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Digital Amnesia

by Paul Rapp on May 15, 2014 · 0 comments

 

Well, the net neutrality crisis I talked about last time will take a long time to play out, but it’s sure started playing. A couple of weeks ago, it was leaked that FCC Chairman Thomas Wheeler was going to issue a proposed regulation that would allow for an Internet “fast lane” for large users that wanted to pay for it. In short, the death of net neutrality.

Not surprisingly (not to me, anyway) the net exploded and the FCC was bombarded with hundreds of thousands of e-mails, a ton of petitions, and so many phone calls that its switchboard repeatedly went down. There are reports that the atmosphere at the FCC is suddenly chaotic. Protesters are camping out in front of the FCC offices. Musicians, Internet start-ups and even some of the biggest Internet-based companies (like Google and Netflix) have issued public statements opposing the measure. Two of the other FCC commissioners have called for a delay of the roll-out of the proposed reg, which is supposed to happen on Thursday (May 15).

On Monday, Chairman Wheeler announced that, based on public comment, he was revising the as-yet-unsubmitted proposal, but as he described them, these proposed revisions don’t really cure the flaws of the original. This is an incredibly fluid situation, and who knows where this is going. But it’s incredibly important, and if you want to voice your support of a truly fair and open Internet, the FCC has set up a dedicated mailbox for your comments: openinternet@fcc.gov. And if you read this in time and want to watch the roll-out live, if it actually happens, you can catch the feed of the hearing at fcc.gov starting at 10:30 AM Thursday morning. Once the proposed regulation is unveiled, there will be a further public comment period that you can participate in. I’ll let you know how when it’s time.

Moving on! Here in the U.S. we’re so used to the freedom of speech as something approaching an absolute that it can be stunning to see other countries of the free, democratic and nontotalitarian variety cavalierly disregard it. And there was a whopper this week. In Europe there’s apparently a concept floating around called, remarkably, the “right to be forgotten.” It’s essentially a privacy concept, rooted in the concept of anonymity and being free from one’s past. Kind of weird, right?

Well, the highest court of the European Union doesn’t think so. This week it ruled that the “right to be forgotten” was alive and well, that it applied to information that turns up in Internet search engines, and that Internet search engine companies had the ability to remove information from search results. Therefore, the court concluded, companies like Google, Yahoo, and Microsoft had a legal duty to remove search results related to people when the information in the search results “appear(s) to be inadequate, irrelevant or no longer relevant or excessive . . . in the light of the time that had elapsed.” And by its language, this decision applies even where the information is true and a matter of public record. The case was brought by a Spanish guy who was angry that a 1998 newspaper article listing the repossession of his house was showing up when you Googled him. The Spanish guy figured that the matter had been resolved long ago, and so it shouldn’t come back to haunt him now. And the court agreed!

I’m having a hard time getting my mind about this. I can’t help but wonder if the judges either don’t use the Internet, and/or have an irrational hatred of it, and/or have a profoundly bizarre philosophic bent in matters concerning personal privacy. Because this is nuts. Think about it. First of all, who gets to decide what’s “inadequate, irrelevant, or excessive”? The subject? The search engine company? Are they going to establish little bureaucratic agencies to figure it out? And every one of these criteria are incredibly subjective to the point of being meaningless.

And so you figure out what has to go and then what? The search companies will have to hire massive numbers of employees to code specific search requests to ignore certain search results. What about close spellings? What about repostings, or the natural evolution of a search result over time?

And, hey, does this apply to corporations, too, my friend? And what happens if you access a search engine that’s not under the jurisdiction of the EU? And will Google be liable if it removes something that later could be shown to have prevented a murder had it stayed up?

I’m no expert on EU law, but I’m guessing that the EU parliamentary body will now need to pass some kind of directive to reverse this judicial ruling. And I’m also guessing that getting things passed through this multicultural, baggage-laden body is the legal equivalent to herding cats.

Insanity.

Paul Rapp is a crotchety IP lawyer who changed his mind and decided that, yes, he will let this torn rotator cuff slow him down.

 

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