Yes, Jimmy Wales, There Is a Right To Be Forgotten

By Ted Rall , written on June 9, 2014

From The News Desk

 "In the case of truthful, non-defamatory information obtained legally, I think there is no possibility of any defensible 'right' to censor what other people are saying," Wikipedia founder Jimmy Wales emailed Techcrunch's Narasha Lomas.

No possibility?

Fuck that noise.

As a cartoonist, I appreciate the power of exaggeration. Even so, Wales' opposition to the "Right To Be Forgotten" ruling is so over-the-top as to be intellectually dishonest. Rather than engage in honest debate about this fork in the road about the future of the Internet, Wales is using bullying rants in order to exploit Americans' ignorance of their cultural history.

Whether he likes it or not, there has in fact been a Right To Be Forgotten in America since before the invention of electricity — and most Americans value that right.

Wales has become the most outspoken major tech figure to oppose the ruling on the grounds of censorship and the added cost and inconvenience to Google. His britches are chafing over the recent ruling by Europe's highest court in favor of European citizens who are asking Google and other search engines to delete links to content about them that is defamatory, erroneous, or simply no longer relevant — for example, records documenting a Spanish plaintiff's default on debts that have since been repaid. The content itself is not affected by the ruling — only the casual ease of finding it with a few words or phrases entered into a search engine. The info will still be online for those who know where to look.

For my take on Wales' too-hard argument, you can click here or ask yourself: Do you believe Google can't afford to hire additional employees? Or that Google is so technically inept it can't handle requests for link deletions? As for the former, Wales says, "We have a typical situation where incompetent politicians have written well-meaning but incoherent legislation without due consideration for human rights and technical matters.

There is no 'right to be forgotten' – there is apparently a 'right' in Europe to censor some information that you don't like." First, it's a ruling, not legislation written by politicians. Second, there most certainly is a Right To Be Forgotten in Europe — the high court just enshrined it in law with its ruling. This makes the Right To Be Forgotten as binding as a woman's right to an abortion in the United States — which was established by a court ruling, not an act of Congress.

Plugging your ears and closing your eyes and pretending that a right doesn't exist because it's new, or created by judicial fiat, or you don't like it, reduces its legitimacy not one byte. Obscured by the fog of Wales' carrying on is how rights are created, which is by consensus. When most members of a society agree that something is or ought to become a right, or at least are passively willing to allow the creation of a right, it's a right.

When most members of a society stop caring enough about an existing right to enforce it by mass action, that right can erode or vanish. Apathy in the face of NSA spying, for example, may tacitly ratify the end of privacy as we thought we knew it. An Italian court decision from 2000 defined "the right to silence on past events in life that are no longer occurring."

The clumsily-named Right To Be Forgotten, which should probably be called something more like The Right to Move On, has its roots in cultural mores that are thousands of years old. Western political and religious cultures such as Christianity enshrine forgiveness (and its cousin, forgetting) as core values. Anyone who has left one school as an outcast and reinvented herself across town as a popular kid knows how life-affirming the chance to start over can be.

Conversely, long-lasting shame and mockery prompts despair and hopelessness that can lead to suicide. Reinvention isn't merely a right. It's a societal necessity. If you fuck up in your small town, you can escape nasty glares by moving to a big city. Running away from failure and tarnished reputations were major motivations for Brits who sailed to the Colonies, and then for East Coasters who Went West, Young Man.

If you committed a serious crime, you can join the French Foreign Legion, kill for La Belle France and emerge with a brand new name and a clean record. Snuck into the United States illegally? You can join the Army and get on the fast track to citizenship. Immigration officials knew that many newcomers to Ellis Island were scoundrels wanted for bad debts or worse; a name change gave all but the worst of the worst a fresh start and the impetus to live up to their new home's high expectations.

The United States values redemption. Statutes of limitation, which immunize you against prosecution even if the cops catch you dead to rights (but more than seven years later), are one example. Juvenile offenders get their records sealed as adults. A disgraced president retires three years later with sky-high opinion polls. The 1925 Melvin v. Reid decision favored a former prostitute whose acquittal for murder became public when a film was made based on her story. The plaintiff had lived a quiet life after the trial and had sought to lay low. The court ruled that "any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation." Frank Pasquale, a law professor at the University of Maryland an an expert on law and information technology muses:

I'm surprised at how many technology lawyers in the U.S. are alarmed at this [Right To Be Forgotten] decision. Many seem to believe that it represents a fundamental break in the EU from American models of free speech. But in fact, we in the U.S. have long had to try to balance privacy and free-speech concerns. The Fair Credit Reporting Act, for example, balances credit-reporting agencies' right to speak about our pasts with our right to ensure that the report is accurate, and also to keep certain things off the report once a certain amount of time has elapsed. The Spanish case [that led to the European Court of Justice's decision] involved a credit problem that persisted for over 10 years, which is the cut-off for a bankruptcy report to appear on a U.S. credit report.
Remember that "permanent record that would follow you the rest of your life" your teachers and parents threatened you with when you were a kid? It doesn't exist. Which is a good thing. Jimmy Wales wants the Internet to know your every boo-boo. Do you? Sure, Americans also harbor that Puritan impulse whose hypocrisy Hawthorne dissected so effectively in "The Scarlet Letter." Which is why, for example, Monica Lewinsky has had a shitty couple of decades. It also explains Megan's Law, statutes that block felons from voting and others that hobble their job prospects by forcing them to reveal their criminal records. (Say this for China: despite a culture of public shaming, when you've done your time in the Middle Kingdom, you're done. Prison officials might even find you a job. Even under the Taliban, Sharia courts declare your crime erased after you've fulfilled your sentence.)

