Resolved: The "right to be forgotten" from Internet searches ought to be a civil right.
For part 1 of this series, click here.
OverviewThe most obvious position for the Negative is the right to be forgotten should not be a civil right but such a position begs another question, if not a civil right then what? Should it be - uhm - "forgotten?"
I mean, if anyone of us were in a position where certain information about us was circulating on the Internet which harms one's evaluation of our character and that rogue bit of information was somehow no longer relevant to our present life, we may wish for a way to remove it. Indeed, for you more experienced debaters, think of Rawls' Original Position in his theory of justice. In fact, do not be surprised when Affirmative debaters are running Rawls' 'veil of ignorance' against you. The question is, is making the right to be forgotten a civil right, and perhaps we should expand that to universal civil right, really necessary? Perhaps there could be alternate solutions. Bear in mind, in Europe, the right to be forgotten is already a civil right and more and more nations are beginning to agree it should be and many are claiming the basis of the right is rooted in the concept of natural rights based in the right of property.
If I own a property (any kind of object, thing, piece of information) and put it on display for public enjoyment, enlightenment, or scrutiny, I still retain the rights to it and should have the right to pull it back into the private realm at any time I choose. That is sort of what the Affirmative may be claiming. However, in the EU, it seems the laws have taken it a step farther and the regulations "are not limited to personal data that people “have given out themselves”; instead, they create a new right to delete personal data, defined broadly as “any information relating to a data subject.” For this reason, they arguably create a legally enforceable right to demand the deletion of any photos or data that I post myself, even after they’ve gone viral, not to mention unflattering photos that include me or information about me that others post, whether or not it is true" (Rosen 2012).
But that is the EU and we are the U.S. and according to many of the values and laws we hold dear we see things a little differently which favor the Negative position (for sure as U.S.-based Lincoln-Douglas debaters we see both sides of the issue equally). In the U.S. there exists a very strong desire to protect the right of free speech. The old saying is, "I may not agree with what you are saying but I will defend to the death your right to say it," is rooted in what the founding fathers viewed as one of the most important rights in that it, along with the right vote, provides a means to check the abuses of government and freedom of speech is a major component of liberal democracies and the principle that everyone has a voice.
So what happens if Affirmative does argue the right to be forgotten is a natural right and thus inalienable. In the U.S. we hold certain rights to be inalienable but even those rights can be suspended when it serves a greater public interest. Look to many examples in the so-called right of eminent domain, or internment camps for U.S. citizens during the Second World War. In the U.S. all forms of Internet expression are considered speech (this does not include illegal activity like spamming, hacking or hijacking other sites) and thus protected by the U.S. constitution. As I mentioned in part one of this topic (see link above) there is a clash of rights in that the right to be forgotten, clashes with the right to free speech in the U.S. where many of the Internet search giants are located. It clashes with the right of a search engine provider like Google to provide links and it clashes with the right of the host site to display the disputed information.
For those of you interested in Google's position in this debate, you may be interested in reading this document. In particular, question 4.
In the first section below we will examine several lines of argument dealing with the burdens of rights on liberal societies, discuss the practicality of a right and touch upon principles of "ought implies can". In the second section, I will very briefly discuss the fact that cultural diversity may make the right meaningless in some locales. Finally I will talk about how common values are protected by the Negative position.
The Burden of RightsThe theory of rights can be conceptualized in different ways and indeed several philosophers have their own ideas about what it means to have a right. For most of us, a civil right is an entitlement to an individual which limits others from infringing upon the one possessing the right. However, typically for governments, there is a utilitarian aspect to the concept of rights which tends to weigh the importance of the right to an individual against the burden of the limits it imposes on the majority.
