Shutting the barn door after my “dirty old man/slut” post has made it round the world

Despite this blog, I don’t understand how the Internet really works. I once had a case that forced me to gain a little knowledge about how things really worked but what I leaned was like a 100 level course in remedial math. I can multiply small numbers. So, take what I write next with a huge grain of salt.

Over at Simple Justice, SHG has written an interesting post about the European Court of Justice’s decision to tell Google that if I get drunk and start french kissing Zoey and Elvis, our dog friends across the fence, and if I take a “selfie” of my behavior and post it, not all is lost when I wake up with a hangover and dog breath.  After a certain point in time, I can tell Google to make the image impossible to find.  I think the ruling also requires the same thing for old writings. At least that’s what I think the decision requires.

Here’s a more precise description:

Europe’s highest court said on Tuesday that people had the right to influence what the world could learn about them through online searches, a ruling that rejected long-established notions about the free flow of information on the Internet.

A search engine like Google should allow online users to be “forgotten” after a certain time by erasing links to web pages unless there are “particular reasons” not to, the European Court of Justice in Luxembourg said.

The decision underlined the power of search companies to retrieve controversial information while simultaneously placing sharp limits on their ability to do so. It raised the possibility that a Google search could become as cheery — and as one-sided — as a Facebook profile or an About.me page.

David Steitfield, European Court Lets Users Erase Records on Web, New York Times (May 13, 2014).

Anyway, SHG’s post, and the Times article, got me thinking. (I know.)  I want help from the readers to answer the following three questions:

  1. Is the decision essentially irrelevant to most users here in Amerika?
  2. Is what the “Court” ordered technically feasible?
  3. If what the “Court” ordered is technically feasible, should I tell Google to shit can my “dirty old man/slut” post or should I leave it up as an example of the new age of enlightenment?

If you know anything about the Internet, or even if you don’t, I am interested in your answers to one or all of my questions. For younger readers who need to pad resumes, and assuming you help me out, you and each of you have my permission to add something like “Pro bono adviser to dirty old man about the Internet” to your list of accomplishments.

RGK

 

18 responses

  1. 1. Irrelevant for most but relevant for law professors.
    2. Probably not but in any case their will be a lot of foot dragging.
    3. When in doubt do nothing.

  2. It is possible that one outcome will be the development of search engines for expunged files. A variation on the Streisand effect.

  3. Disclaimer: I am a technologist (ex-Google software engineer), not a legal expert. I also do not know the specific details of the order in question; the press release is here: http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf, but it doesn’t seem to reflect specific orders against Google, but instead, a more general statement about the interpretation of the laws in question.

    In this case, the court is not ordering the newspaper to take down the coverage of the long-ago events, they are attempting to make those articles harder to find by ordering Google to no longer return search results linking to the articles.

    1. I believe it’s generally irrelevant for the US, although it may become applicable in some areas (for example, if a website outside of US jurisdiction posts something that a US judge wishes to eradicate (trade secrets, libel, etc.), I could imagine them ordering Google and other search engines to not return links to it. In fact, something similar already occurs in Google’s compliance with the US’s DMCA law; Google receives orders to expunge certain pages from its search index on claim of copyright infringement, and those pages can no longer be found with Google search.

    2. It is probably feasible for Google to comply with a narrowly-crafted order, similar to the DMCA system; however, this will not lead to any practical obscurity of the information the court wishes to bury. For example, while Google may no longer return search results for the news articles in question, it will certainly index pages which discuss this situation and which then link to the articles: all the court has done is move the information one click further away. Attempting to list and expunge all pages that refer to the situation at all will both be Sisyphean and will run into a broad penumbra of difficult choices that will, at some point, probably be broader than what the French courts will stomach. So, no, in practice, I don’t think it’s possible to be forgotten; only possible to introduce some hurdles to memory.

    3. You could easily, on your own, remove any posts you currently publish so they are no longer on the web, and you can tell Google no longer to index them and return search results them to them; you can do either or both—this is within your rights as a publisher. However, this would leave all others’ discussion of the posts still live on the Internet. It is technically feasible for Google to remove other pages that discuss your posts from their search index. While, as noted, I am not a legal expert, as a federal judge, I would imagine you could order Google to do so. However, I think that such an action would not put out the fire of controversy; to the contrary, it would be like trying to put out a fire with napalm.

