Law in the Internet Society

Erase me if you can

-- By JustineFassion - 23 Oct 2012

What is to be forgotten?

Why the Internet cannot forget

Erase me if you can

Facebook showing a picture of you half-naked making a fool of yourself at a wild party in Thailand because of the un-locked account of a friend of a friend, Google stating that you were once convicted for murder in France while your name was cleared after a trial, Amazon knowing all your shopping habits – books, music, clothes, domestic appliances... - and let's not forget about the dumb comment you wrote under your name on the blog of an American politician three years ago about this disgusting multi-billion corporation where you are currently applying for a position. Who would not like to forget and everybody to forget about those embarrassing moments? Well, the Internet does never forget...

The so-called vague and blurry concept of “right to forget” or “right to be forgotten” has as many chances to be implemented than speculation on financial markets to be regulated because it encompasses too many paradoxes and very tough obstacles to overcome.

What is s to be forgotten?

That is the first question arising out of this fundamental digital right-wannabe. Is it about pictures, videos, comments, academic/professional information, press articles, or all of them? This first question reveals to be in fact the tree that hides the forest since the answer triggers the whole debate about the frontiers between personal data – that one should be able to control – and information - which has to remain a public good accessible to every single being at the slightest cost.

If you manage to answer the first question, then comes a second important one: should we allow people to have control over their own data or also over the data posted by others? The answer to the first proposition is quite evident to me and has, indeed, already been brought by several legislators within the world. It seems legitimate that someone who shared an opinion at a time and changed its mind afterwards may be able to erase the related content because I don't see any reason why the Internet shall not give everyone a “second chance”. Opinions have never been irreversible. Following a principle of freedom to put online and offline, people should be able to keep as many control on contents they decided to put online than offline.

The second proposition, however, raises bigger concerns: if we allow people to take control over the data posted by others, we tolerate a huge limitation on freedom of speech and jeopardize the free circulation of information, which is a cornerstone of liberal democracy. I will give a very simple example: imagine a press article or a picture about an unauthorized protest march in Russia quoting/showing different participants. It would be easy for said government, obviously not pleased with this content, to pay off one of the participants to exercise its right to be forgotten and have the article or the picture removed/taken down. Corporate or government abuses could easily stem from this kind of oppressive law.

Between the right to forget and the duty to remember, one delicate question still needs an answer: what must we and mustn't we forget? If a former government official found guilty of genocide served its time in jail, should we erase all information about his conviction pursuant to his digital dignity? Some datas, no matter how personal they are, should remain available in the “cloud” because they have moral or historical value.

Why the Internet cannot forget

It is an illusion to believe that the Internet could actually erase the contested data forever. First, there is a purely legal obstacle: in the absence of international regulation on that matter, there is no legal way to efficiently ensure that a content accessible through Facebook or Google in Germany but physically located in a server in California owned by an American company is withdrawn. Although a German court rules that said content endangers someone's e-reputation and needs to be taken down, there is no certainty that a US court would enforce the German decision and effectively compel Facebook or Google to withdraw the content since it raises freedom of speech issues that are much strongly protected in the US by the First Amendment.

From a more technical point of view now, even if I am no expert on the subject, it appears to be very difficult to withdraw a content. If it is referenced on Google for instance, the former has no power whatsoever to force the website to take down the data. Moreover, all the techniques permitting to duplicate datas (cut/paste, emails to multiple persons, safeguards on USB devices, cloud computing...) make it impossible to completely delete datas that tend to spread out very quickly.

So, are we all condemned to digital suicide to protect our beloved privacy? As law does not give any successful means to make the right to forget a reality, maybe self-regulation is the best way to tackle the problem. Self-regulation could be enhanced by increasing people's awareness of the erosion of privacy and by promoting a greater sense of responsibility when they decide to publicize some information on social networks.

The essay at present is a march all the way up and all the way down a non-existent mountain in order to spend less than one paragraph discussing reality.

The "right to be forgotten" wasn't a real proposal: it was a pure strawman. A moment's reflection on the nature of the freedom of speech would have been sufficient to eliminate the need for the solemn but ineffective wrestling with the irrelevant that now takes up most of the essay's mass.

"The Internet" not being a thing, it neither forgets nor remembers. Expansion by seven orders of magnitude of the world's storage capacity in one generation, and the almost frictionless movement of terabytes anywhere anytime means that bits hardly ever disappear from everywhere they are. But neither "the right to be forgotten" nor the idea that we engage in "self-regulation" when we store our data in our own places is a very helpful generalization for people trying to understand what is happening and what they can do about it.

I think the best way forward is to recognize that the bulk of the existing draft has little place in the next one. What is the idea that you are contributing to the conversation? Start with that idea. Develop it by showing enough of the context so that the reader can accurately estimate what your contribution is and how you came by it. Then conclude by showing how your idea can lead the reader to a new idea of her own.


Webs Webs

r3 - 23 Aug 2014 - 19:31:21 - EbenMoglen
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