The Right to Be Forgotten

—Meg Leta Jones

“Worse than Orwell” is a pretty serious insult in the privacy policy arena, but that is the way the new United Nations rapporteur on privacy, Joseph Cannataci, expressed his dismay with British (not American) surveillance practices and weak data protection. As reported in the Guardian, Cannataci is particularly upset about the use of CCTV systems, which may be because he doesn’t use Facebook or Twitter.

His dig brings the UN into a conversation it has not been relevant to for some time. In 1968, on the 20th anniversary of the Universal Declaration of Human Rights, the International Conference on Human Rights in Teheran addressed the tyranny of computers. UN General Assembly Resolution 2450 (XXIII) specifically directs study into the problem of “the uses of electronics which may affect the rights of the person and the limits which should be placed on such uses in a democratic society” two years before the German state of Hesse passed the first data protection law. Even still the UN has not been considered a major player in data protection or privacy issues.

The UN Human Rights Council’s mandate to nominate a Special Rapporteur on the right to privacy touches on two of the most pressing technology policy issues of this decade: who should be in charge and whose rules should apply? As platforms like Google and Facebook make internal policies to address hate speech and revenge porn, questions about the role of law in digital content disputes have introduced another layer of complexity. Should users, platforms, local authorities, national government, or global entities make these rules? How should rulemaking on technology issues occur in each? Do we even need new rules?

The answer to the first question, regarding who should be in charge, dictates a level of homogeneity for the second. If we all need to have the same rules in a global information system, how can radically different governments and legal systems get on the same page when democracies as similar as those in America and Europe can’t seem to agree? If you think that national legal systems should make their own rules, when do users and companies outside those nations have to adhere to those rules and why?

These are the challenges currently plaguing with the development and refinement of the right to be forgotten. Not only do we have to determine whether and under what circumstances individuals should be able to edit their digital pasts, we must also decide whether and how to enforce other determinations on the same subject. In 1988, a General Comment from the Human Rights Committee on Article 17 (the right to privacy) in the 1966 Covenant on Civil & Political Rights explains that when “files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.”

It will be interesting to see how the UN enters this global debate and navigates issues of human rights and pluralism in the Digital Age, particularly with Cannataci’s candor and apparent distaste for heavily relied upon American technologies.

Meg Leta Jones is an assistant professor in Georgetown University’s Communication, Culture & Technology department where she researches and teaches in the area of technology law and policy. Her book, Ctrl+Z: The Right to be Forgotten, will be published in the spring of 2016 by NYU Press.