  4. Tim,

    My gosh, I owe you. I very much appreciate your literate, and easily understood comment. Thanks a bunch.

    RGK

    PS By the way, I blog as an individual and not as a judge. It would be unlawful and unethical for me to enter an order as a judge that was designed to help myself personally.

  5. John,

    Thanks for your comments on this subject. By the way, question 3 was sorta tongue in cheek.

    All the best.

    RGK

  6. Piggybacking on Tim Dierks’ excellent summary, this method of recourse is a fool’s errand in most cases. The fact of suing to have the particular pages removed from Google’s index is itself a public act, which will often make the underlying conduct MORE widely known, not less. Mario Costeja, the man who began this action, is having his face and name plastered on the front page of newspapers across the world.

    This is a well-known problem in publicity law called the “Streisand effect.” Barbara Streisand tried to suppress photos of her waterfront house which were taken as part of a private coastal study. The fact of her trying to suppress them is what made the photos be widely publicized. When she sued, the photo had been downloaded from the project’s site 6 times. After, it was over 400,000.

    http://en.wikipedia.org/wiki/Streisand_effect

  7. Of course it would be entirely inappropriate, and I suspect it would be mere hours before your superior courts suspended it. That would only be the first load of napalm for such an act.

    I didn’t have any intent of implying that you’d consider it—not only would it be unlawful and unethical, it would also be remarkably foolish.

    In taking a second look at my response, a couple of edits:
    * In DMCA cases, Google doesn’t receive orders (judicial or otherwise): it receives notices from copyright holders, and must block infringing content unless the publisher objects to the action. (Subject to much other complexity.)
    * The court in question is not French, it is European.

  8. Peter H.,

    I would never take down my “dirty old man/slut” post even if I could because to do so would be, as they say out here, chickenshit. More importantly, the idea that we are so self important that we can rewrite history revolts me. I screwed up writing the post–that’s the breaks. It will not be the last time I am wrong or offend people. Might as well keep an accurate record. Someday, some legal historian might write something about how really stupid I was, and I would hate to deprive the history detectives of the necessary fodder.

    All the best.

    RGK

  9. Nothing to add on the main point, looks to me like it was well covered.

    But about that post: i found that it was something that needed to be said, not only in the context of the courts, it seems many people (and most noticeably women ) seem to have problem with judging the appropriateness of the attire. It IS distracting, not necessarily, at least in all cases, harmful but distracting.

    And now having joined the dirty old man cadre myself, I’ll add that it is also how I found my way here, which I count (although you might not) as an alloyed good thing.

  10. NEO,

    The world (and the net) work in mysterious ways. I am glad you found your way to this little corner of the web.

    All the best.

    RGK

  11. I’m a software engineer, and I object to the idea that “The Internet never forgets”. The internet is entirely what people put on it. Will you be remembered for your dirty old man/slut post, or for discussion of American law? It’s really up to you and the people who read what you write.The Internet just retains evidence of both.

  12. It really, really does. I am as well but then I’m convinced that most of the wisdom of the world is found on the Great Plains.

    Best to you, and fight that cancer off, we need you,

    Neo

  13. Eric W.,

    I agree entirely with you. That is precisely why I think it is such a powerful medium for good. I decided to reveal a lot (perhaps far too much) about myself and the courts. That decision is mine, and mine alone. What others make of what I write is, of course, solely up to them. When I pick up my cell phone, call my kids and scream at them, it is not the fault of the phone that my children’s father has a tendency to get hot under the collar. Unlike my phone, the net gives us the added bonus of saving our thoughts and making those thoughts widely available to others. For those readers who did not grow up in the insular world of the 1950s, one cannot imagine how wondrous the information age is for oldsters like me who still desire to learn.

    Thanks for your clarification and engagement. All the best.

    RGK

    All the best.

