Two cases addressing the complicated concerns of reputation, identity, privacy, and memory in the Digital Age were decided the same day on opposite sides of the Atlantic with different conclusions. The first began in Spain. In 2010, Mario Costeja González requested that a Spanish newspaper remove information about a sale of his property related to insolvency proceedings. When the paper refused, he requested that Google remove the search results that included the information. Google’s refusal led to litigation in the Court of Justice of the European Union. On May 13, 2014, the court ordered Google to edit the results retrieved when González’s name was searched because the information about the property sale was “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine.”1
On the same day in the U.S., two American Idol contestants brought every conceivable claim against Viacom, MTV, and a number of other defendants over online content that led to their disqualification from the television show.2 These two contestants made it to the “Top 32” round when information about their earlier arrests was published on websites like Smoking Gun. The hopeful singers had not disclosed their arrests to the show’s producers. An unexceptional U.S. case, all of their claims were dismissed by the Tennessee district court for two main reasons. First, some of the claims were too old. Even though the Internet allows for continued public accessibility, under Tennessee state law, defamation claims must be filed within one year from the time the content was published. Second, any lawsuit in the U.S. seeking damages for the publication of true information is not going to get far.
Although the facts of the cases differ in ways that matter to the law as well as to public opinion, both involved parties asking the judicial system to limit the damage of digital content that would otherwise remain available for an indefinite period of time. Policy makers around the globe are being pressed to figure out a systematic response to the threat of digital memory—and it is a complex threat involving uncertain technological advancements, disrupted norms, and divergent values.
On October 12, 2012, fifteen-year-old Amanda Todd took her own life after posting a desperate YouTube video explaining the details of how she was bullied.3 In the video, the vulnerable girl explained that a scandalous image she was convinced to create led to brutal on- and offline torment.4 She suffered from depression and anxiety as a result; in the video, she holds a card that reads, “I can never get that photo back.”5 In 2008, Max Mosley, a former head of Formula One racing, was awarded £60,000 in damages by an English High Court in a claim against the British News of the World newspaper for publishing a story detailing his involvement in an allegedly Nazi-themed, sadomasochistic, prostitution-filled orgy—complete with video.6 In an effort to remove the material related to the event, Mosley brought legal action in twenty-two countries and sought deletion from almost two hundred websites in Germany alone by 2011.7 The most recent of Mosley’s claims for removal was filed against Google to hide the remaining links to the story.8 Just months later, terrorists murdered twelve people in Paris as retribution for satirical depictions of Muhammad published by a French newspaper and circulated online, prompting interior ministers from European Union countries to call for Internet service providers to find and take down online content that “aims to incite hatred and terror” as well as to allow governments to monitor activity to prevent future attacks.9
To drive home the importance and difficulty of the issue, imagine the worst thing you have ever done, your most shameful secret. Imagine that cringe-inducing incident somehow has made its way online. When future first dates or employers or grandchildren search your name, that incident may be easily discoverable. In a connected world, a life can be ruined in a matter of minutes, and a person, frozen in time. Keeping that embarrassing secret offline is not as easy as it once was. The wrong button can get pressed, networks can be confusing, people can be misidentified, and sometimes foes—or friends—are vindictive. Your secret may never be disclosed, but it may nonetheless be discovered when the bits of data trails are put together—and you may be the last to know. You may not only suffer dramatically from the discovery and use of your personal information; worry or fear may curb your behavior on- and offline to avoid the risks of unwanted attention, misinterpretation, or abuse. Now imagine the biggest jerk you have ever met, someone you do not want to be able to hide records of his inconsiderate, nasty, spiteful, or twisted behavior. Imagine that no matter what rules you come up with, he will try to abuse them.
The global Internet population is around 2.1 billion people, with over 274 million users in North America and 519 million users in Europe. Every minute in 2012, 204,166,667 emails were sent, over 2,000,000 queries were received by Google, 684,478 pieces of content were shared on Facebook, 100,000 tweets were sent, 3,125 new photos were added to Flickr, 2,083 check-ins occurred on Foursquare, 270,000 words were written on Blogger, and 571 new websites were created.10 The average webpage has fourteen cookies to track users around this massive information network.11 Who should be able to hide or delete information? How do we determine when and what is appropriate to keep or discard?
