Util/Trutil with Tom Placido: RTBF in the US (Part 2)

Picking up where we left off, today’s installment of Util/Trutil will go over a few of the possible advantage areas offered by implementing the right to be forgotten (RTBF) in the US. In particular, we’ll be focusing on an economy advantage, a privacy advantage, and advantages to individual removal.

First is the economy advantage. There are many different aspects of this advantage, and a variety of internal links that affirmatives can deploy to prove that the right to be forgotten would provide a benefit to the US economy. We’ll start by going over a few different internal link arguments, and then addressing possible turns that the negative might make.

The strongest economic benefit stems from an increase in e-commerce that is spurred by RTBF. Although the Internet plays a significant role in the lives of Americans, a lack of trust in data protection and the security of online activity diminishes the extent to which Americans engage in online activity. The argument goes, then, that establishing RTBF in the US gives individuals more confidence that their online behavior does not follow them forever. Individuals are hence more likely to increase their Internet participation via things like social media and online shopping. Without the possibility of an embarrassing photo or an overly revealing status update damaging your future reputation, individuals will no longer be deterred from fully engaging in digital life. Increased participation thus encourages increased growth in Internet business, and advertising revenues increase as well. The following card (though it’s in the context of the EU) sums up the argument fairly well:

RTBF is key to continued economic expansion of online industry—consumer protection is a necessary incentive.

Venables 13, (Michael Venables, Contributor to Forbes, “The EU’s ‘Right To Be Forgotten’: What Data Protections Are We Missing in the US?” 3/08/2013, http://www.forbes.com/sites/michaelvenables/2013/03/08/the-ecs-right-to-be-forgotten-proposal-in-the-u-s/) [PDI]

The European Network and Information Security Agency (ENISA) has been working on a framework that sees data protection as a basic human right, a protection that is offered to consumers within a social context. Since consumers drive economic development, their “online trust” must be preserved. And, preserving that consumer trust is where consumer data protection becomes essential to the online economy. I communicated via email with ENISA’s Head of Technical Department, Steve Purser and Mina Andreeva, Spokeswoman for Vice-President Viviane Reding, EU Commissioner for Justice, Fundamental Rights and Citizenship about the E.C.’s “right to be forgotten” proposal, and what we might learn about protecting the digital data of U.S. consumers.¶ Venables: Building consumer trust is linked to economic development — consumers whose data is protected will be willing to use new online services, use new technologies and drive economic development. This approach to consumer trust protects the rights of the online consumer, both in terms of human rights and as a form of economic right. Are consumer protections a form of economic incentive, as well as a protection of personal data information for the EU?¶ Purser: The starting point for the EU is that data protection is a fundamental human right, and the ENISA report ‘The Right to be Forgotten – Between Expectations and Practice’ is looking into the technical aspects of the right to be forgotten. To that picture, you have to add the entire context of cyber security, or Network and Information Security in the Digital Agenda for Europe. The ICT sector constitutes around 5% of GDP, but contributes to an amazing figure of 25% of business research and development spending. The Internet sector in Europe is growing by 12% and represents the size of the Belgian economy. The digital economy is growing seven times faster than the rest of the economy. It is clear therefore that we should make full use of our digital opportunities to contribute to a strong EU economy and this is why the Digital Agenda is advocating ICT as a driver for the economy. In this sense, consumer protection is indeed a form of economic incentive. By providing citizens with a safe and secure environment for carrying out their daily activities the EU is encouraging the adoption of new technologies that will be instrumental in bringing about improvements in efficiency and effectiveness.

The second internal link of note revolves around the reputation management industry. Due to some of the inherency concerns outlined in Part 1 of this article, companies have already sprung up in the status quo that specialize in managing the online reputation of their clients. If RTBF were to be established, this industry would see a huge boom in business as individuals seek out professionals to help them file their requests for the deletion of Internet search links. While the magnitude of this link is fairly small, reputation management is still a multi-billion dollar industry:

RTBF boosts the reputation management industry—grows the economy.

