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The Right to Forget, the Right to be Forgotten
Abstract
Amalgamating the languages of scientific and literary approaches, this essay is meant to establish a common thread that runs through the separate topics of data protection literature—a leitmotif centered on the issues of remembering and forgetting, if you will.
... Nem kétséges, hogy az információs társadalomban a legfontosabb emberi jog a felejtés joga. Székely Iván információstársadalom-kutató pamfletjében összehasonlítja az információ (összefoglalóan internet) előtti kor és az információ korának jellemzőit (Székely 2012). Míg korábban a felejtés volt az uralkodó szabály, addig az információs korban nem engedhetjük meg a felejtés luxusát. ...
... Foucault a jelenségre az 1970-as években a televíziónézéssel, illetve a börtönzárkákba szerelt tévékészülékek hatásával összefüggésben hívta fel a figyelmet, de a gépek, a használati tárgyak általi megfigyelés, a monitorozás az információs korban teljesedik ki (Foucault 1990). Ez a kor panoptikon helyett inkább periptikonhoz (vagy kriptoptikonhoz) hasonlít, amelyben nem tudható, hogy ki, mikor, milyen eszközzel végzi a megfigyelésünket, mint ahogy az sem, hogy ki, mikor, milyen célból fogja felhasználni a rólunk gyűjtött adatokat (Székely 2012). Székely szerint azzal, hogy nem megengedett (illetve technikailag nem a rendszerbe beépített opció) a felejtés, a múlt börtönébe zárjuk magunkat -az információ tehát maga a kontroll eszköze (Székely 2012). ...
... Ez a kor panoptikon helyett inkább periptikonhoz (vagy kriptoptikonhoz) hasonlít, amelyben nem tudható, hogy ki, mikor, milyen eszközzel végzi a megfigyelésünket, mint ahogy az sem, hogy ki, mikor, milyen célból fogja felhasználni a rólunk gyűjtött adatokat (Székely 2012). Székely szerint azzal, hogy nem megengedett (illetve technikailag nem a rendszerbe beépített opció) a felejtés, a múlt börtönébe zárjuk magunkat -az információ tehát maga a kontroll eszköze (Székely 2012). A kontroll és a szabály pedig a társadalmi együttélés alapja, ami az információ korában teljesen digitálissá vált. ...
... The Data Protection Directive gives data subjects a variety of rights that, in combination, can eventually give rise to the so-called right to be forgotten. Article 6 of the Directive imposes an obligation for data controllers to keep personal data "accurate and, where necessary, kept up to date", and Article 12 permits data subjects to request for rectification, erasure or blocking of data that is incomplete or inaccurate, or where one of the following conditions has been met: a) the processing is unlawful; b) the data is no longer necessary in relation to the purpose for which it was collected; c) the data subject withdraws consent; d) the data subject objects to the processing ( Szekely, 2012). All of these are important for the courts to create a right to be forgotten on the Internet. ...
... 71 Second, the question is broader than a binary choice between disclose (and preserve) or delete, and there can be technical solutions to manage level of publicity. There can be circles of divulgation: family, work, medical services ( Szekely, 2012). Privacy Enhancing Technologies (PETs), more recently labelled Privacy-by-Design solutions, are developing "contextual approaches" (Nissenbaum, 2011). ...
... Privacy Enhancing Technologies (PETs), more recently labelled Privacy-by-Design solutions, are developing "contextual approaches" (Nissenbaum, 2011). User-centric identity management systems (PRIME and PrimeLife cited by Szekely, 2012) propose to implement laws and preferences, and crawl the web to delete photos after a specific time. Thus, the question would be not to rely on legal tools, but on the technical implementation and feasibility of an actual and real RTBF, which would remove all instances of the resource and make it impossible to access, reproduce and disseminate them. ...
... Insolvency law, juvenile delinquency records, and credit reporting regulations include limits on the retention of data (Blanchette and Johnson, 2002). Emigration to start a new life, amnesty, and Catholic absolution are just some examples of how oblivion enables social forgiveness (Bannon, 2006;Szekely, 2012). ...
... Against this background, thought leaders discuss whether the Internet should be able to forget. Privacy reasons, long-term data security issues, and companies' data liability (FIP, 2012) are putting increasing pressure on moving towards a "forgetting web", particularly with a view to PI. Envisaged ideas of a forgetting web do not include "scientific or technological information" (Szekely, 2012), not touching the web's function as a cultural and historic memory (Kaiser, 2012). Rather, proposals are limited to PI being forgotten. ...
