Diane talks with David Winston, president of The Winston Group and a strategic advisor to Senate and House Republican leadership for the past 10 years.
Once information is up on the Internet, someone can always find it, right? Wrong, if you are a European citizen. A ruling from the European Union’s highest court allows ordinary citizens to request search engines to take down links to personal information. Search engines must comply if that information is deemed to be “inadequate, irrelevant or no longer relevant.” Supporters say it’s a small but important step in efforts to protect individual privacy rights, but others argue it’s a troubling form of censorship: Please join us to discuss ‘the right to be forgotten’ on the web.
- Marc Rotenberg Executive director, Electronic Privacy Information Center; professor of information privacy law at Georgetown University Law Center
- Mark Scott Reporter, New York Times
- Stewart Baker Attorney at Steptoe and Johnson, former general counsel at National Security Agency, former assistant secretary of policy at Department of Homeland Security.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. What's on the Web stays there, except in Europe. A European Union ruling last may allows individuals to request that search engines remove links to information about them if that information is "inadequate, irrelevant or no longer relevant." Joining me to talk about Europe's so-called right to be forgotten rule and its implications, Marc Rotenberg of the Electronic Privacy Information Center, Stewart Baker, an attorney in private practice. Joining us from a BBC studio in London, Mark Scott of The New York Times.
MS. DIANE REHMI'm sure many of you will want to weigh in. Give us a call at 800-433-8850, send us an email to email@example.com, follow us on Facebook or Twitter. Welcome to all of you.
MR. MARC ROTENBERGGood morning.
MR. STEWART BAKERIt's a pleasure to be here.
REHMGood to see you. And Marc Rotenberg, I'm going to start with you. Explain this right to be forgotten, as defined by the European last May.
ROTENBERGSo, Diane, this is a very important decision. It concerns an individual who saw information published in a newspaper about him that was involving personal bankruptcy. And he asked the news organization and also Google, a big search company in Europe, to remove the information about him. And the Spanish Data Protection Agency said the news organization should be left alone, but said to Google, your search company, you make this information available. You should remove the link to this information.
ROTENBERGAnd when Google appealed that decision to the -- first the Spanish court and then to the European Court of Justice -- the European Court of Justice ultimately said, if you're in the business of providing commercial search and you make this type of private information available to others, then you have a responsibility in some circumstances to remove those links -- not to remove the underlying information and also not to burden the news organization, which is one of the key points of the decision I think is not so well understood in the United States.
ROTENBERGThe European Court of Justice did not say to the Spanish newspaper, you need to take (word?) information down. They said, you're protected by freedom of expression, very important. They said to the commercial search company, in some circumstances, you should remove the links.
REHMMark Scott of The New York Times, do you want to add to that?
MR. MARK SCOTTI think, just echoing the points made earlier, I do think there is -- this has been a long, two-decade process in which one individual in Spain has had ramifications not just for Europe, but frankly for the rest of the world. And I think when it comes down to the obligations that a search engine, be that Google or its smaller competitors here in Europe, they do now have to have a greater onus on how they treat the data of individuals under certain situations.
REHMAnd to you, Steward. To what extent do you believe this ruling collides in this country with free speech rights?
BAKERQuite directly. First, these were true facts. These were facts that you would want to know before you loaned this guy money and they're being suppressed deliberately and by the government. This is government censorship carried out through Google, which has no incentive to ameliorate the impact of the censorship. And most importantly, European censors in this area have made it perfectly clear they intend to impose this censorship on the efforts -- the mechanisms that we Americans use to get our news, which is go into Google and looking up stories.
BAKERThey want Google.com to become subject to their censorship regime. And they're going to fine Google -- in fact there's a French court already doing it -- until Google stops providing that information to Americans.
REHMSo, Mark Scott, to what extent can information in Europe actually be deleted at the individual's request. How far can that power of the individual go?