Frizell 14, (Sam Frizell covers business and breaking news for TIME, “There’s a “Right To Be Forgotten” Industry—and It’s Booming,” July 18, 2014, http://time.com/3002240/right-to-be-forgotten-2/) [PDI]

But Google is not the only company scrambling in the wake of the E.U.’s decision. As Internet users begin requesting that unsavory parts of their pasts or personal contact information be erased from Google’s search results, so-called reputation management companies are seeing a flood of new business. Traditionally confined to creating new web content about their clients—laudatory blog posts, celebratory articles, swooning social media updates—these companies are now trying to help their clients erase content as well. “Online image management has long been in the business of producing new content so you have a better persona online,” says Cayce Myers, a professor at Virginia Tech and legal research editor for the Institute for Public Relations. “Here they’re doing the reverse.”¶ Online reputation management is a growing business that is now being boosted by the E.U. ruling. For a fee that can amount to thousands of dollars a month, companies take on clients and scrub clean their search results by creating search engine-optimized content that hog up the first few pages of search results on Google. Clients ranging from CEOs, major corporations, celebrities down to doctors and restaurateurs who use the services to whitewash their online presence. Media consultant BIA/Kelsey forecasts that small and medium-size businesses will spend $3.5 billion managing their online reputations in 2014.¶ Now, the E.U.’s court ruling has changed the dynamics of the industry, expanding these businesses’ client base and making it easier for them to delete content rather than just create it. “The number of our inbound leads”—new referrals—“has gone up about 50 percent since the beginning of May,” says Simon Wadsworth, managing director of the U.K.-based online reputation management firm Igniyte. The E.U. ruling “has raised awareness of the industry. You can change how you do things online.”¶ Bertrand Girin, the founder of a France-based reputation management company, Reputation VIP, has created a spin-off service that specifically to designed to help people make “right to be forgotten” requests to Google. Aptly named Forget.Me, it lets users choose from one of 40 boilerplate requests in nine separate categories in order to send Google a pre-formulated request. The service, which is free, allows users to bypass some of the thorny legal questions and the difficulty of properly structuring a request. “When Google put its form online, we looked at the demand from the public and we saw a gap,” says Girin. “We said, ‘let’s help people understand what their problem is.’”¶ Forget.me has 17,000 registered users who have submitted over 2,500 applications to Google. The boilerplate response responses, which were written by lawyers, can be modified by users to address more specific claims. Girin is promoting the service as one that makes it easy for regular people to be forgotten on the internet. Dealing with Google is a “bureaucratic hassle,” says Myers, the legal research editor for the Institute for Public Relations.”You can technically do it yourself for free, but navigating the bureaucracy is in a state of flux.”¶ “I can see where it could be cumbersome,” he adds.¶ The buzz around right to be forgotten has given these companies much-wanted attention. Andy Donaldson, the CEO of the reputation management company Hit Search, has invested heavily in building and marketing a search software that allowed users to monitor their own online personas over multiple platforms. But Donaldson said that since the E.U. ruling, the number of his company’s new client leads has increased by “upwards of three or four hundred.” “We invested in post-graduate doctors in computer science and mathematics to help us build our algorithm,” Donaldson said, “But it ends up being something like this that triggers the market that’s really totally out of our control.”¶ Donaldson gave an example of how the E.U. ruling has been a boon for business. (He couldn’t disclose the names of his clients.) The CEO of a large U.K.-based company was involved in a dispute during a friendly rugby match with a well-known journalist. The journalist wrote a damning story about the incident, blaming the CEO. The CEO’s wife, having just read about the E.U. ruling, sought out Hit Search to get the story removed from Google’s search results. The request is unlikely to be successful—Google is reticent about removing news stories on public persons—but Donaldson won a client lead.¶ Google has taken a hard-nosed stance toward many of the requests reputation management firms have made, with the overwhelming number of takedown requests coming back with refusals. Donaldson said he has sent hundreds of requests for his clients to Google; of the requests Google has responded to, under ten percent have been accepted, he says. That’s because Google isn’t likely to take down a search result like a newspaper story about a public figure, for instance, or a negative review about a roofing company.¶ “People think we’ve got some magic button in Google and we press delete,” says Wadsworth, the CEO of Igniyte. His clients often ask for links to be removed that won’t pass Google’s bar. “We’re telling the majority of people, ‘you’ve got no chance,’” Wadsworth says.¶ Their success rates aside, the right to be forgotten ruling is going to drive business growth for some time to come. “This is a first step into a general public market. It’s a big market,” said Girin. “I think there’s a real demand here.”