Since Stacy Snyder became the cautionary tale of social media in 2006, it is well known that employment prospects can be negatively impacted by information on the Internet. Snyder was denied her teaching degree days before graduation because an administrator at the high school where she was training in Pennsylvania discovered a photo of her wearing a pirate hat and drinking from a plastic cup, with the caption “Drunken Pirate,” on MySpace.12 Today these stories are a dime a dozen.13
Jacqueline Laurent-Auger was disappointed when her contract with the private boys’ school where she taught drama for fifteen years was not renewed. The school was concerned about Laurent-Auger’s judgment, explaining, “The availability on the Internet of erotic films in which she acted created an entirely new context that was not ideal for our students. After discussion and reflection, we concluded that adult films must remain just that, a product for adults. That’s why we decided not to renew Mrs. Laurent-Auger’s contract.”14 But it would have been hard for her to predict this consequence of her decision, considering color television was only just becoming available when she filmed the scenes in the late 1960s and early 1970s—nearly fifty years before. On this point, the school stated that the Internet had ushered the “erotic portion of [Laurent-Auger’s] career into the present.”15
In 2010, Mary Bale was caught on video picking up an alley cat and tossing it into a garbage bin. The cat’s owners posted the video online, and within hours, Bale’s name and address were published online, a “Death to Mary Bale” Facebook page and numerous anti–Mary Bale Twitter accounts were created, and she later received death threats.16
When the site Jezebel outed a number of high school students who had posted vulgar, racist tweets after President Obama was reelected, it highlighted many of the controversies and questions at issue with digital memory. The students who were identified deleted the tweets and some their Twitter accounts, but for a number of them, the Jezebel article was already on the first page or the top result when their names were searched on Google. Of course, Jezebel could have covered the story without identifying the teenagers, but as the site explained, “While the First Amendment protects their freedom of speech, it doesn’t protect them from the consequences that might result from expressing their opinions.”17
The web has become a searchable and crunchable database for questions of any kind, a living cultural memory whose implications are complex and wide reaching. The abundance of information online is heavily relied on by prospective professional and social contacts. Around 80 percent of employers, 30 percent of universities, and 40 percent of law schools search applicants online.18 Before a first date, 48 percent of women and 38 percent of men perform online research on their date.19 Thanks to the content that users purposefully place online (wisely or not), the growth of surveillance technologies in everyday devices, and free instant sharing platforms, it is increasingly easy to gain and publish harmful information about others online. “Slut-shaming” and “revenge porn” sites dedicated to humiliating women in sexually vulnerable positions are hotly debated and extremely popular. These sites, which encourage users to post sexually explicit photos or videos of a former lover online with accompanying identifying information like name, address, and workplace, receive fifteen to thirty posts and are visited by over 350,000 unique visitors each day.20 Suicides of cyberbullying victims have been rising and highlight the extreme consequences of online content.21 With over half of adolescents and teens experiencing some form of online bullying, the ability to remove content is in high demand for some people sympathetic to the poor choices that may occur in youth.22 Sites like MugshotsOnline.com collect, organize, and publish millions of mug shots acquired from government agency data sources, allow users to “vote for the weekly top 10,” and include a disclaimer at the bottom of the homepage explaining that those who are included may or may not have been convicted. Public information such as court filings that has been historically difficult to access is now organized and presented digitally in ways that provide a public service as well as risks to individuals identified through the records. In fact, an industry of online reputation management has emerged to counter negative content and search results.
The Internet law scholar Viktor Mayer-Schönberger has warned that the digitization and disclosure of life’s personal details “will forever tether us to all our past actions, making it impossible, in practice, to escape them.”23 The tether is actually a detailed structure of discoverability that relies on a number of technical and social occurrences. All Internet communication—downloading webpages, sending email, transferring files, and so on—is achieved by connecting to another computer, splitting the data into packets (the basic unit of information), and sending them on their way to the intended destination using the TCP/IP standard. When a host wants to make a connection, it first looks up the IP address for a given domain name and then sends packets to that IP address. For example, the uniform resource locator (URL) www.twitter.com/megleta contains the domain name “www.twitter.com.” A DNS resolver computer, commonly operated by the Internet service provider, the company providing Internet service, will perform the domain-name-to-IP-address lookup. Content being sent to users making requests within this delivery system is increasingly stored in the cloud, beyond the reach of the creator.
Search engines continually crawl and index the Internet’s available content. This content is then ranked, with the results most relevant to the user’s search entry appearing first. Search engines have emerged as vital and ubiquitous navigation tools. They compete with one another by refining these ranking systems, but the details of how these systems process and present information are not disclosed. The search giant Google’s goal is to “organize the world’s information and make it universally accessible and useful.”24 In 2009, the company began offering personalized search results based on the data profiles it had for the individual user.25 This data collection to serve users’ personalized content includes logs of each search request, results the user actually saw, and results he or she eventually clicked on. In 2006, John Battelle discovered that Google could identify the IP addresses (and/or Google cookie values) of users who have searched for a term as well as a list of terms searched by an IP address (and/or Google cookie value).26
Prior to the phenomenon of a “Google account,” the company kept the originating IP address, cookie value ID, time, date, search term, and resulting clicks.27 The infusion of Web 2.0 into the search experience asks the user to sign in to Google as a way to utilize its many social services including email, chat, telephony, photo collection, maps, and a social networking site, as well as its ever-enhanced search engine. The privacy policy now explains that the company collects information you give it and information from the use of its services, including device information (such as your hardware model, operating system version, unique device identifiers, and mobile-network information including phone number), log information (including search queries; telephony log information; IP address; and device event information such as crashes, system activity, hardware settings, browser type, browser language, the date and time of your request and referral URL, and cookies), location information (including GPS, sensor data, and WiFi access point), local storage, and cookies and anonymous identifiers when interacting with partner services.28 A number of other companies like Facebook and Twitter are similarly adapting business models based on the opportunity to collect, process, and sell user data by partnering with other sites and services to create a web of trackability.
