Friday, 16 May 2014

I Do Not Care To Remember

There are two ironies in the case of Mario Costeja González, the Spaniard who wants Google to suppress a search results link to an old newspaper article concerning the repossession of his home to pay off a debt. The first is that since embarking on his Quixotic quest through the courts, the publicity generated has gradually pushed the offending article down the search results for his name as other pages published on his case have proliferated. Assuming Google comply, the original link will disappear but the subsequent ones won't, as they are now clearly "relevant" and likely to remain so indefinitely. This is because of the second irony, which is that the substantive detail of his past embarrassment is now immortalised in the ruling of the EU Court of Justice. Altogether, a nice example of the Streisand Effect.

Costeja González says: "I was fighting for the elimination of data that adversely affects people's honour, dignity and exposes their private lives" (the parallel with the old hidalgo is not wholly fanciful). Most reports see this as the first fruit of the "right to be forgotten", a principle that the EU introduced into its last round of data protection reforms in 2012. The original intent was to give private citizens the ability to suppress personal data they had come to regret publishing (e.g. drunk pics on Facebook), or that had been published mischievously by others but was not defamatory (e.g. revenge porn). It's a hazy area, so individual member states will have to decide in court how far this right extends in practice. The claims of "chilling effects" and censorship are just tilting at windmills. Search engines routinely suppress links for legal reasons or out of commercial caution, and what they do index is only a fraction of the entire Web. It's important to remember that Google isn't a publication of record.

The significance of the Court's decision is not to do with the time-limited topicality of private debts in Spain but the judgement that Google is a "data controller" in respect of EU regulations. The political context is the refusal to exempt US firms from EU law. As the EU Commissioner Viviane Reding put it, "Companies can no longer hide behind their servers being based in California or anywhere else in the world". She also noted that "The data belongs to the individual, not to the company". This is not so much the right to be forgotten as the right to control ones own assets. The ruling then should be seen in the context of the wider struggle over the control of the Internet and "national big data".

Some have framed the right to be forgotten as a cultural difference. Writing in the Stanford Law Review in 2012, Jeffrey Rosen traced it to the French droit a l'oubli, which "allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration", a right trumped by the First Amendment in the US. In fact, the cultural imperative lies in a postwar European respect for due process and a fear of property dispossession, rather than the memory of Jean Valjean. The US focus on free speech does not imply a lesser regard for property rights, but the reality of current power relations. The US tech giants have control of the property - our data assets - and see free speech as a way of defending the status quo, while the EU (oddly, perhaps) finds itself pushing a pseudo-nationalist position: get orf moi land. What it is not arguing for is a negative freedom (i.e. a freedom from), in the sense of the right to be obscure and thus not individuated. Instead, it is advancing a positive freedom, the freedom to own and manage.

The other interesting aspect of the judgement is the continuing European evolution of personal data as an extension of the person, which contrasts with the US fashion for seeing the person as an extension of data: the quantified self. The Court considers that Google Search "enables any internet user, when he makes a search on the basis of an individual’s name, to obtain, through the list of results, a structured overview of the information relating to that individual on the internet ... [which constitutes] a more or less detailed profile of the person searched against". And (with allowances for free-speech and the balancing of competing rights) "that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where, having regard to all the circumstances of the case, the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed".

In other words, the Court is upholding the right of the individual to curate his profile to suit his current self-image. This idea of constant tending and performative personality is a key neoliberal trope (Foucault's "entrepreneur of himself"). The more perceptive commentators, like Viktor Mayer-Schönberger, have noted that this is "creating an image that is both incomplete and strangely devoid of time", which points to its fictional nature, while Jemima Kiss correctly observes that the design of social media governs what we can do with it, so our sense of control is misplaced. Your aggregated avatar is not you but, to borrow the words of Mario Costeja González, a more noble and dignified persona. But that is surely a delusion.

Don Quixote famously opens with an act of deliberate forgetting: "Somewhere in La Mancha, in a place whose name I do not care to remember, a gentleman lived not long ago, one of those who has a lance and ancient shield on a shelf and keeps a skinny nag and a greyhound for racing". Long story short: the ultimate restoration of his sanity requires Alonso Quixano to remember himself.

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