The Right to be Forgotten with Professor Meg Jones and Professor Leticia Bode

By Angela Hart

On August 20, 2015, Professor Meg Jones and Professor Leticia Bode were kind enough to speak with me on their research paper Ready to Forget: American Attitudes toward the Right to be Forgotten.” Their paper abstract is, “This study uses an experimental design to examine whether and under what circumstances Americans support the so-called “right to be forgotten” – a legal right that allows citizens to petition to have information about them taken down from the Internet. Findings indicate people are most concerned about who will be in charge of executing such a right. Framing effects are also found for opinions regarding age of information and whether the law should apply only to minors. The results offer insights to help scholars, national policy-makers, and international relations organizations to understand public attitudes in a dynamic socio-technical policy landscape.”

Could you define the right to be forgotten?

Professor Jones said, “The right to be forgotten is hard to define; it doesn’t have a specific definition. Currently, it’s a European right that was interpreted for an old 1995 Data Protection Directive that gave European union citizens the right to delete information based on true articles that were interpreted in 2014 as a right to be forgotten; generally, applies specifically to Google search results, or all search results. So the right to be forgotten is really about addressing old information that identifies you, personally, in a legal way.”

What laws are currently in place to protect a person’s right to be forgotten?

“So, if you are an American, we have no right to be forgotten. If you are a European union citizen, you have the 1995 articles in place, that provide a certain type of right to be forgotten and you have the regulations that are not enacted yet; they are suppose to be on the books formally at the end of this year, or early 2016, that have an explicit right to be forgotten,” replied Professor Jones.

What would the regular (every day) person need to know to feel secure in regards to the right to be forgotten?

Professor Jones responded, “The regular (every day) person should know where they live in the world to feel secure in the right to be forgotten; meaning that if you live in a European union country, you can feel secure that you can make a request to have certain search results removed. In beautiful other countries that have daily protection regulations that are based on European union’s structure, if you live in the United States, you should feel secure in the fact that you do not have that right.”

Professor Bode answered, “Well, I think it’s worth noting that there is still no guarantee even if you are in a European union that anything will get taken down. You have the right to petition, and if they deny your request, there is now a court system that you can take it through.”

Professor Jones added, “There is an appeals process that is head up, you can take it to the agency, and there really is no guarantee in this incident. We don’t really know how the world is responding to these; they talk about easy cases; like if I shoplifted two years ago; it’s an easy case because I guess shoplifting is relatively harmless to murder. But that doesn’t make sense to a lot of Americans I don’t think are tough on crime kind of attitude and it doesn’t make a whole lot of sense to the American legal system because that would be a public record. And so there’s not really anything you can do to feel secure and accept that you can make a request if you are a citizen of an Eastern country.”

What is the “administration of the right to be forgotten” and why is this important to address?

Professor Jones said, “So when we talked about the administration of the right to be forgotten, we were really talking about the kind of political mechanisms that were in place to try to impart this right to be forgotten through the court case that came down; the mechanisms that resulted were individuals requesting the search engine directly to remove certain URL’s when their names were searched. That is one way the right to be forgotten could be administered; we wanted to look and see if attitudes towards the right to be forgotten changed if you changed the administration meaning if you went through another channel to address old information that was sort of haunting you online. And so this could’ve been going to court, going to an agency, and going to the websites directly instead of just the search engine intermediary. So that’s what I mean by administration.”

Professor Bode added, “I would just like to emphasize the difference between, so all of the things that we talked about on the paper, all of the things that we talked about so far, are all caught up in the European system, which is different really from the American system in almost every way you can imagine. So that kind of cultural arms are different, the actual federal systems are different; the federal systems are nested within this international system, which is really unusual and certainly, nothing remotely, …in fact tends towards the other side that tends to think we’re isolationists, and we’d like to think that we’re extraordinary, and all those kinds of things. So there is, and I think, too, in Europe, I’m not sure how much of this was, um, let’s think of all the possible ways to administer this and then choose the best one is kind of like this is what they had the mechanism in place to be able to do. So they said we’re going to let this go through the search engines because that’s kind of the statute that this is based on and that is how that is going to work the best. So, we’re just going to go through that way, so we’re interested in exploring other options and what people think about them.”

Professor Jones continued, “That’s a really good point. The way that this process, that we’ve seen shaken out over the last year, is the result of a court case that happened to be about search engines. So the guy sued because his old bankruptcy notice kept coming up on Google. Had it been something else, we might’ve seen the case - the judge who was quite adamant about applying his right to be forgotten – pretty fed up, I think, with American intermediaries - wanted to do something about this and that happened to be the facts in front of him. There’s really no definition of a data controller that limits it to search engines. The case just happened to be about search engines.”

