Forgot to forget to remember: Google’s identity court

forgetGoogle shaped today’s Internet for good and ill — first by showing us how links could create authority; then by commercializing those links, which eroded their informational value but generated hefty profits. The company has always been smart about links and code and data but a little uncomfortable around people. From its earliest days, when you couldn’t find any contact information on its pristine site, it preferred algorithms to conversations.

“Put a human face on it,” the social-media gurus tell us today. “No way!” was Google’s answer.

Of course Google evolved. Engineers stepped forward to connect with their peers; other businesspeople were hired to communicate with the outside world. But Google has remained largely impersonal in its self-presentation. (The home-page’s playful Google doodles are an exception that proves the rule.) The company is ill-at-ease with the more ambiguous dimensions of human behavior: It may not be fair to call Google anti-social, but asocial? For sure.

This awkward wallflower is the organization now tasked by the European Union with a most delicate and socially demanding effort: to adjudicate a flood of requests from individuals who will be asserting their “right to be forgotten,” asking to have information scrubbed from Google’s index. On this ill-defined new legal turf — where the human quest for privacy and self-definition runs afoul of the Internet’s relentless connecting of people and information — Google is about to start making a whole lot of close calls in tough-to-figure cases. It’s as if a chess prodigy has been asked to pinch-hit for a social worker.

The “right to be forgotten” has emerged from Europe’s legal and social tradition, which is far more sympathetic to individual autonomy and far less friendly to the privileges of corporations and the media than U.S. norms. That’s unsurprising: Europe is more crowded, has a much longer history, and lacks the American instinct for reinvention-by-moving-west.

How’d we get here? A Spanish businessman, Mario Costeja González, irked by Google’s elevation of an old report of his bankruptcy proceeding, brought suit in the EU to get Google to scrub the link, and won. (And, oopsie, now the whole world is talking about his financial past.) Isn’t this a matter of public record? Sure. Should this guy be able to tell Google not to represent accurate public information about his past? The EU says “yes.”

At first it seems the “right to be forgotten” concept simply pits advocates of press freedom and the virtues of “publicy” (the positive good that comes from openness, transparency and sharing) against believers in privacy. Interestingly, the EU isn’t asking to censor the Spanish newspaper that posted the notice of González’s woes — instead, it has targeted Google’s index. The “right to be forgotten” doesn’t seem to be about deleting the past but about making specific personal information less discoverable.

Such “personal takedown requests” have been with us almost as long as we’ve had a Web. If you’ve been publishing long enough online you have probably already been in Google’s shoes, adjudicating someone’s wish that you somehow tinker with your archives — not to fix an error but to bury some indiscretion or problematic revelation. At Salon we found ourselves regularly in this position from the moment of Google’s ascent at the turn of the millennium, as the search engine resurfaced signatures on recklessly confessional letters to the editor whose authors now had second thoughts. (Paul Ford reports a similar experience from his time working on the Harper’s website.)

These are never simple cases. They offer anything but clearcut choices, and there is no set of consensus practices for dealing with them. (The DMCA takedown request, covering copyright infringement, is a different bird: There, the standard legal drill is, unpublish first and ask questions later.) You must grapple with all sorts of issues. There’s verification: Was the published information accurate? How about what the petitioner is telling you today? There’s motive: Why does the person want to bury the information? Is he or she a public figure or not? Who will benefit? Will anyone be harmed? There’s fairness and empathy: How would you feel if you were in the other person’s position? What’s right here? And what’s kind?

(Mostly, at Salon we were reluctant to tinker with our “back issues” but chose to honor requests from people who persuaded us that leaving their letters up might harm them professionally, emotionally, or even physically. In those cases we “anonymized” the letters, usually by converting their full signatures to initials. That generally did the trick. At Harper’s, they chose to put a “go away” notice on the page for the Googlebot so it wouldn’t index it.)

Now it’s Google’s turn to try to answer these questions. The “publicy” camp would argue that it shouldn’t have to: Surely, González could just go out there and seed the Web with more positive info about himself and bury that unwanted link. (Or hire someone to do that for him.) The EU instead said: It’s not on the individual to fix this, it’s on Google.

I wish I had more confidence in how Google will fare here — not because I fear its motives, but because I doubt its capacity and judgment. The record isn’t great. Back in 2009 Eric Schmidt, Google’s then CEO and now its chairman, set off a news-bomb with this answer to TV interviewer Maria Bartiromo’s privacy question: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” The predictable outrage centered on his cavalier arrogance (plus the note of hypocrisy, since Schmidt had been fighting his own privacy battles).

But the real problem with Schmidt’s line was its innocence — its technocratic assumption that human behavior is an equation with inputs and outputs. As if people bent on doing things that are risky or hurtful or shameful or just frowned on by polite society might simply step back and, surveying the incentives, decide “not to do it in the first place.” Problem solved!

Schmidt’s statement presents a binary, “if this then that” way of looking at life. It reeks of a kind of adolescent absolutism. There is no room in it for impulse, vulnerability, or regret. If Google is to deal responsibly with the challenge of the EU’s “right to be forgotten,” it’s going to have to shed this innocence and wade into the deeper waters of grownup life.

Here’s one sign of hope: The company took its own risky step of self-revelation recently in publishing its employee diversity numbers — which, as with so many Silicon Valley icons, turned out to be pretty bad. Unsurprisingly, Google tilts male and white (and to a lesser extent Asian). Good for the folks at Google who went ahead and shared the data. Now they will have to do something about it.

The “right to be forgotten” affair gives Google one more strong reason to diversify its workforce. Thanks to the EU, it’s going to be making decisions about people’s lives and identities — about convictions and bankruptcies, divorces and affairs, claims and counter-claims, rumors and lies.

In this circumstance, as in assembling a jury, the Googlers are really going to want decision-makers with the widest possible range of backgrounds. If they’re going to make good calls, they need to draw on a broad spectrum of experiences — including that one where you stare into your own past and flinch. If the people in Google’s room don’t recognize that feeling, the “right to be forgotten” is going to baffle them, and they will bungle their response.


Other takes

  • Jeff Jarvis thinks it’s an outrage; Paul Ford says, c’mon, just deal.

    Jarvis:

The court has trampled the free-speech rights not only of Google but of the sites — and speakers — to which it links. The court has undertaken to control knowledge — to erase what is already known — which in concept is offensive to an open and modern society and in history is a device used by tyrannies…

We have collectively ceded to Google the right to define our public personas, but it’s a consumer product, not a public trust. By granting the right to be forgotten to its citizens, the EU will allow them to shape their own personas.

  • “Forgot to forget to remember” is the Mekons’ ingenious reworking (in their song “Amnesia,” from the 1986 album “Rock ‘n’ Roll”) of the title of the old country song popularized by Elvis Presley; their version laments and lampoons popular music’s unwillingness to examine its own past — something it shares with Silicon Valley.

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