SCOTTSo it's very important to make the distinction here. Because, in the end, no information is being deleted. Any information is still going to be archived and available on those specific websites. What is being taken down are the links to that information through a search engine like Google or Microsoft's Bing. I also think it's important to make a distinction between censorship and regulation. I mean, again, they might be the two sides of the same coin, but I don't think this information is being censored. It is just a definition on what is relevant under certain search situations. And in Europe, there are distinct differences between how privacy is seen, which allows an individual to make these requests.
ROTENBERGWell, I think it's important to understand that when we're talking about the right to privacy, we're necessarily talking about true facts. I mean Stewart objects to the idea that true facts would be taken down. But we do this all the time. We do this for victims of domestic abuse. We do this for juvenile criminal offenders.
REHMHolding back identities. Yes.
ROTENBERGWe do it for personal bankruptcy. We have a very important tradition in this country -- which by the way also believes in giving people a second chance -- not to permit, in some circumstances -- not all circumstances -- but not to permit stigmatizing information to be widely available. So in some respects, to me the decision of the European court actually looked very familiar -- looked very much like the Brandeis tort of privacy. But the other point that Mark Scott makes, which is important, is that it's kind of odd to use the phrase censorship, which Stewart did routinely, when talking about a law that protects the private facts of a private individual.
ROTENBERGWhen we think about censorship, we think about governments imposing power to try to restrict views that they don't like, they don't favor. I mean it's all about government power. This is almost the opposite. This is about trying to protect the individual against public scrutiny.
REHMCensorship versus regulation, Stewart.
BAKERI think this is -- what Marc is saying is this is censorship on behalf of a cause that he supports, and so he doesn't see it as censorship. And I think The New York Times would recognize that there's not much difference between regulation and censorship if we decided to start regulating what it put in its paper every day. This is a direct attack on our ability as consumers of news to get the information that we want.
REHMMark Scott, do we have any idea how many requests Google is getting to take down information?
SCOTTSure. Just one point though, on The New York Times a minute here.
SCOTTI am taking a bit of an agnostic stance on this. I just want to make sure we're getting the facts right on that. At the moment -- I checked this morning before I came on air, and I think at the moment they've had about 170,000 requests, of which they are turning down about 55 percent of. That's a relatively lengthy process. But of that 170,000 more or less requests, that links to about 550,000 give or take URLs. So it's a pretty substantial operation that's underway.
REHMAnd can you give me any generalizations about the kind of information people want taken down?
SCOTTSo, that's a -- it's a very difficult thing to get because for obvious reasons this is all anonymized and there are obviously some privacy issues. What I think is a bit of a misunderstanding, the New York Times, the Washington Post, I believe, and other news organizations have got these requests for a variety of reasons. But I think the majority -- the largest websites to be affected by this are actually social media websites like Facebook and even Google's own sites, like YouTube and Google Groups. So there is a variety of websites being affected by this. Obviously the news elements to this links to news associations' websites is the most high profile. But this is a quite large operation.
REHMNow, what do we know about the process that Google goes through, Marc Rotenberg, to decide whether a request is absolutely valid or not?
ROTENBERGWell, it's not clear at this point. Google has conducted a series of public meetings in Europe to explain its position and to receive public comment. They understand that under the decision of the European court, they're obligated to remove information about private individuals that is no longer relevant, that is outdated, that raises a fundamental concern about privacy. And they are saying this is a difficult decision to make, it's a difficult line to draw. And that's frankly not surprising. But this is also not a new issue for Google, because of course for many years they've had to deal with concerns from authors and playwrights and the holders of copyright, who find their info on the Internet and they say, that was improperly posted.
ROTENBERGI have a copyright interest. And then Google has to go back and make a determination as to whether they can maintain the link to information that's otherwise protected.
REHMSo isn't that fair, Stewart?
BAKERIt's unfair in many ways. And I should say, I actually filed a few right to be forgotten requests, including one that I said, does this search engine make me look fat? In which I said, there's a picture up there of me before I lost some weight and I'd like it taken down. And what's significant, in the end, Google did not take it down. But they also did not reject the idea that an American could ask for censorship of this media. The problem with this, the way it's administered, is, first, the government sets the standards, and, second, Google administers it, with no incentive to be fair about it at all. They want to avoid liability.