Would it vary search engine to search engine, Fire Fox to Google Chrome or Opera? Would it vary based on search engines? Have you looked into that at all?

“Yeah, I mean if you don’t file a request with another search engine, then you wouldn’t be removed, being almost immediately put up a similar request form after Googling it so people can make them at both requests. Google has 90% of the search market in Europe, so we’re doing pretty good if you just go fill out just one form, whereas here in the U.S., you would probably want to fill out both forms; again, if you could, which you can’t,” replied Professor Jones.

If you could, would you like to elaborate on that? That’s really interesting.

Professor Jones nodded and said, “You could try to fill out the form but as soon as you say you’re an American - ”

Professor Bode added, “Google is going to ignore it. Google makes its living on providing information to people. If you’re searching for something and it’s not coming up, they see that as failing to do their job. So their whole infinite structure is to provide as much information as possible so only if they’re forced to do so are they going to take down information. So that means forced by a legal directive such as something happening to you or if forced by an individual kind of directive like a cease and desist order or something like that. But, otherwise, they see that as their sole purpose and the reason people turn to them in such large quantities is because they’re really good at doing that, and if they start taking things down, in a way that they might see us arbitrarily, they are going to be less good at their job. So there is this kind of inherent tension between, in this case, the court system and Google in that they are trying to fulfill different roles.”

Professor Jones responded, “And that’s really where the battle is now, is whether Google has to remove the URL’s from all the Google domains or just the European specific domain. So they’ve been removing the URL’s just from Google dot.FR, for instance, for the French request, and the European union has been very clear that that is not how their right is to be administered, it should be removed from all of the Google domains. That was an advisory opinion so that aspect of it hasn’t gone to the courts but Google is fighting them so they have to take it down from all the domains; so, we will have another case in another few years.”

What is the difference between the right to be forgotten and the digital right to be forgotten? In the article it references two different terms.

Professor Jones answered, “The digital right to be forgotten sort of refers back to pretty old long-standing legal traditions in various European countries that applied for the most part to people when they got out of prison, when you could refer to them in relation to their past crime. So this right to be forgotten existed well before the Internet and it was applied to mostly popular press, like newspapers, sometimes documentaries were prevented from being shown because they referenced an individual in relation to their criminal past. So that is where the term sort of comes from and, obviously, the digital right to be forgotten expands on the number of contacts that that would address in a different environment; so, it’s addressing a different need as well.”

Why do and how do elites address the right to be forgotten more than other individuals?

Professor Bode said, “So the point that we’re trying to make in distinguishing between elites and non-elites in regard to the right to be forgotten is most of the contacts we’re talking about in the right to be forgotten in the United States right now is happening among elites. And by the elites I mean policymakers, public officials, media gurus, etc., who are kind of more interested in this than the average American citizen, who hasn’t really been exposed to it that much, at this point. So we are fairly cutting edge with this research in that not a lot of people have even looked at kind of where is public opinion laying on the right to be forgotten because people don’t really understand what the right to be forgotten is. I mean we’ve just spent the last twenty minutes talking about basically what the right to be forgotten is, and all the caveats that are inherent in that, and everything; and, how it’s a really complicated system and yet it’s very unique specifically to you. So trying to figure out what that means for the average American, when this isn’t something that exists, yet, and it may not be something that ever exists, given kind of the legal trademark of the United States. And it’s just not really on our radar right now; there are things that are much more important to the average citizen; the economy, etc., threat and peace, and all that kind of stuff. So the issue there is that we may be testing public opinion where there isn’t necessarily like real public opinion, at this point, because most of the conversation hasn’t been occurring at a higher level.”

“People do, I think, regularly talk about how kids put themselves on Facebook, how you can find anything on the Internet. It seems very capable of having the conversation when you put it to them in a certain way because there are a lot of everyday conversations about who knows what about you, and can you believe so-and-so got fired for that thing they put on Twitter. So, yeah, there’s sort of an attempt to kind of tie those two things to something concrete,” said Professor Jones.

In reference to your article, there is an issue between Facebook and Twitter, would you care to elaborate on that?