This brings us to what is known as “big data.” What makes data big is the amount of data created, the number of partnerships that allow the tracking of data across sites and platforms, and growing data markets and collaborations where this information is shared among interested parties. When a user logs onto the Internet and visits a website, hundreds of electronic tracking files may be triggered to capture data from the user’s activity on the site and from other information held in existing stored files, and that data is sent to companies. A study done by the Wall Street Journal found that the nation’s top-fifty websites installed an average of sixty-four pieces of tracking technology, and a dozen sites installed over one hundred.29 These are not the cookies of the 1990s, which recorded a user’s activity to make revisits more convenient. New tools scan in real time and access location information, income, shopping interests, and health concerns.30 Some files respawn, known as zombie cookies, even after the user actively deletes them.31 All of this information is then sold on data exchanges. One of the leading data-trading platforms, BlueKai, which launched in 2008, claimed to have access to over one hundred million unique buyers by 2009.32
Due to ubiquitous connectivity, discoverability is not necessarily limited to a personal computer. Sensors creating data about owners and others from phones, cars, credit cards, televisions, household appliances, wearable computing necklaces, watches, and eyewear, and the growing list of “Internet of Things” devices, mean that more personal information is being disclosed, processed, and discovered. All of these nodes of discoverability will be added to the structure of discoverability sooner or later, if they have not been already.
But, as Julian Barnes writes in his 1984 novel Flaubert’s Parrot, “You can define a net in one of two ways, depending on your point of view. Normally, you would say that it is a meshed instrument designed to catch fish. But you could, with no great injury to logic, reverse the image and define a net as a jocular lexicographer once did: he called it a collection of holes tied together with string.”33 This same structure of discoverability, the net that seems all consuming and everlasting, is full of holes. It is a fragile structure. Digital information is not permanent. Any number of reasons, from lack of interest to site upgrades, can lead to the loss of access to content.
Dependence on digital information puts us at the mercy of bit rot, data rot, and link rot. Bit rot refers to the degradation of software over time. Modern computers do not have floppy disk drives; many of them do not even have compact disk drives. The University of Colorado library has an entire basement space with outdated computer equipment kept just to read old digital formats holding content necessary for research. Data rot or data decay refers to the decay of storage media, such as the loss of magnetic orientation of bits on a floppy disk or loss of electrical charges of bits in solid state drives. Systems that provide growing capabilities to store digital data have been shown also to increase the likelihood of uncorrected and undetected data corruption.34 Link rot occurs when a hyperlink no longer works, when the target it originally referenced no longer exists. The average life of a webpage is about one hundred days. Users may be presented with the disappointing “404 Error Page Not Found” message, or the original content may have been overwritten. As a recent example, in 2014 a team at Harvard Law School found that approximately half of the URLs in U.S. Supreme Court opinions no longer link to the original information.35 Moving from paper to digital offers the benefits and drawbacks of increased discoverability, and information has a different life cycle when stored in digital formats that require a computer to interpret the content for a human reader.
The benefits of increased discoverability are rarely overstated. Promises of improved citizen participation and government accountability, use of resources in every area from power to education, scientific discoveries from reproduction to climatology, understanding of humanities research from history to art, and commercial possibilities justifiably drive us to share. The crisis of decreased discoverability, on the other hand, is rarely acknowledged, but it is vital to meeting the promises of data-based progress, as well as to framing the problem of digital memory. This data-driven march is neither good nor bad, but limitations exist and values must be reassessed and reestablished in order to determine what should be preserved and what may be left ephemeral.
One reaction to the outcry over increased discoverability and the permanence of digital information is a demand for what I call digital redemption or digital reinvention, which refers to the willingness and means to transform digital public information into private information upon the subject’s request, liberating the individual from discoverable personal information. The legal implementation of digital reinvention, the right to be forgotten, has been described as “the right to silence on past events in life that are no longer occurring.”36 This broad concept is controversial and has been called “rewriting history,” “personal history revisionism,” and simply “censorship.”
In 2009, Viviane Reding, then the European Commissioner for Justice, Fundamental Rights and Citizenship, announced her intention to review the EU Data Protection Directive of 1995 (DP Directive).37 This review would include special attention to a right to be forgotten. She explained that “a unified approach at the E.U. level will make Europe stronger in promoting high data protection standards globally.”38 On January 25, 2012, the proposal for the new Data Protection Regulation (DP Regulation) to replace the 1995 DP Directive was released. Article 17 addressed “the right to be forgotten and to erasure.”39 For the first time, the world was presented with an explicit legislative right to be forgotten, under which data subjects would have the right to force the deletion of personal data held by data controllers, with certain exceptions for the protection of other rights and interests. Although the Regulation continues to receive updates (e.g., the title of article 17 has since been changed to “The Right to Deletion and Erasure”),40 the European Union Court of Justice’s interpretation of the 1995 DP Directive in May 2014 in favor of González has been considered enforcement of a right to be forgotten, even though the case itself only dealt with deindexing select pages from search results.
