The internet never forgets
Back in 2010, the newsdesk at The Age received a desperate plea from a man who wanted to be forgotten. Let's call him Alan. A young and foolish businessman, he was arrested 10 years ago at Melbourne airport when a baggage check found cocaine and another banned drug.
The Age published a simple, factual story in the paper and online, reporting his arrest, his contrition and his sentence - a good-behaviour bond without conviction. Alan promised the magistrate he would mend his ways. But Google never forgets. Today, if you Google Alan's real name, his past is exposed at the top of the search results: a link to The Age's report with a damning headline.
"This story still haunts him," a close friend and colleague of Alan tells The Age. He is now "a sober man who has learnt from his mistakes" trying to get back into his former industry. But everyone Googles potential employees these days. "It has been eight years," the friend said in email. "Let's try and give him a shot ...rather than have some headline cut down his chances."
The Age declined Alan's plea, and nevertheless he found work. But he, and many others, for countless reasons, have their crimes, misdemeanours, foibles or embarrassing photos forever preserved in the eternal memory of the digital mind.
In Europe's highest court, judges are considering Spaniard Mario Costeja's attempt to stop Google turning up an online newspaper announcement that a property he owned was up for auction for failing to pay taxes. Spain now has more than 200 similar cases.
In Argentina, pop star Virginia Da Cunha filed suit against Google and Yahoo! when searches for her name turned up old, explicit photos published on sex sites. Last year there were reportedly 130 cases pending in the country, from entertainers, models and others demanding the removal of user-generated content.
And in Austria, 25-year-old Max Schrems has become famous for his war with Facebook, which he plans to take to court after he forced it to detail the incredible 1222 pages of data it held on him: pokes, likes, comments, photos, including data he had tried to delete, and data he could not normally access but was for Facebook's own use.
"I don't know that it's a new problem but the scale of the problem is vastly greater," says Jeffrey Rosen, professor of law at the George Washington University. "The difficulty of escaping your past is greatly magnified in an age when every word we speak and every tweet and every Facebook status update is recorded forever in the digital cloud.
"It used to be that only celebrities would have to worry about embarrassing things people wrote about them in the newspapers - now each of Facebook's 1 billion users has the same problem, without the resources to manage their reputation online.
"In the age of Google, the worst thing you've done is the first thing that people know about you."
Michael Fertik has built a new business model on reputation management for the average Joe - he's the founder of Reputation.com. He puts the problem in even starker terms.
"Right now the basic internet [revenue] model is built on the invasion of your privacy," Fertik says.
"The basic internet model is: give you something free, collect your data and sell your data. Most of the big businesses on the internet [for example, Facebook, Google] are built on that model. Right now the status quo, the posture of the status quo, is the status of being dominated by people you can't identify.
"Your data is being exploited all the time by people you can't identify. And that's just backward. Now we have to rescue the truth by calling it 'the right to be forgotten', instead of saying 'the right not to be raped by people you can't identify'."
The right to be forgotten. It's an old European idea, dating back to pre-internet days when people wanted to expunge their criminal pasts from the public record. In France it's poetically dubbed the "droit d'oubli", the right to oblivion.
Now the European parliament is debating legislation that updates the idea for the digital age. Under the new law, everyone would have the right to rectify and even erase personal data concerning them, if it was held or published by a commercial entity. If that right is denied, massive fines apply.
European Commissioner for Justice Viviane Reding says personal data has become many companies' most prized asset. "Data is a valuable commodity - a digital currency," she says. "Consumers need to be able to trust businesses with such a commodity. Right now, this is not the case. People don't always feel in full control of their personal data.
"Even tiny scraps of personal information can have a huge impact, even years after they were shared or made public. It is the individual who should be in the best position to protect the privacy of their data by choosing whether or not to provide it."
The right isn't absolute. There is public interest in protecting the archives of a newspaper, or scientific research, for example. "The right to be forgotten cannot amount to a right of the total erasure of history, [nor must it] take precedence over freedom of expression," Reding says.
But the proposal has inspired intense opposition from Silicon Valley, which has recognised the massive threat such a law poses to its revenue stream. Google's global privacy counsel Peter Fleischer has been one of the law's most scathing critics.
He argues a right to be forgotten would destroy "databases of great value and beauty, and we will someday learn it would be a sin to obliterate them". Botticelli burnt some of his paintings during an anti-vice purge, before he realised his tragic mistake.
"Over and over again, especially in Europe, I see 'privacy' being used as a justification to censor free speech," Fleischer wrote on his blog (he declined an interview with Fairfax, pointing us to his blog instead). "I don't understand how we could protect notions of freedom of speech, and the neutrality of search engines, if people could decide themselves which terms they did not want associated with their names."
