Right to be Forgotten

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Full Title or Meme

An attempt by cluelessly incompetent functionaries to allow an individual to censor specific User Public Information, in effect to retroactively turn User Public Information into User Private Information.

Context

Originally this right was created by judicial edict.[1] It is now enshrined in article 17 of the GDPR which says "The data subject shall have the right to obtain from the (Site or data) controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where" several limitations are excluded in the details that follow. [2] Which is not really the Right to be Forgotten, but just a right to erasure of specifically identified information. In other words, the right of an individual to censor certain data in an attempt to rewrite the individual's own history in the real-world. As might be expected, lots of people would like to undo some of the actions from their past. There are some particular cases where this right should exist, some of which that were recognized before the judicial edict are:

  1. The right of prisoners to have the record wiped when then have completed their obligations under the law.
  2. The right of minors to have their transgressions treated as one-off events that do not get onto their public records.
  3. The right of any individual to keep the record of the VCR tapes they rented from public scrutiny. (The Clarence Thomas law.)
  4. The right to be let alone (Warren & Brandeis definition of Privacy.)

Whatever the high minded rhetoric might be the on this subject, the reality is more gritty. In the specific case that resulted in the legal edict, Mario Costeja González was forced to sell assets to cover debts to the Spanish Government, which required posting of the public notice of the fact, which is not even in question. Since Costeja could not get the newspaper to change a legal notification, he went after Google, saying that he had the right to quash republication of public records. In other words, what was a matter of public record, User Public Information available on a web site in Spain, was turned into User Private Information when it came to search engines, or what the agencies enforcing the GDPR call a Data Controller. The other cases that are raised in support of the same principle are publications with false information about a User Private Information, such as a list of sexual deviants.

What seems to have been ignored is the real problem of making informed decisions about people, for example, should the bank be able to get this information before making a loan to Costeja. Or what about the data held about citizens of Europe in paid services like Equifax or Lexis/Nexus. Will the court records of Costeja be altered on request in those sites as well as in Google? Would it be legal for someone in the EU to pay Google for a search service with more complete information?

Here is how one academic philosopher tries to make sense of this situation.

The history of ‘forgetting’ is really about making things hard to find, and what [Google’s] new policy does is give people a limited right to obscurity. Google’s recent decision to delist “revenge porn” from its search results is a big deal, and not just for victims. Beyond opposing harmful conduct that disproportionately targets women, Google has essentially demonstrated how something akin to the European Union’s right to be forgotten can, and should, work in the US. Some Americans have panicked over Europe’s woefully misnamed right to be forgotten, anxious at the thought of the “biggest threat to free speech online” “erasing history” and “breaking the internet”. But such a right doesn’t have to exact an exorbitant price tag, and it can come about in many different ways.[3]

Rule by the Cluelessly Incompetent

There was no big problem with the distinction between User Public Information and User Private Information until a couple of functionaries in Spain decided to remake society. In the "Costeja case' the functionaries at the "Agencia Española de Protección de Datos (Spanish Data Protection Agency, the AEPD)" created the chaos by ruling that a judgement against Costeja was legally carried by the local newspaper, but could not be included in a Google search. That ruling was later upheld by the judges of the EU.[1] The result is that data about Costeja that was legal to publish in Spain, could not be published in another venue, also in Spain. Of course the Streisand effect[4] applies here since the judgement is available anywhere and carries the details that Costeja wanted hidden.

The odd part of this precedent[5] is that it is based on common (judge-made) law rather than civil (Napoleonic) law common in the major remaining EU countries. Clearly the case is really about giving a person control of the story told about them, a sociological problem enshrined in a legal system. And the decision about this is made the most clueless people imaginable in social issues, bureaucrats and judges. Here is a more recent example of judges failing in their attempt to deal with social issues. Albert Flick killed Kimberly Dobbie in broad daylight on the sidewalk at the age of 76 all because the judge in his case, Robert E. Crowley sent him to prison for only four years after assaulting a woman after being released from prision after 21 years for killing his wife. The prosecutor told judge Crowely that Flick was a danger to "women and society" and urged Crowley to sentence him to eight years. Crowley then said "At some point Mr. Flick is going to age out of his capacity to engage in this conduct and incarceration beyond that time he ages out doesn't seem to me to make good sense from a criminological or fiscal perspective."[6] It is not likely that he asked either a criminologist or an economist. If either of these two cases seem unrelated, or isolated, they are not. They are both examples of the bad choices that society makes in selecting people to protect them from harm.

The huge Privacy challenge here is that the judges in the Costeja case created a requirement for Data Controllers, like Google, to collect all of the salacious material about Users into a single repository. Now that repository is certainly a juicy data set for wiki-leaks or some state judicial authority to seek access. All being held by the Enterprises that were the target of the action. It is not even remotely likely that the functionaries in the case had any idea what they had just created. if Google had said that they wanted to create such a data set, there would have been a huge cry to stop them immediately. Even more ominous, could some judge declare it is too burdensome for a person to ask each service to elide the damaging information, requiring the creation of a common data set containing all of the salacious information on all people and available by a web search to boot? There is even a proposal[7] to create a user context industry in Europe. That would be a perfect vehicle for sharing the really horrible information about their citizens. Be careful what you wish for. And please think carefully when you participate in the selection of people to represent you and protect you.

