Resolved: The "right to be forgotten" from Internet searches ought to be a civil right.
For part 1 of this series, click here.
OverviewI think there can be real value to taking a very high level approach to this resolution. By this, I mean one can take a position based on a conceptual definition of "right to be forgotten" that is not specific as to how such a right would be implemented. Maybe we really don't need to care if the "right to be forgotten" means certain things, or everything is deleted from searches and it may allow the Affirmative to slide over legal arguments which tend to get very specific and will vary widely from jurisdiction to jurisdiction. Really this is what makes the Internet such a tough arena for rule/law enforcement. The Internet spans every cultural and ideological boundary on the planet and unless people can universally agree that some content (such as child exploitation or dangerous extremism) should have no means of expression, one is unlikely to see a particular form of filtering gain world-wide acceptance.
Affirmative defends the conclusion the right to be forgotten ought to be a civil right, nothing more. The enforceability of such a conclusion need not be an issue considering there are other "civil rights" valued by the international community which are not enforced in every jurisdiction. Look at the International Covenant on Civil and Political Rights and you should realize there are many "rights" which are denied people around the world, but it does not mean the right is not a valid right.
I guess if we are going to talk about legitimate civil rights (whether universally enforceable or not) we will need to understand the scope. A right is basically an entitlement granted by an authority and in this world there are many, many authorities. A 'civil' right is understood to be an entitlement granted to citizens by a government. Now, since we are talking about a right with respect to Internet searches, it is logical the authority must have some kind of jurisdiction over the Internet or more properly, access to information on the Internet. That begs the question, which entity has jurisdiction over the Internet.
Under the current system, in order to decide what state's or nation's laws govern disputes that arise over Internet issues, a court first must decide "where" Internet conduct takes place, and what it means for Internet activity to have an "effect" within a state or nation. Even apart from the Internet, this border-centric view of the law creates certain difficulties in an economy moving toward globalization. Entire bodies of law have been developed by every nation to deal with the resolution of international conflicts of law, conflicts that arise when geography and citizenship would allow a dispute to be decided by the laws of more than one country, and the laws of those countries are not consistent with each other. Conflicts of law are particularly likely to arise in cyberspace, where the location of an occurrence is never certain, where ideological differences are likely to create conflicting laws, and where rules are made not only by nations and their representatives, but also by sub-national and transnational institutions.
The European Union (EU) took action in 2012 requiring the deletion of non-relevant personal information if requested. A key distinction is, the EU views the information posted online as "data" owned by the subject of the data, whereas, in the U.S. such postings are expressions of free speech. (Stuart 2014).
The primary problem with the application of a right to be forgotten in the United States is that any information posted online is considered speech, including compiled information from a search engine, and any effort to delete such information other than by the original poster implicates the speech of search engines. The First Amendment strongly protects such speech from any limitation. In addition, the Communications Decency Act and its safe harbor immunize Internet service providers from liability with respect to speech of websites.
As pointed out by Stuart, the idea that filtered search results is censorship is really ignorance of that fact that all searches are filtered by a number of proprietary criteria which not only eliminates some listings (mainly due to copyright infringements) but orders the sequence in which they appear. With that understanding, this debate is not about censorship per se. Technologically, it may not be a major problem for a search service such as Google to filter "data" or "speech" since it is already done but Google has consistently rejected removal requests except under U.S. court order. In the EU where, this right currently exists, it is the court that decides whether or not an individual's request for removal from Internet searches is proper, meaning a court will evaluate the individual's so-called "right of personality" (equivalent to publicity right) against the public's right to know and decide if the removal is justified in situations where Google refused to cooperate. Google is a U.S. corporation not under EU jurisdiction, even though Google does have a business interest in at least considering the EU court requests on a case-by-case basis. It is not about individuals going to Google and saying, "take me off your search engine results." The requests are carefully evaluated and courts intervene when necessary.
So this, is the crux of the jurisdictional and ideological debate which essentially pits the EU protection of the right to privacy against the U.S. protection of the right to free speech and for this reason, while I think taking on the legal ramifications is a legitimate strategy for any LD debater, I think it may be possible to run the debate on more of a philosophical framework which leaves the legal details and implementation for another day and another debate.
Here is a road-map to possible paths for the Affirmative:
Based on a general right to personality (publicity - see below) we focus on privacy and identify other values.
- We introduce an argument repressing the right to personality harms the need for safety which prevents the attainment of self-actualization. This can be expanded to dehumanization.
- We explore the notion personality is personal property, thus a preeminent natural right.
- We argue that human dignity is protected by permitting one to express their personality as they desire and thus fulfills the need for self-actualization.
- The argument is developed that privacy is a prerequisite for autonomy and freedom and a mechanism for achieving self-actualization.
