Right to be forgotten: France’s privacy regulators want to dictate what you can find online.

France’s Privacy Regulators Want to Dictate What You (Yes, You!) Can Find Online

France’s Privacy Regulators Want to Dictate What You (Yes, You!) Can Find Online

Future Tense
The Citizen's Guide to the Future
Sept. 22 2015 2:07 PM

France’s Privacy Regulators Want to Dictate What You (Yes, You!) Can Find Online

FT-150922-Louis_XIV
What would Louis XIV think about the right to be forgotten?

"Louis XIV Equestrian Portrait" by Charles Le Brun and Adam Frans van der Meulen via Wikimedia Commons

Whether you're an American sitting at a laptop in Hawaii or a Japanese citizen using your smartphone in Kyoto, French privacy regulators believe they have the authority to block search results you otherwise might receive on Google.com or Google.jp.

It's unlikely that even Louis XIV thought French regulatory authority should stretch so far. On Monday France’s data-privacy agency ordered Google to delist certain links (that is, remove them from search results) everywhere it operates and in every service it offers. The French regulator CNIL, for Commission nationale de l'informatique et des libertés, rejected Google's appeal of an earlier commission order that the search giant remove all links to the names of anyone who requests to have them removed under French law.

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The decision has potentially disastrous consequences for the Internet we have grown to love—a platform that, because it's administered by standard technologies and protocols, makes it possible for anyone on the globe with Internet access to peek into the publicly available information everywhere else.

CNIL says it is merely applying the language of a May 2014 European Court of Justice decision that vindicated a Spanish lawyer's so-called right to be forgotten. But in practical terms, the agency is extending that precedent far beyond the language of the ECJ decision.

Google's response to the earlier decision was to consider each demand on a case-by-case basis and delist links if the demands are likely lawful, but only on Google's Europe-facing services—not Google.com. Google's running transparency report on "European privacy requests for search removals" reveals that, as of Monday, there were nearly 67,000 French requests for link removal aimed at more than 219,000 Web pages. (France leads the world in demanding “right to be forgotten” takedowns.) Nearly half those URLs have been removed.

The CNIL says that isn't enough:

Google received several tens of thousands of requests from French citizens. It delisted some results on the European extensions of the search engine (.fr; .es; .co.uk; etc.). However, it has not proceeded with delisting on other geographical extensions or on google.com, which any Internet user may alternatively visit.
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Anyone who takes the time to figure out some basics of how the Internet works can find out how to circumvent territorially oriented rules about content, based on things like country-level domains or Internet-protocol addresses. As a result, the CNIL has concluded, the only acceptable outcome is for the French and EU rules to apply everywhere in the world—even, in theory, on Google sites serving users in languages like Japanese or Tagalog. Or, of course, English.

But the questions of what Google and other search engines should censor run deeper than a nation's (or a politico-economic union’s) privacy laws. For instance, as David Jordan of the BBC has pointed out, there's the question of preserving history:

Since the advent of Google our news reports are now just a click away for anyone with a computer, as the Spanish man who brought the ECJ case found. Our online news is far more accessible today than the newspaper archives of libraries. But in principle there is no difference between them: both are historical records. Fundamentally it is in the public interest to retain them intact.

The BBC has made a point of listing the URLs it removes in response to right-to-be-forgotten demands. "We are doing this primarily as a contribution to public policy," BBC Managing Editor Neil McIntosh wrote.

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Then there's the larger guarantee of freedom of inquiry. The "right to be forgotten" (which is not, in fact, a "right to privacy," but instead a right to limit access to already-public information like news reports) is a new idea whose outer bounds are not yet established. It's heartening that a recent article in the European Data Protection Law Review shows Dutch courts may be more willing to balance freedom-of-expression interests against right-to-be-forgotten demands. Summarizing one decision, the authors write:

The Court says two fundamental rights are at stake. Firstly, the [plaintiff's] right to privacy as protected by the European Convention on Human Rights. … Secondly, Google's right to “freedom of information” (as the Court calls the right to receive and impart information) … [as] protected by the Convention and the Dutch Constitution. … The Court adds that the interests of Internet users, webmasters, and authors of online information should be taken into account as well.

The Dutch court decision relies on the European Convention and the Dutch Constitution, but the global human-rights framework that underlies and informs both, and that protects the rights of people in other nations as well, is the Universal Declaration of Human Rights. That document declares that everyone has the right not merely to "freedom of opinion and expression," but also the freedom "to seek, receive and impart information and ideas through any media and regardless of frontiers." Other human rights documents add provisions for protecting "reputation or rights of others" (typically against false factual statements rather than true ones), and it's generally understood in free societies that these reputational rights don't normally limit the protections for freedom of inquiry.

But does that freedom extend to search engines and their users? It should. Accurate records of the facts aren't nearly so useful to any of us if they are made artificially harder to find. The freedom to seek and to impart information online doesn’t mean much on the internet if internet Web search tools are constrained by broad, vague, (national governments being as different from one another as they are) inconsistent, and unpredictable demands for erasure of facts.

Long before the Internet, of course, we had a vision of what it means when it's easy to alter history, or to hide it. In Nineteen Eighty-Four, George Orwell's protagonist, Winston Smith, had the job of rewriting old newspaper articles to reflect his totalitarian government's current ideological views. Reading the novel as a 10-year-old, I often wondered the point of this job, since (as I thought then) hardly anyone looks up old newspaper articles. Of course, today that's something all of us do online by reflex and with the help of Internet search tools.

The point, of course, is that the Internet has expanded our expectations of what freedom of inquiry means. So why should we let an overreaching governmentwhether it's French or American or anyone else'stake that away?

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