Volokh Conspiracy: Inside Europes censorship machinery

By Stewart Baker September 8 at 6:24 AM

Three months ago, I tried hacking Googles implementation of Europes right to be forgotten. For those of you who havent followed recent developments in censorship, the right to be forgotten is a European requirement that irrelevant or outdated information be excluded from searches about individuals. The doctrine extends even to true information that remains on the internet. And it is enforced by the search engines themselves, operating under a threat of heavy liability. That makes the rules particularly hard to determine, since theyre buried in private companies decisionmaking processes. So to find out how this censorship regime works in practice, I sent several takedown requests to Googles British search engine, google.co.uk. (Europe has not yet demanded compliance from US search engines, like Google.com, but there are persistent signs that it wants to.)

Ive now received three answers from Google, all denying my requests. Heres what I learned.

The first question was whether Google would rule on my requests at all. I didnt hide that I was an American. Googles right to be forgotten request form requires that you provide ID, and I used my US drivers license. Would Google honor a takedown request made by a person who wasnt a UK or EU national? The answer appears to be yes. Googles response does not mention my nationality as a reason for denying my requests. This is consistent with Europes preening view that its legal mission civilisatriceis to confer privacy rights on all mankind. And it may be the single most important point turned up by this first set of hacks, because it means that lawyers all around the world can start cranking out takedown requests for Belorussian and Saudi clients who dont like the way they look on line.

But will the requests succeed? The reasons Google gave for denying my requests tell us something about that as well.

1. I had asked that Google drop a link to a book claiming that in 2007 I had the dubious honor of being named the worlds Worst Public Official by Privacy International, beating out Vladimir Putin on the strength of my involvement with NSA and the USA Patriot Act. Its true that Privacy International announced I had won the award, but I argued that the book was inaccurate because in fact, I had very little to do with either domestic surveillance activities at NSA or with the USA Patriot Act, and the trophy is a dubious honor only in the sense that Privacy International never actually awarded it. (All true: Ive been trying to collect the trophy for years but Privacy International has refusedto deliver it.)

Google refused to drop the link, saying, In this case, it appears that the URL(s) in question relate(s) to matters of substantial interest to the public regarding your professional life. For example, these URLs may be of interest to potential or current consumers, users, or participants of your services. Information about recent professions or businesses you were involved with may also be of interest to potential or current consumers, users, or participants of your services. Accordingly, the reference to this document in our search results for your name is justified by the interest of the general public in having access to it.

So it looks as though Google has adopted a rule that information about recent professions or businesses you were involved with are always relevant to consumers. It would be impressive if the poor paralegal stuck with answering my email did enough online research to realize that I sell legal services, but I fear he or she may have thought that being the worlds worst public official was just one of the gigs I had tried my hand at in the last decade.

2. My second takedown request was a real long shot. In an effort to see whether Google would let me get away with blatant censorship of my critics, I asked for deletion of a page from Techdirt that seems to be devoted to trashing me and my views; I claimed that it was inappropriate under European law to include the page in a list of links about me because it contains many distorted claims about my political views, a particularly sensitive form of personal data. The stories are written by men who disagree with me, and they are assembled for the purpose of making money for a website, a purpose that cannot outweigh my interest in controlling the presentation of sensitive data about myself.

To American ears, such a claim is preposterous, but under European law, its not. Google, thank goodness, still has an American perspective: Our conclusion is that the inclusion of the news article(s) in Googles search results is/are with regard to all the circumstances of the case we are aware of still relevant and in the public interest. If I had to bet, Id say that this rather vague statement is the one Google uses when other, more pointed reasons to deny relief dont work. But the reference to this page as a news article suggests that Google may be using a tougher standard in evaluating takedown requests for news media, a term that applies, at least loosely, to Techdirt.

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Volokh Conspiracy: Inside Europes censorship machinery