Unlimited retention of personal information on the web may harm individuals: employers can find youthful indiscretions on social media, and incorrectly low credit scores may haunt individuals for a lifetime. Currently, Europe revives the "right to erasure" as a first step towards a forgetting web. Early technologies implementing oblivion suffer from vulnerabilities and narrowly assume that users require information to be erased after a pre-determined time. But little is known about users' actual oblivion needs. A first study shows that users desire control over disclosed personal information to reduce pre-disclosure privacy concerns, and to delete harmful information after disclosure. In the long run, users have a need for dissociating from obsolete information that represents their past identity. A second study analyses whether oblivion-enhancing technologies (OETs) currently deployed in online services satisfy users' needs. While not all services give users assurance that disclosed information can be erased again, most provide users with some active control. But to manage the increasing volume of personal information stored, users would also require "intelligent" support with oblivion. Intelligent agents that keep track of disclosed information long-term could automatically safeguard users from information relating to a past episode in life surfacing unexpectedly.
... Concerns are warranted as articles regularly circulate with titles suggesting invasive background checks: "Employers are Googling you," "Social Media Screenings Increase for Job Seekers," and "Your Future Employer Is Watching You Online." Szekely (2012) warns that our digital footprint could bring about a "zero-tolerancesociety" because "the possibility of storing information on everyone, of retrieving and using it at any time against anybody, is the perfect means to detect and sanction the slightest deviation from the ideologically, politically or commercially preferred behavior" (p. 353). ...
... Because of digital data, along with inexpensive and unlimited storage capabilities, forgetting (namely, deletion) is now more costly than remembering (Szekely, 2012). Not only sophisticated search technologies, but also people's increasing adeptness with computers make it easier to find delinked information, which contributes to our inability to eliminate information. ...
In this article, we argue in favor of a macro-societal approach to protect people from the potential harms of personal information online. In the tension between information and privacy, "the right to be forgotten" is not an appropriate solution. Such a micro, individual-based answer puts the burden of protection on each person instead of on external entities that can abuse such knowledge. The personal responsibility to delete personal data is challenging because of the leakage of data that happens through the connections we have with others, many of whom do not share the same privacy preferences. We show that effective deletion is almost impossible (the eternity effect), and is unfair due to the resource burden it entails when users try to achieve it, while at the same time ensuring the potential benefits we can derive in the future from having personal information online. In addition, deletion requests can negatively affect other people who are in the same location and time frame and may not want to have their information deleted. Collectively, we argue also that society is worse off because these circumstances lead people to construct sanitized personas while perpetuating a culture of distrust. Given that the harm is real, we describe technology, societal norms, and the implementation of an anti-discrimination directive for the right to a personal life, and we provide evidence on how anti-discrimination efforts in the past have succeeded when legislation leads to the development of infrastructures that help to enforce them. The dissemination of personal information through public sites and social media is, as Mozart suggested in Cosi fan tutte, gradually educating humanity about human weaknesses.
... Because of digital data, along with inexpensive and unlimited storage capabilities, forgetting (namely, deletion) is now more costly than remembering (Szekely, 2012). Not only sophisticated search technologies, but also people's increasing adeptness with computers make it easier to find delinked information, which contributes to our inability to eliminate information. ...
In this article we argue that the European Union directive on “the right to be forgotten” is unrealistic and suggest instead a series of principles that can protect us from the potentially harmful publication of private information. The dissemination of personal information through public and private databases as well as social media is gradually educating humanity about reality: humans are weak; everyone misbehaves; and we need to learn to accept public knowledge of the imperfections of ourselves and others.
Can a right to memory be counted among the rights society needs to safeguard, if so, what are its theoretical and conceptual foundations, and how do they relate to communications? We answer these questions by offering a new perspective regarding the right’s components, origin and justifications, the mechanisms needed to realize it and the legal framework required for such realization. We begin by first recognizing the fundamental role of memory in human life, in particular as it pertains to the creation, preservation, and endowment of identity, which justifies the need to protect it. We then discuss memory’s four elements—remembering, forgetting, being remembered, and being forgotten—and their dependence on communications. We follow by describing the nature of rights and the distinction between different types of rights. This helps us claim that recognizing the right to memory requires ensuring the capability to communicate by designing appropriate communication policies.
This article studies the possible impact of the “right to be forgotten” (RTBF) on the preservation of native digital heritage. It analyses the extent to which archival practices may be affected by the new right, and whether the web may become impossible to preserve for future generations, risking to disappear from memories and history since no version would be available in public or private archives. Collective rights to remember and to memory, free access to information and freedom of expression, seem to clash with private individuals’ right to privacy. After a presentation of core legal concepts of privacy, data protection and freedom of expression, we analyse the case of the European Union Court of Justice vs. Google concerning the right to be forgotten, and look deeper into the controversies generated by the decision. We conclude that there is no room for concern for archives and for the right to remember given the restricted application of RTBF.
