Privacy and history: on a collision course?

Erasing the human experience?

Any regular reader of this blog knows who The Legal Genealogist‘s favorite ancestor is.

Call him a rascal. A rogue. Even a scoundrel. But without my second great grandfather George Washington Cottrell and his misdeeds,1 my family tree would be populated pretty much by farmers, laborers and preachers.

And it’d be downright boring.

The simple fact is that George is the cinnamon on my family’s breakfast toast. He’s the one ancestor I’ve found (so far!) who spices things up. And I am profoundly grateful for him and — even more — for the records that exist documenting his missteps.

Now imagine, for a moment, that George had had a right to clean up his officially recorded act. That instead of leaving records of his brushes with the law, he’d been allowed to require that the records be destroyed or, at a minimum, removed from public access.

Imagine that he’d had, in modern parlance, the right to be forgotten.

That’s the issue being debated these days in the European Union2 and being touted as a direction in which the United States should also move.3 Proponents of a broad right to be forgotten argue that it is so easy for negative information to be posted online, to the detriment of personal privacy, we should be allowed to require that it be deleted — taken down — erased — just as easily.

After all, proponents ask, don’t we all have a right of personal privacy that allows us to have our misdeeds forgotten?

And that poses a dire and direct threat to our history — both personal and communal — and to the right of future generations to know what we did — and why. It is such a threat that archivists in Europe are coming together with petitions and ad campaigns to focus on the flip side of the proponents’ question: “What about our collective right to keep a record even of some things that others might prefer to forget?”4

It’s easy to write off the EU proposal for a broad right to be forgotten as addressing nothing more than the photo your college roommate took the time you first discovered that alcohol removed a few inhibitions along with, perhaps, a few more of your clothes than you’d be comfortable showing in public. Or that blog post you wrote five years ago that you no longer agree with.

None of us, I suspect, would disagree that we should be able to get that photo taken down and that we should be able to delete from our own sites the post we ourselves had written.

But consider this set of facts: how about an individual who fails to pay taxes, has a legal execution for the taxes filed against his home, and a newspaper notice is published about the sale of the home to satisfy the tax judgment? Should that person be allowed to require that all references to that be removed from public view — a right to have that be forgotten?

Think that’s far-fetched? There’s a lawsuit going on right now in the European Court of Justice that raises this exact question. The question in the case is posed in these terms:

Regarding the scope of the right of erasure and/or the right to object, in relation to the ‘derecho al olvido’ (the ‘right to be forgotten’) … (do) the rights to erasure and blocking of data … and the right to object … extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?5

Do we really want someone’s personal sensitivities under this kind of a “right to be forgotten” to erase, or remove from public view or access, this sort of information? Is an individual’s subjective view of what he wants known about himself going to be allowed to override society’s interest in preserving the truth of what our society is and what its individual members have and haven’t done?

And where does the line get drawn between a “right to be forgotten” and the records future generations will need to begin to understand us and our lives today? The fact is, much of what we know about our ancestors and our history comes from the little personal bits and pieces our ancestors left behind. The letters. The diaries. The scraps of paper with marginal notes.

Today, those kinds of records are exactly the kinds of records the EU’s proposed “right to be forgotten” would affect. As explained by Jean-Philippe Legois, president of the Association of French Archivists: “Today, e-mail, Facebook, Twitter — this is the correspondence of the 21st century. If we want to understand the society of today in the future, we have to keep certain traces.”6

As genealogists and family historians, we are all acutely sensitive to protecting and preserving access to the records of the past that we use, and want to continue to use, every day. It’s also part of our responsibility to help protect and preserve access to today’s records for tomorrow’s genealogists and family historians.

We need to keep an eye on this “right to be forgotten.” We all value our privacy, we all want the right to ensure that what is known about us is true.

But making mistakes is part of the human experience. They are what make us what we are. None of us wants to be remembered only for our mistakes. Yet none of us should want to be remembered for something — or as someone — we are not.