REHMStewart Baker, he's an attorney at Steptoe and Johnson, former general counsel at the National Security Agency. Short break here. We'll be right back.
REHMAnd welcome back. We're talking about privacy and the rules that the European Union has now put into place. It's titled The Right to be Forgotten. Here's a perfect example from Roger who writes, "I was interviewed by a newspaper years ago. When I read the article I found it was completely unrelated to everything about which I'd spoken. The newspaper article was a completely fabricated lie, however when you Google my name, this article does appear. It's kept me from several profitable opportunities. I've been personally damaged by not being forgotten." Stewart Baker, do you want to comment?
BAKERYes. If the newspaper was irresponsible or published things that were lies, then the newspaper is responsible. But the idea of saying, we're going to ask Google, which has about a 1 penny interest in continuing to keep this link up, to make the decision whether to continue to get the 1 penny in advertising revenue or risk a government fine, they're going to take it down even if what our correspondent says isn't true. He just wants it down precisely because it is accurate and is causing him harm. Someone has to decide what's true. And the person who ought to make that decision is a court. And the person who ought to defend that judgment is the newspaper that published it.
SCOTTI would agree with Stewart here. I think the idea the first recourse for anyone in this situation is obviously to talk to the news organization who's made -- who published the article. I suppose the question is, does the correspondent live in the U.S.? Because if so, therefore although the -- it's a bit gray, at the moment it's very difficult to see how he or she could make that request in the U.S.
REHMYou know, it's so interesting because when you think about the placement of newspaper corrections, you see very little coming up. But if it 's out there on Google -- here's another email from Dan in Sacramento. "Who died and made Google God? Who created this rule that what's on the internet stays on the internet? The only reason it's there is because companies that post it don't want to remove it, not because they have a right to keep it there," Marc Rotenberg.
ROTENBERGWell, I think that's a key point. And I think it's the feeling that many people have had when they've done a search online for their own name. And they found information about themselves that surprised them. They thought, wow, thought that disappeared. That's when I was young. You know, who made that available to the public? And the obvious question is asked, what is the responsibility of the company that makes the information available? Google acts sometimes as if it mysteriously appeared and somehow it's being, you know, transported across the internet completely beyond their control.
ROTENBERGBut of course, that's not correct. Google is constantly trying to figure out how to maximize the commercial value of the information that it obtains. Which means that as a business it's incentive is to make as much of this data available as possible. And what has happened here is a court has drawn a line. It said, listen, in some situations you do need to respect this right of privacy and certain information should not be linked. And I think that's common sense.
REHMSo Mark Scott, do you know the process by which Google goes through to respond to, react to, communicate with a person who says, I want this information taken down?
SCOTTSure. So this process is ongoing and I think the company itself would say it's not a perfect situation. But as Stewart found, I presume, when he made his request, you initially fill in an online form which then is sent to Google and a team of, I believe, engineers and legal experts who then look at the request itself. And if it meets the requirements set under the court's decision it then -- if it is not correct, and maybe in Stewart's situation, I believe an email is sent to the individual to say thank you, but this is not going to work.
SCOTTIf it is successful, I also believe -- and this is still up in the air to a degree with Google -- they then will notify the website that has been affected saying, the link to X URL is no longer showing up in our search results. And at least within Google and its European domains, at the bottom of every single search result on their website they provide a disclaimer saying some of these results may have been affected by this recent court decision.
REHMSo the question becomes here in the U.S., Marc Rotenberg, what would have to be done to provide the same withdrawal protection for a U.S. citizen operating totally here? What agency would have to make a decision on that?
ROTENBERGWell, we haven't had a similar decision in the United States creating a similar, we might call it right to delete or right to erase with regard to an internet search company. But as I said earlier, I think we have a very familiar right in many aspects of our lives from, as I said, the ceiling of juvenile criminal records or personal bankruptcy. All of these kinds of safeguards exist currently in state law. In fact, Mark Scott, it was your newspaper this weekend that wrote a very strong editorial in favor of expungement for juvenile offenses because we understand the risk of making that information broadly available.