One of the main responsibilities of the Nation’s Memory Institute (NMI) in
Slovakia is the analysis and disclosure of secret police collaborators’ files. This practice
however creates a tension between two important rights – the individual right to privacy and
the collective right to information. On the one hand, the revelation of the names is perceived
as something society has a right to know and it serves as a form of symbolic lustration. On
the other hand, the files are incomplete and often offer only a very limited image of a
particular person. The activities of the NMI stirred a lot of controversies and subsequently
led to a number of court trials concerning the revelation of information, which was labeled
as untrue by the affected individuals. This article aims at mapping out these controversies
and engaging in the discussion of whether and in which case are these activities fruitful for
the society.
The birth of data protection regulation in Europe was directly linked to technological developments – mainly to the impressive IT developments of the 70s and their application in public administration. This development has challenged data protection law on every single day ever since. Now, the European data protection law is under revision. One of the most important purposes of the reform is to react to the latest technological developments and to the related social changes once again. The indicated changes are much more than the fine-tuning of the legislation: a new theoretical approach is delineating. The core element of this approach is effectively protecting the individuals’ privacy even if their privacy awareness is low, and even if they do not take steps in order to be protected (“invisible protection”). In this paper the key elements of this new generation of personal data protection regulation are shown. Although some aspects of the Proposal for a Regulation will be highlighted in order to underlay our thesis, a complete and detailed analysis of the Proposal cannot be presented within this paper.
The Internet’s World Wide Web (web) is increasingly used as people’s primary source of information (Castells, 2010: 382). The technological developments that add to and increase our capacity for data storage and transport have grown explosively in quality and quantity during the last decades (Mayer-Schönberger, 2009), resulting in the growing and generally persistent memory of the web. With the help of search engines, information can be retrieved relatively easily. This easy and long-term accessibility of information has caused, and still is causing, concern when it comes to personal information. In order to deal with such concerns and provide individuals with the means to oppose the persistent digital memory about them, Article 17 of the proposed General Data Protection Regulation hereinafter Proposal (EC European Commission, 2012) was developed. This provision entails a ‘right to be forgotten and to erasure’ (hereafter: RtbF).2
The right to be forgotten, equally called the right to oblivion, is today at the heart of intense debate in high-level spheres. European Union legislators have been discussing the relevance of such a right in the digital environment for many years, the Council of Europe authorities have expressed their concern on the subject, national politicians have raised their voices, data protection authorities, entities working in the field of human rights, academics and experts have all joined the procession coming from different geographical horizons.
Memory is a ‘dualistic entity’, composed of remembering and forgetting, and it is one of the constitutional elements of one’s identity and one’s self (see for instance, James, 1890/1950; Conway, 2005). As much as remembering, forgetting is constitutive in the formation of new identities (Connerton, 2009). A seminal text in the field of memory studies is that of Yates (1966): memory practices are presented as art, and, in Yates’ work, the practical, religious and ethical importance of memory is thoroughly studied. Ricoeur (1999; 2004) offers a deeper study of the importance of forgetting and its socio-political impacts, starting from the history of memories. In his work on ‘forgiveness’, Ricoeur gives forgetting a prominent role in human memory: ‘Could forgetting then no longer be in every respect an enemy of memory, and could memory have to negotiate with forgetting, groping to find the right measure in its balance with forgetting?’ (Ricoeur, 2004: 413). Much of the debate on cultural and collective memory has been shaped by the view, commonly held if not universal, that remembering and commemorating is usually a virtue and that forgetting is a failure2 (Ricoeur, 1999; Connerton, 2009). The idea that forgetting is vital for effective function is, for example, in sharp contrast to the mental reflex of certain computer scientists who maintain that forgetting is a ‘bad thing’ (O’Hara et al., 2006: 356): it is often perceived to be the result of human fragility or a technical problem.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2436436
The so-called "Right to Be Forgotten or Erasure" (RTBF), article 17 of the proposed General Data Protection Regulation, provides individuals with a means to oppose the often persistent digital memory of the Web. Because digital information technologies affect the accessibility of information over time and time plays a fundamental role in biological forgetting, ‘time’ is a factor that should play a pivotal role in the RTBF. This chapter explores the roles that ‘time’ plays and could play in decisions regarding the retention or erasure of data. Two roles are identified: (1) ‘time’ as the marker of a discrete moment where the grounds for retention no longer hold and ‘forgetting’ of the data should follow and (2) ‘time’ as a factor in the balance of interests, as adding or removing weight to the request to ‘forget’ personal information or its opposing interest. The chapter elaborates on these two roles from different perspectives and highlights the importance and underdeveloped understanding of the second role.