Similar legislative efforts have been presented in the U.S. to address threats to children by online content, but the U.S. is generally considered an anomaly in the arena of privacy regulation. While the EU has embraced a uniform approach to legislating data privacy, the U.S. addresses the issue with situation-specific rules, market-based approaches, and voluntary codes of conduct. This is due in no small part to the U.S. concept of the “firstness” of the First Amendment, which places other rights and interests subordinate to First Amendment rights.41 It is not only the prioritization of expression that divides the U.S. and Europe; variation in treatment of public figures, intimate information, relationships, and context also exists. Differences abound in political structure, administrative procedure, and the role of law itself. These differences between the U.S. and Europe are problematic when one region seeks to protect its citizens with regulations that require the compliance of the other.
Mayer-Schönberger describes a shift in how and what we remember in an age of ubiquitous computing. The Digital Age threatens to shift (or already has shifted) the balance between forgetting and remembering: “forgetting has become the exception, and remembering the default.”42 Human memory has many virtues; its fallibility protects us by revising, forgetting, and contextualizing our pasts. Digital memory on the other hand is considered “more comprehensive, as well as more accurate and objective than the fallible memory of the forgetful human mind.”43 Mayer-Schönberger thoroughly traces the rapid advancements in digital memory, explaining that it is now quite possible to digitally capture and remember every aspect of life for very little money. For him, digital memory “negates time.”44 It becomes difficult for people to detach themselves from humiliating or embarrassing past moments, which can make efforts at self-improvement seem futile. The Internet, as an integral piece of external memory, also prevents one from moving to a new community to re-create oneself and start fresh. Digital memory, in short, prevents society from moving beyond the past because it cannot forget the past.
Although Mayer-Schönberger analyzes how memory has changed and why forgetting is cognitively important for psychological health, the social value at play is not just memory. Choosing to allow individuals to move beyond their past is not forgetting. Forgetting is rarely intentional (and in this way the Internet is indeed forgetful, as discussed in chapter 4). Forgetting as it relates to digital privacy and identity is intended to free individuals from the weight of their digital baggage. It is a larger cultural willingness to allow individuals to move beyond their personal pasts, a societal capacity to offer forgiveness, provide second chances, and recognize the value of reinvention. The legal scholar Jeffrey Rosen notes, “Around the world citizens are experiencing the difficulty of living in a world where the Web never forgets, where every blog and tweet and Facebook update and MySpace picture about us is recorded forever in the digital cloud.”45 As we watch search engines and social networks shift their societal roles, we must wonder if forgiveness and reinvention can and should move into the Digital Age, when information lingers indefinitely and restricts individuals to their pasts. “Forgetting” and “oblivion” are unfortunate, albeit catchy and dramatic, word choices; their negative connotations do no favors to the underlying values they intend to protect. Any manipulation of lingering personal information will threaten numerous interests including technological innovation and economic progress, speech and historical records, and privacy and autonomy, but digital-redemption protects forgiveness.
While definitions of forgiveness vary, most psychologists agree that forgiveness is not forgetting, condoning, excusing offenses, reconciliation, reestablishment of trust, or release from legal accountability.46 These concepts are related but do not represent synonyms or definitions. Many definitions of forgiveness are laden with normative intent. Instead, I utilize a more descriptive and general definition of forgiveness. Simplified, forgiveness means a decision to forgo negative feelings, retribution, or vengeance.47 The broader definition embraces popular understandings of forgiveness. When polled, 66 percent of U.S. adults found “very accurate or somewhat accurate” the statement “If you have really forgiven someone, you should be able to forget what they have done to you.”48 The majority also agreed that if a person is to forgive another, he or she must want to release the other from the consequences of his or her actions49 and that the relationship should be rebuilt.50 These results suggest that, despite scholarly attempts to precisely define forgiveness as unrelated to forgetting, “many people believe that forgiving implies forgetting, reconciliation, or the removal of negative consequences.”51 Although the decision to relinquish negative feelings toward an individual may satisfy the baseline definition of forgiveness, moving forward is the motivation, focus, and goal of those who engage in the forgiveness process. In order to establish a form of forgiveness in the Digital Age, it is important to recognize popular experiences with, and attitudes toward, forgiveness and to bridge those experiences with the described moral value sought to be preserved.
