Legislating Government Censorship

In May 2014, the high court of the European Union declared that EU citizens had a “right to be forgotten” online, derived from the Union’s stringent personal privacy laws. The information is actually forgotten, of course, just removed from our collective memories, also known as Google.

The “right to be forgotten” in the European Union originated from a court ruling demanding Google and search engines remove links to a story that embarrassed a Spanish man because it detailed a previous home repossession. The story was not factually inaccurate. He insisted it was no longer relevant and that it embarrassed him, and the court agreed he had the right to have the information censored from search engines.

Recently courts in the EU have found exceptions to that absolute right, but here in the US many lawmakers and pundits have speculated as to whether we should have the same right and the Europeans.

This week, two members of the New York legislature decided the answer is yes, and have introduced their own interpretation that actually goes beyond the rights granted to European citizens. Because if anything is worth doing, it’s worth overdoing.

Censorship 1

Their bill would require the removal of “content about such individual, and links or indexes to any of the same, that is ‘inaccurate’, ‘irrelevant’, ‘inadequate’ or ‘excessive’”, from both search engines and the original website, within 30 days of a request.

Basically, with some exceptions for information about certain crimes and matters of “significant current public interest”, the law requires anything posted on the web that someone claims is “no longer material to current public debate or discourse” must be forgotten. Under penalty of some heavy fines.

What could possibly go wrong with a poorly defined (at what point does content become “excessive”?) law like that?

So, under this bill, newspapers, scholarly works, copies of books on Google Books and Amazon, online encyclopedias (Wikipedia and others) — all would have to be censored whenever a judge and jury found (or the author expected them to find) that the speech was “no longer material to current public debate or discourse” (except when it was “related to convicted felonies” or “legal matters relating to violence” in which the subject played a “central and substantial” role). And of course the bill contains no exception even for material of genuine historical interest; after all, such speech would have to be removed if it was “no longer material to current public debate.” Nor is there an exception for autobiographic material, whether in a book, on a blog or anywhere else. Nor is there an exception for political figures, prominent businesspeople and others.

I’m not a Constitutional expert, but even I realize a law like this would never survive a many First Amendment challenge.

But beyond the legal issues there is a far more concerning 800-pound gorilla. Right now we have far too many “leaders” who lust for tools that would allow the government to review and censor the online discussions of it’s citizens.

We don’t need a right to be forgotten in the US as much as we do a right to be left alone.

World (Information) Domination

Many writers marvel at this age of information. A large and growing collection of the world’s knowledge is now available to anyone with an internet connection. Think of the learning, the transparency, the wisdom.

The reality, of course, is that information is largely filtered through web search engines – mostly Google. And many governments around the world are working to control that filter.

Specifically, they are trying to force Google and other search companies to hide results that they or their citizens find objectionable for one reason or another. Not just in their countries, but world-wide. The so-called “right to be forgotten”.

The executive director of the Wikimedia Foundation, parent of Wikipedia, is worried that this “creates ugly precedents that could jeopardize the future of our open and free Internet”.

If any country can demand the worldwide removal of search results, vast sections of history, science and culture could disappear from the global Internet. This could infringe on our ability to learn about the history of Tiananmen Square, the potential medical properties of cannabis, the discoveries of Darwin, or unsavoury allegations against the U.S. president-elect.

If every country had the chance to punch memory holes in the Internet, we would swiftly find ourselves with history scrubbed of essential records. Politicians could challenge ugly but accurate charges. Corporations could erase histories of fraud and double-dealing. The implications are unprecedented.

She uses the example of a case before the Canadian Supreme Court in which one company is trying to force Google to hide information about a competitor. But that’s certainly not the only one.

France’s data protection authority is also demanding Google “apply the French balance between privacy and free expression in every country by delisting French right to be forgotten removals for users everywhere”. Other governments in Europe and elsewhere are watching closely.

Here in the US, there are debates over whether we should have a “right to be forgotten” online, similar to the concept established by the European Courts for their citizens in 2014. However, be careful what you wish for.

The unintended consequences of “forgetting” history are just now starting to emerge. Like handing a private company the power to censor information. Or allowing government agencies and politicians control over information sources available to not just their citizens, but the rest of the world.

These Are Not the Borders You’re Looking For

The European Union is making a great effort to control what their citizens view on the web by, among other legalities, ordering search engines to “forget” selected pieces of data. But that is not at all the most absurd recent attempt at censorship.

The government of India wants to control geography.

Specifically, a proposed law in that country would “ban maps or satellite images of the country unless they are approved by government”.

The bill bans all types of geospatial information, maps, raw data or photographs, acquired by any means, including satellite photography.

Offenders could be fined up to 1bn rupees (£10.4m). [around $15m USD]

It also requires anyone who has already gathered such information to apply for a licence to keep it.

It was designed to regulate both the creation and distribution of geospatial information in India “which is likely to affect the security, sovereignty and integrity” of the country, the Ministry of Home Affairs said.


Google Maps already provides very different information for certain regions of the world, including the long disputed border between India and Pakistan. But the government judging the “truth” of photographs and raw data takes this particular overreach to a whole new level.

