Can I Get My Reputation Back?
Not that long ago, if you wanted to really research a person or an issue, you'd have to visit the basement of a good library or other institution that kept microfiche or microfilm of old newspapers. A lot of great investigative journalism was done that way. The right to be forgotten is like resuming a natural archiving process that gives people, over time, the benefit of the doubt.
Ray Donovan was U.S. Labor Secretary under Ronald Reagan and a colorful figure. During his tenure he was indicted by a Bronx, N.Y., grand jury on corruption charges stemming from a contract to build a subway line. The trial involved unions and the mob and was automatically sensational.
The verdict turned on whether a minority-owned construction company of which Donovan was a part owner really was certified for the contract it got or if there was mob influence. Donovan and his codefendants eventually got off, whereupon Donovan uttered a quip for the ages: "Which office do I go to to get my reputation back?"
Almost 30 years later, Donovan may have at least a partial answer to the question, according to this article in The New York Times.
The European Union finally is implementing a privacy law that allows people to petition Google and others to delete links to news stories and other things that might once have been relevant but are no longer.
The battle between the EU and Google has been ongoing, and hardly a soul who reads this will need much explanation to get up to speed on the issue. So Donovan can have links referring to his trial removed -- at least in Europe.
This is not to say that the offending articles go away. Although the Google links go, news stories still live on the sites of the organizations that first reported them, as the Times story notes. So this approach does not amount to a complete deletion but is more in line with what the Europeans call "the right to be forgotten." In my mind, that's all that is necessary.
Last year I wrote an article for Computer Law Review International (CRi), a journal focused on all things computer-law related, in which I tried to tease apart some of the major threads of the argument. Following is a short synopsis of my findings.
First, the existence of search engines presents us with a problem that's never existed before, which can be summed up as "the past is always present." Anything that happened to or by you that was reported or posted has become immortal. You'll be dead and those pictures of you skinny-dipping at the president's club in 2004 will be as fresh as the day they were posted.
Second, nobody wants to take responsibility for managing the links. The Markkula Center for Applied Ethics at Santa Clara University has posted a series of monologues about some of the ethical considerations posed by Internet data storage and information access. The series, "Internet Ethics: Views from Silicon Valley," consists of short videos on the school's YouTube channel by ethicists and leaders of major software companies with relevant positions.
The leaders in the technology space pointed out reasons for not taking down data about individuals, but all of it boiled down to two issues. Nobody wanted to take responsibility for failing to take something down; once you have a responsibility for doing that, there is a natural question about penalties for failure to do so. No one wanted to go there. Also, the question of who pays for this service can become contentious rather quickly.
Third, information reported as true at some point in the past can become false. Take the case of a nurse who last year was the subject of a Times article after being caught, along with her grown kids, with a small amount of pot. The infraction occurred in Connecticut, one of many states with expungement laws on the books. Any person whose record is erased "shall be deemed to have never been arrested" and "may swear so under oath," according to the law.
For example, if you were indicted but never brought to trial, the state doesn't want to saddle you with a non-record record. Also, in some situations, if you do community service prescribed by the court and remain in the law's good graces, your record can be expunged.
In the nurse's case, she did community service and her record was expunged, but the original news story remained on a paper's hard drive available to anyone who wanted to do a search on the nurse's name. So, although the court had expunged her record, the news item persisted, and the nurse found she was unemployable because prospective employers could easily find the article. So this was clearly a case of the past being ever present in ways that were never anticipated.
Natural Archiving Process
Not that long ago, if you wanted to really research a person or an issue, you'd have to visit the basement of a good library or other institution that kept microfiche or microfilm of old newspapers. A lot of great investigative journalism and historical research has been done just that way over the years.
Before then, researchers could access original sources at libraries only through tedious effort. There was nothing like today's technology, which allows anyone to punch in a few letters and presto, find out something that time otherwise would have obscured.
So, in my view, the Europeans have it about right. The right to be forgotten is not exactly that; to me, it is more like resuming a natural archiving process that gives people, over time, the benefit of the doubt. Europe has not come up with a perfect system -- it is overly manual and time consuming -- but it is a start. I do believe, though, that the companies making money on search should foot the bill for removing links.
Younger people are less concerned today than in years past about what's on the Internet about them, research suggests. Some people hope that their attitudes will age into the population and the right to be forgotten will become an anachronism. However, when you have nothing to lose, things like this don't garner a lot of your attention.
As younger people -- digital natives -- age into adult life, they'll find a system geared to digging up information and using it against them as circumstances demand. So I am not betting on the EU's approach to be a flash in the pan. More likely, it's the shape of things to come.