Professor Jones answered, “The only aspect about the article, is that it's specific to the search engines, is our explanation of the right to be forgotten as it came out of Europe. And, then, I think that we really make no assumptions about where people feel most concerned or have the strongest feelings about, you know, where this stuff is located and their relationship to the other intermediaries and themselves or other people in their lives. And, so, we really wanted to ask whether they thought Google, who again, Leticia explained their mission. We have some sense of, a pretty good sense of, as opposed to social media sites as opposed to a blog site. Do people feel like, when you, if you were going to exercise a right to be forgotten, should you be going directly to the site as the file on their server or Google or some other intermediary that’s pointing to these other places. So we really didn’t make a lot of assumptions about that but we’re really interested in how people felt because that has been a part of the political debate.”

How would someone petition for the right to be forgotten?

“Well, you could file a lawsuit that would probably be thrown out for failure to see the claim or you could try to fill out the form online and lie about where you live. If you are a European union citizen, you just go onto Google’s page and fill out the form, where you enter your information, meaning your data, and the URL’s that you want detached from a personal search on you,” replied Professor Jones.

What would the cost versus worth be – do you have to hire a lawyer – would that be worth it?

“It depends on what is at the end of your URL. I mean it doesn’t cost anything to fill out the form, if you’re a European union citizen. If you wanted to bring a claim to court and you wanted to hire a lawyer to do so that would definitely be pricey but certainly people have done it. We’ve seen a number of failed cases just over the last year people trying to get mug shots, arrest records, and things like that for incidents that were dismissed. So these are things coming up after people were completely exonerated from certain criminal activity. They do not want this arrest coming up when you search your name and they have failed in U.S. courts – and that has been expensive I’m sure – but people have continued to file them. So I guess it depends on how much it’s affecting your life and how much it’s costing, how much your lawyer costs,” answered Professor Jones.

Would there be any exceptions to the law for minors? (Where would 16 or 17 year olds fall?)

Professor Jones answered, “So there is no exception, there’s no age aspect for the European right to be forgotten. In an old draft there was reference to this language, that was something like, especially for minors, but there was no, sort of like, ‘we need a right to be forgotten that’s especially for minors’ but there’s no reference to age, there’s no specification for age. In the U.S., though, we have seen age limits. The California law that passed is Under18, the Do Not Track Kids Act is Under16, I believe, the bill that has never gained a whole lot of traction at the Federal level. And so, I guess, you can consider those exceptions to laws that don’t exist.”

In your piece you wrote, “In the year since the decision was handed down, Google received 254,271 requests to eliminate 922,638 URLs from search results and has removed 322,601 URLs, a rate of 41.3 percent,” would the person, would you have to follow up with them in order to determine if they have information first (correct?). These are target numbers but would the person have to follow the information ‘as removed’? I mean could it pop up somewhere else; could Google or FireFox find it? There seems to be little caveats here, so does this fall on the person to take the initiative or once it’s approved, does Google automatically have to follow through?

Professor Jones replied, “From what we can tell, now, Google is really only forced to address the URL’s that a user presents to them, the user requests. So specific requests – you could put a bunch of them in there – but if another one, if it pops up on another site, Google’s followers catch it, and it shows up again in the search results, then the user would have to add that URL or make a new request with the new URL in it. That would be the same for any additional search engines that you wanted to address. There is language in the regulation that has not been enacted yet but that language has not changed a whole lot that addresses third parties and the responsibility of somebody like Google, all of a sudden, like Google to inform third parties that somebody has removed this information and they have to remove it -- that is still a highly debated aspect of the regulation – but for right now it is certainly on the user to make sure, technically, that they are requesting that any additional URL be removed.”

If people do not trust the government, they do not trust its agent to handle this important task? Does that pertain to the right to be forgotten?

