a link or not become easier and less controversial. But another consequence of the way in which the “right to be forgotten” is implemented would actually prevent that, the opponents, especially Harvard professor Jonathan Zittrain argued. Since nobody can challenge a decision to delete a link, the courts will have no opportunity to refine the understanding of the concepts involved in the “right to be forgotten.” The upshot is that, according to the opponents anyway, the search engines (which, these days, mostly means Google) end up with a great deal of unchecked discretionary power. This is, of course, ironic, because the proponents of the “right to be forgotten” emphasize concerns about “the power of Google” as one of the reasons to support it, as typically do others who agree with them.
If the opponents are right that the “right to be forgotten” cannot be implemented in a way that is transparent, fair to all the parties concerned, at least reasonably objective, and does not increase instead of the checking “the power of Google,” what are the alternatives? The opponents offered at least three, each of them interesting in its own way. First, Mr. McLaughlin suggested that, instead of a “right to be forgotten,” people should have a right to provide a response, which search engines would have to display among their results. Second, we could have category-specific measures directed at some types of information particularly likely to be prejudicial to people, or of little public interest. (It is worth noting, for example, that in Canada at least, we already do this with criminal court decisions involving minors, which are anonymized; as are family law cases in Québec.) And third, Mr. McLaughlin insisted that, with the increased availability of all sorts of information about everyone, our social mores will need to change. We must become more willing to forgive, and to give people second chances.
This is perhaps optimistic. Then again, so is the proponents’ belief that a corporation can be made to weigh, impartially and conscientiously, considerations of the public interest and the right to “informational self-determination” (which is, apparently, the theoretical foundation of the “right to be forgotten”). And I have argued already that new social norms will in fact emerge as we get more familiar with the internet environment in which we live, and in which our digital shadows are permanently unstuck in time. In any case,what is certain is that these issues are not going to go away anytime soon. It is also clear that this Intelligence Squared debate is an excellent place to start, or to continue, thinking about them. Do watch it if you can.
Double Aspect 