In Europe, a Right to Be Forgotten Trumps the Memory of the Internet

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Why is it that two sprawling yet similar Western cultures -- those on both sides of the Atlantic -- respond so differently to Internet privacy?

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A quarter-century after coming to the United States, Franz Werro still thinks like a European. The 54-year-old Georgetown law professor, born and raised in Switzerland, is troubled when ads in French automatically pop up on his American laptop. The computer assumes that's what he wants. We live naked on the Internet, Werro knows, in a brave new world where our data lives forever. Google your name, and you'll stumble onto drunken photos from college, a misguided quote given to a reporter five years ago, court records, ancient 1 a.m. blog comments, that outdated Friendster profile ... the list goes on, a river of data creating a profile of who you are for anyone searching online: friend, merchant, or potential future employer. Werro's American students rarely mind.

But America is not Europe, and despite our no-secrets age of WikiLeaks, Europe wants to enshrine a special form of privacy into law. Individuals should, according to many in Europe, possess what they call a "right to be forgotten" on the Internet.

How do you create a space where we're free to analyze the data but not free to abuse the data? We've been asking the wrong questions.

How would this even be possible? This developing right, authorities in several European countries suggest, would allow an individual to control and sometimes eliminate his or her data trail and allow him or her to ask Google to remove select search results -- a newspaper article, say, which once painted him or her in a bad light. A look at recent news events guarantees that this right will only become more relevant in 2011.

On January 19, Google refused Spain's request that the ubiquitous, California-based search engine remove 90 links. Many of the links Spain wanted to remove included newspaper articles and information from public record, often painting the plaintiffs in a bad light. Google called Spain's request "disappointing" in its official statement and emphasized that as a search engine, it should not be responsible for curating Internet content. Removing links would be expensive, Google argued in court, and violate the "objectivity" of the Internet search. Last November, the European Union announced data protection goals for 2011, which include "clarifying the so-called 'right to be forgotten', i.e. the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes" (PDF). The EU explicitly said that users should have the right. It has already been heavily discussed and praised in countries such as France, whose President Sarkozy said last year: "Regulating the Internet to correct the excesses and abuses that come from the total absence of rules is a moral imperative!" France's leadership at the coming G8 summit also signifies more dialogue, as Sarkozy hopes to discuss the right on an international stage.

These European concerns rarely come up in the United States. People may worry about Facebook's privacy settings, but few would suggest an individual has a right to remove an offending Gawker post from Google's index. After all, who decides? A person might want an embarrassing photo removed from record, but what if the photo features not only that person but four others? The question of censorship is inevitable. The closest manifestation on this side of the Atlantic is likely a paper from the ACLU lobbying for a "right to delete" (PDF).

Why, then, have our two sprawling yet similar Western cultures responded so differently to Internet privacy?

In Europe, the idea that privacy should overrule free expression is nothing new. Professor Franz Werro keenly highlights the historical difference in a 2009 academic paper and points to a 1983 case in Switzerland. Swiss TV had planned to air a documentary about a criminal from the 1930s. Swiss law, however, forbade the airing of the program -- the European court "held that the documentary would unjustifiably violate plaintiff's privacy right to keep his feelings as a son from being trampled." Yale law professor James Whitman sees the differing concepts of privacy as a battle between liberty and dignity (here, the PDF of his 2004 journal article).

Transatlantic clashes over privacy in recent years have included the use of Google's Street View in Germany, Switzerland, the Czech Republic, and elsewhere. German criminals sued Wikipedia in 2009 to have their names scrubbed. A little less than a year ago, an Italian court successfully sued Google for allowing a user to post offensive video. The fact that many of the Internet companies such as Facebook and Google are located in the United States (where, as Werro says, there is "fetishization" of the constitutional First Amendment of free speech) creates deeper problems in the courtroom, as it did in Google's recent refusal in Madrid. American companies favor American law if possible, no matter what country they operate in. In Europe, the courts balance a right to a free press with rights of privacy, of personality, and of dignity, protected in Article 8 of the European Convention on Human Rights. In America, the implicit right to privacy always fell flat when running against the Supreme Court's fidelity to the First Amendment.

A right to be forgotten raises practical concerns as well as theoretical. "It's almost absurd to say we have the right to disappear from public domain," said Martin Abrams, a policy director with leading global privacy think tank Hunton & Williams. "We're really talking about the right not to be observed in the first place.... We've been focused on symptoms rather than the underlying issues."

"The Americans run their show, but can they impose their rights on the rest of the planet?

Abrams is far from enthusiastic about Europe's proposed right to be forgotten -- he'd rather people focus on what he considers the real issues of Internet accountability and the increasingly popular notion of "data stewardship" among corporations. Data will inevitably be out there, Abrams believes, and what matters now is a dialogue about how to retire certain data. There is great value, he emphasizes, in using Internet data to model the future and permit innovation -- he brings up positive examples of this, such as Google-supported HealthMap, which tracks infectious diseases around the globe by synthesizing public data. You can't go west and not be known anymore, Abrams believes, but we can move beyond a "rhetoric hump" and reach a more realistic and practical level of dialogue on data responsibility.

"How do you create a space where we're free to analyze the data but not free to abuse the data?" Abrams considers. "We've been asking the wrong questions."

And why is Europe asking questions about the right? Because, Abrams said, Europe is used to legally processing all its data, whereas America grants far more permissive rights of observation of behavior and its data -- which, when extended to the Internet, affect how companies observe and model our activity. The Europeans resist this digital observation without consent. But the European model runs strongly against American traditions of free press and expression. Up until now, the fight for the right to be forgotten has remained largely within the province of Europe. That can't last forever though -- especially given how many global Internet titans remain based in the U.S.

"The Americans run their show," Werro said, "but can they impose their rights on the rest of the planet?" Europeans are, Werro continues, equally sensitive to the use of personal images and especially the "merchantability" of personal data by corporations. A European sensibility would not, he added, easily accept the invasion of privacy that occurs so frequently in American media. He brings up Fox News, which to keep coverage of the Eliot Spitzer scandal alive, chased after the prostitute-in-question's grandfather at 9 p.m. on a Saturday.

Yet on both continents the discussion of Internet privacy is evolving. In December, the U.S. Department of Commerce recommended establishing a Privacy Policy Office, its potential role "acting as both a convener of diverse stakeholders and a center of Administration commercial data privacy policy expertise" to address what it calls "a continuum of risks to personal privacy" (PDF). Another U.S. goal is to establish "global privacy interoperability" to reduce the friction and costs American companies have been incurring as they face the "omnibus privacy laws" adopted in the European Union. In late January, both Google and Mozilla presented people with an option to opt out of being tracked online for advertising purposes.

These basic privacy concerns are universal, but the right to be forgotten -- and the potential precedent its adoption could set -- takes the concern over privacy many steps further. As in Madrid this January, the European sensibility is colliding in powerful ways directly with U.S.-based, transnational corporations bred on American values of both expression and profit. The fight is hardly over.

"I wonder at times," Werro said, "if this conception of privacy in Europe could be wiped out."

Image: o5com/Flickr.

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John Hendel is a writer based in Washington, DC, and a former producer at The Atlantic.

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