Privacy 2014: Is There a “Right to be Forgotten?”

Everyone seems to like privacy — so much so that we often expand the term into the social concept of “privacy rights,” indicating that privacy isn’t just a good thing but something to which we are all entitled. This leaves unanswered an important question: “To what degree and in what respects?” Last month the European Court of Justice offered up an interesting answer to that question, positing a “right to be forgotten.”

The court, pursuant to a lawsuit filed by Mario Gonzales of Spain, ordered Google to remove from its search results a 1998 newspaper article concerning the public auction of Gonzales’s repossessed home. Gonzales did not claim the article was untrue or inaccurate. Instead, he asserted that information pertaining to him (in particular, information which might disadvantage him, justifiably or not, if made easily available to others) should be placed under his exclusive control with respect to Internet search results.

Thus was born the “right to be forgotten” — or forgotten by Google, at any rate.  Google is cooperating: They’ve set up an online claim/application process for those who want specific pieces of information removed from their public search indices. The court’s criterion for evaluating these claims is that the information is question is “inadequate, irrelevant or no longer relevant,” although that raises the further conundrum of who decides questions of adequacy and relevance.

This case and its outcome touch on several issues with which civil and political libertarians, not to mention anarchists like myself, have wrestled for some time. While it seems incontestable that “privacy” is a valued thing, it’s not obvious just how market processes might produce similar outcomes with respect to claims like Gonzales’s versus the way a powerful state with long-armed courts enforces such claims.

In fact, for those who believe “privacy rights” extend as far as the court’s ruling seems to claim (or even farther), the ruling might itself constitute an argument against anti-statism or even “limited government” (a court in Luxembourg enforcing the demands of a plaintiff from Spain against a company in the United States with respect to the informational content of a global network doesn’t seem very “limited,” does it?).

To me, the ruling is evidence of the opposite proposition. The fact that markets would probably not produce the same results as governments have produced means that governments are going too far and that “privacy rights,” if they exist at all, do not justly extend so far as this ruling implies.

In this specific case, the claim seems to be less one of privacy and more one of “intellectual property.” Gonzales doesn’t claim that Google peeked through his window and saw him writing down notice of that 1998 auction. He acknowledges that it was, at the time, a publicly reported event. He’s just claiming that now, 16 years later, he “owns” knowledge of that event and is entitled to control it, while Google doesn’t and isn’t.

We are at the point where efforts to protect privacy necessarily navigate between the perceived Scylla of “information wants to be free” and the Charybdis of state-created “intellectual property” monopolies. In my opinion, the idea of information freedom as Scylla is largely fantasy. The power of the state to compel “forgetfulness” is far more dangerous than any unintended or unwanted disclosure of truth could possibly be.

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