The Future of Your Past: A Right to be Forgotten Online?

Sanna Kulevska, June 24, 2013

Abstract: “Since the beginning of time, for us humans, forgetting has been the norm and remembering the exception”. Viktor Mayer-Schönberger, professor of Internet governance at the Oxford Internet Institute, discusses in his book Delete: The Virtue of Forgetting in the Digital Age, the fact that the rapid development of the Internet and new technology has reversed this thinking, and we are now facing the opposite: “Our pasts are becoming etched like a tattoo into our digital skins”. Who owns your personal data in cyberspace? And which are the greatest challenges we are facing when discussing the globalization of the rules on the Internet, with different approaches to a “right to be forgotten” in the EU and the USA?

You reveal more than you think online. We tend to believe that the social network services that large online companies such as Facebook and Google provide us with is free, but the price we are actually paying for these services are very high. Since this is something that has not yet entailed any problems for most users, it is hard to estimate what it is worth to have that picture or comment posted online. For years, we have paid with our privacy and with the risk of never being able to delete. Until now.

In January 2012, the European Commission released its proposal to a new Data Protection Regulation that will strengthen online privacy rights for individuals within the European Union. It came as a response to worried European Union citizens who desired increased certainty regarding the future of their past, since 72 % of them were concerned that their personal data on the Internet may be misused. One of the major reinforcements from the existing Data protection Directive of 1995 is a "right to be forgotten” online, outspoken on the press release by the European Commissioner for Justice, Viviane Reding.: ”If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system”.

The right to be forgotten might seem utopian and unachievable at first glance; a common refrain from opponents of the proposal is "if you want to be forgotten, simply do not get remembered in the first place." Nevertheless, the fact that we do not want a future that is unforgiving because it is unforgetting makes us think further.

Viktor Mayer-Schönberger stresses that “humans need to make decisions about the present and the future. The beauty of the human brain is that we forget, which enables us to think in present. That is necessary to help us make decisions”.

He explains further: "Our brains reconstruct the past based on our present values. Take the diary you wrote 15 years ago, and you see how your values have changed. There is a cognitive dissonance between now and then. The brain reconstructs the memory and deletes certain things. It is how we construct ourselves as human beings, rather than flagellating ourselves about things we've done. But digital memories will only remind us of the failures of our past, so that we have no ability to forget or reconstruct our past. Knowledge is based on forgetting. If we want to abstract things we need to forget the details to be able to see the forest and not the trees. If you have digital memories, you can only see the trees."

A right to be forgotten can form a new paradigm shift where privacy is the norm rather than the exception and where individuals have regulated power to control their own personal information rather than businesses or the government. The latest weeks discussions about the surveillance conducted by the United States National Security Agency (NSA) have added oxygen to an already flaming debate about data and privacy – with the underlying question regarding the ownership of the data available in the online environment.

With more than two hundred social network sites available online, and with a recently surpassing of one billion Facebook users, one of the main objectives behind the new Regulation is to make people less free and easy with the information they share by putting people in charge of their own data and make companies understand that they are just renting it. Viviane Reding stresses that this will re-balance the unbalance in the online society and emphasizes the fact that individuals own their own data; it is personal and the social network providers are just borrowing it: “You have to admit as a company that you are using, you are renting, data from an individual and you have to be aware that this data can be taken away from you.” The big idea is to accentuate the fact that “personal data is personal. It belongs to you. Always.”

Furthermore, Reding underscores that a new regulation is vital to maintain trust between service providers and users. Since “personal data in todays world [is] the currency of the digital market, it needs to be stable and trustworthy.” Only if consumers trust that their data is well protected, will they continue to accept new services. Statistics show that 84% of 18- to 24-year-olds – the so called ’digital natives’ want the right to be forgotten to be legislated. The fact that a right to be forgotten does not currently exist in the USA does not mean that U.S. companies can behave irresponsibly when handling private data that belongs to European users and crosses the Atlantic Ocean: “If data is going to flow outside the EU it is going to have be subject to the same high levels of data protection as data within EU member states. And that is very reassuring for users of services like Facebook and Google.”

