Right To Hide The Truth: How Much Should Be Deleted?
Is more information always better?
If someone wants to limit the use of information, and others want to expose, discuss or publicize it, who wins? Does it matter if the person who wants to limit data’s dissemination is the person described by the data?
Several years ago Spanish courts introduced the legal concept of a “right to be forgotten,” or a “right of deletion” into the privacy rules. The initial decision held that a man who was distressed that a true fact of his life could be discovered – in this case a real estate foreclosure – could successfully petition for the offending fact to be stripped from Google searches. This was true even though the fact had appeared in a town’s newspaper and Google was just linking to a published news story. I believe this rule is more accurately named the “right to hide the truth.”
To meet this new set of requirements in Europe, Google was forced to develop an entire administrative regime to receive, review and rule on such requests any time a European citizen petitioned to hide the truth that had been published about them. NPR reports that in less than four years following the Spanish decision Google received more than 650,000 requests to remove websites from its search results. “In all, Google says it received requests to remove more than 2.43 million URLs since the end of May 2014, and it has removed about 43 percent of them.” While some of the requests came from celebrities, politicians, and reputation management services, Google says 89% of the requests came from private individuals. French courts have demanded that Google remove the information globally, not just from European searches.
In the U.S. we value openness regarding historical facts. We not only enshrined the freedom of speech into our Constitution, but most states have sunshine laws and freedom of information acts to make certain government actions come to light, and rather than allowing child sex offenders to request their criminal records be stricken from the public eye, we have laws requiring sex offenders to register and be identified. We operate from the baseline that the more facts we know about a person or situation, the better decisions that can be made about them. We would prefer to err, if it is error at all, on the side of disclosure, even if those disclosures of true facts will hurt someone’s chances of a loan, an apartment, a club membership, a job or a date.
Even the modest data deletion right newly enacted into some state privacy laws affects only private companies holding data, and it comes with significant exceptions and exemptions. U.S. laws simply hold the truth to be too important to discard for personal preference. Accountability for past actions is an important motivator for maintaining this system, where the European system holds that some information about your past life should be made as private as possible, even if it involved an official governmentally-recorded act and/or it was reported in the newspaper at the time.
The U.S. has a time-honored defamation law that affects false statements, but clearly there are some situations where a right to hide the truth may be more humane than our present system. News reports about the tragic death of loved ones can follow us around in search requests. Many people’s financial troubles are caused by trusting a spouse or roommate, and it can be difficult to separate themselves from these problems later. We can be mistaken for a malignant personality who has the same or similar name. The initial Spanish court recognizing the right in Europe weighed the right to privacy against both the commercial interests of Google in capturing complete information and society’s right to know the truth of the matter. The court found the right of privacy outweighed other considerations in that case.
Many people do not understand their rights in regard to information that describes them or the things that they do. Some of this confusion grows from discussing this data as if it belonged to the person it describes. It doesn’t.
We are imprecise when we say that data describing you is your information. The information may be describing you, but it does not belong to you. Descriptive or historical information does not belong to anybody. We call that data “facts,” and in this country everyone is entitled to use the demonstrably true facts unless there is a specific legal limitation placed on them.
We are imprecise when we say that data describing you is your information. The information may be describing you, but it does not belong to you.
The new California laws, CCPA/CPRA, qualify as a limitation placed on the free use of facts. Assume it is a fact that California resident Ann visited the shoe store website and, using her Visa card, bought a pair of boots, which were shipped to her home. California’s privacy law places restrictions on what the affected shoe store, bank, card company, and shipping company can do with the information describing the transaction and their roles in it. This law also gives Ann the right to place further limits on use of the data, like the right to deletion in some circumstances. But this still doesn’t mean that Ann owns the information about her or could control that information beyond what the law allows.
Do not be fooled when a company or government says “here is what we do with your data.” The data is collected by the company or government, and while they may allow you certain limited rights to direct them about the use of the data, the data never belongs to you. It is factual data that could be used by the entity that gathered it, reported in the news, the basis of government taxes, or passed along to others for many possible reasons.
I suggest that in an information age where we conduct lives in the electronic world and separate if interconnected lives in the wet world, we perform a disservice by telling people that essential descriptive or historic information belongs to them simply because they are the subject of the data. Many of the rights provided in privacy laws are enforceable against companies who are using our living histories to both influence us or to turn our preferences into products sold to others. We have created an attention economy and privacy laws allow us to limit the sale and manipulation of our attention, but not to own the data.
The right to hide the truth gives a person control over both the narrative and the truth. If regularly and effectively exercised, the right to hide the truth harms society for very little gain, and it provides an illusion of control over facts.