REHMLet me give you another example. Say, in her youth a young woman decides to provide a photograph of herself in the nude. And several years later here in the U.S. she wants that expunged? Does she have no rights whatsoever?
ROTENBERGWell, typically in the U.S. that might be viewed as a copyright claim. And so the strongest basis upon which an individual could have information that they've created about themselves removed from a website would be to assert the copyright interest against the website that's hosting it. But the Europeans take a somewhat different view. And I think they correctly emphasize the privacy interest and say that this is an aspect of personality, a person's dignity. They should have the right to control the presentation of themselves, particularly with regard to private matters.
REHMDo you disagree, Stewart?
BAKERThe people who will take advantage of this or people with lots of money to litigate who are embarrassed by what's on the internet, which means that essentially we will be taking down things that are embarrassing to powerful people. That, to my mind, defines censorship. And we can dress it up as privacy but the fact is that this is the government saying, we will back up an individual and deny the information that he wants suppressed to everybody else just because he's asked for it.
REHMBut if it's my personal information that I have put up there, don't I have the right to ask that it be taken down?
BAKERNo one would object to someone who has information refusing to share it or something who has put information up on their own, asking the place that they put it up to take it down. In fact, most people -- Facebook recognizes those requests on a routine basis. The question is, once it has become part of common discourse and is widely available, are we going to put it into a memory hole...
ROTENBERGBut Stewart, in fairness, it's not part of common discourse and that's not how Google operates. Google is literally scouring the web to, you know, pull in as much information as it possible can that's not locked down. And if you don't know how to create a robot dot text file, for example, on your website, things that you put online become available to Google. In a way, by the way, that's disproportionate to every other internet company. I think there's a tendency to say, well, this is, you know, a problem for lots and lots of websites.
ROTENBERGBut the decision in Europe of course was quite focused. It was focused on a particular internet company that controls more than 90 percent of the search market. So in that respect, I think it's very clear what the reaction is to.
REHMAnd Mark Scott, the whole notion of privacy in the European Union is different from that of the U.S., is it not?
SCOTTI agree. I mean, again, I'm sitting here with two legal experts so -- but my perspective from the European stance is that under the European convention of human rights, the idea of the right to privacy is actually ascribed in EU law along with the freedom of expression and the other things that we also need to ensure are upheld. My understanding, at least here in Europe, there are more similarities and those two rights, both the right to freedom of expression and the right to privacy are upheld at an almost similar stance, Whereas obviously in the U.S. freedom of expression comes first.
SCOTTI also want to make a quick point, just to make sure we understand, no information is actually being taken down. We are talking about links to the information. And then so the -- we can talk about the dominance of Google or another search engine but the actual information, as it was the case in the initial Spanish newspaper article that started this whole thing, that information is still up there. You can find that information on that website. It's a question of to what degree do we find information now in this 21st century digital age through Google and its competitors.
BAKERAs a practical matter, it's being taken down. It's no longer available to people looking for it in the ordinary way that we all look for information today.
REHMYou'd have to search in a different way.
BAKERYeah, right. You know, the days when you had to go to a newspaper and ask to search its morgue to find information about a particular topic are over. No one does that.
ROTENBERGBut isn't this actually a good outcome for the future of news? In other words, if I understand what you're saying, Stewart, you...
BAKERBut you'll give them a monopoly?
ROTENBERGNo. You've essentially given up on the idea that people would go directly to a news website to get information. They would almost necessarily have to go through Google. And it seems to me under that model, the future of the internet is not a favorable one for independent news organizations. They have become so dependent on Google for their readers, for their advertising revenue, you know, they're literally now begging to get those links restored so that they can maintain a presence on the internet. That can't be good.