The range of benefits associated with forgiveness can be seen in the research area of restorative justice, which attempts to establish alternatives to retribution.52 Advocates of this movement seek to preserve the rights and dignity of victims, as well as of offenders, often providing opportunities for the parties to meet, communicate, apologize, and forgive.53 Restorative practices result in participants reporting high satisfaction with the process.54 Victim and offender can benefit from restorative processes, while the social goal of judicial efficiency is also promoted by forgiveness, as shown by research examining how apologies facilitate averting lawsuits.55 Some perpetrators who acknowledge wrongdoing and are forgiven may experience a gratefulness that motivates them to reciprocate goodwill through improved behavior and reparations, minimizing repeat offenses.56
A growing body of research strongly suggests that granting forgiveness to others is beneficial in a variety of ways. Individuals who received treatment to help them forgive through the Stanford Forgiveness Project showed significant reductions in anger, perceived stress, hurt, and physical symptoms of stress.57 The Mayo Clinic lists six specific benefits to forgiving: healthier relationships; greater spiritual and psychological well-being; less anxiety, stress, and hostility; lower blood pressure; fewer symptoms of depression; and lower risk of alcohol and substance abuse.58 Being unforgiving can be a core component of stress associated with decreased mental health and increased levels of guilt, shame, and regret.59
Particularly relevant are studies on the physical and emotional impact of rehearsing hurt and harboring a grudge. Once hurt, people both intentionally and unintentionally rehearse memories of the painful experience.60 In this state, individuals remain in the role of the victim and perpetuate negative emotions associated with rehearsing the hurtful offense.61 Nursing a grudge perpetuates the adverse health effects associated with anger and blame.62 Generally, releasing a grudge “may free the wounded person from a prison of hurt and vengeful emotion, yielding both emotional and physical benefits, including reduced stress, less negative emotion, fewer cardiovascular problems, and improved immune system performance.”63 One study examined the emotional and physiological effects of rehearsing hurtful memories or nursed grudges compared with cultivating an empathic perspective and imagining granting forgiveness; it revealed dramatic benefits to forgiving.64 Feelings of valence, control, and empathy all were experienced to a greater degree during forgiving imagery exercises.65 During unforgiving imagery, participants experienced increased heart rates and blood pressure, significantly greater sympathetic nervous system arousal, elevated brown muscle activity,66 and skin conductance, many of which persisted into the postimagery recovery period.67
On an interpersonal level, those who forgive exhibit greater empathy, understanding, tolerance, agreeableness, and insight, resulting in prosocial transformations.68 Those who are less forgiving tend to be less compassionate and score higher in depression, neuroticism, negative affectivity, and vengeful motivations.69 As reported by spouses, one of the most important factors contributing to marital longevity and satisfaction is the capacity to offer and seek forgiveness.70 Children living in areas characterized by violence and poverty who are introduced to forgiveness in the classroom have shown significantly less anger.71 Families that report a history of forgiveness have better individual member mental health and higher levels of family functionality.72 These findings add to a growing body of knowledge and have led some psychologists to explore lack of forgiveness as a public health problem.73
The United Nations has been heavily involved in the promotion of forgiveness and related research, hoping to refine its amnesty practices and establish peaceful civil and international relationships.74 Research demonstrates that “forgiveness programs can restore healthy emotions, thus potentially aiding social reconstruction and dialogue.”75 This is true of mothers who lost sons due to conflicts in Northern Ireland and underwent the Stanford Forgiveness Project’s six-day forgiveness training. The mothers showed a 50 percent reduction in perceived stress, a 40 percent reduction in depression, a 23 percent reduction in anger, a significant reduction in hurt, and a significant increase in physical vitality.76 For groups, reminders of historical victimization, such as the horrific events of the Holocaust, have been shown to result in legitimization of actions taken toward a new enemy, such as violence against Palestinians in the present.77 Forgiveness intervention in Rwanda—where violence between groups had decreased dramatically but attitudes between members of the groups had not changed and future violence was likely to occur—has promoted structural and institutional stability in the country’s justice system and educational system, leading toward sustained mutual acceptance.78
In addition, wrongdoers benefit from being forgiven by others. Individuals value the goodwill of their fellow human beings, and many of those who have transgressed “feel the bite of conscience for their misdeeds.”79 “Forgiveness may lighten the burden of guilt from their shoulders, making it easier for them to move on with their lives.”80 Those who avoid denying their mistakes and “ask for and receive forgiveness are more likely to learn their lessons.”81 The desire to earn forgiveness can be a catalyst for healthy, positive change.82 Like the process of forgiving another, being forgiven aids psychological healing, improves physical and mental health, promotes reconciliation between the offended and offender, and promotes hope for the resolution of real-world intergroup conflict.83 Forgiving oneself is also beneficial. Lower self-esteem, greater depression, and increased anxiety and anger are associated with difficulty forgiving oneself.84 Self-forgivers report better relationships with their victims, as well as less regret, self-blame, and guilt.85
Although forgiveness may be good for us individually and socially, it is difficult to obtain any level of forgiveness when we cannot escape reminders of the violation. “The capacity to forget aspects of the past (or remember them in a different way) is deeply connected to the power to forgive others.”86 As one scholar notes, the “inability to modulate the emotional content of the memory of an affront severely diminishes the capacity to forgive it.”87 In fact, those who have been wronged are “less likely to forgive to the extent that they exhibit greater rumination and recall a greater number of prior transgressions, and are more likely to forgive to the extent that they develop more benign attributions regarding the causes of the perpetrator’s actions.”88 The ability to forgive oneself and to accept the forgiveness of others depends, in part, on escaping memories of wrongs or indiscretions: “the capacity to let go of the painful emotions associated with our memory of wronging others is integral to accepting their forgiveness for our faults.”89 Assuming that information remains indefinitely accessible to a search engine, “forgiving” anyone, including oneself, may be incredibly challenging.
