In policy debates over contentious issues like abortion, national health care, and capital punishment, a common argument, brandished like a flag , is that the United States is out of step with the rest of the world. My reflex reaction to that claim, when I can resist the impulse to say, “Good!”, is to point out that the rest of the world has never lacked for enthusiasms for terrible ideas, and the United States, by going in its own direction, has often been unique, innovative, and right.
Still, a bad idea abroad will inevitably inspire some enterprising social architect here to propose it, and a legislator to try to make it law. Thus, when possible, it is wise to try to identify and reject the most sinister examples of Europe being Europe before anyone here starts trying to play “me too.” In the case of Europe’s current push to create a so-called “right to be forgotten” on the internet, some very effective critics are on the case.
The BBC reports that the European Commission will soon adopt formal rules guaranteeing a “right to be forgotten” online. The new regulation will become part of the Commission’s overhaul of the 1995 Data Protection Directive, and will mandate that “people will be able to ask for data about them to be deleted and firms will have to comply unless there are ‘legitimate’ grounds to retain it.” The policy is a classic example of the law stepping in when it is perceived that ethics isn’t working, but an even better example of the cure being worse than the disease. Yes, it is unfortunate when embarrassing, uncomplimentary, critical, half-true or misleading information about an individual becomes imbedded in search engine results, and it is often unfair. The online information may well adversely effect someone’s employment prospects, reputation and personal relationships, even though it misrepresents the individual’s character or life’s achievements. It certainly seems superficially fair and just for an individual to be able to seek privacy by forcing information that has no valid public purpose but that does great private harm to be removed.
But accomplishing the goals of this new “right” would in reality require a massive censorship and enforcement mechanism. As Adam Theirer writes ( in a terrific article with numerous links to papers and essays on the topic)…
“…for a “right to be forgotten” to work, a more formal and robust information control regime will need to be devised to censor the Net and make it “forget”about the digital footprints we left online….Beyond the chilling effect associated with dragnet takedowns of online information, it’s unlikely that approach will really work. Keep in mind, this isn’t as simple as just telling large social media operators to delete information on demand. The reality is, as computer scientist Ben Adida notes in his essay “(Your) Information Wants to be Free,” the same forces and factors that complicate other forms of information control, such a copyright and speech restrictions, also complicate the protection of facts about you. “[I]nformation replication doesn’t discriminate: your personal data, credit cards and medical problems alike, also want to be free. Keeping it secret is really, really hard,” Adida correctly notes.
“The fact is, information is instantaneously replicated online many times over on many different platforms — sometimes manually, sometimes automatically. Regulation will need to grapple with how to put the genie back in the bottle when countless others have already forwarded or commented on the piece of information someone later wants “forgotten.” And how would automated online archiving / storage services be affected? Will such sites and services be expected to find and purge every possible mention / reference of the offending information? Will they be compensated for the countless requests they receive to delete countless pieces of digital information, or are they just expected to do that out of the goodness of their hearts?”
In exchange for allowing individuals to re-claim their privacy (in an era when privacy may be well past re-claiming), a measure like Europe’s would also restrict free expression, research, and the preservation of a historical record while giving censors and those who would most benefit from censorship a powerful and sinister new tool.
Luckily, based on the recent reaction to Congressional attempts to police sites abusing copyright and trademark law, American orneriness and dedication to free exchange of information figure to make this particular bad idea from across the pond unlikely to travel well. Americans like privacy and fairness, but we still like freedom and free speech more.
We’re unique that way, and let’s hope that never changes.