Can Privacy Advocates Force Google to Bring ‘Right to Be Forgotten’ to U.S.?

Google’s refusal to honor U.S. citizens’ requests to remove content they’d rather have hidden is “unfair and deceptive” since the company professes to be concerned about privacy, an advocacy organization charged in a formal complaint filed July 7 with the Federal Trade Commission.

According to Consumer Watchdog, the so-called right to be forgotten is already a “basic privacy tool” afforded to citizens of the European Union. Google created a system for reviewing requests to remove content from search results after a 2014 European Court of Justice ruling determined that individuals have a right to ask for content associated with their names to be removed if it’s “inadequate, irrelevant … or excessive.”

John Simpson, privacy project director at Consumer Watchdog, argued in the FTC complaint that Google’s refusal to implement a similar program in the U.S. should be considered a violation of the Federal Trade Commission Act.

“The Internet giant aggressively and repeatedly holds itself out to users as being deeply committed to privacy,” Simpson wrote. “Without a doubt requesting the removal of a search engine link from one’s name to irrelevant data under the right to be forgotten (or right to relevancy) is an important privacy option. Describing yourself as championing users’ privacy and not offering a key privacy tool -- indeed one offered all across Europe -- is deceptive behavior.”

Consumer Watchdog offered a series of examples for why such a policy ought to be followed in the U.S. One cited a case from 2006 in which a young woman from Southern California was decapitated in an auto collision after driving her father’s sports car. Authorities didn’t allow the family to see her disfigured body after the accident, but California Highway Patrol officers leaked graphic photos of the accident scene to friends for pure shock value. The pictures began circulating on the Internet, prompting members of her family to eliminate all online activity from their lives. In 2012, they received about $2.37 million in a settlement with CHP.

In a recent interview with KQED Public Radio, Jill Bronfman, director of the Privacy and Technology Project at the Institute for Innovation Law at UC Hastings, explained how Google’s system for processing individuals’ requests has worked in practice.

“They have kind of become a pseudo-government agency in the EU, where Google is actually functioning as an arbiter of public policy, deciding what should be online and what shouldn’t be online,” Bronfman said. “EU citizens are submitting requests and Google is deciding what to keep up and what to keep down. They’ve looked at over a million URLs so far.”

According to Consumer Watchdog, Google denied removal requests for nearly 59 percent of the links.

Expanding the system of review to the U.S. “would involve a significant expenditure of time and resources,” Bronfman noted.

The right to be forgotten has been polarizing in Europe. The BBC, for instance, published a list of stories that had been purged from Google, demonstrating how the policy could impact news content. The debate would likely be just as intense if the practice were implemented in the United States.

Critics have also derided the right to be forgotten as a tool that would make it easier for the wealthy and well-connected to hide their activities from public view or that invites censorship.

Google itself has made it clear it disagrees with the policy. While the search giant didn’t respond to a request for comment by press time, a blog post published on its website in 2014 spells out Google’s take on the matter:

“The European Court found that people have the right to ask for information to be removed from search results that include their names if it is ‘inadequate, irrelevant or no longer relevant, or excessive.’ In deciding what to remove, search engines must also have regard to the public interest. These are, of course, very vague and subjective tests. The court also decided that search engines don’t qualify for a ‘journalistic exception.’ This means that The Guardian could have an article on its website about an individual that’s perfectly legal, but we might not legally be able to show links to it in our results when you search for that person’s name. It’s a bit like saying the book can stay in the library, it just cannot be included in the library’s card catalogue. It’s for these reasons that we disagree with the ruling. That said, we obviously respect the court’s authority and are doing our very best to comply.”

Responding to a request for comment, the Northern California chapter of the American Civil Liberties Union directed KQED to a detailed white paper prepared by Chris Conley, the organization's technology and civil liberties policy attorney. Here’s how Conley sorts out the right to be forgotten -- or as he called it, the right to be deleted.

“The right to privacy, a right many consider fundamental to our society, may be rendered impotent if our private actions can be reconstructed from countless permanent records. We propose that the best way to address this concern is to create a right to delete that gives individuals the ability to control their own history and thus escape it. This right comes from the idea that records are not just about a person; in our modern world, they are functionally part of our digital persona, and thus should be under our control whether we create them or not. … We have already seen some progress as companies have launched products and altered terms of service to give users the right and ability to delete their own records. Although establishing this right remains challenging, we believe it can be done.”