On October 31, 2006, an eighteen-year-old woman named Nikki Catsouras slammed her father’s sports car into the side of a concrete toll booth in Orange County, California. Catsouras was decapitated in the accident. The California Highway Patrol, following standard protocol, secured the scene and took photographs. The manner of death was so horrific that the local coroner did not allow Nikki’s parents to identify her body.
“About two weeks after the accident, I got a call from my brother-in-law,” Christos Catsouras, Nikki’s father, told me. “He said he had heard from a neighbor that the photos from the crash were circulating on the Internet. We asked the C.H.P., and they said they would look into it.” In short order, two employees admitted that they had shared the photographs. As summarized in a later court filing, the employees had “e-mailed nine gruesome death images to their friends and family members on Halloween—for pure shock value. Once received, the photographs were forwarded to others, and thus spread across the Internet like a malignant firestorm, popping up on thousands of Web sites.”
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Already bereft of his eldest daughter, Catsouras told his three other girls that they couldn’t look at the Internet. “But, other than that, people told me there was nothing I could do,” he recalled. “They said, ‘Don’t worry. It’ll blow over.’ ” Nevertheless, Catsouras embarked on a modern legal quest: to remove information from the Internet. In recent years, many people have made the same kind of effort, from actors who don’t want their private photographs in broad circulation to ex-convicts who don’t want their long-ago legal troubles to prevent them from finding jobs. Despite the varied circumstances, all these people want something that does not exist in the United States: the right to be forgotten.
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The situation is different in Europe, thanks to a court case that was decided earlier this year. In 1998, a Spanish newspaper called La Vanguardia published two small notices stating that certain property owned by a lawyer named Mario Costeja González was going to be auctioned to pay off his debts. Costeja cleared up the financial difficulties, but the newspaper records continued to surface whenever anyone Googled his name. In 2010, Costeja went to Spanish authorities to demand that the newspaper remove the items from its Web site and that Google remove the links from searches for his name. The Spanish Data Protection Agency, which is the local representative of a Continent-wide network of computer-privacy regulators, denied the claim against La Vanguardia but granted the claim against Google. This spring, the European Court of Justice, which operates as a kind of Supreme Court for the twenty-eight members of the European Union, affirmed the Spanish agency’s decisions. La Vanguardia could leave the Costeja items up on its Web site, but Google was prohibited from linking to them on any searches relating to Costeja’s name. The Court went on to say, in a broadly worded directive, that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”
The consequences of the Court’s decision are just beginning to be understood. Google has fielded about a hundred and twenty thousand requests for deletions and granted roughly half of them. Other search engines that provide service in Europe, like Microsoft’s Bing, have set up similar systems. Public reaction to the decision, especially in the United States and Great Britain, has been largely critical. An editorial in the New York Times declared that it “could undermine press freedoms and freedom of speech.” The risk, according to the Times and others, is that aggrieved individuals could use the decision to hide or suppress information of public importance, including links about elected officials. A recent report by a committee of the House of Lords called the decision “misguided in principle and unworkable in practice.”
Jules Polonetsky, the executive director of the Future of Privacy Forum, a think tank in Washington, was more vocal. “The decision will go down in history as one of the most significant mistakes that Court has ever made,” he said. “It gives very little value to free expression. If a particular Web site is doing something illegal, that should be stopped, and Google shouldn’t link to it. But for the Court to outsource to Google complicated case-specific decisions about whether to publish or suppress something is wrong. Requiring Google to be a court of philosopher kings shows a real lack of understanding about how this will play out in reality.”
At the same time, the Court’s decision spoke to an anxiety felt keenly on both sides of the Atlantic. In Europe, the right to privacy trumps freedom of speech; the reverse is true in the United States. “Europeans think of the right to privacy as a fundamental human right, in the way that we think of freedom of expression or the right to counsel,” Jennifer Granick, the director of civil liberties at the Stanford Center for Internet and Society, said recently. “When it comes to privacy, the United States’ approach has been to provide protection for certain categories of information that are deemed sensitive and then impose some obligation not to disclose unless certain conditions are met.” Congress has passed laws prohibiting the disclosure of medical information (the Health Insurance Portability and Accountability Act), educational records (the Buckley Amendment), and video-store rentals (a law passed in response to revelations about Robert Bork’s rentals when he was nominated to the Supreme Court). Any of these protections can be overridden with the consent of the individual or as part of law-enforcement investigations.
The American regard for freedom of speech, reflected in the First Amendment, guarantees that the Costeja judgment would never pass muster under U.S. law. The Costeja records were public, and they were reported correctly by the newspaper at the time; constitutionally, the press has a nearly absolute right to publish accurate, lawful information. (Recently, an attorney in Texas, who had successfully fought a disciplinary judgment by the local bar association, persuaded a trial court to order Google to delete links on the subject; Google won a reversal in an appellate court.) “The Costeja decision is clearly inconsistent with U.S. law,” Granick said. “So the question is whether it’s good policy.”
One of the intellectual godfathers of the right to be forgotten is Viktor Mayer-Schönberger, a forty-eight-year-old professor at Oxford. Mayer-Schönberger grew up in rural Austria, where his father, a tax lawyer, bought a primitive modem for the family in the early nineteen-eighties. Viktor became active on computer bulletin boards, and he wrote an early anti-virus program, which he sold when he was in his twenties. “My father indulged my interest in computers, but he really wanted me to take over his law practice,” Mayer-Schönberger told me. He went to Harvard Law School. His early experience with computers, combined with his anti-virus business, prompted his interest in the law of data protection.
“The roots of European data protection come from the bloody history of the twentieth century,” Mayer-Schönberger said. “The Communists fought the Nazis with an ideology based on humanism, hoping that they could bring about a more just and fair society. And what did it look like? It turned into the same totalitarian surveillance society. With the Stasi, in East Germany, the task of capturing information and using it to further the power of the state is reintroduced and perfected by the society. So we had two radical ideologies, Fascism and Communism, and both end up with absolutely shockingly tight surveillance states.”
Following the fall of Communism, in 1989, the new democracies rewrote their laws to put in place rules intended to prevent the recurrence of these kinds of abuses. In subsequent years, the E.U. has promulgated a detailed series of laws designed to protect privacy. According to Mayer-Schönberger, “There was a pervasive belief that we can’t trust anybody—not the state, not a company—to keep to its own role and protect the rights of the individual.”
In 2009, Mayer-Schönberger published a book entitled “Delete: The Virtue of Forgetting in the Digital Age.” In it, he asserts that the European postwar, post-Wall concerns about privacy are even more relevant with the advent of the Internet. The Stasi kept its records on paper and film in file cabinets; the material was difficult to locate and retrieve. But digitization and cheap online storage make it easier to remember than to forget, shifting our “behavioral default,” Mayer-Schönberger explained. Storage in the Cloud has made information even more durable and retrievable.
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