The European Advantage from Hiding The Past

The “Right to be Forgotten” (RTBF) is a newly minted “human right” within the European Union. It allows individuals to demand the suppression of Internet search results that mentions them in earlier events, such as court proceedings, speeches, and news coverage. This selective editing of history would be of peculiar value to those obligated to register as sex criminals, to those convicted of fraud, and to those hoping to avoid public knowledge of their embarrassing behaviors.

Logically, a databased event involving more than one person can evoke conflicting interests. The perp wants details of his serial crimes suppressed and the detective who cracked the case wants the entire history available for his admirers to peruse. Those wanting suppression of their family member’s misbehavior in WWII will clash with enemies wanting WWII coverage of their family heroes. A published version of relevant events cannot satisfy both groups and a search operator is unsuited to resolving this clash. In an RTBF regime, those who want the plain truth are just out of luck.

RTFB may be lawful in Europe but within the US, a government order suppressing what someone published lawfully is a suppression of free speech. Despite the strife this new “human right” will impose on the rest of society, it seems that Google and other US search providers will be forced to become RTBF compliant if they want to operate in Europe.

It will be nearly impossible to publish search results adequately redacted for EU tastes. The EU operates on the tradition that the jurisdiction of a publication is where the book is, and they chose to extend it to mean the jurisdiction is where the “browser” is.

For each country, a generic browser could be altered so that it accepts country-peculiar search results and suppression parameters from a search operator running the main search database in the .com domain. The altered browser would then adjust raw search results based on the suppression parameters and display the adjusted results. This would result in a browser (i.e. publication) that meets the EU’s requirements in each country. Of course, one search would produce results that are different for each country. Under the premise that the browser is where the results are published, this could be what the EU wants. But the EU is also saying that RTBF must be imposed on all country and top domains (e.g. not just .de, .fr, and .uk, but even .net, and .com). In effect, the EU is demanding that that RTBF be imposed on the US, and that is unacceptable. RTBF compliance is presumably more acceptable to Euro-centric search operators.

Compared with today’s search systems, an RTBF compliant system would require different post-search results processing or an underlying data storage arrangement where “off limits” information is progressively masked differently for each country. That points to a high administrative cost for tracking individuals’ information suppression demands and then applying those to search results. In a fair world, the RTFB requester would bear the entire cost. But since this is Europe, the costs are likely to be socialized, i.e., imposed on innocent consumers. The US has a chance to do the right thing by refusing to play along in re-writing history, raising costs to consumers, and suppressing free speech.

The challenge in handling RTBF may have suddenly become more complex due to invalidation of the EU-US Data Sharing Safe Harbor agreement. The agreement was in place to assure protections inherent in the privacy rights of European and US consumers. Removal of the safe harbor may block the routine transfer of European’s user data to the US. Consumer entries such as those in Facebook, retail customer information, and email services may be affected by this lapse in European confidence.

The safe harbor failure is purportedly caused by anxiety over NSA surveillance on Europeans’ data, but that excuse is a sham because French, British, German, Russian and Chinese intelligence services have competent telecom and database surveillance capabilities and some have been monitoring other countries’ residents for decades. It is false to claim that keeping consumer data in any specific country guarantees privacy – it does not. As with the demand for RTBF compliance, the lapse in safe harbor Data Protection is more about eroding the commercial advantage of US service providers.

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