The one absolute in the European Union decision on the Right to Be Forgotten is the level of misunderstanding between the legal and technology communities. Both are trying to make simple a thorny problem through pointing to absolutes.
For the technologists, the frankly inoperable nature of the decision is the problem. The lack of guidelines and certainty even about who has standing; the inability to produce a process that will have predictable or even reasonable outcomes; and finally the sheer complexity of the task are the fundamentals.
For the courts, it is equally obvious that a court ruling must be enforceable to have practical meaning. This is about rule of law. Expunging a criminal record and closing the books on the sometimes deeply personal details that drive that expungement is possible in many jurisdictions. Allowing communities to decide, through law and courts, when forgetting is the greater good is fundamental to self-governance.
Yet another component of this is identity. If we were to have rights over search results then we would have to uniquely identify ourselves to each search engine. This creates a conflict between speech and privacy, and adds another terror to identity theft. One fundamentally inoperable problem in this ruling is the assumption of a ubiquitous reliable authentication mechanism. The court may have not considered this component because identification is such a core function of the legal process that can be assumed. It is a heroic assumption online. The cure (in loss of privacy) could be worse than the disease (of misrepresentation and exposure). Courts can identify individuals and make judgements. Google cannot find a single automated global appropriate algorithm.
And what about corporations? If they are people they can remove complaints. Multinational corporations have legal standing in multiple jurisdictions, by definition. They have the resources to pursue removal of complaints in the friendliest jurisdictions. As we saw in the long-ago domain name battles and for patent trolls long-standing affection for East Texas, forum shopping can be an effective strategy.
It is not possible to make information disappear, but it is possible to bury it deeply. What is possible is changing rankings and search costs. This requires much more of the courts than the current ruling. The courts cannot simply demand on-request changes in ranking (and thus search cost, as well as marketing revenue thus the incentive to share the information). This removes the value of search engines; bringing to mind the baby and bathwater.
Other proposed solutions that offer a quick fix to complex conflict also fail. Delete, for example, is based on a combination of cryptography-is-magic with a solution that is infeasible in terms of human behaviors. It empowers producers of information, not subjects. Similarly, the right of comment implies that all information removal is censorship. It is not surprising that the NY Times editorial page may forget that there are differences in power of speech online. I wince to consider the commenting horrors that would be experienced by those blogging while feminist, trans, or otherwise are subject to vicious pile-ons. Trolling is not just about eating goats under a bridge anymore, and commented results would be the trolls’ dream come true.
We have come to very different conclusions about what should be forgotten in very explicit legal terms across the world. How long can bankruptcy be remembered? When are rape victims named? Who decides what can be buried? The technology reporter can successfully hide his arrest record for domestic violence. He has a very different level of power than the man who aged out of foster care years ago, but is still haunted because his only search result is a conviction for teenage vandalism. The idea of annotated search exacerbates the problem. How could a right to annotate an adult record with a personal history of child abuse, bad foster care, depression, and childhood trauma be helpful in the job market? Yet it is exactly this that may have criminal records expunged.
There are difficult questions. There are hard problems: social, legal, economic, and technical. But they are worth working on and considering as hard problems. Google is the focus because Google has won the market, and with it all these problems. If Google did not exist, problems would remain. Indeed in dealing with many thorny issues, Google has made difficult choices admirably. In contrast, Facebook seems unable to find an issue it cannot exacerbate. Meanwhile, Bing dreams of the market share that would make it a critical point in the discussion. Like other conflicts, a perfect answer is unobtainable. But a more coherent process, one grounded not only in already extant targeting and filtering but also in various jurisdictional practices, is feasible. I do not have an answer, but we will not get one without accepting the others’ fundamentals as valid starting, not end points.