SCOTTWe just need to make clear that although news organizations have been affected, the lion share of these -- we're talking -- I'm ball parking here -- 80, 85, 90 percent do not relate to newspaper articles. They are forum requests, Facebook posts, etcetera. So we need to be careful. Obviously as a journalist myself, I do not want my accurate information to be taken down. That is what I do. But we also need to be careful to link freedom of expression in the newspaper with this. They are linked but there are other things going on here.
REHMWhat about if the request involves a crime, Stewart?
BAKERSo if the request involves a crime that someone has committed and, in fact, some of the requests that were granted concerned people who were caught, I think Irish Republican Army volunteers who were moving a bomb, and one of the people who was arrested wanted to have that information taken down 20 years later And that succeeded as far as we can tell in the Guardian request.
BAKERSo there is no per say rule that says crimes are going to be exempted from this role. And you can see why some people would say, well, this was a particularly minor crime. It's deeply embarrassing and I'd like it to be suppressed. On the other hand, if your daughter was going to date this guy, you'd probably want to know about it.
ROTENBERGWell, I think there are some line-drawing problems here but as I said, in the United States we have lots and lots of situations where precisely that type of information would be removed because we understand the stigmatizing impact on employment and everything else.
REHMMarc Rotenberg, he's executive director of the Electronic Privacy Information Center. He teaches information privacy law at the Georgetown University Center of Law. And you're listening to "The Diane Rehm Show." Let's open the phones at this point. We've got lots of callers waiting, 800-433-8850. First to Houston, Texas. Darcy, you're on the air.
DARCYGood morning and thank you for taking my call.
DARCYI wanted to just tell a brief story of an experience with Google.
DARCYI'm a -- was middle-aged, unemployed when we moved to Houston here. And I searched for months for a position. And finally I Googled myself and the first thing that came up was Classmates.com with my high school graduation date. And I thought, oh no, this could be a problem. So I contacted Google and they recommended I go back to the source. And I did go to Classmates, removed myself from their lists and so forth. And surprisingly a few days later I went in and Googled myself again and it was no longer visible.
DARCYSo I just wanted to mention that there was a discussion about going back to a newspaper or whatever if they reported misinformation. And that did work for me.
REHMTell me why you felt it was so important to take down that date of graduation?
DARCYOkay. Well, I'll be frank with you. I'm well-educated. I had years of experience in the great administration world. I'm a graduate of Berkeley and I really felt that I was in a good position to find work. And I searched with small nonprofits all the way through large medical institutions. And after 90 applications, I received two calls for interviews.
REHMAnd what you're saying is you felt your age would put you at a disadvantage.
DARCYI did. I really did.
REHMIt's an interesting situation. Marc Rotenberg, what do you think?
ROTENBERGWell, it's very interesting. Google currently, and before the decision of the European court, would take down links to information that they conceded caused financial harm. So, for example, if someone posted your credit card number, your bank account number, digital signature and you went to Google, not the source but to Google and said, take that link down, Google would say, okay, we get it. There's a risk here of identity theft. There's a risk of financial fraud.
ROTENBERGWe'll take those links down. But, you see, privacy is about more than the pecuniary harm. And there are all sorts of situations, as your caller describes, when information can be posted. And it hurts people in a variety of ways. The line is necessarily difficult to draw but I think the admission by Google that it would take down links before the decision for the information that causes people an economic harm begins to take us down that road.
REHMMark Scott, did you want to jump in?
SCOTTI find it interesting with the caller that, you know, she was successful with the website, if she's still on the line, to know if she felt Google had some responsibility in that. I suppose for me it comes down to, I would find within -- here in Europe where I'm sitting right now, there is this line of privacy which I believe -- and correct me if I'm wrong, gentleman -- it just doesn't exist to that degree legally in the United States.
SCOTTAnd so I suppose my question comes down to, would a right to be forgotten be successfully implemented in the U.S.? Personally I find that quite difficult to see.
ROTENBERGWell, I think, as against a news organization would be a difficult claim. And I would likely side with the news organization. But as against a commercial search provider which could also be a data broker, yes, I think you could establish such a right.
REHMAll right. Short break here and more of your calls, your email when we come back.