A common economy-based disadvantage that negatives will deploy will say that RTBF imposes undue financial regulations on Internet companies. Indeed, the ECJ ruling specified that if companies refused to comply with valid takedown requests, they could be liable for up to 2% of their income. That penalty is extremely steep, and could hamper innovation in online business.

There are two ways to use the affirmative to answer this disadvantage. On the one hand, affirmatives could use the two internal links outlined above. Boosts in consumer confidence in the Internet outweigh any financial burden on companies, plus that burden is offset by the gains achieved by companies that specialize in reputation management. On the other hand, affirmatives could impact turn the idea of regulating online businesses. This turn is where the third economy internal link applies. Though this literature is a bit less mainstream, there are a decent number of authors who write about the pitfalls of the virtual monopoly that exists amongst Internet search engines. Google controls a huge percentage of the search engine market, and regulations that challenge that market power could be beneficial for competition between Internet businesses and the growth of the online economy long-term. The following card explains the gist of the argument here:

RTBF is key to challenge Google’s monopoly on the Internet.

Leatherwood 14, (Evan Leatherwood, Slifka Fellow at the Bernard L. Schwartz Center for Media, Public Policy, & Education at Fordham University, “Why Google’s Removal of News Links in the EU Is a Good Thing,” 07/09/2014, http://www.huffingtonpost.com/evan-leatherwood/why-googles-take-down-of-_b_5572225.html) [PDI]

Because the EU has recognized a “right to be forgotten,” it is now possible for European citizens to request that Google remove links to stories that provide information about their lives. This means that the BBC and other news outlets are starting to get notices from Google informing them that some of their content will no longer come up in Google searches.¶ There are two ways to look at this. The first response, which we will no doubt hear from Google itself, is that an overweening EU government is giving its squeamish citizens the power to edit history. “It’s just like Orwell’s 1984,” we will no doubt hear, “We cannot let the record of the past be deleted just because some people are uncomfortable with it!”¶ This response makes sense only if you already equate what comes up in a Google search with an objective record of history. I have written in The Nation about the dangers of treating Google’s search algorithm as an objectively relevant response to any query. When you search for a term on Google, at least 57 different variables determine the list of responses you get, and not all of those signals are objective.¶ For example, If I search for “next gen iPad” on my computer, I’ll not only get a different set of results than you will, but some of both of our results will be links to ads for companies that have a relationship to Google, mixed in with news stories about Apple’s product line. Google has already been warned by the US Federal Trade Commission not to surreptitiously direct search traffic back to its own services rather than out into the rest of the Web. The European Commission has warned Google about exactly the same behavior. If you’re looking for an overweening power that wants to rewrite the record of the world’s information, it isn’t the EU but Google itself that you should be worried about.¶ The furor over Google’s removal of news links in the EU will, I hope, alert people to the dangers of allowing a single, commercially motivated entity to effectively be the sole gatekeeper and organizer of the Web’s information. Google will tell you that the competition is “just one click away,” but their dominance in search is unquestionable. They control something like 67 percent of search traffic in the US and close to 90 percent of it in the EU. If it’s not on Google, it doesn’t exist.¶ I have written before about why I think the right to be forgotten is a good thing. But that doesn’t mean that I think we should allow history or the record of recent events to be eradicated. That’s why we have libraries and long established rules for classifying and judging the value of information, e.g. the Dewey Decimal System and peer reviewed scholarship. That’s why we have encyclopedias and newspaper archives. I am writing this very post from deep within a library in Manhattan, where, if I want to know something, I can go downstairs and ask a librarian, who will point me toward a pile of printed information, some of which has been unmolested by the shifting concerns of the outside world for decades. I don’t have to worry about whether this library is changing its shelves around based on an undisclosed commercial relationship it might have, or whether the librarian I am talking to is being paid by somebody or pressured by the government to hide certain sources of information. Or whether, for that matter, the library is handing over my browsing habits to the NSA.

The second general advantage area to address is related to privacy rights. If codified as a civil right, RTBF would serve as a basis for a broader right to Internet privacy, which has two important consequences. First, RTBF would bring the US into conformity with the ECJ ruling, which streamlines regulations imposed on international online businesses and makes ecommerce between the US and EU easier.

Cooperation on US and EU data privacy frameworks is key to international trade and innovation—US legislation on RTBF is key.