What We ValueThe Affirmative seeks to protect a number of important values derived or related to an individual's desire to maintain a certain anonymity or more properly the individual's desire to have some control over what is exposed to public scrutiny. Whether or not privacy is a right is a question of law. One may think they have a right to privacy but in many jurisdictions it is implicit or not guaranteed. Nevertheless, almost universally, individuals value privacy, and as with most values, the sphere encompassed by the value of privacy is broad and difficult to define.
The public/private distinction is also sometimes taken to refer to the appropriate realm of governmental authority as opposed to the realm reserved for self-regulation, along the lines described by John Stuart Mill in his essay, On Liberty. Furthermore, the distinction arises again in Locke's discussion of property in his Second Treatise on Government. In the state of nature all the world's bounty is held in common and is in that sense public. But one possesses oneself and one's own body, and one can also acquire property by mixing one's labor with it, and in these cases it is one's private property. Margaret Mead and other anthropologists have demonstrated the ways various cultures protect privacy through concealment, seclusion or by restricting access to secret ceremonies (Mead, 1949). Alan Westin (1967) has surveyed studies of animals demonstrating that a desire for privacy is not restricted to humans. However, what is termed private in these multiple contexts varies. Privacy can refer to a sphere separate from government, a domain inappropriate for governmental interference, forbidden views and knowledge, solitude, or restricted access, to list just a few.
In her essay on "Privacy", DeCew recognises the contribution of Jurists Samuel Warren and Louis Brandeis' Harvard Law Review article, "The Right to Privacy" (1890) which argued for "a general right of immunity of the person, “the right to one's personality”...Warren and Brandeis thus laid the foundation for a concept of privacy that has come to be known as control over information about oneself" (DeCew 2013). While Warren and Brandeis may be credited with establishing a pragmatic standard for future legal consideration, it is the concept of the "right of personality" which allows the Affirmative to isolate important values.
In Continental Europe, the right to be forgotten can be considered as being contained in the right of the personality, encompassing several elements such as dignity, honor, and the right to private life. Manifold terminologies are used in the context of the right of personality – mainly the right for the (moral and legal) integrity of a person not to be infringed and for a sphere of privacy to be maintained and distinguished. The (privacy) right to indeed keep certain things secret has already been arguably extended to the right of Internet users not to make their activity trails available to third persons. Essentially, rightholders are relying on their own autonomy to individually decide on the possible use of their own data.
As Weber adequately reveals, the values of dignity, honor, privacy, and autonomy are at the core of this issue. In fact, one could argue nearly all values uniquely cherished by individuals are generally linked to self-determination and many are specifically linked to privacy and individualism from the public sphere.
A Hierarchy of NeedsIt was psychologist Abraham Maslow who postulated the famous "hierarchy of needs" commonly visualized as a pyramid built upon the broad-base of physiological needs, progressing step-wise through security and social needs and culminating in the need for self-actualization. Maslow's theory or variants of it are useful for describing how the individual values are connected to fundamental human needs. In many ways unwanted exposure in the public-sphere disturbs our sense of personal safety and certainly the nature of information revealed in the public-sphere has a direct impact on our needs for self-esteem and respect as human beings. The arguments linking needs and the right to be forgotten are mainly pragmatic but some scholars recognize the effect of technological advancement on the ability to fulfill needs.
One may of course argue that the issue of personal data protection is an intellectual exercise for developed and affluent Western societies, while limitations to or complete loss of informational privacy is an inevitable cost of innovation and development of a society. In my view, however, such underestimation of the issue is improper, as it undermines the basic values that are fundamental to a free and democratic society (this issue will be discussed more in the latter part of this Article). Rapidly advancing technological revolution is, paraphrasing Abraham Maslow, a catalyst of changes, from which a new image of the human being, society, science, basic values, and philosophy emerge, while privacy—including informational privacy in particular—is located among basic needs, which are part of a wider need of safety (that are placed just above basic physiological needs).
Understanding the hierarchical nature of needs attainment explains the potentially dehumanizing effect loss of privacy imparts on victims. A person struggling to attain those needs on the bottom of the needs hierarchy (i.e. safety) cannot advance to higher levels of attainment. Ernst Cassirer (1963) famously stated:
There is, at least, one right that cannot be ceded or abandoned: the right to personality...They charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his personality he would cease being a moral being. ... There is no pactum subjectionis, no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity.