REHMAnd we've got lots of emails. One particularly funny comment, a tweet, from someone named James Monroe. He says, luckily, I share a name with the fifth President of the United States, so it's very hard to Google anything about me. But one on the serious side is from a young woman who says, please consider this controversial topic for a future program. My life has been negatively affected by Google. I am ashamed to tell people my name for fear they will Google me and learn of an incident that made the news in 2008 that has ruined my professional and personal reputation. Marc Rotenberg.
ROTENBERGWell, I suspect there are many people who have that view. Certainly, there's enormous value in a search engine like Google. And I don't think we're having a discussion today about whether there should be internet search. I think we're having a discussion today about where it's appropriate to draw some boundaries. And when we talk about certain types of private information, the publication of which causes people real harm, I think that is the right place to begin to talk about a boundary.
BAKERSo, I think Marc is trying to turn Google into a regulated industry, like the data brokers who provide credit reports. This means that the source of much of the information we all rely on every day will be regulated by government. And worse, not even by the US government, which will be prohibited by the First Amendment from doing anything about it. It will be regulated by every other government in the world. And Google will be told what Americans can learn. This is crazy.
SCOTTNo, I agree. I think the idea of outsourcing regulation to Google is wrong for a variety of reasons. Frankly, because they're not very good at it. Right? I mean, then that's not their job to do that. I think one of the concerns I have with the right to be forgotten ruling here in Europe is that the initial port of call, for anyone affected, is Google. And then, only after that do they turn to a regulator. I suppose the question is, should governments be involved earlier or should you allow Google to do its thing and decide, initially, if it should turn down these requests or not. I find either option quite uncomfortable, to be honest.
ROTENBERGCan I just turn it around, though?
ROTENBERGBecause Stewart's argument is also, I think, that Google is simply beyond regulation. That it's become so important, so powerful and so influential that to even consider regulating that company would somehow pose a great risk to us. And I think it's worth pausing for a moment and thinking about the implications of that statement. That is also of concern to me, that somehow we are so dependent on a single company that even the prospect of regulation is upsetting to people.
BAKERI think that's a funny argument. The same regulation applies to Bing and to Yahoo. You're proposing to regulate every search engine on the planet in the interest of suppressing information.
ROTENBERGI'm interested in protecting the right of privacy and people that are in -- companies that are in the business of collecting and selling and profiting from the distribution of other peoples' personal information, I think, should be accountable.
REHMHere's an email from Paul in Orange Park, Florida. He says, I'm 64-years-old. 42 years ago, when I was 22, I made some poor decisions generated by immature, youthful enthusiasm. I was convicted on three misdemeanors, two of which there was no evidence presented in court. A while ago, I decided I wanted to get a gun permit to defend myself from a person breaking in to my house. I was shocked to discover the state of Florida refused to grant me a gun permit based on my conviction on assault and battery.
REHMWhich consisted of one very minor punch to another person's shoulder to stop them from repeatedly punching me on my shoulder. Errors made in one's youth should not follow them for the rest of their life.
BAKERI certainly agree. It's worth pointing out that what Florida said about a gun license for that individual is not influenced at all by Google. This is a question of looking at the criminal records that are available to the state. So, it's not a Google issue at all. The other point I would make here is, and First Amendment enthusiasts will say this always, that the right response to speech you don't like is more speech, not to suppress the speech you don't like.
ROTENBERGBut we know that doesn't work with private facts. I mean, that's...
BAKERThis is quite, this is quite untrue.
ROTENBERGStewart, that's the entire point of the right to privacy. There's nothing to say when you report that someone else has tested positive for AIDS. There's no contrary speech to the disclosure of true, private information.
BAKERYou can put things in context, you can deny things that aren't true. You can make clear the data about your life makes this a much smaller issue than is being presented. And we've all gone through the experience of meeting people, discovering facts about them that make us question whether we want to be involved with them, and then discovering that they're delightful people that, put in context, were glad to be -- to have as part of our lives. This...
