Co-authored by Omer Tene and Jules Polonetsky.
Last week’s decision by the European Court of Justice, requiring Google to delete search results that display a Spanish user in a bad light, continues to cause consternation among online experts and supporters of free speech.
The decision demonstrates that even the highest of courts can lack basic technological dexterity. At the same time, it reflects a genuine concern, which casts a long shadow over the digital revolution. It is a reaction to the uncompromising persistence of data, of which search results about an individual are just one prominent manifestation.
Unwittingly, the European Court appointed Google a global online censor, imposing on it the unenviable burden of policing content on the Web. In doing so, it furnished Google (and similar online intermediaries) with strikingly vague criteria and little process, to boot. And if understaffed privacy regulators intend to handle complaints case by case, they will soon be swamped by an unmanageable deluge of individual take-down requests.
But condemning the Court’s decision should not invalidate the concerns it sought to address.
To be sure, free access in milliseconds to all of the world’s information from a laptop, smartphone, or (soon) wearable device has brought society untold value. It revolutionized access to knowledge, invigorated democratic forces, boosted productivity and spawned innovation on a scale unrecognized since the dawn of civilization.
But it also created a world where our every misdeed is recorded, forever curated and instantly available. Never mind crimes and misdemeanors — today’s pipeline spews a digital exhaust comprising emails, posts, tweets, photos, location tags, news reports, court decisions, public ledgers, you name it, painting a likeness of ourselves that we may not wish, or deserve, to have chiseled in perpetuity. Such data may, and in fact does, come back to haunt us years later, in different contexts and with entirely different audiences.
We are being forced to assume that anything digital will last forever and may find its way to the public domain. But such technological determinism is not an inescapable force of nature. It is a man-made construct that can adapt to accommodate generally acceptable social norms. As Jaron Lanier argued in his book “You Are Not a Gadget,” technology should be designed to serve humans and reflect their values, not the other way around.
Not every comment that we make near the water cooler is recorded for the ages. We constantly write stuff down on notes that end up in the trash.
In the offline world, there is a degree of impermanence to many of our activities; daily conversations and Post-its are not expected to last forever. And we share an understanding of how fleeting any type of action should be: Our expectations of the publicity and permanence of a book, for example, differ greatly from those connected to a scrap of paper left on a desk. Sometimes, our expectations are broken when social norms are violated. Someone kisses and tells, or writes down a secret and betrays a confidence.
But in general, much of our information is subject to fairly clear norms that guide us in who can accessible what and for how long. Why can’t technology do more to ensure that certain types of recorded data decays or becomes less accessible with time? Much more than law, which by definition applies uniformly, technology can account for subtle differences in individuals’ subjective privacy expectations, which fluctuate based on the context and nuance of interpersonal relationships.
Of course, technology can already do this. The newspaper in the Google case could have used the “robots.txt” command, which signals to the search engine to not spider its content. Companies adopt email deletion policies to ensure that old records are not available after a set date.
Ironically, the phenomenon of the social Web, where we set the audience for our content and have the ability to delete posts or change access settings, has started to set the direction. Facebook or Google+ posts are viewed by only your friends or followers, and are not available to the general public. And the meteoric rise of discreet social interaction apps like Snapchat, Frankly, Secret and Whisper demonstrates the growing demand for ephemeral communications and non-public expression.
So, let’s have many more companies experiment with default settings that allow for data decay. While these solutions are imperfect, they chart a promising path toward a world where some friction allows us to retain and hide a bit of ourselves.
More than 120 years ago, in their seminal article, “The Right to Privacy,” Samuel Warren and Louis Brandeis warned that “numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”
Similarly, we need to make sure that new techno-social constructs of the digital age don’t end up tearing our social fabric. The best way to do so is by furnishing novel technical options to those whispering and those shouting, rather than by mandating legal constructs that disrupt our cherished norms of free speech.