PRIVACY CONCEPT: The Right to be Forgotten

By guest contributor Eric B. Delisle

An Old Right to be Forgotten

At the beginning of 2014, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, revealed a new “Privacy Right” proposed by the European Commission, “The Right to be Forgotten”! With recounting all of the nuances, it basically considers the idea that an individual may have information that is about their personal selves disclosed on the internet. If at some future date, that individual decides they no longer want that information out in cyberspace, they have a right to have it removed from the computers that hold that information. On Tuesday, May 13, 2014, the European Union’s high court ruled against Google in a case where a man who had a foreclosed home go to auction over 15 years ago did not want that information to show up when someone searched his name on Google. The court ruled that Google must remove links to information considered “inadequate, irrelevant or no longer relevant” if so requested by the subject of the personal information.

The practical implications of this new right in Europe should spark yet another debate about personal privacy and an individual’s rights over what information is known about them in the general public.

Two Sides of the Argument

On the “American” side of this argument is the First Amendment Right to FREE SPEECH. That is, US Courts have consistently held that an PERSON has the right to say ALMOST ANYTHING they want. According to Wikipedia, “Freedom of speech is the political right to communicate one’s opinions and ideas using one’s body and property to anyone who is willing to receive them…The right to freedom of speech is not absolute in any country and is commonly subject to limitations based on the speech implications of the harm principle including libel, slander, obscenity and pornography, sedition, hate speech, classified information, copyright violation, trade secrets, non-disclosure agreements.” On the “European” side of this argument is an OLD idea which has its roots in the French, ”le droit à l’oubli” or the “right of oblivion”, which principally dealt with the situation where a convicted criminal had repaid his debt to society and had been rehabilitated. The legal concept puts forth he should therefore be allowed to move on from his past and even object to the publication of the facts about his crime from being published after his repentance. Fast Forward to Today Today we live in a world where companies like, DigiThinkIT, Inc., have to create products like iCloak™ to help average people hide their activity online so automated computer systems don’t track every move they make, every link they click, and everything they do online. Today, few things are “sacred”, Science and Technology rule the day, and those who object to the inexorable march of “progress” are simply discarded as artifacts who will soon succumb or die. It reminds me of the Borg from Star Trek. Our current state of technology is allowing for the capture and storage of most information. Soon, ALL information will be able to be stored and accessed, whether one likes it or not.

Consider Nature

The trouble is, we, us, homo sapiens sapiens, are pretty much the folks we were 100,000 years ago. Certainly, we are the same humans biologically as we were when these legal concepts started entering our collective discussions and tribal considerations. We have not changed, but our world has been fundamentally altered by us in a way that has unleashed what, until only VERY recently, was utterly unnatural to us. One could claim that we are natural and therefore all that we create is natural in a sense. However, like a nuclear weapon, we are certainly capable of creating many things we cannot control and many things which can destroy us. As we make incredible strides in learning and creating new technology that has never existed in all of Earth’s history, we are faced with having to assimilate these new creations into our new reality of “the way things are now”. Some, like a solar panel that captures the energy of the sun which can be converted into energy to do work, capture our imaginations for all the benefits they can produce without obvious negative side effects. Some, like antibiotics, are quickly creating a feedback loop of unconsidered consequences (super bugs) which is beginning to make us reconsider how we use these new technologies. The internet and the ease with which we share and store information about each other is just another technology that we seem to find MUCH more benefit from than any apparent negative side effects.

Forgiven and Forgotten

Therefore, if we consider our human societies, tribes, cultures, and collective interactions, they are far less capable than the technology we have created.

Privacy

This author comes down on the side of personal freedom and liberty of the individual so long as they do not harm others or infringe on another’s liberty. This includes their right to their own property and privacy. In general, a person’s right to privacy is colored in a concept called the “reasonable expectation of privacy”. Certainly a person, in their own bedroom, getting undressed, would be considered by most in society to be deserving of privacy protection. Because this person is alone, is not the sole criteria, however. Consider a man undressing in his bedroom with his partner present. Now, we have two people, with one or both having a reasonable expectation that this event is considered by society as private. What about a meeting of 10 people where they all agree the proceedings of a meeting will be held in strict confidence and be kept private? This would not seem to be as private as the bedroom, but the group has decided there is privacy at work here and because they all agreed to this, the rest of society would surely go along.

Consider a slight expansion of this concept of a reasonable expectation of privacy in a natural world without technology. Would a human who walks away from their tribal camp to go to a stream, alone with only their close family, to bathe be right to have a reasonable expectation of privacy? Even if they were technically “in public”? Would not the information about the goings on in one tribe be considered private to THAT tribe? I believe most of society would agree that even the entire tribe’s internal happenings would be considered private to that tribe and not necessarily available to others without the tribe’s agreement to share that information.

Of course, this is before there were ways to put a camera in the sky to RECORD ALL TRIBES AT ONCE, use listening devices to record every word they say, and have storage and retrieval technologies to store, analyze and report on all their activities and make those activities available to every tribe everywhere instantly. No privacy. With or without an expectation of it. Regardles of what society believes. This is where we are today and it is my contention that it has happened so fast, in a single generation, that our tribes and our society are unable to adequately consider all of the long term ramifications of this “new reality” where our “reasonable expectations of privacy” are concerned. Now What?

What is a tribe or simply an individual human to do? Like most things, the individual should bear a lot of responsibility for their own lives. One should certainly enjoy their own right to privacy as well as freedom and liberty. Unfortunately, we don’t live in world before electricity and drones flying all over our skies. The individual is unlikely to be able to change everything back to the tribal days. Concepts like “fairness” seem to be malleable to personal whims. This is our new reality. And, just like the weather, when it rains, we can either complain that it is raining, or try to develop technology to stop the rain, OR… we can put on a rain coat to protect ourselves as best we can.

For what it is worth… my opinion is that people should take a deliberate inventory of their lives and DECIDE for themselves what is important to them to keep private, and then, take whatever actions they can to protect that privacy, because the rest of society won’t.

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