And it probably won’t be long before India follows France’s lead and directs Google and other providers of geospatial information to only show their view of the world to everyone on the planet.

The Right to Censor

Two years ago this month, the highest court in the European Union declared all of their citizens had a “right to be forgotten”. Specifically, the justices said anyone could request that Google (and other search engines) remove from their results links to information about themselves that was out of date or in other ways irrelevant.

In the time since, the ruling has raised many questions about the concept, and created many more problems than it has solved.

Starting with the fact the court handed Google a great deal of power in determining what information should be “forgotten”. This at the same time the European Union is very concerned about the amount of data being collected by many large, multi-national corporations like Google, as well as where it’s being kept.

Then there’s the confusion over the requests themselves and what happens to the information. Completing the online form doesn’t automatically lead to removing a link. According to a recent report “Google refuses roughly 70 percent to 75 percent of requests”, with the top two reasons being the information concerns the professional activity of the requester or the fact that they “are at the origin of this content”. They also get a lot of compaints from people outside the EU who don’t understand why they can’t play in this game.

Plus, the information “removed” is still stored somewhere on the web. Deleting articles from search results has pissed off European news organizations, some of which now maintain lists of their forgotten links. Is Google now obligated to remove results that bring up those pages? Or to stories about links that have been removed? TechDirt, a Silicon Valley news site that deals in technology and government policy, has been playing with these questions and more by regularly posting on the right to be forgotten with links to “disappeared” stories included, to observe how quickly they are removed.

As amusing as some of the stories related to “right to be forgotten” are, there is a really scary aspect to all this. This is all part of a concerted, sometimes aggressive effort by governments all over the world to control the flow of information.

And not just in their countries. France, for example, has told Google they must “respect French “right to be forgotten” rulings worldwide”. The company is pushing back (for now) but the world is full of disreputable government officials who would like the power to disappear more than just embarrassing information.

Anyway, this issue of censoring digital information is just getting started. In terms of all of recorded history, the internet is a very new communications medium, and very much unlike other undemocratic, more easily controlled channels. It will be interesting to watch just how badly governments and large corporations can screw up the web and the creative new ways of circumventing the blocks people will develop.

For now, happy second anniversary to the “right to be forgotten”, although I’m not sure anyone interested in an open web should be celebrating.

Deleting History

In May the highest court in the European Union decided that everyone living in that jurisdiction now has a new basic human right: the right “to be forgotten”. The facts in the matter are ones many people can relate to, the persistence of unflattering or inconvenient personal information on the web.

In the matter before the Luxembourg-based ECJ, an attorney named Mario Costeja González previously filed a complaint with the Spanish Data Protection Agency claiming that his privacy rights had been violated. Specifically, Gonzalez was displeased that entering his name in Google’s search engine drew results including a legal notice dating back to a 1998 story on his forced property sale to satisfy mounting personal debt.

I find the whole issue fascinating. And as many analysts of the story1 have pointed out, the court’s decision generates far more questions than it provides answers. Starting with, is it even possible to completely rewrite your own history in a digitized, always recording world?

Of all the commentary I’ve seen, this seven minute segment from John Oliver’s new show pretty much nails many of the problems behind the concept of being forgotten.

So, now reports about this decision from the New York Times and hundreds of other media outlets, not to mention posts on thousands of other sites with far less authority (like this one), are posted on the web. In fact, the court’s own ruling is posted online.

Certainly all those documents have been sucked up into search engines and indexed. Are web indexing services obligated to censor all those articles as well? And what happens if I’m in a EU country but do my searching on the US version of Google?

As far as I can tell, the court’s decision only seems to apply to Google and similar general search tools. Is the next step ordering the original source, in this case a completely legitimate legal notice, to pull down the materials? Does the law also extend to social media like Facebook and Twitter. The justices didn’t say.

However, the more difficult question raised by this particular ruling are under what circumstances does information get blocked? The court only said that it should happen “in certain cases where the information contained is deemed ‘inadequate’ or ‘irrelevant’”. No ambiguity there.

From everything I’ve read, it’s not likely a right to be forgotten will be established as matter of general law in the US since the concept of free speech with few limitations has a long established legal history. But there are some efforts to enact what are called “eraser” laws like the California bill due to take effect next year giving “residents under 18 a limited right to delete personal information that they, as registered users of sites and networks, posted online or on a mobile app”.

Anyway, I’m sure there are many more ripples coming from this legal decision and more thinking to be done.

If nothing else, it should bring into question the validity of the search results you get. We already know that Google, Bing, and whoever their competitors are manipulate the listings returned to some degree.

But, in the end, rather than working hard to edit history, wouldn’t everyone’s time and effort be better spent by proactively building the positive internet presence they want the world to see? Certainly less stressful, not to mention fewer legal fees, than playing web whac-a-mole.

One more thing: although he sometimes gets a little hyperbolic (but rarely wrong), Jeff Jarvis’ post “The right to remember, dammit” is also worth a read.