The Philosophy of PersonalityJohn Locke, in the Two Treatises of Government claimed all humans have an inalienable right to life, liberty and property (Tuckness 2012). Property can be described as things external to humans arising from creation, including the innate ability of humans to create. Hegel includes the abstract right of personality as significant in distinguishing humans from mere things and the right is expressed in the exercise of freedom. Hegel claims a person expresses freedom externally by appropriating objects and the expression of one's personality is also an object to be owned. As explained by Duquette (undated) "Property is the embodiment of personality and of freedom. Not only can a person put his or her will into something external through the taking possession of it and of using it, but one can also alienate property or yield it to the will of another, including the ability to labor for a restricted period of time. One's personality is inalienable and one's right to personality imprescriptible." Thus, I would interpret Hegel's view as one that ascribes personality to the inalienable right of property.
This notion, for example, can justify the right to property. By controlling physical objects the person can realize his personality in the outside world. This notion similarly justifies the right to identity. ... Without information identity, a person cannot externalize his personality beyond his own consciousness. A person whose identity is not conceived by others can only connect with the physical world – he can hold objects, operate them, and walk across the land – but he cannot exteriorize himself in a manner in which minds other than his own give meaning to things. Only his mind conceives himself. Only it gives him meaning and purpose. He is therefore restricted to his inner dimension, which is narrow (in its singular perspective) and of limited duration (his lifetime).
Thus one exists in the minds of others as an external expression of one's personality and even though that existence is abstract (a mental image in the mind of others), one retains the ownership of that abstract expression and that is an inalienable right and nothing should deprive us of our inalienable rights.
The Philosophy of DignityClosely connected to the abstract concept of the right to personality is dignity which can be described as the external projection of one's status. Such status may specifically arise from selection to a particular position or office in society but more generally as status from being uniquely human without regard to any externality such as offices, positions or honors given us by others. Thus, dignity is not something to be bestowed upon someone rather it is an internal expression of one's human identity projected to the outside world. It is an owned expression of personality and thus, as we have shown above, inalienable.
From the perspective of an individual, dignity might be thought of as the ability to pursue one’s rights, claims or interests in daily life so that one can attain full realization of one’s talents, ambitions or abilities, as one would like. That is one path to satisfaction, social recognition and stature, certainly attributes of dignity. This might be thought of as self-realization, although that is not the only conception of dignity. What matters here is that each person should be free to develop his own personality to the fullest subject only to restrictions arising from others’ pursuit of the same.
Under this interpretation the fulfilment of the value of dignity is exercised in the free expression of one's personality and this expression is in keeping with the attainment of Maslow's higher needs for self-actualization.
The Value of PrivacyWe visualize privacy as the domain which most closely surrounds us and in which we have complete freedom to express our personality and exercise complete autonomy.
Laas-Mikka & Sutrop (2012)
One of the most thorough treatments of privacy has been presented by Beate Rössler in her book, “The Value of Privacy” (2005), which centers on the question of why we value privacy. Rössler endeavors to show that “privacy in liberal societies is valued and needed for the sake of individual liberty and autonomy, that is, for the sake of both freedom for each individual to fulfill himself, and thus ultimately for the sake of a life that is rewarding” (2005:44). She describes privacy as the ability to control ‘access’ in the physical or metaphorical sense to one’s personhood, enabling autonomy practices; to decide over matters that concern one (including free behavior and action, that is, decisional privacy), to control what other people can know about oneself (informational privacy), and to protect one’s own space for self-evaluation and intimate relationships (local privacy). In the context of development and application of new technologies, our main concern is with informational privacy, a person’s control over the access and use of information about himself or herself.Thus we see the importance of privacy as a value which further supports the values of liberty and autonomy. Such support between values is not expected since the exercise of autonomy requires liberty. In many ways, privacy is a like the right to be forgotten since, each are values with limited legal support.
And So It Begins...Thus I have taken several approaches which can lead to the same end of defending the Affirmative side of the resolution without need to discuss legal remedies or technical details of how such a right would be implemented. The idea is merely to argue that such a right is legitimate. We leave it to the courts and advocates to figure out how to make it work and implement plans. For our part the real issue is, the right to be forgotten is an element of the right to personality and that, as we have seen above, is a natural right.
Run with it, debaters. If time permits, I may come back and revisit this resolution in a few weeks with a legal framework but I think that would be a very difficult debate.
Click here for the negative position
(Note: all sources are available for free on the web.)
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MARCINKOWSKI (2013), B.M. Privacy Paradox(es): In Search of a Transatlantic Data Protection Standard, Ohio State Law Journal, Vol 74:6,Page 1167-1193
Laas-Mikko, K., Sutrop, M. HOW DO VIOLATIONS OF PRIVACY AND MORAL AUTONOMY THREATEN THE BASIS OF OUR DEMOCRACY?, TRAMES, 2012, 16(66/61), 4, 369–381
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Tuckness, A., "Locke's Political Philosophy", The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.)
Weber, R.H. The Right to Be Forgotten: More Than a Pandora’s Box?, 2 (2011) JIPITEC 120, para. 1.