Professor Bode said, “One of our main findings in this research, we tested a bunch of different things, changing different elements of a proposed right to be forgotten law and see which one people actually care about – and the only thing that we test there are minors; is it only minors or is it everybody? – does it pertain to criminal information or not criminal information? – does it matter how old the information has been when it is petitioned and perused? – and the only thing that people actually care about is who is in charge of removing the information. So, again, in the European system this goes directly through the search engines you go to and say, "Hey, take down this information." We were interested in that possibility and also the possibility of going directly to a website instead of going to Google to streamline a kind of situation but could still be a potential possibility, or also having a government agency that’s in charge of this instead of counting on a corporate corporation to do it. So, right now, this is all a little bit dodgy because we don’t know what Google chooses to take down or if they choose not to take it down and how often that kind of gets petitioned or appealed so maybe people would feel more comfortable with a government agency involved. So the thing that we end up finding is that people, in general, descriptively, preferred (if you asked them like ‘who should be in charge of this?’) people across the board - Republicans, Democrats, people that are exposed to every different condition - are most likely to say that a government agency should be in charge. So rather than the European system of letting Google decide what should be taken down and what should not be taken down, they would prefer that this is kind of a more objective body, potentially. The statement that we made about ‘if people do not trust the government or agent to handle this important task’ is that, weirdly, even though everybody agrees that, not everybody, but something like 65% of the people agree that a government agency is the preferred mechanism they should go through when you give them a law in which the government agency is the actual person in charge of dealing with this, their support for the law goes down. So the suggestion here is that people don’t trust the government to do this job even though they think it’s going to do a better job than these other options – we tell them the government is in charge and they say, “Oh, I don’t like that law.” So it’s this weird kind of paradox that we find, overall, this is the preference that people show is that the government should be in charge but when you tell them that the government is going to be in charge, then that makes them less happy about the law. So, people are complicated.”

Can you just briefly go over your findings in regards to partisan beliefs among the survey participants?

Professor Jones replied, “In general, not just in saying that people don’t trust the government, Democrats are most likely to say that the government should be the one in charge of executing the right to be forgotten. Republicans tend to be more skeptical of the government, in general, and they are likely to say that the government isn’t the most appropriate and shouldn’t be in charge of that. However, even if the control for that, so the control for what your partisanship is, and we run the analysis again, it still works. So the same thing that I was saying before of people that are exposed to this condition in which the government is in charge are less supportive of the law no matter if they are Republicans or Democrats or Independents.”

Your main question was, “Are Americans’ opinions about a right to be forgotten affected by who would be included in its research?” What did you find?

“So Americans don’t really care about, very much, about the right to be forgotten and I realize that this is a fairly shallow opinion at this point because we don’t think that people generally have enough information on the right to be forgotten to have a really deep opinion about it. But, based on our research, the only thing that matters is who’s in charge so they don’t care if it’s about minors or if it’s about everyone; they don’t care if it’s about criminal information – or not criminal information – they don’t care how old the information is, so everything that we tried to use to prod people’s opinions in a certain direction didn’t really work. So in terms of overall support for the right to be forgotten, we do see very small changes in each of those cases in which we call the ‘framing effect.’ So, each of those people who, for instance, received manipulation that says ‘this is only going to apply to minors’ are more likely to say “this should apply to minors.” People that received the condition that say that ‘the website is going to be in charge of taking things down’ say that “the website should be in charge” or more likely say that “the website should be in charge of taking things down.” So there are small movements in public opinion in that regard but none of those are big enough to move the public opinion otherwise,” said Professor Jones. 

In your piece you cite, “Americans can utilize one of four privacy torts when an invasion of privacy occurs or information is inappropriately shared: intrusion upon seclusion, public disclosure of embarrassing private facts, publicity which places a person in a false light, and appropriation of name and likeness.” What is the likelihood someone would win their case? It’s relatively hard to prove to some degree, right?

“If your facts line up a certain way, you can file a claim under one of the four privacy torts. The right to be forgotten is sort of a separate way of addressing a different type of issue. So the facts that would come up that would enable you to file a privacy tort claim would not be the type of facts that a right to be forgotten that would be necessary for. So, intrusion above inclusion plus disclosure of embarrassing facts, placing someone in a false light, and a proration for using someone’s likeness for commercial purposes without their permission. For the most part, privacy torts have been significantly weakened by The First Amendment of the United States and, with that in mind, things that have already been disclosed or are a public record, would have a pretty hard time falling into any of these; things that have been rightly disclosed. So whether it’s bad that you put it online in the first place or that it’s become irrelevant or outdated; those are the types of information that the rights to be forgotten perhaps which are different than and diffuses circumstances the privacy torts can apply to successfully,” answered Professor Jones.

The Do Not Track Kids Act, which I think we kind of alluded to but might be nice to address here, you talked about Markey’s bill that would create an “eraser button” for children 15 and under. How would it be determined using the Internet because you have things like people lying about their age or on things like Facebook, so I’m curious to what degree is this accurate? Is it actually helping or not helping, or is it?