Lobbyists argue that it is “technically impossible to implement the right to be forgotten, because of the many back-ups of back-ups of back-ups that take place”. “But if you can be deleted from Google’s database, i.e. if you carry out a search on yourself and it no longer shows up, it might be in Google’s back-up, but if 99 % of the population don’t have access to it you have effectively been deleted”.

Google rejects the idea of a right to be forgotten, and insist that only publishers or courts shall have the power to delete information, assumed the information was legally published,
– and not private persons or search engines. William Echikson, Google’s head of free expression for Europe, recently wrote in a blog post that ”search engines should not be subject to censorship of legitimate content for the sake of privacy — or for any other reason.”

Different voices from both Europe and the USA, express the same kind of doubts. Ulf Maunsbach, a Swedish Professor of Law at the Faculty of Law at Lund University, predicts that the right balance in the conflict between the right to be forgotten and our free speech rights will be hard to find. Even if it is possible to maintain a right to be forgotten, it will be hard to enforce it. “Even if Google is a large company, it is not reasonable to force them to ‘vacuum clean’ the whole net in their search for information that somebody of privacy reasons may have a right to delete”.

On the American side, Christopher Gibson, Professor of Law at Suffolk University Law School in Boston is clear in his statement that a right to be forgotten cannot exist in the USA right now since it would violate the historically strong first amendment rights: “A right to be forgotten in the USA would require a new federal statute”. However, statutory interventions seem to be indispensable since it is otherwise going to be hard to give the users the effective control just by relying on the goodwill of the data controllers.

Some commentators have described the Regulation’s influence on U.S. privacy law as an ultimatum given from Brussels to Washington: “Adopt strong privacy laws, or stand the risk of losing countless trillions of dollars of business with Europe.”

Nevertheless, recent news reveal that the Europeans are not completely united:, Last week, archivists in France raised their voices against a right to delete your content online. With 50,000 signatures that will soon be presented to the European Parliament, they underline the importance of data flourishing online, and mean that we as a soceity have a collective right to keep a record even if private persons would prefer a deletion of the questioned private information. Mr. Legois, a municipal archivist outside Paris, sympathises with the concerns over the use of personal informaiton by the big online giants, but presents a compromising solution consisting of no right to deletion of data, but instead a restricted public access to some private information with archivists acting like guardians.

In relation to the discussion about the society’s right to private persons data, it is essential to raise the question of where the limit of forgetting is desired to be drawn. When you are writing something with your pencil and want to erase it with a rubber eraser, you clearly want to delete the text. If there are traces left revealing that you have actually deleted something – is it then fully deleted? Do you want to forget that you have forgotten too, or is it acceptable to leave some smear? This metaphor about the desired degree of deletion is interesting in the debate on transparency. Since evidence suggests that some individuals and corporations are using intellectual property and other laws to silence other online users free speech rights, the Chilling Effects Clearinghouse collects cease and desist notices arisen to delete defamatory or infringing material on the Internet - and publishes them on the Chilling Effects website. This way transparency is created at the same time as the public are educated about their online rights.

Another solution on how to cope with deletion of private data is presented by Viktor Mayer-Schönberger, who is certain that we are not losing enough of our digital data and that we are failing to forget. He proposes expiration dates on the personal data that we reveal online. To emphasize the importance of awareness and human action, he believes that expiration dates is all about asking people to reflect how long time they think it is useful and valuable to have the information remain stored. It is not about imposed forgetting.

We have now come to a stage in the digital age where a right to be forgotten might violate the free speech rights, but where not giving the individuals a right to be forgotten would be counterproductive in the way that it might prevent them from speaking and using their given right - in fear of always being remembered since they would feel that the speak is not free.

When we went from human interaction to cyberspace communication, we went from a human memory with its imperfection, to a flawless digital memory. We went from forgetting to remembering. In the hot debate regarding the ownership to private information and about being able to see the whole forest and not just the trees, we need global cooperation. Human cooperation. Personal data is now the currency in the digital environment. I believe that in the future it will be something else: Trust.

Chilling Effects Clearinghouse - www.chillingeffects.org

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