The Internet can be a harsh place, and the “perpetual memory” of the Internet hinders forgetting, thereby stifling forgiveness. Kashmir Hill, a journalist specializing in privacy matters, explains:
Online, the past remains fresh. The pixels do not fade with time as our memories do. . . . Since we live in a world where we tend to choose “archive” instead of “delete,” everything is saved, and memories have a way of forcing themselves to the surface in the most unexpected ways. If memories are painful, that can be paralyzing, like a digital PTSD, with flashbacks to events that you can’t control. Depending on how much you turn to Facebook for the chronicling and journaling of your life, this might unearth some powerful moments you hadn’t expected, or wouldn’t have necessarily wanted, its algorithms to serve up to you.90
Increasing aggregation and availability of information online means that the past can be stirred with greater frequency, triggering memories that would otherwise have been forgotten. As individuals will acutely reexperience the humiliation or pain of their indiscretions, offenses, or tragedies when memories of them come to mind, the Digital Age has decreased the chances of successful forgiveness.
The benefits of forgiveness have been shown to “spill over” into situations and relationships outside the original conflict; those who are forgiven engage in more volunteerism, charity donations, and other altruistic behavior.91 But forgiveness can also be dangerous. Philosophical writings on the subject promote forgiveness as a virtue92 but are found alongside writing addressing the moral value of retribution and revenge.93 Forgiveness has the ability to cause its own injustices, particularly when offered by a third party, as opposed to the wronged.94 A victim or offended observer may feel that the offender has not had to feel the proportional repercussions of his or her actions or that the act was simply unforgiveable.95 The most severe threat of disrupting the benefits to forgiveness is from offering or receiving it too quickly or too late.96 “Self-respect, respect for the moral order, respect for the wrongdoer, and even respect for forgiveness itself” may be undermined by hasty forgiveness.97 Forgiveness may be individually and socially beneficial but must be crafted and implemented carefully.
Current debates surrounding international privacy issues often make two improper assumptions. The first assumption is that the same technology presents societies with the same problems. In research on the growth of European significance in international privacy regulation over three decades, the political scientist Abraham Newman states, “The proliferation of computer technology poses the same challenges in civil liberties for all policymakers across the advanced industrial democracies, but the type of privacy regimes adopted in response differed dramatically.”98 The renowned legal historian Lawrence Friedman similarly explains, “An automobile is an automobile is an automobile, whether it is in Tokyo or Moscow or Buenos Aires or New York. A cell phone is a cell phone; a computer is a computer. There is no such thing as a Chinese cultural cell phone, or a Brazilian style of computer.”99
In Friedman’s view, regulations must account for cultural context, but technology is the same everywhere. This view is strange to those who study technology. As the science and technology studies (STS) scholar Sheila Jasanoff articulates,
The world is not a single place, and even “the West” accommodates technological innovations such as computers and genetically modified foods with divided expectations and multiple rationalities. Cultural specificity survives with astonishing resilience in the face of the leveling forces of modernity. Not only the sameness but also the diversity of contemporary cultures derive, it seems, from specific contingent accommodations that societies make with their scientific and technological capabilities.100
Although the power of social construction and technological determinism remain popular topics in science and technology studies, both forces are recognized as impactful and important.101 Technologies are “co-produced” by what behaviors they make newly possible (here, increased discoverability) and socially constructed within cultures that make sense of and respond to them within specific contexts.102 In short, a computer in Moscow is not a computer in New York. A computer may be materially the same and constrain or afford certain behaviors, but placed in different cultures, technologies hold different meaning, provide different use, and carry different norms and expectations shaped by numerous factors including the legal culture in which the computer sits. These in turn may result in the design of country-specific versions of different websites and services.
Related is the second assumption that harmonization is necessary or desirable for regulatory efficiency. If everyone were dealing with the same problems presented by a new technology, conceptualized and used in the same way, harmonization could make sense. But the conceptualization, use, problems, and pressures put on citizens are not the same. Hurried harmonization risks placing efficiency over problem solving and giving the false impression of consistency where significant variety remains. The past two decades have put in place a structure of diverse socio-technical compliance that relies heavily on design adjustments, institutions, and public and private actors; there are avenues forward that do not require harmonization.
