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Markkula Center for Applied Ethics

Right to Be Forgotten, Privilege to Be Remembered

Stone

Stone

Do we want our obscurity?

Irina Raicu

This essay first appeared in Re/code on February 20, 2015. (Minor edits clarify dates mentioned.)

My mom was born in February. She died in February, too. And this year, as in past years since her death, in February lame marketers and data brokers remember her. They send her letters which say, right on the envelope, “Happy Birthday!” Personalized, for her.

I wish they would forget her.

What does it mean to be “forgotten”? So many people are, whether they have a right to it or not. But being easily linked, forever, to certain search engine results—is that the opposite of being forgotten? Is that being “remembered”?

In 2014, the Court of Justice of the European Union issued a decision that has been broadly mischaracterized as establishing, in Europe, a “right to be forgotten.” The ruling mandated that search engines delist certain results from certain searches at certain people’s request. Following that, Google appointed an advisory council (buttressed by input from public meetings held in seven European capitals) to advise the company in regard to its implementation of the decision.

The council released its report in February 2015. One of the first things that it notes is that the ruling “does not establish a general Right to be Forgotten. Implementation of the ruling does not have the effect of ‘forgetting’ information about a data subject.” Instead, the decision is about what the report calls “delisting”: “it requires Google to remove links returned in search results based on an individual’s name when those results are ‘inadequate, irrelevant or no longer relevant, or excessive.’” However, the report points out, “Google is not required to remove those results if there is an overriding public interest in them ‘for particular reasons, such as the role played by the data subject in public life.”

(But if I were to write about the “right to be delisted,” would people know what I was referring to? How do we change the misnomer—which we perpetuate with each new piece about it?)

And how do we assess “the role played by the subject in public life”? I remember reading a New Yorker article about Stalin’s daughter, Svetlana, who in 1967 “became the Cold War’s most famous defector.” In the West, she then published several books. But then the public lost interest in her. “By the time the Cold War ended,” writes Nicholas Thompson in the New Yorker, “Svetlana had almost completely disappeared from public view. In the next twenty years, the Times published only one story about her, a five-paragraph squib, in 1992, declaring that she ‘is living in obscurity in a charity hostel.’” For purposes of de-linking certain articles from searches on her name, would Google have deemed her, at that point, a “public figure”? And, if so, would it have deemed her so even if she had not defected or published books? Would she have been a public figure simply by being Stalin’s daughter—and so not de-linkable from stories about her as such?

Some critics of the decision about the “right to be delisted” have argued that the ruling is vague, and pointed out difficulties of line-drawing—like the one above. But most laws can be attacked for vagueness, and most pose line-drawing problems, yet we still have laws.

Other critics of the ruling have expressed particular concern over the impact it might have on the preservation and dissemination of information about crimes against humanity. The Advisory Council’s report stresses this concern: “Where content relates to a historical figure or historical events, the public has a particularly strong interest in accessing it online via a name-based search, and it will weigh against delisting. The strongest instances include links to information regarding crimes against humanity.”

For a number of years now, Yad VaShem, the Israeli museum dedicated to commemorating and studying the Holocaust, has been hard and work digitizing its documents, and more recently it has launched an effort to use big data analytics and face recognition techniques to try to identify victims who have remained, after all these years, unidentified. A recent article about those efforts, titled “Inside the Massive Project to Uncover the Holocaust’s Nameless Victims,” quotes Gabriel Weimann, an Israeli professor, who notes that “[p]osting the information online has many advantages, especially for the future generations.” Of course, linking the information, to names, would also help future generations learn more.

But is it accurate to describe that as “remembering”? Is there a difference between remembering and archiving? And how do we balance the potential benefits to future generations with the potential harms to current ones? The same techniques that are being used to identify the nameless dead could be used, by bad actors, to hunt the living.

My mother survived World War II as a little Jewish girl in Eastern Europe. Many people like her were sent to concentration camps. In Israel, some of the relatives of camp survivors are tattooing on their own arms the numbers that had been tattooed, by force, on their elders’. That is an effort at something other than “remembering”: an effort at transmitting a certain memory, passing it into the future. A different way of linking to historical information about crimes against humanity. But some of the survivors themselves are greeting this practice with shock, anger, disbelief. And maybe fear, too?

Privacy scholars Woodrow Hartzog and Evan Selinger have written about information obscurity as “a protective state that can further a number of goals, such as autonomy, self-fulfillment, socialization, and relative freedom from the abuse of power.” Can we find the balance that allows for both obscurity and preservation—even proclamation—of the past?

My mother lived long enough to Google herself.

Do we want to be identified, and remembered? That depends: by whom, and for what purpose? The EU decision on delisting gives people some level of control over the information that can be easily found about them. Forgetting, and remembering, are about a lot more.

Photo by Tim Green, used without modification under a Creative Commons license

Apr 12, 2016

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