    RGK

  14. I wasn’t referring to the “dirty old man” post, rather to the European court ruling. The Streisand effect generally comes from trying to demand that others stop saying something, not from deleting your own content anyway. E.g. this recent chestnut about the Department of Health and Human Services sending a demand letter to a nutty website about a satirical interview they posted, which will draw far more attention to the satirical interview than otherwise would have happened.*

    http://www.popehat.com/2014/05/13/department-of-health-and-human-services-threatens-blogger-over-satirical-posts/

    *The fact that HHS’s demand is almost surely illegal does not change the fact that the proprietors of the speech in question are nutjobs. But the first amendment protects nutjobs too.

  15. Dear Dirty old man. I am a patent litigator (reformed after being a criminal defense attorney), who frequently reads your blog (in perhaps a futile attempt to understand the thinking of federal district judges). To be brief, the answers are:
    1. No–If the decision is followed through, users here will eventually demand the same abilities;
    2. Yes, as to links retrieved and cached by google, but No, as to the addresses themselves which google has no right or (hopefully) ability to trash;
    3. No, but unfortunately it is neither novel nor nonobvious.

  16. Dear Kurt R.,

    What an interesting background–a criminal defense lawyer turned patent lawyer. Regarding your answer to number 3, I am crushed to learn that being a “dirty old man,” since it is neither novel nor nonobvious, does not entitle me to a process patent. Oh, well.

    All the best.

    RGK

  17. Greetings from France,
    I’ve been a faithful reader of yours for more than a year — I suspect there are many subjects we’d disagree upon, but I always relate with your decency and sincerity, and following your writings often is somewhat of an emotional experience. (Which is to say, in regard to your 3rd question, that I’d happily deny your motion and sincerely hope that as many people can continue to enjoy your posts in all their “dirtiness”🙂
    I’m a bit late to the party, but since this particular matter happens to be something I have an interest in, I thought I could try and contribute here. Please bear with me for a while, as I try to find my way.

    First off, France (and Europe in general) doesn’t regard Free Speech with the same “sanctity” as your first amendment. Voltaire is often misquoted along the lines of “I disapprove of what you say, but will defend to the death your right to say it”; not only would such a quote have been grossly out of character, but it doesn’t even reflect at all the French way of dealing with free speech. Our governments have never stopped banning speech based on hurt feelings or political motivations: Holocaust denial, Armenian genocide denial, drug apology (which easily extends to any debate about depenalization or critism of current policies), racial hate or discrimination apology… but also, anything that may be interpreted as contempt of cops or elected officials or virtually any government clerk… The list goes on. To my knowledge, things are similar (if not worse) in Spain and Italy — not to mention Eastern-European countries; a decade ago I’d have looked towards the UK for greater tolerance, but that’s now largely moot.

    In this particular context, the E.U. (which is mainly run by never-elected officials, i.e. the Commission and the Courts) has been toying with this “right to be forgotten” for a few years… the very same years where they were otherwise attempting to muzzle the Internet by any means they could think of: EUCD directive, Data Retention directive, Intellectual Property Rights Enforcement directive and various so-called “anti-piracy” rules. Please note that most of these iniquitous measures were generally directly taken from the US’ playbook (by which I mean, the DC lobbyists’ agenda, which they obviously shared with their colleagues in Brussels). When it comes to lawmaking, the worst ideas tend to spread more quickly than the good ones: we see it between states (constitutionally-questionable state laws against “revenge porn”, for a recent example), and as well between the US and the E.U. (and to answer to your 1st question, it tends to go both ways when bad ideas are involved).

    These attemps, if anything, have only made European Internet-savvy citizens quite aware of the political stakes on a global scale: to wit, when the US government encountered a large backlash against SOPA (which could have been seen as a purely domestic event), I can’t count the number of websites in Europe that also went dark as a gesture of solidarity.

    Similarly, Google has been designated as the target of choice for whatever industrial, politician or powerful player that may be feeling disgruntled for any reason. For example, in France, big newspaper publishers have convinced the government to come up with a “Google tax” that’s used to financially sustain an otherwise dying industry. (And the music, movies and books businesses are lined up as well; surely this must sound familiar.)