Continued access to personal information will be understood and responded to differently depending on the particular culture and legal regime. “At least as far as law goes, we do not seem to possess general ‘human’ intuitions about the ‘horror’ of privacy violations.”103 This introduction began by shamelessly appealing to readers’ anxieties by asking you to imagine your own exposure. Yet it does not presume what information or circumstances the incident would entail or where or how exposure would occur. Irwin Altman has theorized the ways in which privacy is culturally universal and the ways in which it is culturally specific.104 Privacy, according to Altman, is dynamic boundary management in which people use a mix of behaviors to achieve a desired level of privacy depending on the situation. Altman concludes that privacy is a universal process but involves culturally unique regulatory mechanisms. Although forgiveness, reinvention, and redemption are also universal processes to some extent, we do not possess a general intuition about who, what, where, when, and why an individual should be relieved from his or her past.
While the United States and European countries have conversed extensively on the subject of information policy, their differences have become more apparent as the Internet has made them more relevant. Exotic legal terms like “personality” and “private life” are laced throughout European law, but as James Whitman explains in “Two Western Cultures of Privacy,” “one’s sense of personhood can be grounded just as much in an attachment to liberty as in an attachment to dignity.”105 U.S. personhood is the protection of individual development that occurs in an outward fashion, by expressing oneself and socially engaging in the marketplace of all things, including ideas. In contrast, the EU Charter states flatly, “Human dignity is inviolable.” According to Whitman, who focuses on the relative differences in German, French, and U.S. law, this dignity is rooted in the very old body of Continental law of “insult” that protects personal honor.106 For a long time, only high-status individuals in Europe were treated with a certain level of respect, explains Whitman.107 In France, one’s honor was defended by the duel throughout this period, but by the mid-nineteenth century, the exposure of private life became a legal issue.108 The protection of the press in the 1791 French constitution was quickly followed by the protection against “calumnies and insults relative to private life.”109 A free press was conceived as vital to self-governance, but the “private person” could not be left vulnerable.110 Developed as an alternative to English notions of liberty, German privacy was established and protected within the “personality” right. Personality can be described as the “Inner Space” in which people “develop freely and self-responsibly their personalities.”111 The German emphasis was placed on crafting a system that protects an unfettered creation of the self, as opposed to an emphasis on consumer sovereignty.112 Both France and Germany distinguish between privacy violations and insults but package them as dignity rights intended to protect against the untrustworthy (France) or simply unworthy (Germany) press and free market. “Privacy is an aspect of personal dignity within the continental tradition, and personal dignity is never satisfactorily safeguarded by market mechanisms.”113 Whitman continues, Europeans have slowly granted all individuals the right of dignity. Americans, in contrast, grant privacy to those who make choices to retain their privacy, protect against government invasions into recognized private spaces (most notably their homes) and subjects (like health or financial information), and preserve reputations against only the most severe falsehoods and financial damage. The distinction between the two regions is a stark one and says a great deal about their respective historical roots: one cannot alienate one’s dignity, but one can alienate one’s liberty.
Digital redemption and digital reinvention can be understood similarly. They are extensions of culturally entrenched and dynamic concepts. Although privacy, reinvention, and redemption are firmly rooted in each country’s cultural norms, expectations, and values, it is unclear which information rights will remain regulated in culturally specific ways and which will become universal fundamental human rights. Countries currently protect and balance reputation, identity, cultural history, corporate power, expression, access, and exceptions differently, but these balances and governance structures are constantly in flux. All countries reflecting on what types of restraints and freedoms should be placed on the Internet are considering which values must be preserved, how those values should be preserved, and what can be left behind.
The central thesis of Crtl+Z is that a digital right to be forgotten is an innovative idea with a lot of possibilities and potential. The idea simply needs to be opened up, reframed, and restructured. The extreme options currently on the table limit the many ways to think about digital redemption and polarize regions. By utilizing new theories of privacy, breaking down the concept to organize its many meanings, and reframing the problem as one of information stewardship instead of information permanence, a host of choices become available for consideration. In order to make these difficult choices once they are on the table, the issues must be configured to fit within a digital discourse, existing legal cultures, and the international community.
My approach to analyzing digital redemption is inherently comparative. The right to be forgotten is indisputably a European creation, but there is a great deal to be gained from studying digital redemption beyond European borders. The right to be forgotten sits at the intersection of change: change in national and transnational policy and change in everyday information technology practices, demands, and expectations. Situated in this unique position, the right to be forgotten encompasses many of the big questions surrounding information technologies and offers a particularly valuable site and moment for comparison of democratic information societies. Comparison among regional treatments of information technology should help us make sense of legal particularities and assumptions that otherwise go unnoticed.
Cross-regional policy comparison may even inform a course forward for political communities. With that hope, I undertake the type of comparative work that describes a foreign jurisdiction (Europe) in relation to one’s own legal system (the United States). The comparative research that follows exposes distinct legal cultures114 across the pond that create very different landscapes from which a right to be forgotten can emerge. However, a digital right to be forgotten is a governance proposal for a socially and technologically connected world and, therefore, must also be assessed globally. And so the analytical framework is not the perfect right to be forgotten nor ways to achieve certain forms of social progress. The goal is to provide insight and an approach for considering the right to be forgotten and to encourage pluralistic development based on the situated use and users within diverse legal cultures that remain interoperable.