The Economist 12, (The Economist, “Privacy Laws: Private data, public rules,” Jan 28th 2012, http://www.economist.com/node/21543489) [PDI]

The EU’s 500m residents will also win a brand new right: to be forgotten. Users can not only request that a company show what data it holds on them; they can also demand that it deletes all copies. Critics say this is impractical, vague, and over-ambitious. It is hard to say where one man’s data end and another’s begin. And once something is online, it is virtually impossible to ensure that all copies are deleted. Small firms will struggle; even big ones will find the planned penalties steep.¶ Even more contentiously, the directive covers any firm that does business with Europeans, even if it is based outside the EU. America’s Department of Commerce sent the Commission a strong 15-page protest, saying that the directive “could hinder commercial interoperability while unintentionally diminishing consumer privacy protection”.¶ An ocean of data¶ That stance reflects differences in American and European attitudes towards data protection, and indeed to regulation in general. America has avoided overly prescriptive privacy legislation, believing that companies should generally regulate themselves. Only when firms fail at self-regulation does the Federal Trade Commission (FTC) step in. It has broad powers to tackle unfair and deceptive practices, and has not hesitated to use them. In recent rulings, Google and Facebook agreed to a biennial audit of their privacy policies and practices for the next 20 years.¶ European sensitivities are different. A Eurobarometer poll last year found that 62% of Europeans do not trust internet companies to protect their personal information. A big reason is history. In the 1930s Dutch officials compiled an impressive national registry. This later enabled the Nazis to identify 73% of Dutch Jews, compared with just 25% in less efficient France, notes Viktor Mayer-Schönberger of Oxford University in his book “Delete: The Virtue of Forgetting in the Digital Age”.¶ For the global digital economy, differences in privacy laws are a kind of trade barrier and a costly brake on innovation. In the past Europe and America reached a compromise with the “safe harbour” framework of 2000. As long as American companies adhered to certain principles based on the 1995 directive, they could do business in the EU.¶ The arrangement has worked well, but America now worries that when its new rules come in the EU may want to rejig the deal. America might have more bargaining power if it had its own privacy law on the statute books, some experts argue; in any case public concern about data protection is growing there. On January 24th Google triggered an outcry when it announced that from March it will share data gleaned from people logged into any of its services with all of its businesses, whether those users like it or not.¶ The administration is hurrying to catch up. In its report, the White House will recommend a legal framework for privacy, plus new codes of conduct. The chances of legislation passing in an election year are slim, even on what is usually a bipartisan issue. Talks among business lobbies, privacy activists and regulators may at least produce non-statutory codes, though without the imminent threat of legislation some companies may dawdle.

Second, establishing a robust Internet privacy right in the US could easily spill over into other discussions of Internet privacy. Some authors have suggested that implementing RTBF in the US spurs broader action to protect individuals from the online spying conducted by the NSA, for example. The link is not as direct as it could be, but there is a decent argument to be made that the legislative codifying of RTBF could provide an outlet for the (inter)national outrage brought on by the NSA scandal.

RTBF can curb flagrant privacy abuses by the NSA

Goldsborough 14, (Reid Goldsborough is a syndicated columnist and author of the book Straight Talk about the Information Superhighway. Teacher Librarian 42.1, Oct 2014: 64,67) [PDI]

In this country, there’s great concern among experts and ordinary users alike about government and corporate efforts to tap into the information people share on the Internet. People worry about the surveillance of e-mail and phone records by the U.S. National Security Agency to protect against terrorism, as well as the mining of postings by companies such as Facebook and Google to maximize their advertising revenue. On the positive side, new laws and regulations may prevent the most flagrant privacy abuses. Already, in Europe, the “right to be forgotten” on Google and other search sites is beginning to become established as law.

The final category of advantages to discuss concerns those advantages that are based on the more concrete impact that RTBF will have on individuals once it is implemented. Rather than focus on the institutional changes and international signals sent by RTBF, these advantages center on the people for which RTBF was designed. The ability to remove embarrassing or incriminating information about yourself is certainly reassuring to individuals, and can be used as a bulwark against serious harms like cyber-bullying and revenge pornography. RTBF also helps people stuck in structural unemployment simply due to an unscrupulous moment of their past that has been forever memorialized on the Internet. These advantages are also strategic because they have a high probability of occurring, though they might not race to the terminal impact of extinction that potentially results from the collapse of the economy or international relations. Some sample pieces of evidence to get you started on this type of advantage are included below.

