The Right to Be Forgotten 121 RESOURCES American Civil Liberties Union. 2003. “How ‘Patriot Act 2’ Would Fur- ther Erode the Basic Checks on Government Power That Keep America Safe and Free.” March 20. http:/www.aclu.org/national- security/how-patriot-act-2-would-further-erode-basic-checks- government-power-keep-america-s ACLU. n.d. “Reform the Patriot Act.” http:/Awww.aclu.org/reform-patriot-act “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.” October 24, 2001. H.R. 3162. c& The Right to Be Forgotten As humans we have the capacity to remember—and to for- get. For millennia remembering was hard, and forgetting easy. By default, we would forget. Digital technology has inverted this. Today, with affordable storage, effortless retrieval and global access remembering has become the default, for us individually and for society as a whole. —Viktor Mayer-Schoenberger Let’s say you get a little crazy one night. You get drunk, take off a few too many of your clothes, and put yourself into some embarrassing, perhaps even incriminating poses. And then, because you are feeling so high on life, you have your friends take some pictures with your iPhone. They take some with their phones, too. You post your photos on Facebook so everyone can see how much fun you are having. Then next morning, rather uncomfortably, you ease back into conscious- ness. And then you remember about Facebook . .. Some argue that we have a right to control all information about ourselves, and that we have what has come to be known as a “right to be forgotten.” Argentina already has a Right to Be Forgotten law, which gives people a legal right to demand that personal information they post about on the Web be removed. Facebook, Google, and Yahoo must, if asked, permanently delete information. The European Union seems also to be mov- ing in this direction: the right to be forgotten is included in the proposed regulation on data protection published by the Euro- pean Commission in January 2012, and is under review. The122 Chapter4 «& Liberty and Coercion European Network and Information Security Agency (ENISA) has been tasked with figuring out exactly how to define “the right to being forgotten” (as opposed to the right to erasure and the right to oblivion), and with understanding the technical fea- sibility of enforcing a right to be forgotten. Others—particularly in the US—argue that these “right to be forgotten” laws are a bad idea and would actually threaten free speech. It may not be problematic for Facebook to remove your pictures from your own site. But do you have the right to require Facebook to remove any images of you from any of your friends’ pages? Without their consent? And what if you happen to be sharing fun times at the bar with a public figure— say, the mayor of your town—and some of the inappropriate photos involve him? Do you have a right to post this photo on Facebook, or can this about-to-be-embarrassed public figure ask to be forgotten? What about newspaper reports about criminal behavior? Should a person be able to go back and expunge from the pub- lic record all reports about the crime? In Spain, a man is suing Google to remove a years-old newspaper report about him los- ing his house because he had failed to pay his taxes. Here is an excerpt from an NPR blog by Robert Kurlwich about why Right to Be Forgotten laws are a bad idea: Rosen describes a real case in Germany where two men murder someone, go to trial, get convicted, serve their time, get released, and when they leave jail they look up their famous victim’s name on Wikipedia, and there they are, named as his killers. They sue Wikipedia's parent company saying, in effect, “We've been to jail, paid our debt to society, we want this incident forgotten. So remove our names, not just from the German Wikipedia, take us out of all the Wikipedias.” In America, they’d be thrown out of court. We don’t erase people out of history because they have a Right to Be Forgotten, That’s a little too Orwellian. (“He who controls the past con- trols the future.”) But privacy has more sway in Europe, and criminals in Germany do get their names expunged in certain circumstances. That case is still being argued DISCUSSION QUESTIONS 1. Should there be a “right to be forgotten”?The Right to Be Forgotten 123 2. Has the basic meaning of privacy changed, with the evolu- tion of the Internet, the World Wide Web, and social media? 3. What constitutes “personal data”? 4. Do you find convincing the argument that protecting the legal “tight to be forgotten” will lead to infringements of free speech? RESOURCES European Network and Information Security Agency. 2012. “The Right to Be Forgotten—Between Expectations and Practice.” Feb. 20. https://www.enisa.europa.eu/activities/identity-and-trust/library/ deliverables/the-right-to-be-forgotten/ Kurlwich, Robert. 2012. “Is the ‘Right to Be Forgotten’ the ‘Biggest Threat to Free Speech on the Internet’?” Feb. 24. NPR blog “Kurl- wich Wonders.” http:/Awww.npr.org/blogs/krulwich/2012/02/23/ 147289169/is-the-right-to-be-forgotten-the-biggest-threat-to-free- speech-on-the-internet Mayer-Schoenberger, Viktor. 2007. “Useful Void: The Art of Forgetting in the Age of Ubiquitous Computing.” KSG Working Paper No. RWPO7- 022. http://www.vmsweb.net/attachments/pdf/Useful_Void pdf