Professor Jones answered, “I don’t know how active California kids have been in from platforms they previously couldn’t. So this California law just applies to kids who have a user account so it’s a website where you would have to go in and create a User Name and post information so Facebook, lots of these platforms already have, once you’re signed in, you can go in and erase things that you have posted. Twitter allows you to delete things. There are, obviously, a few platforms that do not allow you to delete things and so this would force those platforms to delete content that a kid posted and – upon reflection – would like to delete it. So I don’t know how often California kids are really utilizing it. In terms of age verification, age verification online is really, really, challenging without using a credit card, which is what like porn sites use. But, a lot of times, websites will ask for your age to verify that you’re not 13, so that they don’t have to comply with the children’s online privacy protection act. And, so, sometimes they do have your age recorded and it’s also, for the most part, I mean you kind of have to ask, “Is it really that big of a deal if somebody that’s not the right age deletes some embarrassing post?” I mean maybe it is, maybe it’s horrible, but until it happens in some really dramatic way, I doubt that we’ll see a lot of age verification talk happening on these sites.”

Has California set a precedent for other states or do you think this will go before the Supreme Court, sometime, because it seems as though it’s gaining some traction even though your reference earlier was that it’s not exactly one of the sexy topics going on?

Professor Jones nodded and answered, “I think kids on the Internet, people are talking about it. Whether or not California’s bill has inspired other states to propose similar laws, I do not know. I don’t think that that is true. I think that, for the most part, California’s the only one that we have on the books and the only one we’ll see, at least, for awhile. As far as it going to the the Supreme Court, that would be sort of a funny case. One, the Supreme Court would have to take it, which would usually require a circus event but the actual legal issue would be whether you have a right to access, whether you as a user on the Internet, have a right to access what a kid posted online? Like you have some First Amendment Right? Or, the site has some First Amendment Right in posting in the way that they want to the contents of what a kid posted on their site? So it seems like it would be a strange case that nobody would really want to take to court; like nobody wants to be the website that’s like “I have a right to post, to save, Jimmy’s bong joke on my site.” So it’s possible, it’s very, very, possible that somebody might fight the removal of a kid’s post from their website but it’s also very possible that we won’t see that and we certainly wouldn’t see this in the Supreme Court.”

One of the things Professor Bode said was that it took twenty minutes to define the right to be forgotten. Is there a way to define a lay person or someone who’s not educated in a concise manner?

Professor Jones smiled and replied, “There’s not a concise way but maybe there’s an easy way. It’s about legally getting things off the Internet. There’s no definition so that won’t be helpful but the right to be forgotten is – in quick and dirty terms – about legally getting the bad stuff you did off the Internet.”

How would you define bad things on the Internet because I know, for me, there’s a difference between taking a bad, crude, or inappropriate joke off the Internet versus someone with a criminal record versus an adult person that did something really bad. How would you go about distinguishing the different elements to be removed?

“In terms of defining the right to be forgotten that’s part of the problem in its definition; the right to be forgotten is meant to address information on the Internet; it’s meant to address digital information. So it’s not just stuff that’s on the Internet. The right to be forgotten also has to do with big data so all of that stuff that’s collected about you – it’s big – and all of those contours that need to be carved out haven’t been carved out yet. And that has to do with the rights of youth. But in terms of how you delineate between what information we really need to keep and why – those are the questions we’re having right now – those are the questions Google’s committees have to sit down and ask themselves as they make these decisions because that’s what data protection agencies are sitting down and asking themselves right now. So there’s a number of different ways you can answer that question; you can say public safety; you can say historical record; and say, “Who cares? Let them delete everything. The Internet’s stupid anyway.” You can make lots of statements that would allow you to answer the question but we don’t have them yet,” answered Professor Jones.

One of the things you just said that got my attention right away was big data. That’s one of those big terms that’s kind of menacing. People don’t always realize that their information is stored. Would you like to talk about that for a second?

“I don’t know what people know about their data any more. It use to be the case where people were not well aware that information was collected about them. But there’s an old survey that showed that people who saw a Privacy Policy link at the bottom of a web page thought that that meant that the website protected their privacy. And really what the Privacy Policy, of course, says is that we’re collecting all of this information and we’re giving it to a bunch of core people. I don’t know if that’s still true; I mean I would guess that that doesn’t hold. For the most part, the idiom that I hear the most often is “Google knows everything” “Facebook knows everything” that these places that we go online certainly know everything, that the government knows everything.  And so I don’t know if it’s still true that people are unaware of what information is collected about them and where it goes. I think it is most definitely true that people aren’t certain about what exactly is collected – used for what – given to whom -- those kinds of things. Those are really, really, hard to discover no matter how much you know about privacy, about your data, those are very opaque information transfers,” said Professor Jones.