    Of course, some of this stems from the utter ignorance of judges, magistrates and lawmakers when it comes to all things digital — and most of them don’t have the honesty of admitting, as Your Honor does, that they are in need of knowledge and enlightenment. This very real problem exists everywhere (if the recent CAFC ruling in Oracle v. Google is any indication), but we sure have our share of it:
    http://www.techdirt.com/articles/20100812/03521710605.shtml
    http://www.techdirt.com/articles/20131106/12043925152/french-court-orders-google-to-magically-make-max-mosley-orgy-pictures-disappear.shtml
    http://www.techdirt.com/articles/20140210/09244626166/frenchman-obtains-government-documents-clicking-link-google-search-is-fined-3000-euros-theft-fraudulent-retention.shtml

    Sorry if I seem to be disgressing, but I felt some context elements were necessary. In fairness, the EUCJ ruling doesn’t smack of contempt or “semi-learned” attitude; they do acknowledge the stakes of free information in the public interest. Which has led some First Amendment champions to take this ruling at face value:
    http://edition.cnn.com/2014/05/14/opinion/randazza-google-right-to-privacy/index.html?hpt=op_t1
    Randazza’s point that citizens’ rights should no longer be disregarded when facing big corporations somehow, by the way, does echo the struggle of criminal lawyers like SHG when facing the government — a point that has been made before:
    http://www.techdirt.com/articles/20091208/0221047243.shtml

    There certainly is a point to be made for “victims” of long-forgotten, embarrassing material (I’ve had my share of those, although in an anecdotal way). But in this matter like every other, censorship is not the way to go, even when you start with objectively legitimate reasons (assuming there is such a thing): where will it stop then? Especially if it means creating an EU-filtered Google (just like there’s a Chinese one or a Myanmar one; I think I’ve made my point).

    Therefore, I suspect a potentially dangerous door has been opened here. Merely stating that a “need for balance” exists, isn’t enough to prevent said balance to swiftly go the way of the dodo when a behemoth like Google will have to handle thousands of deletion requests per minute — and it definitely will, just like it already does receive countless DMCA takedown notices for YouTube videos, without any human intervention, let alone any sense of “balance” or due process. (I do realize how weird it sounds to speak about “due process” when referring to the deeds of a private corporation, but what the judges failed to take fully into account, in my opinion, is the extent of this specific corporation’s ubiquity, up to the point where it’s no longer a mere vendor among others on the marketplace, but is effectively perceived and used by many as some sort of a public service.)

    Thus, I fail to see how Google can achieve any sense of “balance” when it has seldom any incentive to do so, especially if it requires reviewing (presumably) numerous requests in a non-automated way, and where any decision not to take action can expose it to potential liability.

    Many commenters have made that point better than me in the past, so perhaps I’d better just leave you with a bunch of links I’ve gathered over the years:
    http://peterfleischer.blogspot.fr/2011/03/foggy-thinking-about-right-to-oblivion.html
    http://www.bigbrotherwatch.org.uk/home/2011/03/data-protection-forget-about-a-right-to-forget.html
    http://www.jorisvanhoboken.nl/?p=308
    http://gigaom.com/2011/03/18/419-europe-is-debating-a-right-to-forget-law-so-what-does-that-mean/
    http://techliberation.com/2010/11/05/the-conflict-between-a-right-to-be-forgotten-speech-press-freedoms/

    Thanks if you’ve read me so far; many thanks to judge Kopf!

  18. vvill,

    Thanks for your fascinating comment. On this side of the pond, it is at the end of the work day. I read your comment once, but want to study further. I will try to do that over the weekend and get back to you.

    In the meantime, I recommend Eric Posner’s article, We All Have the Right to Be Forgotten, Slate (May 14, 2014). He is a brilliant law professor at the University of Chicago. He advocates the “European” or ECJ’s position, but he does so basically as a normative matter. Anyway, he is an opinion maker over here, so his article is worth reading. If you get a chance, let me know what you think about Posner’s reasoning.

    All the best.

    RGK

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