RTBF would allow teenagers to take down photos and videos that cause harassment and bullying

Ambrose et al 12, (Meg Leta Ambrose, doctoral candidate, Nicole Friess, JD, LLM, associate of Holland and Hart LLP, and Jill Van Matre, JD, associate director of University of Colorado’s ATLAS institute. “SEEKING DIGITAL REDEMPTION: THE FUTURE OF FORGIVENESS IN THE INTERNET AGE” 11/6/12) [PDI]

Increasing aggregation and availability of information online means the past can be stirred with greater frequency, triggering memories that would have otherwise been forgotten. Philosophy professor Avishai Margalit argues persuasively that successful forgiveness requires the “overcoming of resentment” that attends the memory of the wrong done.96 As individuals will acutely reexperience the humiliation or pain of their indiscretions, offenses or tragedies when memories of such come to mind, the Internet Age has decreased the chances of successful forgiveness.97 When Montgomery County, Texas district attorney Brett Lignon began Tweeting the names of drivers arrested for drunk driving, he stated, “There is an embarrassment factor, the scarlet letter of law enforcement.”98 A number of sites post arrest information, complete with photo, name, and arrest details.99 The posts are not updated100 as the charges progress. Moving beyond an arrest, no matter the innocence surrounding the incident, is more difficult in the Digital Age. The “scarlet letter of law enforcement” was not generally pinned to those simply arrested in an analog world. Judgments can turn inward in the context of cyberbullying. Fifteen year old Amanda Todd took her own life after posting a desperate YouTube video explaining the details of her bullying.101 In the video, the vulnerable girl explained that the scandalous image she had been convinced to create had led to brutal on and offline torment.102 She suffered from depression and anxiety; in the video, she holds a card that reads “I can never get that Photo back.”103 Overly vivid memories keep resentment alive.104 The time is ripe to ask whether the Internet should be a forgiving place or a resentful one—whether technology is an impediment to the wellbeing of society.

Criminal records harm many aspects of people’s lives – forgiveness and reintegration is the only solution

Ambrose et al 12, (Meg Leta Ambrose, doctoral candidate, Nicole Friess, JD, LLM, associate of Holland and Hart LLP, and Jill Van Matre, JD, associate director of University of Colorado’s ATLAS institute. “SEEKING DIGITAL REDEMPTION: THE FUTURE OF FORGIVENESS IN THE INTERNET AGE” 11/6/12) [PDI]

The stigma of bankruptcy can pale in comparison to that of a criminal conviction. Individuals who violate the law and are judged offenders are punished in part through the loss of certain basic civil rights and social standing. Apart from impairment of self-esteem and informal social stigma, a criminal conviction negatively affects an individual’s legal status.180 For example, ex-offenders may be ineligible to vote181 or hold public office,182 and federal law bars many persons with certain convictions from possessing firearms,183 serving in the military,184 and on both civil and criminal juries.185 “The point of punishment is not to ostracize criminals into a permanent underclass, . . . [but to] exact appropriate retribution and prepare offenders to return to the fold.”186 Forgiving and reintegrating offenders is valuable both symbolically and practically—it incentivizes reform, highlights a law-abiding way of life, and reflects “the humaneness of a society that, having denounced and punished, can rejoice over the return of its prodigal sons.”187 The following sections explore several ways criminal law in the United States incorporates forgiveness and why it does so.

RTBF prevents info from getting out that could harm employment

Messenger 12, (Messenger, Ashley, Michigan Law. What Would a “Right to Be Forgotten” Mean for Media in the United States? Communications Lawyer: Publication of the Forum Committee on Communications Law, American Bar Association. 29.1, Jun 2012: 29-37.) [PDI]

The intent of the Regulation is to target information that is potentially embarrassing. A spokesman for Viviane Reding, vice president of the European Commission and EU justice commissioner, said “Maybe you’ve been at a party, up until four in the morning and you or someone you know posts photos of you. Well, it’s a harmless bit of fun, but being unable to erase this can threaten your job or access to future employment.“35 She added that once you exercise your right to remove data, “there shouldn’t even be a ghost of your data left in some server somewhere. It’s your data and it should be gone for good.“36

Well, that about wraps things up for our two-part series on writing a US-focused plan for RTBF. If you have additional thoughts, questions, or think we’ve forgotten something, please leave a comment below. Until then, we hope this article series gets you started on writing a great plan for the new topic!