New systems may allow people to record everything they see and hear—and even things they cannot sense—and to store all these data in a personal digital archive
Delete looks at the surprising phenomenon of perfect remembering in the digital age, and reveals why we must reintroduce our capacity to forget. Digital technology empowers us as never before, yet it has unforeseen consequences as well. Potentially humiliating content on Facebook is enshrined in cyberspace for future employers to see. Google remembers everything we've searched for and when. The digital realm remembers what is sometimes better forgotten, and this has profound implications for us all.InDelete, Viktor Mayer-Sch nberger traces the important role that forgetting has played throughout human history, from the ability to make sound decisions unencumbered by the past to the possibility of second chances. The written word made it possible for humans to remember across generations and time, yet now digital technology and global networks are overriding our natural ability to forget--the past is ever present, ready to be called up at the click of a mouse. Mayer-Sch nberger examines the technology that's facilitating the end of forgetting--digitization, cheap storage and easy retrieval, global access, and increasingly powerful software--and describes the dangers of everlasting digital memory, whether it's outdated information taken out of context or compromising photos the Web won't let us forget. He explains why information privacy rights and other fixes can't help us, and proposes an ingeniously simple solution--expiration dates on information--that may.Deleteis an eye-opening book that will help us remember how to forget in the digital age.
The new penology argues that an important new language of penology is emerging. This new language, which has its counterparts in other areas of the law as well, shifts focus away from the traditional concerns of the criminal law and criminology, which have focused on the individual, and redirects it to actuarial consideration of aggregates. This shift has a number of important implications: It facilitates development of a vision or model of a new type of criminal process that embraces increased reliance on imprisonment and that merges concerns for surveillance and custody, that shifts away from a concern with punishing individuals to managing aggregates of dangerous groups, and that affects the training and practice of criminologists.
Risk society: Towards a new modernity. London: Sage. (The originator of the concept of reflexive or second modernity wrote his classic treatise on risk society as early as
- Ulrich Beck
Critique of the political economy of Web 2.0 surveillance
- Christian Fuchs
Code and other laws of cyberspace Basic Books. (Lessig’s best-seller, in which he expounds his view on how code becomes law in information societies
- Lawrence Lessig
Funes, the MemoriusA famous 1942 short story capturing the short life of the Uruguayan mnemonist; analyzed by Draaisma
- Jorge Borges
- Luis
The mind of a Mnemonist: A little book about a vast memory New York: Basic Books. (Writing about Solomon Shereshevsky, who is referred to in the book as “S,” Luria, the prominent Soviet neurologist, describes the numerous experiments he carried out for many years between the two World Wars
- Alexander Luria
- Romanovich
Kukkoló társadalom—avagy van-e még függöny a virtuális ablakunkon?Voyeur Society—Does Our Virtual Window Still Have a Curtain?”] In Az internet a kockázatok és mellékhatások tekintetében [The Internet, with regard to possible hazards and side-effects]
- Iván Székely
Private credentials: Zero-knowledge systems
- Stefan Brands
Rituals. Baton Rouge: LSU Press. (The original source of the earlier-quoted metaphor of memory
- Cees Nooteboom
Panopticon, or the inspection-house (1787) Its modern edition: The panopticon writings: Verso. (Originally put forward by Foucault, this proposition became the classic metaphor of the surveillance society
- Jeremy Bentham
World brain. London: Meuthuen & Co. Ltd. (A highly visionary piece of early sci-fi about the world brain
- Herbert Wells
- George
Facebook funhouse: Notes on personal transparency and peer surveillance. Paper presented at the fourth Biannual Surveillance and Society/SSN conference (A presentation given by the researchers who originally proposed the House of Mirrors metaphor-for the moment still only in highlights
- Roberto Armengo
- Kent Wayland
- Priscilla Regan
There Will Be a Hole in History
- A Történelemben Lesz Egy Lyuk
Funes, the Memorius (A famous 1942 short story capturing the short life of the Uruguayan mnemonist; analyzed by Draaisma; see further below!)
- Jorge Borges
- Luis
Delete: The virtue of forgetting in the digital ageWhile not being the first to address the problem, the author produced the first book with a comprehensive argumentation about the need as well as the difficulties of forgetting
- Mayer-Schönberger
- Viktor
Kukkoló társadalom-avagy van-e még függöny a virtuális ablakunkon? [“Voyeur Society-Does Our Virtual Window Still Have a Curtain
- Iván Székely
Writing about Solomon Shereshevsky, who is referred to in the book as “S,” Luria, the prominent Soviet neurologist, describes the numerous experiments he carried out for many years between the two World Wars
- Alexander Luria
- Romanovich
- Alexander Romanovich Luria
London: Verso. (Originally put forward by Foucault, this proposition became the classic metaphor of the surveillance society
- Jeremy Bentham
A highly visionary piece of early sci-fi about the world brain
- Herbert Wells
- George
- Herbert George Wells
A famous 1942 short story capturing the short life of the Uruguayan mnemonist
- Jorge Borges
- Luis