...a person may be said to have a right if and only if some aspect of her well-being (some interest of hers) is sufficiently important in itself to justify holding some other person or persons to be under a duty. Thus, when A is said to have a right to free speech, part of what is claimed is that her interest in speaking out freely is sufficiently important in itself from a moral point of view to justify holding other people, particularly the government, to have duties not to place her under any restrictions or penalties in this regard. On this conception, basing duties on rights is quite a different matter from basing them on general utility. For a utilitarian, the government's duty to let someone speak out is never inferred merely from the importance of the interest that the individual person herself has in the matter; rather it is inferred from a calculus that relates the importance of that interest to the importance of every other interest that may be affected by the imposition of the duty. By contrast, a theory of rights bases its commitment to the practice on the good to each individual, taken one by one, of being able to speak her mind freely. In other words, A's right to free speech is based on the importance of A's interest in the matter, B's right is based on the importance of B's interest, C's on that of C, and so on; whereas for the utilitarian, free speech for A may be justified only through a calculus of the interests that A and B and C and everyone else have at stake in the matter.
Consider if a right to three full meals for individuals is claimed. While such a right may be in the best interest of individuals, it places an enormous burden on governments, food services, etc. to guarantee the right and would be impossible in some parts of the world. It may be appropriate in parts of Europe to claim people have a right to universal health-care when the nation is able to meet the financial burden of the request and is capable of erecting the required infrastructure to grant the right. It may never be considered a human right or universal civil right since, many nations could never meet the need.
This point is important for evaluating what critics sometimes say about welfare rights. Sometimes it is said that there is no human right to welfare (education, a decent standard of living, medical care, a job, holidays with pay, etc.) because these are not goods that can be secured in poor countries for everyone.
This, of course, raises another very important issue for the Negative with respect to the ability to grant rights to individuals. As stated by Waldron, "If it is impossible for a thing to be done, it is absurd to claim it as a right."
At face value, it sounds rather trivial to claim an individual has a right to be forgotten and so search engines or data providers have a duty to adhere to the requirements of the individual right. But, when one grants this right to an aggregate; a population of individuals, the complexity of the imposed duty expands accordingly.
The problems posed by scarcity and underdevelopment only arise when we take all the claims of right together. It is not the duties in each individual case which demand the impossible (as it would be, e.g., if we talked about a right to happiness or something like that); rather it is the combination of all the duties taken together which cannot be fulfilled. But one of the important features of rights discourse is that rights are attributed to individuals one by one, not collectively or in the aggregate.'
The Negative side of this issue reminds the judge to not ignore the tendency to view the issue not just as an individual right, but as duty to protect the rights of a population for 10's of thousands of individuals, perhaps millions, perhaps billions and what would be the cumulative effect on those charged with executing the required duties?
In addition, these duties, taken in the aggregate, impose additional duties. Negative rights granted to one, implies a duty for others to protect the rights of the one. These kinds of rights put limitations on the liberties of others who are now duty-bound to not violate the rights of the one and that duty leads to the imposition of other duties.
We talk about rights when we think that some interest of an individual has sufficient moral importance to justify holding others to be under a duty to serve it. But if a given interest has that degree of importance, it is unlikely that it will justify the imposition of just one duty. Interests are complicated things. There are many ways in which a given interest can be served or disserved, and we should not expect to find that only one of those ways is singled out and made the subject matter of a duty. For example, if an individual's interest in speaking freely is important enough to justify holding the government to be under a duty not to impose a regime of political censorship, it is likely also to be sufficiently important to generate other duties: a duty to protect those who make speeches in public from the wrath of those who are disturbed by what they say; a duty to establish rules of order so that possibilities for public speech do not evaporate in the noise of several loudspeakers vying for the attention of the same audience; and so on.
We can cross-apply Waldron's example to include protection of the right to be forgotten. If the right induces a duty to delete undesired references to an individual, it is reasonable to assume it would induce additional duties upon governing bodies or at minimum the owners of every blog, news source, social media site, information producer, etc., to review all information or depictions to be published and eliminate those which violate the civic duty to protect select individuals. At this point we enter the realm of full-blown censorship. The burden created by the right weighs unfavorably against utilitarian consideration of limitations of others and would be difficult if not impossible to fully carry out.
