I experienced a flash of indignation when I read that the European Union is planning to inflict its “right to be forgotten” rules on U.S. search engine providers.
What an attack on the First Amendment! Still decisional rather than codified, and hence quite unclear in its outlines, the new European law gives people the right to tell search engines like Google and Yahoo! not to provide search results linked to their names — even if the servers and the companies that own them are here in the U.S. Search engine results are certainly speech, and here are governments trying to restrict that speech. Of course, the First Amendment only protects directly against the U.S. government and state governments restricting speech, not European ones. But still, this new European law tells us what not to say in our own country.
Worse yet, U.S. companies seem to be knuckling under. On the first day after the decision, for instance, Google received 12,000 requests to take down links, and it appears most were complied with.
Oh sure, privacy seems like a good idea. Few of us get through much of life these days without leaving such a huge trace of ourselves on the Web that friends and enemies alike can learn more about us than we may wish. And for many of us, especially those who grew up in the Internet era, those traces are apt to reflect juvenile thinking, behavior, and appearance we would fain have the world forget. The Web degrades second chances and self-reinvention by making it hard to outrun or silence juvenilia, disgrace, or slander.
On the other hand, the ability to make the Web forget us would also facilitate a lot of misbehavior. The unforgetting quality of the Internet enforces accountability to spouses, investors, voters, and consumers. It may not be such a great idea to allow the Net to forget, and the very people who would clamor the loudest to exercise this “right” are probably exactly the people who would most abuse anonymity.
How do we reconcile these policies? The European decision says that links may be disabled if they lead to “inadequate, irrelevant or no longer relevant, or excessive” information. But abstractly, these terms tell us very little. Relevant to what purpose? Excessive in whose eyes?
The answer is strange. The subject of the link is the person with the legal right to demand the removal of the link — if the information linked to fits those strange, amorphous criteria. But the search engine operator receiving the request is supposed to be the one to determine whether the criteria are met. That arrangement weirdly delegates to the search engine operator, a non-governmental actor, the authority to determine the scope of the requester’s legal rights.
It is safe to say that such a rule would never have originated in a First Amendment culture like that of the United States. And yet we are already beginning to live under it. European regulators claim the right to disable links that may be accessed in the EU, even if the search engines that carry them are U.S. companies whose servers sit in the U.S., so long as the owners of those servers have European subsidiaries. In other words, Google and Yahoo!, which obviously cannot abandon the European market.
When you think about it, though, we have little standing to object here. We have been regulating commercial activities in other countries for the longest time.
For instance, ever hear of FATCA (the Foreign Account Tax Compliance Act to its friends, if any)? This law makes foreign banks report and disclose information on U.S. taxpayers to the IRS; one little not-so-incidental problem is that FATCA is rapidly making it impossible for Americans living abroad to obtain any banking services at all, because the U.S. requirements on foreign banks are so onerous that they will not take or retain holders of U.S. passports as customers.
Or consider the international reach of ICANN, the supplier of Internet domains to the entire world, a corporation whose lawyers recently opined that the organization’s governing law, not even that of the United States as a whole, but specifically that of California, would not permit accountability that international users have been demanding, and even the U.S. government is demanding.
And in any event we have our own regime of frustrating the ability of the public to access information — and again, this is not always a bad thing. We don’t typically kill links (at least so far as we know, given the uncertain profile of NSA interference with the Internet), but we do kill what the links link to: for instance when convictions are expunged.
I recently encountered this phenomenon in my practice; a newspaper story (linked to online) said my client’s adversary had been convicted of misbehavior relevant to our case. But the conviction was gone from the online state court records, very likely owing to expungement. The record had presumably been erased by government action, and the erasure covers up its own traces. We knew what the bad guy had done, but we’d been deprived of the opportunity to prove it, since the bad guy had exercised his right to be forgotten — a right that exists under U.S. law.
So we erase too. The difference lies in the ways and means, not in the principle.
And I think most Americans would not be opposed to any and all kinds of link takedowns. When you get down to it, the real problem with the EU law is that the criterion for takedowns seems utterly meritless. Almost no information concerning any of us is absolutely and at all times and for all purposes “excessive, irrelevant, or no longer relevant.” What may seem excessive to the man-on-the-street with no interest in us may be welcome to our biographer. For instance, if William Shakespeare had undergone a personal bankruptcy (like the man in the Spanish case that gave rise to the EU ruling), and a scholar could find a link to the court records that proved it, that information would be the subject of scholarly dissertations.
And what might seem irrelevant to one person might be quite relevant to someone else. Take the scenes of youngsters carousing, alcoholic beverages in hand, ubiquitous in the social media. Perhaps, in later, more mature years, the kids pictured might think those photos irrelevant; it is a safe bet, however, that their potential employers might not. The legal question whether links to the photos should be taken down should be determined by considerations of privacy, not considerations of “relevance.”
Whatever the criteria, link-killing poses a terrible danger. We don’t know and can’t know what search engine links may be good for. But they may be our only way to find important data. Access to information important to purposes we may not even be able to imagine yet may be lost if people can demand that links about them be taken down.
The EU is expected to codify this ruling one of these days. Let’s hope that when the time comes, cooler and smarter heads will prevail in Brussels.
Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.