REHMFor you, Marc Rotenberg, does it make sense to put so much power in the hands of one company like Google to decide what is and should be kept private?
ROTENBERGWell, I think we need to understand that Google is acting in response to a legal judgment. And Google should be accountable to democratic institutions and to courts of law. It is a business, providing a service, clearly very successful. People value it. But that doesn't mean that it's above the rule of law. And I think that's the proposition that's really being tested today. Are we going to say that companies that are in these kinds of businesses can freely do whatever they want? And I think that would be, you know, frankly, a tragic mistake.
ROTENBERGI think it would be a mistake also for the future of free expression.
REHMLet's go to Beverly in Cottonwood, Arizona. Hi there. You're on the air.
BEVERLYHi Diane. Thank you for having me.
BEVERLYI have a question about mugshots.com. A friend of mine was in sales and was convicted of a DUI. Of course, she was subsequently fired as soon as the mug shot turned up on the web. Another firm hired her and paid mugshots.com 1500 dollars to have her picture taken down. As soon as the deal was negotiated, other companies just, you know, got her picture and published it all over the web. Two or three other companies. I read, about a year and a half ago, in the New York Times, that a -- there was a lawsuit concerning this company.
BEVERLYAnd I'm wondering if that was ever followed through or what's happened with that? Does anybody know, because that company, or those companies destroy careers for money?
REHMI'm afraid everyone in here is shaking his head as to knowledge about that particular company. But the idea of having to pay to take something down is really outrageous.
BAKERRight. And it's extortion and they should be subject to a lawsuit for extortion in this context.
REHMAll right. And let's now go to Eric. He's in Salisbury, Maryland. Hi there.
ERICHey everybody. One question you guys have kind of answered was, does this ruling apply to other companies other than just Google? You guys do keep praising, keep commenting, basically only Google has all the power. This one company. But isn't there dozens of search engines that, you, you know, that you would need to address, I guess. And also, early on, you guys had mentioned something, a couple things about like somebody does an interview that they don't like what was said in their view. And then, later on, want to have it taken down.
ERICOr they had nude pictures taken of themselves. Can you say more about that? Now, if they were to do a photo shoot in Playboy and do an interview, wouldn't it be then completely unreasonable for them to later on in life go, oh, that was a mistake. Playboy needs you to scoop up all the copies of this issue ever and destroy them all. Isn't that kind of similar to what people are expecting Google to do?
SCOTTSo, a couple points there. The ruling applies to every single search engine in Europe, unlike in the US, where Google, I think, has about 65 percent market share. In Europe, it's above 80, 85 percent, and therefore, although it does apply to Microsoft's Bing and other domestic European search engines, Google just has more of the pie than anyone else. And therefore, Google has become the shorthand for this ruling, but it by no means is the only company affected.
SCOTTSecondly, before the other two gentlemen jump in, this ruling applies to individuals who do not -- are not deemed to be in the public interest. So, to take the Playboy example, if someone had done a shoot and given an interview in that magazine, to use that as a generic example, I would presume they would be seen as a public person and therefore would not be allowed to request for those links to be taken down.
ROTENBERGI think that's correct on both counts.
BAKERI think the law is so vague that any decent lawyer could write an argument that says, this is now irrelevant, it's now too old. It should be taken down. We've seen in New York, in Europe, a fellow named Max Moseley who ran the Formula One Federation. And who, in his extra-curricular time, had five hour sado-masochistic orgies with hookers. And one of the hookers actually did a video tape of the event. And he has gone around suing everybody to take down that video.
BAKERYou know, and he is 68. I'm just as happy that they're taking it down. But the idea that he could say, I think that's not in the public interest and has to come down shows the breadth of this doctrine.
REHMOkay, but he also mentioned Playboy. And suppose a young woman or young man posed and then years later, wanted to make sure that no issues of that magazine were still around. What recourse does he or she have? Mark Scott.
