The Right to Be Forgotten

The "right to be forgotten" in European law has now taken the place of what people in the past used to call "the forgiveness of sins".  Formerly it was believed that old offenses, especially when these did not result in prosecution or suit, were somehow effaced by the passage of time. "Long dormant claims have often more of cruelty than of justice in them", says Halsbury's Laws of England.

But the passage of time has no effect on search engines. Have you ever quoted a news article only to discover it was 5 years old? Some people want to change that by making the record forget in certain instances. ZDnet reports, that "last month, the right to be forgotten was enshrined in European law, thanks to a ruling by the European Court of Justice. Except it wasn't a right, you weren't forgotten, and it hasn't really been enshrined anywhere. Confused? You're not the only one."

In May, the ECJ ruled on the case of a Spanish national who had, over a decade ago, been involved in an auction of property to settle social security debts. When people Googled his name, newspaper stories about the auction appeared prominently in search results. The man thought that the information about him was outdated, and the court found in his favour, ruling that Google must no longer return links to those newspaper stories when his name is searched for. The newspaper articles remain online, and can be found through Google when other search terms are used.

The Clintons, for their part, don't even need legislation to delete the unflattering. The Boston Globe reports that the University of Arkansas suspended access to a news organization which found records showing Hillary had defended a client accused of child rape in 1975.

The Washington Free Beacon was informed this week that it has been banned from the University of Arkansas' special collections archive, a sharp and somewhat unexpected response to the news group's recent reporting on Hillary Clinton's 1975 defense of an accused child rapist. ...

“I am writing you to direct you and the Washington Beacon Press to cease and desist your ongoing violation of the intellectual property rights of the University of Arkansas with regard to your unauthorized publication of audio recordings obtained from the Roy Reed Collection,” wrote University of Arkansas Libraries dean Carolyn Henderson Allen.

The difference of course between the theological notion of forgiveness and its modern court or administrator mandated equivalent is described by ZDNet's Jo Best. In modern digital forgetfulness the offense is not forgiven. It is expunged, or access to the record is restricted so that memory becomes selective. In practice it gave Google license to implement a Memory Hole:

[a] mechanism for the alteration or disappearance of inconvenient or embarrassing documents, photographs, transcripts, or other records, such as from a web site or other archive, particularly as part of an attempt to give the impression that something never happened.  The concept was first popularized by George Orwell's dystopian novel Nineteen Eighty-Four where Big Brother's Ministry of Truth systematically re-created all potential historical documents, —in effect; re-writing all of history to match the often-changing state propaganda. These changes were complete and undetectable.

Google's implementation of forgetfulness began recently.

This week, the first such removals began to come to light. Large news organisations such as the BBC and The Guardian, along with more smaller B2B outlets, all reported Google had contacted them to let them know they were subject to removals, while Google users began to see messages that certain search results "may have been removed under European data protection legislation".

Google, which already has many of the characteristics intellectuals once ascribed to God has acquired a further attribute of deity: the power to 'bind in heaven by binding on earth'. If you can't find it in Google, then maybe it never happened, even if it did. And as is ever the case, whenever a new power is minted it almost always sparks a contest over who gets to exercise it. Jo Best at ZDNet writes:

The wider question is, perhaps, when does that information become outdated in relation to its subject? These are difficult questions for anyone, even those with an interest in how to balance the right of citizens to a private life with the freedom of the press and individuals' right to information ...

Robert Peston, the author of the BBC story on Stan O'Neal that was removed, speculates that rather than have Google make the call, such decisions would be better left to journalists and their publishers.

That in many ways is a return to the status quo ante. In the past the newspapers effectively had the right to make the past disappear. This power was gradually usurped by the search engines. Now it axiomatic that the Web forgets nothing. But if you can't find it, then it's gone. Preston's argument that the power of forgetfulness should be returned to journalism is appealing, but not without its dangers. It is not obvious the public would be better served if Candy Crowley could determine whether Benghazi was remembered or not. As Tommy Vietor noted, 'Dude, two years is a long time' when you want to move on.

Perhaps the true purposes of a system are best captured not in what it sets out to discover but what it chooses to remember. The Daily Telegraph reports that the NSA's took the greatest interest not in those whom it intended to monitor from the outset, but in those it subsequently discovered were the most interesting in retrospect.

Nine out of 10 people identified in a large cache of online conversations intercepted by the National Security Agency were ordinary Internet users and not foreign surveillance targets, a news report says....

The study was based on 160,000 emails and instant message conversations, as well as 7,900 documents taken from more than 11,000 online accounts, intercepted during President Barack Obama's first term in office (2009-2012). The Post found that the NSA held on to material that analysts described as "useless."...

These files "tell stories of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions,financial anxieties and disappointed hopes."

Some of the files however did include "discoveries of considerable intelligence value." That included "fresh revelations about a secret overseas nuclear project, double-dealing by an ostensible ally, a military calamity that befell an unfriendly power, and the identities of aggressive intruders into US computer networks."

Neither memory nor the past are static things. What's "useless" today is not "useless" forever. Hillary's legal defense of a rapist would have no significance if she remained an ordinary lawyer. The significance of her past is a function of her present. As the Soviets knew the future was easy to predict. Why anyone in the Politburo could tell you what next year's steel production would be -- it was the past which was hard to determine.

The crisis of privacy arises from the collapse of the old assumption that information could be viably kept out of the public record. That is no longer true. The digital age has enabled us to voluntarily or otherwise track our every movement, monitor our every heartbeat, whether by smartphone, surveillance camera, smart writstband or Holter monitor is simply detail. The fact is that our tracking systems remember more about ourselves than we do. And once information is recorded it is potentially forever, where it can be hacked or subpoenaed.

The battle to keep information from being collected has been lost. The struggle has moved on to the next-best solution of creating procedures to let it go out of scope. But as ZDNet notes, the procedures don't really delete the data, it simply selectively remembers it.  The incident of the missing links and deleted searches shows that giving Google "power to forget" is not without its own peril. It is only a half measure for if the only way to forgive is to forget entirely then to remember is automatically fraught with peril.

Perhaps the reason theology came up with the theory of "forgiveness" was it needed a process distinct from amnesia. They therefore believed the divine mind didn't execute a delete operation  but simply entered countervailing transaction, a forgiveness operation that blanked the consequences for an act, but not the act.  

The appealing thing about God is that idealized attributes can be assigned to Him. With men we are not so sure.  We are notionally kept safe in the Western canon which assures us of the existence of the Truth -- an idea which dates from Plato at the least -- and which prevents the man-made lie from being ultimately triumphant. Perhaps that's why the Gospels posit God in the loop with its own Freedom of Information provision. "Ask and it will be given to you; seek and you will find; knock and the door will be opened to you." But maybe not in the Arkansas, or the NSA or the European courts.

From man there is little appeal. And perhaps the facsimile of truth and a parody of memory is the best we can do. The prisons are clogged both with innocent men and those who are still looking for the real murderer of Nicole Simpson. Each in his way is a prisoner of the lie.

There runs through both religion and literature the fond hope that the truth is out there; that in the end it will come to our rescue or -- as we sometimes like to forget -- condemn us.  There is an enduring hope there exists independent of the human record a Book in which all true events are remembered, yet in which some will be forgiven.

But for now modern Western civilization has rediscovered Orwell's adage. Who controls the present, controls the past. Who controls the past controls the future. You have a right to be forgotten, that's established. Now what shall we forget?

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