Doublethink: A Favorite Strategy of Tyrants

All tyrants want to control the messaging about them: Recep Tayyip Erdogan of Turkey, Donald Trump of the US and Steve Jobs of Apple, all wanted the same thing that the people seeking the Right to be Forgotten are seeking, control of the story told about them. Trump has warned Google, Facebook and Twitter that they "better be careful" after he accused them of rigging results to give preference to negative news stories about him. He has said that they "are treading on very, very troubled territory" and that "this is a very serious situation - will be addressed." These comments came after his favorite news outlet, Fox News, said that the liberal media were favored in search results.[8] "In an interview on NBC’s “Meet the Press,” President Trump’s lawyer, Rudy Giuliani, stated “Truth isn’t truth" when it comes to Trump. Apparently Giuliani suggests only what Trump says or wants is true?" ... "A very real-life example of doublethink from George Orwell's '1984'. Doublethink is the acceptance of contrary beliefs at the same time."[9] Very clearly the Judges in the Costeja case were using doublethink about reporting the truth.

Problems

As should be most obvious at this point is that the struggle between Free Speech and personal dignity is under discussion, most certainly NOT the Right to be Forgotten. This is at root the problem being addressed in the US with respect to dehumanization and Free Speech. in a single issue of the New York Times on 2018-08-11 these various statements and observations were made:

  • Page A1, Mr. Stone, an advisor to President Trump is asked to testify about facts that would surely ruin his reputation. He refused and was held in contempt of court.
  • Page A1 “If a Catholic hospital maybe doesn’t emphasize overtly Catholic identity as much as they used to, it is not to trick anyone. It’s simply to make people feel comfortable and welcome in an increasingly pluralistic society". But they still refuse to perform any operation that might seem like birth control, so they are trying to mislead people by hiding who they really are, which is the core of the Costeja case and shows one potential unintended consequence of the ruling.
  • Page B1 Twitter tries "rid the site of 'dehumanizing' speech, even if it did not violate Twitter's rules." Another case of trying to apply vague terms (like vague terms used in the Costeja case) to real-world problems, like how to block a site that that spreads lies that cause real problems to real people. It turns out that vague platitudes do not make good regulations, nor bring about the intended consequences.
  • Page B7 describes an American football player that lost his job in part because of some unsavory behavior. He is now trying to play Canadian football, but his old behavior is featured in the article. What he wants is for his past behavior to be forgotten, what is got was an article on his past behavior. What would the EU court have to say about that (assuming it had jurisdiction) if he later decided to ask Google not to reference that NY Times article?
  • Page C1 The poet Langston Hughes is quite dead, and the history sleuths have found that his mother lied about his age when putting him into school and he compounded the lie later in life, incidentally the authors discovered other lies about peoples' age which was published in the NY Times. Calling someone a liar about some fact that is irrelevant to their job or accomplishments seems petty and unnecessary when they are dead, but has caused otherwise good living people to lose jobs that are important to them. Should that sort of reporting be treated differently than the Twitter case which is also about a site that deliberately lies? And in the same newspaper on the same day? Could the court be asked to make those people whole who lost their jobs?

And more articles come every day. It will be a long time before the world re-establishes some sort or normalcy about User Public Information after that bad decision in Spain.

Solutions

  • There are no solutions known today since English means what people who use it want it to mean; and euphemisms (aka white lies) seem to be a common feature of English.
  • So, the Right to be Forgotten is really the right to censor people who have bad things to say about you, but it only applies if the context seems relevant to some judge based on vague principles buried in regulations and prior judgements that are not known in advance.

It seems like the constitutional ban on ex post facto laws does not apply to judge-made law.

References

  1. 1.0 1.1 Court of Justice of the European Union, Judgment in Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González. https://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf
  2. European Parliament, REGULATION (EU) 2016/679. (2016-04-27) https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=CELEX:32016R0679&from=EN
  3. Woodrow Hartzog and Evan Selinger, Google's action on revenge porn opens the door on right to be forgotten in US. https://www.theguardian.com/technology/2015/jun/25/googles-revenge-porn-opens-right-forgotten-us
  4. Streisand effect https://psychologenie.com/what-is-streisand-effect
  5. Wikipedia, Precedent. https://en.wikipedia.org/wiki/Precedent
  6. Jess Bidgood, Judge said Killer Would Be Too old to Do It Again; He Was Wrong. (2018-08-17) New York Times p A12
  7. M. O. van Deventer +4, Towards the Future Internet: A European Research Perspective (2009) Google books https://books.google.com/books?id=SRTvAgAAQBAJ&pg=PA262&lpg=PA262&dq=ietf+federation&source=bl&ots=qD4-YPQFuU&sig=z4WlNZ7gF3-Ic_fSCU4T7ILw8jw&hl=en&sa=X&ved=2ahUKEwjD0sLQzbvdAhUK74MKHXF9AaY4FBDoATAAegQIChAB#v=onepage&q=ietf%20federation&f=false
  8. Kathleen Hunter +1, Trump Warns Tech Giants to ‘Be Careful,’ Claiming They Rig Searches. (2018-08=-28) Bloomberg Business Week https://www.bloomberg.com/news/articles/2018-08-28/trump-accuses-google-of-rigging-search-results-against-him
  9. Jon Obert, Giuliani and George Orwell. The Morning Call http://www.mcall.com/opinion/letters/mc-rea-obert-doublethink-trump-giuliani-20180820-story.html