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When Forgetting Isn’t Best

Professor Jonathan Zittrain on why the Right to be Forgotten is flawed and what can be done about it

By Annie Pruitt

For Professor Jonathan Zittrain, the Right to be Forgotten is a “bad solution to a real problem.”

This was Zittrain’s message at a talk hosted by the Berkman Center for Internet & Society on August 5th, where Zittrain and members of the American Civil Liberties Union discussed problems raised by the 2014 European Court of Justice ruling - which gave EU citizens the right to request that Google remove links to personal information from its EU sites - and laid out potential alternatives. In particular, Zittrain expressed concerns that the current process has detrimental effects on freedom of expression and the public’s right to information.

According to Zittrain, one reason for these concerns is the incentive structure that Google faces. If Google chooses to reject a removal request it risks being fined by European data protection authorities, however, no such penalties exist for improper removals. As a result, Zittrain asserts that “the incentives are clearly lopsided [towards removal]” when Google is unsure about the validity of a request, which could result in content being taken down that shouldn’t be removed.    

Zittrain also cited information and access asymmetries as a source of concern. In addition to the requests from individuals, Google has also received a large number of removal requests from corporations. As a result of this trend and Google’s sole ownership of the removal process, Zittrain fears that private companies will ultimately possess significant amounts of information that the average citizen can no longer access. Recent efforts by French regulators to force Google to apply the Right to be Forgotten to its domains worldwide - which Google has rejected - have only exacerbated this concern. Zittrain told the audience that a partial solution to this is increased transparency in the request and removal processes.    

“[This] is another reason why we desperately need data on how the right is being applied given that there are hundreds of thousands of requests already.” said Zittrain “And it’s why I’ve been fighting for [the] release of information to academic institutions and bonafide researchers, who in turn agree not to make public what they learn at a granular level but can write about trends extracted from this data.”

However, despite Zittrain’s objections to the current process, he still recognizes the need for a method to address individuals’ dignity and privacy concerns related to information about themselves online. “I really see this as a tricky and interesting problem,” he said.

Accordingly, Zittrain proposed two alternative approaches. One solution, said Zittrain, would be to shift responsibility for executing removal requests to the government and establish a judicial appeals process that would give both the search engine and party requesting removal the opportunity to appeal removal decisions or penalties levied by data protection authorities. This would help address the issue of lopsided incentives and increase transparency.

In addition to shifting the process from the private to public sphere, Zittrain suggested establishing an expiration date of one year on Right to be Forgotten removals, at which point individuals would have to reapply for removal. According to Zittrain, an expiration date would help to allay concerns that such removals compromise freedom of speech and the right to information.

“When does this stuff get revisited?” asked Zittrain, “What if the article that has something bad about somebody gets corrected or refined and if it were judged anew it wouldn’t be worthy of a takedown, but the takedown sticks?”

Ultimately, says Zittrain, this tension between privacy concerns and freedom of speech or the public’s right to information is an issue that requires our continued attention. “If we’re all worried about the manipulability of information and the bias that can be introduced,” said Zittrain, “then it’s not going to be a winning strategy to cling to the status quo.”