Fleischer calls the right to be forgotten "more pernicious than book burning". "[It] attempts to give to individuals the legal rights to obliterate unpalatable elements of their personal data, published in third-party sources," he says. "This is a deeply pessimistic ideology, which concludes that retaining data can give rise to future risks and to future benefits, but since we don't yet know what they are, we should default to deleting the data to prevent the risks, rather than retaining them to enable the benefits."
Rosen takes a slightly different view. He says it is fairly uncontroversial to assert a right for people to remove pictures (or other content) that they created themselves but now regret - such as the young teacher in training in the US who put a picture of herself on Myspace as a "drunken pirate" and lost her job.
"It becomes controversial when the content is shared by others," Rosen says. "It raises serious questions of free expression. Though I sympathise intensely with the problem of digital forgetting on the internet, I do not think it's a good idea to create a broad new legal right to remove information that has been widely shared."
Then there is a third category of information the proposed law would cover: information about you, posted by others.
"That right ... would allow me to object to snarky blog posts about me written by someone else, and leave it up to a privacy commissioner to decide whether or not it's in the public interest," Rosen says. "That's really where the gravest threat to free expression comes from. It sweeps so broadly, it completely challenges the idea that truthful but embarrassing information should not be able to be removed, that it's necessary for public discourse.
"And it would transform Google and Facebook into censors-in-chief. It really would transform the nature of the internet."
Reputation.com's Fertik agrees. But, so what? In the modern world, most employers look up prospective employees online. Hell, "every single person you date looks you up online", he says. "Every kind of life transaction now that we live through is based on our data, our digital footprint. And it's very easy to get the wrong impression about someone on the internet. For the first time, the data is out there, so your reputation is, correctly or incorrectly, ascertainable by everyone. Therefore we have to adapt."
Fertik says he "loves" the proposed right to be forgotten. He thinks it's "awesome".
"I'm an American, so I usually believe in free-market solutions to problems. I do believe that we can solve things without the government. But the concept of the right to be forgotten I think is a very beautiful one.
"It's a very old idea. Ideas about the privacy of the person are as old as Magna Carta ... the internet is highly invasive of this virtue and highly destructive to this virtue. I believe that if you want to live a private life then you shouldn't have to avoid the internet."
He says it is transparent why many Silicon Valley companies such as Google and Facebook, who depend on revenue from personally targeted advertising, oppose the law.
"[They] go to Congress and go to Brussels and say, 'No, don't change the status quo, don't do anything because what will happen is something called innovation will be killed'. And 'innovation' sounds like a magical word. But in Silicon Valley, innovation is just a disguising word for revenue. That's all it means.
"For sure, Google and Facebook will suffer if there's a right to be forgotten. They're going to have to take different steps and find out different ways to do business. But they are not the internet. Other companies will thrive. There will be new entrepreneurs with new methods."
Anna Fielder, advocate at Privacy International, which has campaigned for the right to be forgotten, says it is not just a matter of protecting unwary teenagers from future embarrassment or discrimination. We should not be distracted by potential harm, we should assert a fundamental right.
"[It] is a question of you having control over your private life," she says. "I might not want to share data after a certain time with certain people, it's my right to do so. [Do] you really want a third party, that you use as a platform, to dictate to you what they keep and not keep about your private life and private thoughts?"
She finds it hard to believe Google, Facebook and the like could not adapt. "There are so many really clever technological means of mining your data and profiling you. Why is it so difficult to create the reverse, a privacy-enhancing technology?"
Rosen says one option is "disappearing data". When we post something online we could choose whether it stays online a day, a year, or forever, and encryption technology can ensure it will be unreadable after that point.
Already there are apps such as Snapchat, which allow people to send instant messages that disappear forever a few minutes after they are sent (though it is hard to stop people copying this ephemeral data to prevent it from expiring).
"I think it would at least go a long way towards empowering citizens to manage their online reputation," Rosen says. "Google and Facebook have chosen for financial and other reasons not to make this technology encoded into their platforms, but legal or political pressure might encourage them to do so."
Another possibility, he says, is that people will just become more forgiving. We now barely blink when the leader of a country confesses to rampant drug use in their college years. Maybe a youthful sexting scandal will afflict some presidential candidate in 30 years' time but no one will actually care.
"I'm not sure how optimistic I am on that score," he admits. "It seems to clash with what we know about human nature to assume there will be nothing scandalous and everyone will lead transparent lives and be completely forgiving."
So it is an urgent problem, he says. "I'm just not persuaded that broad, new and largely unenforceable legal rights are the best way to deal with it."