The right to be forgotten and the need to remember

The right to be forgotten and the need to remember

We are accustomed to thinking of memory as a positive skill, a blessing. A good memory is seen as something to be congratulated for. We are tested and rewarded for it (or sanctioned for lack of it) through our school years, on exams, in pub quizzes, and in innumerable other contexts. We are embarrassed when our memory fails us – for instance when it becomes obvious that we can’t remember the name of the person we’re talking too. (I’m sure I’m not alone in having experienced that situation.) And as we grow older, such situations, even if they occur no more frequently than before, nevertheless take on an ominous overtone: Am I losing my memory? Forgetting is considered a symptom of disease, for instance of Alzheimer’s or of post-traumatic memory repression.

We tend to forget that forgetfulness is also a vital skill. Repressing traumatic memories, at least temporarily, can give us the respite we need to recover. Perhaps once recovered, we will have the strength to deal with those memories again. Forgetting is also helpful in non-traumatic situations. Forgetting some of the myriad ordinary, everyday occurrences that constantly avalanche over us helps us to focus our attention on what we deem important things by ignoring bagatelles. And forgetting is not only a contributor towards where we focus among future events; it is also a result of our past choices as to where to focus. Nevertheless, we are accustomed to honouring memory and bemoaning forgetfulness.
… Until now. With virtually our every life event digitized, and with effective search engines enabling us all to find just about any of that digitized information on the Internet, our cyborg memory, our superpower, has become not only a blessing but also a nuisance. Enhanced by Google, Ask, Bing and other search engines, people can now “remember” even things they were never supposed to know in the first place. Writing this, I felt I ought to “google” myself and see what was out there. I found a few things even I didn’t know before, two of them because they weren’t true (no, I did not make that quilt together with Danny Gott; I made it for him). Luckily for me, I didn’t find anything embarrassing, but according to the European Justice Court’s decision of May 13, 2014 in Case C-131/12 – Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos and Mario Costeja Gonsález (http://curia.europa.eu/juris/celex.jsf?celex=62012CJ0131&lang1=en&type=TXT&ancre=) – I can now demand that Google cease to show links to web pages with erroneous or outdated statements about me, perhaps that one page that claims I made a quilt together with Danny Gott.

The Case C-131/12 decision has been said to reinforce the “right to be forgotten” – a catchy phrase, but an exaggeration. Erasing a link from Google (and, with repeated efforts, from each of the myriad other search engines around, now and into the future) does not erase a memory entirely from the web. It will not always be possible, or even advisable or legal, to erase the memory at its original posted source. For instance, in Mario Costeja Gonsález’s case, the memory in question was a legal decision to auction off a property to recover money he was in default on at the time. The decision was correct – at the time. As a correct decision by a court of law, it is legally mandated that it needs to remain recorded in the court’s archives. Nor was there a case for blocking access to that record. But the case was old and no longer reflective of Gonsález’s current credit-worthiness, so Gonsález and the Spanish Data Protection Agency argued – successfully – that Google should make it more difficult to access that record. Mr. Gonsález still remembers. The party that bought his property still remembers, of course from a different perspective. Some number of friends, family, neighbours still remember. The memory is still in the court records where credit agencies can access it if they put in the necessary effort to trawl that far into the archives. But without Google as our cyborg memory-enhancing device, it is more difficult for the rest of us to remember (or to learn anew) of that event.

Except …! Except that we have now been reminded (or taught anew) through the process involved in getting Google to “forget”. Millions who had never heard of Gonsález before now know at least the latter part of the story: the battle against Google all the way to the European Court of Justice. As discussed by Rocco Bellanova in his recently defended dissertation, The Politics of Data Protection: What Does Data Protection Do? (2014), extricating oneself from the web’s sociotechnical architecture of memory will often just entangle you further. Much like a fly caught in a spider’s sticky strands or a bird caught for banding: the more you struggle the tighter you’re caught.

Nevertheless, with concerted effort, web erasure can be effective in erasing a significant portion of our collective memory. For instance, Chinese authorities have made a concerted effort to erase China’s collective memory of the 1989 student-led civil rights campaign, quelled with a massacre on Tiananmen Square on June 4 of that year. In the weeks leading up to June 4 this year, 25 years after the massacre, authorities scoured cyber- and twitterspace, censuring any posts where the numbers 6 and 4 appeared in juxtaposition. This is just the latest step in their campaign to erase the memory of the 1989 uprising. They felt it warranted to put in that degree of concerted effort. In the global context this was counter-productive as the effort itself attracted the world’s attention and disapproval; but in China that sort of effort, continually for a quarter century now, seems to have paid off. Louisa Lim, China correspondent for USA’s National Public Radio, recently published a book titled The People’s Republic of Amnesia – Tiananmen Revisited (Oxford University Press, 2014). In it she tells of an experiment she conducted on 100 Chinese students from prestige universities. She simply showed them a copy of a still from the legendary video of a student blocking a column of tanks and asked them what the image was about. Only 15 were able to identify the image and the event. Those who recognized it cringed nervously. The rest showed not the least sign of recognition (my source for this story: http://www.dagbladet.no/2014/05/30/kultur/meninger/hovedkommentar/kommentar/kina/33577510).

Google has now put procedures in place to deal with requests to erase links to personal information. As soon as they posted a form to initiate the erasure procedure, Google was flooded with requests – 12 000 from Europe in the first day alone, up to 20 requests per minute. Not all requests will result in erasures. Each request will have to be considered on merits. So far, Google reports that over 60 per cent of the requests concern links to memories of criminal records – about 12 per cent are from convicted pedophiles, 30 per cent from convicted swindlers and 20 per cent concern other crimes (http://www.dagbladet.no/2014/05/31/nyheter/innenriks/utenriks/personvern/internett/33599783/). How many, and which of these requests Google deems to fall within the wording of the European Court of Justice’s wording remains to be seen. Would I be seen as having a “compelling legitimate interest” in correcting the misunderstanding about whether I made that quilt for or together with Danny Gott? I doubt it. When weighing the balance of conflicting interests, will the 1400 convicted pedophiles’ privacy interests be seen as greater than the public interest in protecting children from known pedophiles? I doubt it. For some the effort to disentangle themselves from the web of digitized memory will result only in further entanglement (and in jobs for privacy lawyers and computer engineers). For others, a few strands of memory may be cut.

For our own part, the remainder of this issue is largely meant as another sort of cyborg memory enhancer – full of reminders about upcoming opportunities and deadlines, not least the deadlines relating to the 2014 EASST conference in Torun! Early bird registration will be opening up around the time you receive this issue. Don’t forget to sign up! I look forward to seeing many of you there! And finally but first of all, let me remind you of the application deadline for the position of EASST Review editor and the call for expressions of interest in hosting the 2016 EASST/4S joint meeting – two chances to play yet another role in creating our future collective memory.

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