Three months ago, I tried hacking Google’s implementation of Europe’s “right to be forgotten.” For those of you who haven’t followed recent developments in censorship, the right to be forgotten is a European requirement that “irrelevant or outdated” information be excluded from searches about individuals. The doctrine extends even to true information that remains on the internet. And it is enforced by the search engines themselves, operating under a threat of heavy liability. That makes the rules particularly hard to determine, since they’re buried in private companies’ decisionmaking processes. So to find out how this censorship regime works in practice, I sent several takedown requests to Google’s British search engine, google.co.uk. (Europe has not yet demanded compliance from US search engines, like Google.com, but there are persistent signs that it wants to.)
I’ve now received three answers from Google, all denying my requests. Here’s what I learned.
The first question was whether Google would rule on my requests at all. I didn’t hide that I was an American. Google’s “right to be forgotten” request form requires that you provide ID, and I used my US driver’s license. Would Google honor a takedown request made by a person who wasn’t a UK or EU national? The answer appears to be yes. Google’s response does not mention my nationality as a reason for denying my requests. This is consistent with Europe’s preening view that its legal “mission civilisatrice” is to confer privacy rights on all mankind. And it may be the single most important point turned up by this first set of hacks, because it means that lawyers all around the world can start cranking out takedown requests for Belorussian and Saudi clients who don’t like the way they look on line.
But will the requests succeed? The reasons Google gave for denying my requests tell us something about that as well.
1. I had asked that Google drop a link to a book claiming that in 2007 I had the “dubious honor” of being named the world’s “Worst Public Official” by Privacy International, beating out Vladimir Putin on the strength of my involvement with NSA and the USA Patriot Act. It’s true that Privacy International announced I had won the award, but I argued that the book was inaccurate because in fact, I “had very little to do with either domestic surveillance activities at NSA or with the USA Patriot Act, and the trophy is a ‘dubious’ honor only in the sense that Privacy International never actually awarded it.” (All true: I’ve been trying to collect the trophy for years but Privacy International has refused to deliver it.)
Google refused to drop the link, saying, “In this case, it appears that the URL(s) in question relate(s) to matters of substantial interest to the public regarding your professional life. For example, these URLs may be of interest to potential or current consumers, users, or participants of your services. Information about recent professions or businesses you were involved with may also be of interest to potential or current consumers, users, or participants of your services. Accordingly, the reference to this document in our search results for your name is justified by the interest of the general public in having access to it.”
So it looks as though Google has adopted a rule that “information about recent professions or businesses you were involved with” are always relevant to consumers. It would be impressive if the poor paralegal stuck with answering my email did enough online research to realize that I sell legal services, but I fear he or she may have thought that being the world’s worst public official was just one of the gigs I had tried my hand at in the last decade.
2. My second takedown request was a real long shot. In an effort to see whether Google would let me get away with blatant censorship of my critics, I asked for deletion of a page from Techdirt that seems to be devoted to trashing me and my views; I claimed that it was “inappropriate” under European law to include the page in a list of links about me because it contains “many distorted claims about my political views, a particularly sensitive form of personal data. The stories are written by men who disagree with me, and they are assembled for the purpose of making money for a website, a purpose that cannot outweigh my interest in controlling the presentation of sensitive data about myself.”
To American ears, such a claim is preposterous, but under European law, it’s not. Google, thank goodness, still has an American perspective: “Our conclusion is that the inclusion of the news article(s) in Google’s search results is/are – with regard to all the circumstances of the case we are aware of – still relevant and in the public interest.” If I had to bet, I’d say that this rather vague statement is the one Google uses when other, more pointed reasons to deny relief don’t work. But the reference to this page as a “news article” suggests that Google may be using a tougher standard in evaluating takedown requests for news media, a term that applies, at least loosely, to Techdirt.
3. The third denial was a little less interesting. I tried to get Google to take down an image showing me with a beard, arguing that it was out of date: “I don’t have a beard now. If you look at the picture, you’ll see why.”
But Google just gave me the same “professional life” rejection it gave to my “Worst Public Official” request. I suspect that’s because the article that accompanies the picture is without question about my professional life; it’s published by the Blog of the Legal Times. I can understand why Google would want to evaluate the complete link, not just the image, for this purpose but that’s going to make deletion of images harder, especially when a bad photo accompanies an unexceptionable article.
What next? With these results in hand, I’m preparing a second round of hacks to further explore the boundaries of the right to be forgotten, and I’ll resubmit my “does this search engine make me look fat?” request that Google take down a fourteen-year-old photo (unattached to a story) on the grounds that I weigh less now. But to tell the truth, I’m having trouble finding stuff in my search history that is sufficiently inaccurate or outdated, especially now that we know Google is treating professional activities and news as per se relevant (at least if it’s “recent,” whatever that means). So I hope that others will make their own searches and their own takedown requests and report what they find.
In fact, my second effort has shed some light on how Google decides someone is famous, but I’ll write that up separately, since this post is already long enough.