Memory hole
Some years ago, a long-time member of the WELL became the CEO of a public company. He promptly, to some amusement among those with functioning memories and archived conference topics, deleted his old postings, particularly the ones that might be embarrassing if unexpectedly exported to a newspaper or the Web.
He could do this because although the WELL's original design did not include the ability to delete posts, its interface was open enough that an early user had written one and made it available to the community at large. The second is that the WELL's owners and members respected the system's motto, then and now: "You own your own words".
The ethos of modern data-driven companies is rather different. You do not have - or, until this week, did not have - any ability to control what information about you pops up in search results or in what order.
On Tuesday, the European Court of Justice issued a ruling that will change the way Internet search engines balance the public interest and personal privacy. The case dates to 2011, when Costeja Gonzalez filed a complaint with the Spanish data protection regulator that Google searches on his name raised links to a 1998 newspaper notice of long-resolved debts. Writing for CNN, Paul Bernal outlines the background.
It is a confusing and messy judgment whose full implications will take time to reveal themselves. So far, there's a pronounced tendency for Americans to see it as outrageous censorship and Europeans to cheer the privacy-protecting aspects. The New York Times takes a pretty measured view. At Storify Caspar Bowden has posted many more links to background and legal precedents.
Some of the points made by the outraged:
- It's a blow to freedom of expression. See for example Jimmy Wales: the founder of Wikipedia, who calls it wide-sweeping Internet censorship.
- This will disproportionately benefit the rich and powerful, who will use it to erase things they do not want reported. The BBC reports early unsavory requests; Google reports a deluge.
- Haven't they ever heard of the Streisand Effect? (They mean the Scientology effect.)
- This will kill the open Internet.
- It's Orwell's memory hole.
In response:
- Google is not the Internet. It is a business, not a public-interest body in need of protection.
- Search engines are not the only way to find information. We should be teaching less lazy alternatives; it is dangerous for society's access to information to be solely mediated by (foreign) businesses.
- Serious researchers do not rely solely on search engines. The historical record is intact; what's being choked off is the interstate highway accessing it. - A pause to balance competing values is no bad thing.
- There have always been limits to freedom of expression, even in the US. You can say "Fire" quietly to your neighbor in a crowded theater but you can't falsely shout it. Google makes its money being a megaphone in that scenario.
- EU and US laws on privacy and data protection have been at odds for nearly 20 years, and will diverge further with the EU's data protection reform package. Companies like Google are at the forefront of lobbying against it.
- Google is also rich and powerful.
- As Jonathan Zittrain writes, maybe this is a moment of opportunity: there are alternatives to the binary simplicity of publish/delete. Google once had, he reminds us, a comment feature allowing users to add context, arguably a better solution.
- Post-Laurence Godfrey notice-and-takedown rules have not killed the open Internet, despite automatically delete first, consider later. What if there is a conflict and removing information helps one person but harms another? How do we ensure correct identification? In USA Today, EPIC's Marc Rotenberg argues that regulating Google's business practices is not the same as regulating the Internet and praises the court for distinguishing between news organizations and search engines.
This seems largely right. When a news organization is challenged about the truth or invasiveness of a story, its representatives can appear in court and explain the process by which the story was discovered, decided upon, commissioned, researched, edited, and published. On Google's behalf, Eugene Volokh has argued that the company has First Amendment free speech rights in the ordering of search results - as a defense against antitrust accusations of favoring its own services. But its algorithms are trade secrets, and no one outside can audit their decisions - a key issue in how this ruling plays out since there will be no way to audit what information is being exiled or why.
Especially since Big (and Open) Data is about to become the basis for many, many black box decisions, the conversation about how to enforce accountability on giant businesses whose missions are not the public interest, seems an essential one to have, however messy the reason.
Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.