Finding extreme existing responses to digital redemption in the EU and U.S., four remaining steps take a pragmatic, prospective turn, seeking to provide new perspectives and possibilities. The first is theoretical, the second technical, the third socio-legal, and the fourth international. The steps reflect the broad range of disciplines and sources used, as well as the intended audience. Communication and media studies, computer and information studies, science and technology studies, comparative law, law and technology, and comparative and international technology policy research have all contributed to this project, and I hope these disciplines will find a valuable contribution in the following pages. For this reason, I have tried to boil down points, show parallels where helpful, and limit legal and technical jargon.
Chapters 1 and 2 describe existing and proposed options for those who seek legal and nonlegal recourse when personal information haunts them, tracing the socio-technical-legal roots in the U.S. and European countries. Chapter 1 concludes that digital redemption is offered quite freely under the EU system, and instead of recognizing the pluralistic nature of new technology and societal disruption, the EU has sought to assert the right to be forgotten as a universal solution to a universal problem. The window of opportunity for digital redemption in the U.S., on the other hand, is far too small, as I assert in chapter 2. The silver-bullet alternatives to a legal digital right to be forgotten—namely, alternatives in the form of norm evolutions, market solutions, and technological responses—are similarly and significantly limited.
Chapter 3 works through the theoretical and conceptual muddles surrounding the right to be forgotten. Utilizing new concepts of privacy and breaking down the right to be forgotten, a new set of possibilities emerge. Chapter 4 criticizes the way in which the technical issue has been framed. Although both European and American commentary have similarly framed the problem as “digital permanence,” such framing is understood and responded to differently by each and ignores the materiality of digital information. The chapter reframes the problem that the right to be forgotten seeks to solve. It argues that digital information is actually quite impermanent and should be considered through a lens of information stewardship. Web decay and link rot plague our networks and require conversations about digital redemption to account for the fact that digital information is not permanent—it is just different. The chapter assesses the new digital information landscape and outlines an information life cycle to support debates about discoverability of lingering information and the implementation of information stewardship.
Chapter 5 discusses how to construct digital redemption within existing legal systems by applying these tools to the U.S. system. It pulls out elements of the United States’ legal culture of forgiveness in order to determine how information stewardship may be embraced within the U.S. using an information life cycle approach. It concludes that while the First Amendment places significant hurdles in the way of establishing a digital redemption, narrow exceptions may provide room for such a right under certain circumstances. Finally, chapter 6 argues that technical, social, and legal interoperability are necessary for the development and viability of the right to be forgotten. The chapter recognizes that the information regulations of one country can no longer be ignored by others in a networked world and proposes ways in which diverse structures and procedures can protect digital redemption in one region while respecting its development in another.
This text carries with it a certain level of tentativeness based on the difficulty in comparing technology policy. Each region’s data-protection laws are built on more than formal, written legal instruments and function within various administrative, procedural, and corporate cultures. The variation in available explanatory documentation or case law works against presenting sound conclusions about all legal cultures. In light of these limitations, the comparisons are best considered explorations as opposed to accurate measures of different legal cultures. My own limited language skills and experience with particular jurisdictions and legal cultures also contribute to an appropriate tentativeness. These limitations leave some aspects of the debate less examined than others and many specific areas of law and society largely unexplored.
Given the nature of my subject, which grows and changes every second, this book has the common problem of making any claims about a moving target. This text is only a snapshot in a moment of international popular and regulatory debate during a significant shift in socio-technical practice and expectations. The dynamic nature of technology policy results in frequent revisions and adjustments and is difficult to assess. The European Union may have passed its Data Protection Regulation by the time this text is in print, but if not, criticism of its intent to harmonize the right across member states and its choice of procedural execution may remain relevant as the Regulation is assessed. However, its implementation and interpretation may negate such criticism. The text may contribute to such implementation and interpretation and may provide guidance to jurisdictions at the early stages of developing a right to be forgotten. The technology policy landscape is not static, and so the text may only represent details available as of winter 2015.
For Americans and much of the rest of the world, the Internet has always been a wild and weird place—we love it for that. Yochai Benkler explains in his book The Wealth of Networks that networked participation has unleashed an unparalleled level of creativity and innovation into the world.115 The Internet used to be described as virtual place where anyone could go try on a new identity or test a new idea.116 It has become increasingly identifying, which has its pros and cons (victims are more easily identified, but transgressors are as well).117 And the online is spreading into the offline—or offline spaces and moments are simply disappearing. Technology-saturated societies are full of mediated and connected spaces and people generating more and more data by the second to add to the various record books. Google CEO Eric Schmidt described the setting as “living with a historical record” and warned that people will need to be “much more careful how they talk, how they interact, what they offer of themselves.”118
Responding to this new and changing setting requires a closer look at what living with a historical record really means and what role the law plays in shaping it. We must ask under what conditions we will flourish within cultural definitions of human freedom.119 It is not an easy question to answer, and it deserves reflective, thoughtful treatment and more than a simplistic choice between preserving speech or privacy—saving or deleting.