Thursday, October 29, 2015

Privacy group asks FTC to bring Europe's "Right to be Forgotten" to the U.S.

Originally published in

The advocacy group Consumer Watchdog today filed a complaint with the Federal Trade Commission, saying that Google's failure to offer U.S. users the same “right to be forgotten” enjoyed by citizens of the European Union is “unfair and deceptive.”

John M. Simpson, Consumer Watchdog's Privacy Project director, wrote that “Google’s refusal to consider such requests in the United States is both unfair and deceptive, violating Section 5 of the Federal Trade Commission Act.”

European "Right to be Forgotten"

Europe's “Right to be Forgotten” dates back to a May 2014 ruling from the Court of Justice of the European Union (the E.U.'s equivalent to the U.S. Supreme Court, more or less). That ruling regarded a case brought before the court in 2010, by a Spanish national named Mario Costeja González. But the start of Costeja's complaint dates back to 1998, when some of his property was auctioned off to pay back taxes.

In Spain as in America, property auctions for tax settlements are public information and thus count as legitimate news, so the Spanish daily newspaper La Vanguardia published legal notices of the proceedings in January and March 1998.

In 2009, those 11-year-old notices still turned up in Google searches for Costeja's name, so Costeja asked La Vanguardia to take the stories down and also asked Google to stop linking to them, on the grounds that old stories about his debt issues were no longer relevant since his debts had been resolved.

Google and the newspaper both refused Costeja's request, so in 2009 he took his complaints to the Spanish Data Protection Agency which, in July 2010, ordered Google to remove the links but did not order La Vanguardia to remove the stories.

Google challenged the order, the E.U. Court of Justice agreed to hear the appeal, and in May 2014 it ruled against Google. The E.U. “right to be forgotten” essentially says that, while information does not have to be deleted from the Internet (meaning: websites like La Vanguardia can keep their archives online), search engines might have to obey requests to take down links to certain stories.

Court of Justice rulings are legally binding throughout the European Union just as Supreme Court rulings are legally binding throughout the U.S., so Google has obeyed European law while conducting operations in Europe, and U.S. law for its business in the United States.

Seeking similar treatment in U.S.

But Consumer Watchdog's complaint to the FTC (which is available as a .pdf here) criticizes Google for not honoring E.U.-style takedown requests in the United States, specifically:
…. Google’s failure to offer U.S. users the ability to request the removal of search engine links from their name to information that is inadequate, irrelevant, no longer relevant, or excessive. In Europe the ability to make this request is popularly referred to as the Right To Be Forgotten. As [FTC] Commissioner Brill has suggested it may more accurately be described as the Right Of Relevancy or the Right To Preserve Obscurity.
Consumer Watchdog went on to explain why the “right of relevancy” is a necessary consumer-privacy protection:
Before the Internet if someone did something foolish when they were young – and most of us probably did – there might well be a public record of what happened. Over time, as they aged, people tended to forget whatever embarrassing things someone did in their youth. They would be judged mostly based on their current circumstances, not on information no longer relevant. If someone else were highly motivated, they could go back into paper files and folders and dig up a person’s past. Usually this required effort and motivation. For a reporter, for instance, this sort of deep digging was routine with, say, candidates for public office, not for Joe Blow citizen. This reality that our youthful indiscretions and embarrassments and other matters no longer relevant slipped from the general public’s consciousness is Privacy By Obscurity. The Digital Age has ended that. Everything – all our digital footprints – are instantly available with a few clicks on a computer or taps on a mobile device.
However, the letter goes on to point out that U.S. law already recognizes a “right of relevancy” in certain cases, such as credit reports – the Fair Credit Reporting Act requires that information about debt collections, civil lawsuits, tax liens, and similar matters becomes “obsolete” after a certain period of time (usually seven years) and must henceforth be removed from consumers' credit reports.

