Information Ownership and the Right to be Forgotten

Much ado was made a few weeks ago about the European Union’s judicial determination that individual Europeans have, in broad strokes, a right to be forgotten on the Internet. Google protested, but now must honor requests to remove search results about a person from the E.U. at that person’s request.
Google, for its part, is suggesting passive-aggressive compliance — by following the directive strictly but publicizing that they removed the results and linking to the request to remove them. In other words, by shining an even brighter flashlight on the material intended for removal.
All of this comes back to two important questions:

  1. Who “owns” information about a person?
  2. To what extent can a private person control the release of information about himself?

The first question might appear before U.S. regulators sooner rather than later. The Federal Trade Commission launched an inquiry into data brokers and lawmakers are increasingly skeptical of the breezy privacy practices of these companies. The second question is murkier: Public records are public records, but to what extent does a private enterprise enjoy the right to profit off aggregating and publishing public records? Does the right to free speech mean the right to restrict dissemination of speech if the subject of that speech demands it?
When the E.U.’s decision hit the media wires, the response was predictable. Data brokers argue that it’s better to be served relevant ads than irrelevant ads, so consumers shouldn’t worry about what’s going on behind the curtain (never mind folks who don’t want to be served ads at all). Companies, in general, are increasingly reliant on large-scale data analysis to refine consumer targeting, so giving people the chance to opt out of that targeting directly affects their bottom line.
I believe that my information is my information, and that the only companies entitled to use my information are those I’ve elected to do business with. I’ve never conducted business with a data broker, so the data broker has no right to profit off the sale of information about me that it compiled through surveillance I didn’t authorize and wouldn’t consent to. As such, I support regulation that eliminates or tightly regulates consumer data-sharing among companies, as well as transparency and strong limits about what kinds of information can be collected and the consumer’s right to amendment or deletion.
The question of the right to be forgotten is more intriguing. Let’s say Bob writes a nasty blog post about me. Google indexes it and serves it up when someone searches for my name. What is to be done? Bob may be entitled to say nasty things, provided it doesn’t cross the line into defamation, but why should Google have a right to make that information easily discoverable? Don’t I have the right to have negative material affecting my reputation more difficult to discover? Google’s argument is a variation on the meme that “information wants to be free.” Bollocks. Google makes money on selling search results, so it doesn’t want to harm its core business, principle be damned. Bob can write what he wants to write, but Google has no First Amendment right to make that information discoverable, such that it trumps my right to avoid inappropriate public disapprobation.
It may be true that there’s no such thing as privacy in the digital age, but there’s something to be said about the effective privacy that comes from information obscurity. Bob publishing mean things about me is what it is, but I have a vested interest in not making Bob’s vitriol the first thing that pops up on search results about me. Making some things more difficult to casually uncover is probably a reasonable middle ground between victim’s rights and free-speech rights. Certainly, Google’s perspective that it’s entitled to link everything/everywhere is much more philosophically controversial than its defenders care to admit.
In any case: There’s a trend afoot to turn consumer data into a commodity. Fine. Then let’s regulate the data brokers and companies like Facebook and Google as if they’re utilities.

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