The advent of the Internet, however, has changed everything. Once information is online, it can be forever instantly accessible through search engines. No need to dig through archives or court records for the record of Costeja’s debt—it was at your fingertips if you searched his name, whether or not you even wanted to know. A quarter-century ago, there would have been little chance that Costeja would still have to explain himself to an employer or landlord or client or prospective date. The newspaper story would still exist on microfilm somewhere, but practically speaking, it would be gone.
The problem of old embarrassments or troubles living forever online is one that American law does not yet address. And it’s a problem that is actually worse for people who are not public figures—the people who are supposed to receive greater privacy protections from the law. If you’re a movie star, or even a blogger, Google will turn up dozens of new links when someone searches your name, and the old, embarrassing ones will quickly be buried. But if you’re just a regular person, a news story is likely to continue to surface at the top of your Google results. Searchers may find additional information about you on Facebook and other social media, some of which may end up on the open Web.
So we have to warn our children not to post anything about themselves online that might cause an employer to raise an eyebrow decades hence. But this is an impossible standard. Our children can’t stop their friends (or enemies) from posting drunken photos or a heedless rant, barnacles that will cling to them for years.
You can beg people to take down offending images and text. If you really work at it and spend money on a lawyer, you might be able to get a court order. But all of the effort will be wasted if the telltale content has already been copied and pasted elsewhere and then swept into Google’s servers. That’s why the European court’s focus on search results is key—the problem isn’t the continuing online existence of the information you want to hide. It’s how easy it is to find.
It’s hard to imagine a “right to be forgotten” in the United States. The First Amendment will protect Google, or any other company, that resurfaces or publishes information that’s already public. This is especially true of official records, like a property auction, but also applies to pretty much anything that has not been found by a court to be defamatory. By contrast, the right to be forgotten allows courts to balance the public’s interest in knowing this information against the ordinary person’s right to be left alone.
Critics of the European right to be forgotten need to explain why they disagree with the balance between free expression and privacy that the law reached until the digital era—when the barrier of the physical search almost always provided adequate protection for privacy. Shouldn’t new laws and rulings, like the one this week, give people back the privacy that technology has taken away?
One response is that we are better off with an unfettered Web because now we can learn people’s entire history before lending money to them, hiring them, renting apartments to them, or dating them. Our loss in privacy is offset by our gain from the loss of privacy of others. But U.S. law should do more to protect our privacy than it does right now. That means the type of balancing endorsed by the European Court of Justice. Privacy allows us to experiment, make mistakes, and start afresh if we mess up. It allows us to reinvent ourselves, or at least maintains the valuable illusion that reinvention is possible. It is this potential for rehabilitation, for second chances, that is under assault from Google. By selling ads against it, Google makes money on private information about you and me. Shouldn’t the company pay the modest cost of ensuring that long-ago embarrassing information, of little meaning to others, doesn’t turn up at the top of a search?
In the old days, Europeans who wanted to forget their pasts would come to America for a fresh start. Today, one would head in the opposite direction.
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It’s the source of creativity and delusions. It can harm us more than it helps us.
Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.