The Right To Be Left Alone, Internet Style

The ruling out of the European Union was stunning: all the arguing and haggling aside by those who thought it would require some sort of agreement and mechanism, Europe’s highest court held in Google v. Gonzales that there already was a right to be forgotten, and Google better shape up.

Whether this is the start of a great new day or the end of one is a matter of priorities, at least for the moment:

Jonathan Zittrain, a law and computer science professor at Harvard, said those who were determined to shape their online personas could in essence have veto power over what they wanted people to know.

“Some will see this as corrupting,” he said. “Others will see it as purifying. I think it’s a bad solution to a very real problem, which is that everything is now on our permanent records.”

The mantra has long been that the internet never forgets, and it is a very real problem.  There are no second chances in the digital world when every transitory act and idea finds its way online.  For those who believe they’ve been grievously wronged on the internet, the notion of the right to be forgotten is a godsend.  For those who want to conceal the truth and manufacture a carefully crafted false internet persona, it’s a godsend too.

For those who do not believe that the internet should become a sanitized garden of positivity, showing only those things that please us and make us happy and concealing the warts we would prefer no one ever see, the notion smacks of eradicating truth and reality, reducing the internet to a fraud.

Dan Solove, whose seminal work on digital privacy, The Future of Reputation, opened my eyes to the potential and problems of the internet, raises the obvious, and numerous, problems with this ruling:

The court noted that the invasion of privacy search engines create for individuals “cannot be justified by merely the economic interest which the operator of such an engine has in that processing.” Moreover, the court noted that “the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information.” Thus, the court stated, “a fair balance should be sought in particular between that interest and the data subject’s fundamental [privacy] rights.” The court went on to state: “Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”

But who does the balancing? A search engine? How is it to weigh all these things?

Yet, there is a countervailing concern that Marc Randazza raised upon learning of the decision. Without search engines, the internet would still be there, but unfindable. In the early days, businesses used to include their URL in advertising so people could locate their website. Nobody does that anymore, as nobody needs to scribble down the address. Just Google it.  And yes, Google is hardly the only search engine, but it’s dominant.  The ruling would apply to all, not just Google, and the burdens it might impose would crush lesser search engines, only increasing Google’s dominance.

Randazza’s reaction was that this ruling, maybe, could suck the wind out of Google. He saw it as so large, so powerful, so dominant, that Google owned the internet.  If not completely, then enough so that it operated like its own nation-state, deciding our digital fates without the slightest concern.  Anything, Randazza argued, that undermined Google’s hegemony was good, as bad as this ruling might otherwise be.

While Randazza’s point was well taken, it reminded me of Isoroku Yamamoto’s response after the bombing of Pearl Harbor:

“I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.”

Solove notes that the EU tends to rule in grand gestures of rights, disconnected from the flip side concerns or the mechanics of how to make those rights happen, and happen effectively.  Will a million, a billion, people demand that Google delink to things they hate this morning?  Will someone at Google say “no,” it will not be bothered with every individuals’ pet issue and alter digital reality to please the sensibility of everyone with a keyboard.

Will Google finally stretch to its full height and reach, and tell the EU judges that the only thing they plan to delink is their misbegotten opinion?

The relationship between the digital and real world has grown increasingly tenuous, as we have come to recognize that few of the rules of the game apply well, all the while our dependence on the internet grows.  There is no going back to the days before the internet, and there is no going to back to its earliest days when users policed themselves.

With government and interest groups all vying for a piece of control, and with interests and arguments flying in every direction and usually without any means of accomplishing their goal without the full and dedicated cooperation of Google, this ruling may have pushed the internet too far.  Whether you applaud or hiss at this claim of right isn’t particularly important.  Whether Google decides to test its power, to challenge whether the EU, or any other governmental entity, is strong enough to make the internet bend to its will, is at stake.

This may have awakened a sleeping giant, and filled him with a terrible resolve.  If I had to bet on the EU or Google prevailing, I know where my money would be.

9 thoughts on “The Right To Be Left Alone, Internet Style

  1. John Jenkins

    I am not sure how this would undermine Google. As you noted, Google is the only search provider likely to be large enough to be able to comply with this regulation (possibly Microsoft’s Bing, as well). It will crush competitors unable to keep up with the requests. It seems more like protectionism for Google than poison.

    1. SHG Post author

      This may well expedite the death of lesser search engines, but that just strengthens Google’s overall power over the world, and they won’t survive anyway. Annoy Google enough with expensive nonsense and, well, we may find out who the real governing body is. Even the Jolly Good Fellow can only take so much.

  2. Pingback: Shutting the barn door after my “dirty old man/slut” post has made it round the world « Hercules and the umpire.

  3. UltravioletAdmin

    If this is like previous cases, eventually there will be some directive or regulation that will reign it in. It will likely be more like how the social media rules are where folks can demand old content they’ve deleted be actually deleted.

  4. Byron Warnken

    If it ever was, it always is.

    It’s always been that way. I view it as a natural law. Google just made it so things can be found. It didn’t create happenings, it merely “reports” them via access links.

    This ruling is ridiculous. Someone will take all the stuff that google removes and make it its own engine. The forbidden. The taboo.

    It’s a bit like burning books. That stopped nothing. It was merely a tiny speed bump on history’s highway.

    The Internet cannot be regulated in this way.

  5. alpharia

    So this means that all those defamation cases that occur in the EU (Uk is part of the EU) that allow action to be taken against things that some person with money, a huge ego, and/or a case of butthurtitis will now be able to direct Google to remove links to all and sundry items anywhere and everywhere including but not limited to government, educational, news/media reports, and documents talking about those links then?

    And Marc thinks this is ok as long as it shows Google that it’s not the “ruler of the Internet”? Right.. uhuh… *wonders when I stepped across the boundary into this new and strange multiverse – scared*

    1. SHG Post author

      Marc sees this as a David and Goliath battle, except while Google may well be Goliath, there are plenty of Davids on both sides of the issue. This isn’t one of Marc’s best doctrinal calls.

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