"Right to be Forgotten" could be useful

Consumer Watchdog offered examples of cases where a “right to be forgotten” might prove useful, including:
A guidance counselor was fired in 2012 after modeling photos from 20 years prior surfaced. She was a lingerie model between the ages of 18-20, and she had disclosed her prior career when she first was hired. Despite this, when a photo was found online and shown to the principal of her school, she was fired.
Arguably, in cases such as that – the counselor openly admitted her previous career when she was hired, which clearly caused no problems until the principal took umbrage at a photograph from half a lifetime before – what the woman needed wasn't a “right to be forgotten” so much as “protection from a hypocritical employer.”

But Consumer Watchdog also offered examples of European link-removal requests, those honored by Google under the “right to be forgotten” and also those requests Google did not honor: “A woman in Italy requested that Google remove a decades-old article about her husband’s murder, which included her name. The page was removed from search results for her name.  A Swiss financial professional asked Google to remove more than 10 links to pages reporting on his arrest and conviction for financial crimes. Google did not remove the pages from search results.”

Last month, Google did implement a policy change in the United States, specifically to crack down on the practice of “revenge porn” — the practice wherein people (usually angry ex-lovers) post identifiable nude or sexually explicit photos of their partners, along with the partners' names, links to their social media accounts and other identifying information, with the intention of humiliating them and/or damaging their careers.

On June 19, Google said that henceforth, the company would honor requests from victims to remove “revenge porn” images from its search engine, and stop linking to the results. Consumer Watchdog mentioned this in its complaint to the FTC, and said “Google's approach to removals in the United States underscores the unfairness of offering the Right To Be Forgotten to Europeans, but not to Americans. As clearly demonstrated by its willingness to remove links to certain information when requested in the United States, Google could easily offer the Right To Be Forgotten or Right to Relevancy request option to Americans. It unfairly and deceptively opts not to do so. … Americans deserve the same ability to make such a privacy-protecting request and have it honored.”

Legal differences between continents

Of course, Americans (unlike Europeans) have First Amendment guarantees of free press and free speech, which sometimes means that laws allowable in the E.U. wouldn't pass constitutional muster in the United States (and, conversely, that certain U.S. laws might fall short of privacy protections in the E.U.).

For example: in Europe, you won't find many websites like ConsumerAffairs or Yelp, for the simple reason that businesses can bring libel charges against anyone who speaks ill of them and have a reasonable certainty of winning, even if the criticism is accurate.

It is true, as Consumer Watchdog pointed out, that the so-called “right to relevancy” exists regarding some forms of personal information: you generally aren't expected to repay a credit card debt if it's more than seven years old, for example, and even a declaration of bankruptcy will eventually drop off your credit report so that you'll once again be able to apply for fresh lines of credit.

But should individuals be required to “forget” these things about other individuals, too? Here's an example Consumer Watchdog did not include in its complaint to the FTC: in 1998, a man named Mario Costeja González (remember him?) fell so far behind on his taxes, the authorities ended up auctioning off some of his real estate holdings to settle the debt — and now the European courts agree he has the right to expect everyone else to forget about it.

If Costeja does business in the United States, he already has that right, at least in financial matters — a debt resolved in 1998 would've dropped off his credit report seven years later, and wouldn't affect his ability to get a mortgage or other loan in mid-2015.

Now suppose that after getting that loan, he celebrates and drinks excessively at a nearby bar where he meets an attractive single woman (or man, if that is his preference). They get to talking and decide to start dating. Things start getting serious and at some point she types his name into a search engine because that's what people do nowadays when dating someone new.

Love alone is not enough to make a happy marriage: you also must share compatible values, especially in financial matters. So, if a woman who is very prudent and careful with money starts dating a man who, as an adult, once let his affairs get in such disarray that the authorities auctioned off his property to settle tax debts, whose rights take precedence here – the man's presumed right for everyone to forget how irresponsible he once was, or the woman's presumed right to get an accurate answer to such questions as “Has my potential partner ever been spendthrifty enough to make headlines?”

In the European Union, the man's rights take precedence here. Under current U.S. law, it's the reverse. Whether that status quo needs changing, and by how much, is shaping up to be the next big privacy-rights battleground in America.