Wales says the European "decision will have no impact on people's right to privacy, because I don't regard truthful information in court records published by court order in a newspaper to be private information." More disturbing than the arrogance of this statement — Wales doesn't get to decide — is his conflation of two types of truth.

Wales and many of his fellow techno-libertarians elevate small-t truth — test: Is a factoid technically accurate? — above everything else. More important is capital-T truth: In a broad sense, does it matter, does knowing it add or subtract from understanding? Both truths matter. But capital-T truth matters more.

Back in 1984, I was expelled from Columbia University. My GPA was 2.40. I left owing $3,700, mostly for rental of a dorm room. I defaulted on the $3,700, and Columbia obtained a judgment against me. If the Internet existed at that time, much of this information — certainly the court judgment — would be available online. But it didn't and it doesn't. So when a prospective employer checks me out, they find instead that I graduated from Columbia in 1991, with honors in history and a 3.76 GPA. If they run my credit report, they'll learn that I have excellent credit.

Which is the "true" Ted Rall? The deadbeat 21-year-old dropout or the squeaky-clean 29-year-old honor student? Would it help you to decide were I to explain that I wound up in the hospital during finals week of my first semester of junior year due to a bizarre medical condition beyond my control, or that I nearly died? How about the fact that four of my engineering school professors were pricks who gave me Fs because they were too fucking lazy to compose make-up exams, and that I refused to pay the $3,700 because it was for my senior year dorm room — which I never got to live in because the university kicked me out the summer between junior and senior years. (How'd I get that 3.76? GPA redemption! Since I was out five years before returning to finish up, my GPA was wiped clean at the start of my year as a 28-year-old senior.)

The trouble with Wales' World, where search algorithms conjure objective truth, is that there's no room for nuance or explanation. Type in "Ted Rall" into Bing and Microsoft has 100.00 percent say over what comes up while I have 0.00 percent. Wales would no doubt argue that I can counteract negative links by creating positive ones. I can post my version of my life online (as I just have); anyone researching me could find my version of the facts. This is (small-t) true. They could find it. But where? At the top of page one or the bottom of page 12? Which comes up higher, the negative stuff or my explanation? What if a prospective employer only found that I was a college dropout and a deadbeat? What if he never learned that I went back, or that the debt was vacated by a judge after I challenged it? Wales doesn't give a shit about me, or you, or the way our reputations are presented online. Fine — but shouldn't we get a vote?

Then there's the problem of generational advantage. Why should I (an old Gen Xer) enjoy having my embarrassing educational and financial records expunged by chronological virtue of being old enough not to have my youthful indiscretions recorded online, while a younger (Millennial) applicant is exposed in the full glory of his most idiotic tweets and Facebook photos until death and beyond? Google searches are perfunctory, incomplete affairs. What comes up, comes up. If you created something of cultural significance — say, post an essay to Pando — it's part of our shared cultural patrimony and ought to remain available as long as technically possible. However, it is hard to see how the world is worse off because you can't find my old Columbia records online. On the other hand, it is easy to see why someone in my position would want this material — which is, in every sense of the world, irrelevant — delinked by Google. Larry Page of Google told FT that 31 percent of the first two weeks worth of deletion requests in Europe concerned frauds and scams, 20 percent were about arrests and/or convictions for violent or serious crimes, and 12 percent related to child pornography arrests.

Sounds like stuff that should stay online, right? But what public interest is served by a Google link showing that Joe Sixpack got arrested for kiddie porn but not convicted? "Innocent until proven guilty" means nothing if this information, though small-t true as per Wales, comes up easily. Because, I don't know about you, but I'm never gonna hire someone who got arrested for kiddie porn. Even Google concedes that some things ought not to be appear in its listings. Kiddie porn is one of them. After receiving complaints by people whose reputations had been smeared, Google deleted links to mug shots of people arrested for but not convicted of a crime. "We aren't talking about 'data' — we are talking about the suppression of knowledge," Wales says. But lots of things that no one should know about or see qualify as "knowledge."

A nude photo of you is information/data/knowledge — it documents what you look like without clothes on — but it doesn't contribute much to capital-T Truth. Asking Google not to link to stuff whose primary effect is to fuck up your life is censorship. But it isn't wrong.

[original photo by Joi Ito]