 
SOURCES

  1. See generally Judy G. Russell, “Darn it all, George!,” The Legal Genealogist, posted 18 May 2012, and “Oh George… you stinker!,” The Legal Genealogist, posted 9 Jun 2012 (http://www.legalgenealogist.com/blog : accessed 17 Jun 2013).
  2. See Cherri-Ann Beckles, “Will the Right To Be Forgotten Lead to a Society That Was Forgotten?,” Privacy Perspectives, posted 14 May 2013 (https://www.privacyassociation.org/privacy_perspectives : accessed 17 Jun 2013).
  3. See Brian Montopoli, “Should there be a ‘right to be forgotten’ online?,” CBS News, posted 10 May 2013 (http://www.cbsnews.com : accessed 17 Jun 2013). See also Kate Connolly, “Right to erasure protects people’s freedom to forget the past, says expert,” The Guardian, online edition, posted 4 April 2013 (http://www.guardian.co.uk : accessed 17 Jun 2013).
  4. Eric Pfanner, “Archivists in France Fight a Privacy Initiative,” New York Times, online edition, posted 16 Jun 2013 (http://www.nytimes.com : accessed 17 Jun 2013).
  5. Reference for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 9 March 2012 – Google Spain, S.L., Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, Case C-131/12, InfoCuria – Case-law of the Court of Justice (http://curia.europa.eu/juris : accessed 17 Jun 2013).
  6. Pfanner, “Archivists in France Fight a Privacy Initiative.”
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10 Responses to Privacy and history: on a collision course?

  1. Dave says:

    In other words, the EU supporters of this initiative would like to create a second “Dark Ages.” Not a good idea!

    I can sum up my feelings by expanding on a common saying — the dead, and the government, have no right to privacy.

    • Judy G. Russell says:

      The question here is whether the living should be able to rewrite history in the name of privacy.

  2. Pingback: Genealogical Privacy » When privacy and history collide

  3. John Tracy Cunningham says:

    Bravo, Judy!

    • Judy G. Russell says:

      Thanks! There’s a line to be drawn here somewhere between privacy and revisionist history that is fundamentally untrue. We need to keep an eye on this so that the line isn’t crossed.

  4. Susan Winchester says:

    While it might be possible to “sanitize” government records, it’s a terrible idea. Consider the case of Henri Laurent Agoust, a French-born naturalized US citizen. He tried to get a divorce in France from his American wife, who seems not to have known what her husband was doing. The French courts refused to give him a divorce, saying that he was not a French citizen, his wife had not agreed, and he was trying to defraud her. It was apparently an important case with precedential value. Allowing governmental recorded to be “sanitized” would destroy the doctrine of stare decisis. (Henri subsequently got his divorce in 1875 in Box Elder County, Utah, which had no waiting period at the time.)

    • Judy G. Russell says:

      Sanitizing records of adults is rarely, if ever, a good idea, Susan. Particularly when it has to do with official records.

  5. Betsy Miller says:

    What about the intersection of their “right to privacy” and my right to know that the creepy-looking person who just moved into the apartment across the hall (or the 2-story building next door, in Cincinnati) has been charged with and convicted of crimes against women / children / take your pick? My first resort with creepy-looker is to do a general internet search.

    Or do I just add more deadbolts to my doors and establish a daily check-in routine with friends / family members?

    • Judy G. Russell says:

      We can only hope our laws never get changed so that creepy-looker’s creepy past can’t be hidden, Betsy. We have all, in some way at some time, done things we’d rather people didn’t know about. But our right to privacy can’t trump others’ interest in safety.

  6. One name comes to mind: Orwell. Once we agree as a society that history can be rewritten (or partly erased), there is no end to the personal and political mischief that can be created. There’s too much of this kind of denial going on already — people have short memories when they choose to. Saying that things “never happened” takes us straight to the outrages of slavery or the Holocaust or the Iraq War, and “pretending” these never really happened as documented, or that these “weren’t so bad.” If we lose the ability to acknowledge what we and our fellow human beings have done . . . from the smallest to the largest events . . . we’re heading towards social psychosis. Much better to accept reality, however painful.

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