SCOTTSo, the magazines will still be there, right? Both online and offline. To use that as a generic example, and Stewart is right, there is a lot of gray area around this. They would have to follow the process, whatever that process might be in the future. But in the end, the domestic regulator in Europe, 'cause, in the end, this is a European decision, will have to make that decision. And there was a legal remit around that which would allow both the individual as well as the search engine to make their cases for why this information should or should not be taken down.
REHMMark Scott is a reporter for the New York Times. He's joining us from the BBC in London. And you're listening to "The Diane Rehm Show." And let's see. Let's go to Kevin in Logansport, Indiana. Hi there, you're on the air.
KEVINHi Diane. Well, thank you. And how are you today?
KEVINGood. Good. It's a chilly nine degrees here. So, my comment was to the gentleman who referred to the other gentleman that said in the email that he got shut down for his gun permit in Florida. Then the gentleman on your show said, well, that's not really Google's fault. That's Florida's fault. And I think that there's something that goes hand in hand there. And that's responsibility of knowledge. I think that people can so easily look up just quick information on the internet, but then they don't do any research and they don't take any responsibility for what they know.
KEVINAnd I think that Florida should have investigated that file, you know, a little bit more, and maybe they would have realized, oh, this is a very old case and these are the circumstances surrounding it. And therefore, you know, I'm going to make a true human judgment call here and say that that's not really relevant to this gentleman anymore and I'm gonna give him his gun permit.
REHMWhat do you think?
ROTENBERGWell, I took away from the person's email that in fact it is very much a problem that Google creates. Because it is this type of information that becomes available to employers, that becomes available to universities, that determines whether or not people get opportunities. And it can be enormously stigmatizing. It can prevent people from getting things they might otherwise be entitled to.
REHMDo you believe, Marc Rotenberg, that there will be a move in this country toward adopting a similar...
ROTENBERGI think there is already. I mean, as I said, I think our tradition of the privacy torte State Expungement Law. California just passed an eraser law for information about young children on the internet. I think this is to be expected. I don't think we're going to see in the US the kind of sweeping decision that we saw from the European court, but part of that is just a reflection of the nature of our institutions.
SCOTTI also think, just taking a global perspective for a quick sec, that this is happening all over the world.
SCOTTSo, what has happened in Europe is now being maybe not parroted, but definitely being taken up in certain other jurisdictions. Japan had a recent case as well, so I think the idea, that maybe Stewart said, initially before, sort of the other governments outside, other than the US making these decisions, for US citizens, that may or may not happen going forward. And the question comes down to is it, is it, you know, to what degree is the US government going to respond to that, if that is going to happen.
REHMAnd which agency, or would it have to be the US Congress, to make such a decision, Stewart?
BAKERI -- probably the most likely thing is that the US Congress should take action to protect us from the effects of foreign censorship. But there is actually existing law that was passed to deal with the problem of Nazi propaganda. And Nazi front groups being created in the run-up to World War II. And the requirement is that anyone who's engaged in that kind of propaganda that affects the US public must register and must explain what they're doing and how they're affecting the information that's available to Americans with the Justice Department.
BAKERAnd there's at least an argument that that law could be dusted off and anyone who seeks to prevent Americans from getting information must register and have a public disclosure of what they're trying to withhold.
REHMWhat do you think, Marc?
ROTENBERGSo, Stewart, that's kind of a weird example. Let me come up with one that's a little bit more relevant. You know, Epic, my organization, over the years, has gone to the Federal Trade Commission and we've said that companies such as Facebook, that collect a lot of information about people, when someone chooses to no longer be a user of Facebook, they have the right to have that information deleted by the company, at least to the extent that the company possesses it. And at the beginning, you know, Facebook resisted and said, we can't do that. It's impractical.
ROTENBERGAnd, of course, over time, that's exactly what they did. And I think today it's a standard practice. If you leave an internet firm, they should delete the information about you if that's your choice.
REHMAll right. And we'll leave it at that. Marc Rotenberg, Stewart Baker, Mark Scott, thank you all so much for a most interesting discussion.
BAKERThank you, Diane.
ROTENBERGYes, thank you.
REHMAnd thanks for listening, all. I'm Diane Rehm.
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