Richard J. Peltz-Steele is professor at the University of Massachusetts Law School.
British media recently reported the outrage of a murdered girl’s father upon hearing that Google would erase from some search results the 2007 conviction of her killer, Ronald Castree. The imprisoned man has no “right to be forgotten,” the father of the 11-year-old, who was stabbed a dozen times in 1975, told the media.
In fact, Castree will not be forgotten. But how Google has responded to a May ruling by the European Court of Justice has flustered free-speech advocates on both sides of the Atlantic.
The victor in the European case was a Spanish man unhappy with 1998 newspaper reports revealing a long-ago debt. A search for the man’s name on Google Spain no longer turns up the reports since the court gave teeth to the “right to be forgotten” — a legal process meant to give people a chance to move beyond dated indiscretions made forever current by electronic search engines. In reaction to the ruling, Google created an online complaint process for E.U. citizens to seek “erasure.” The company is now suppressing tens of thousands of results in searches for certain terms, especially names.
In the Castree case, Google explained , the complaint was filed not by the convicted man but someone else identified in the news coverage. Searches for that name on Google UK no longer return links to Castree stories. Other terms, such as “Castree,” will find the links, as will searches on other Google home pages, such as the main Google.com. That’s far from “erasure.”
However, stories that name fewer people or have received little coverage can be much harder to find after they are “de-indexed” by Google. A story may remain on a newspaper server, but a Web surfer has to know where and how to find it. That Orwellian variability in information access has U.S. and U.K. journalists crying censorship.
In September in Luxembourg, Google global privacy counsel Peter Fleischer told an audience of European lawyers and data officials that Google is being inundated with a thousand erasure requests a day. The European court gave no guidance for how to handle such cases going forward. Is any crime eligible for erasure? How much time needs to elapse? Should an art dealer, Fleischer pondered, ever be aided in concealing a former fraud?
Fleischer also conceded that Google has not yet applied erasure beyond the national level. So any user in the world can find missing links by switching to U.S.-based Google.com. That disparity has prompted critics to accuse Google of evading the European ruling.
Google’s erasures will continue to intensify hand-wringing over Internet censorship. There are legitimate debates to be had over what merits suppression, who should decide and whether de-indexing will lead to search results that vary based on nationality or a searcher’s knowing where and how to look.
But in a broader context, the Europeans are not completely wrong. We Americans should not let our allergy to bureaucracy cause us to throw out the baby with the bath water. The right to be forgotten has much to commend it within the libertarian ethos that defines the U.S. legal system.
Describing the “right to be forgotten,” at the same program in Luxembourg, Belgian professor Cécile De Terwangne contrasted the “eternal effect” of the Internet with human memory. A Web page locks a person into a past identity. But in the natural course of the human condition, a person grows and matures.
The right to be forgotten, or to erasure, is ill-named, because the past cannot be obliterated, De Terwangne and others say. The problem is context. Unlike human memory, a Google search for a name is as likely to generate a dated criminal history as a current phone number. While people forgive and forget over time, the Internet punishes relentlessly.
Invoking Aristotle, legal theorist Thomas Emerson in the 1960s famously rationalized free speech as a fundamental prerequisite to “self-realization.” That is, free speech is essential and guaranteed in a democracy because it empowers every person to define and affirm the self, a necessary step in realizing one’s “potentiality as a human being.” This notion is intrinsic to our understanding of civil rights.
There is an irony, then, in the fierce resistance of free-speech advocates to the right to be forgotten. The desire to erase Internet records is a byproduct of our times, born of the peculiar incompatibility of human and digital memory. But the impulse behind the desire is as natural and familiar as our very human identity.
Behind the trappings of European regulation, the “right to be forgotten” is really a right to be forgiven; a right to be redeemed; or a right to change, to reinvent and to define the self anew. A person convicted of a crime deserves a chance at rehabilitation: to get a job or a loan. A person wrongly charged or convicted deserves even more freedom from search-engine shackles.
We can diverge from Europe over bureaucratic process. And we can debate and decide for our society when the right to be forgotten is forfeit. But we should adopt — we should own — the concept of erasure online. For there could be nothing more American than a second chance in a new world.