I will wrap this section up with a very brief mention of Immanuel Kant who in his famous work, Critique of Pure Reason, states "The action to which the "ought" applies must indeed be possible under natural conditions." I simply don't buy the common belief that ought and should are synonymous terms. Why do we have two words? As commonly defined, ought implies duty or obligation and while I think it pushes the definition to claim it implies a moral obligation in this context, I think as Kant suggests (for this Negative position, at least) the duty implicit in ought exists only when it is possible to perform the duty. As seen above, there are several reasons we can apply which argues the duty is not possible to perform due to cascading burdens, utilitarian principles or simply because the accumulation of requests would swamp the right to free speech.
Universal Rights?The resolution does not specify a particular country or locale where the right to be forgotten should be a civil right. One assumes we are debating a universal civil right based on the concept of human dignity which drives the establishment of most universal human rights. However, some cultures do not recognize human existence and thus, dignity outside of the context of a public sphere, hence the notion of privacy is not a overarching value for these cultures. Therefore, it is not appropriate to assume universal status for the right to be forgotten.
DeHert & Gutwirth (2004):
Very often it is said that human rights have a strong ethical footing. They are not about biological individual human beings, but about something more. Some legal texts on human rights emphasise the development of the 'person'. Other texts hold that human rights are based on 'human dignity'. The dignity of the human person is not only a fundamental right in itself but seemingly also constitutes the ultimate basis of fundamental rights. Without any doubt, this protection of 'something more' by human rights serves legitimate purposes, but it may lead to a conception of human rights too restricted to be of universal validity. It is questionable whether the notion of personhood in the German constitution has many affinities with a conception of personhood existing within, for instance, African or Asian societies where there is less emphasis on the individual. In certain African tribes there is no existence of a person outside the group. Does this mean that there can be no protection of human rights in such a society? What is wrong with extending protection beyond individual biological human beings? The same question of universal validity can be asked about the use of 'human dignity' as an ethical notion, borrowed from Christianity. Within the Western World there is no consensus on the necessity of this notion, so why export it to other cultures?It is a very interesting philosophical idea that perhaps humans are not really human withdrawn from the context of a public sphere. The idea that some cultures may hold that dignity is possibly realized in social settings is reasonable and argues against the idea dignity is preserved in privacy. It is food for thought.
Negative ValuesGiven the ideas posted above, I believe it should be fairly easy to defend the value of liberty, especially when one considers the restrictions on free expression imposed by the right to be forgotten. One can also extend the argument to a value of justice in that the burden on the many carries more weight than personal interests in the right to be forgotten. One may also look to the societal values of fairness as already mentioned with justice. Also one could potentially argue for the value of democratic ideals based on the universal human right of free expression and its compatibility with democratic principles. Finally I think a reasonable case can be made for the duty of governments under the social contract by upholding utilitarian evaluations when balancing the burden of permitting individual rights.
In this post I have once again avoided legal arguments because I think the legal issues are complex and perhaps unresolvable,
Good luck, debaters. There is a lot of room in this topic for purely analytic positions, which can be interesting if done well.
Charney, E. (1999) Cultural Interpretation and Universal Human Rights: A Response to Daniel A. Bell, Political Theory, Vol. 27, No. 6 (Dec., 1999), pp. 840-848.
DE HERT, P. & GUTWIRTH, S. (2004), Rawls' political conception of rights and liberties. An unliberal but pragmatic approach to the problems of harmonisation and globalisation. Epistemology and Methodology of Comparative Law, pp.317 - 357, eds. VAN HOECKE M., published by Hart Publishing.
Rosen, J. The right to be forgotten, 2012, Stanford Law Review (64 Stan. L. Rev. Online 88)
Waldron, J. (1989) Rights in conflict, Ethics, Vol. 99, No. 3. (Apr., 1989), pp. 503-519