The MH17 Disaster Demonstrates the Dangers of “Right to Be Forgotten”

The Citizen's Guide to the Future
July 22 2014 4:51 PM

The MH17 Disaster Demonstrates the Dangers of “Right to Be Forgotten”

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Flowers, toys, and pictures left amid the wreckage at the site of MH17's crash.

Photo by BULENT KILIC/AFP/Getty Images

Sometimes we don’t want to forget—and in fact are compelled to remember. Take, for example, the following statement posted to Russia’s VKontakte website (think of it as a Russian Facebook) on July 17: "In the vicinity of Torez, we just downed a plane, an AN-26. It is lying somewhere in the Progress Mine. We have issued warnings not to fly in our airspace. We have video confirming. The bird fell on a waste heap. Residential areas were not hit. Civilians were not injured." So claimed Igor Girkin, a Ukranian separatist known as “Strelkov,” before reports of the apparent shooting-down of Malaysia Airlines Flight 17 over eastern Ukraine, killing all passengers and crew. As reported by the Christian Science Monitor, after these reports emerged, the post was deleted, an unsurprising move by a militant who apparently just discovered that the military transport plane he thought he had downed was in fact a commercial airliner in which almost 300 innocent lives were violently destroyed.

So should Girkin have the legal right to delete his inaccurate statement once it became available on the Internet? It would be nearly impossible for Girkin to invoke such a right, given the circumstances. Nevertheless, it bears asking: Should we, as a society, want the right to choose to “forget” this piece of information supplied by Girkin? Those two questions, which focus on similar facts but are in fact very different questions, are at the heart of the relatively new and nebulous “right to be forgotten” as most recently articulated by a European Union court in May.

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The “right to be forgotten” is really the “right to ask that information be misplaced.” That is because, at its core, the “right to be forgotten,” as articulated by the European Commission, is an individual’s right to request that a search engine remove “inaccurate, inadequate, irrelevant or excessive” personal information from its search results. This right is balanced against “freedom of expression and of the media,” and is examined on a “case-by-case” basis. In other words, if used, information becomes less “forgotten” than purposely de-indexed and misplaced.

Enter the Internet Archive and its Wayback Machine which scrapes the Internet and stores copies of webpages. Although it is not a complete record of the Internet, it fortunately did happen to copy Girkin’s (and other) pages, showing before-and-after versions of events. Thus, we have evidence that helps policymakers, diplomats, and the public understand who might be behind this horrific act. But a “right to be forgotten” more robust than what the EU has now could functionally destroy the Internet Archive, with significant consequences for policy and world affairs.

The “right to be forgotten” implicates real-life concerns about what and how much information is available to governments, corporations, policymakers, and the public. This right is at the heart of our ongoing online privacy debates: How much information do we have to share with others, and how can we control what others know about us?

But complete information, including that which one may prefer misplaced, is also about making good decisions. And while the Internet Archive does not present a complete or uniformly accurate picture of the Internet, it is nonetheless a useful tool that helps us get there. Deleting information from the searchable Internet, whether Girkin’s first-person radical boasting or third-person smear campaigns, even for good reasons, can also be viewed as a modern way of burying evidence. In an information-driven economy and society, that is a serious matter. Indeed, thorough evidence and information, or the lack thereof, can have impact far beyond the individual, as it is a necessary prerequisite to good decision-making.

Do we really need a “right to misplace the evidence?” In a world where decision-makers should strive for complete and accurate information, and often fail in their quest, we need to be careful about the rights that we grant ourselves. If we need such a right, should this right run differently depending upon the identity of the speaker, who wants the information and/or how it will be used? Reflecting a modern devotion to complete information, the answer to both questions must be “maybe, but we need more evidence.”

Future Tense is a partnership of SlateNew America, and Arizona State University.

David S. Levine is an associate professor at Elon University School of Law, an affiliate scholar at the Center for Internet and Society at Stanford Law School, and the founder and host of Hearsay Culture on KZSU-FM Stanford University.

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