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The Circle, the Court and the Illusion of Privacy

May 22, 2014
Kurt Waldheim

Kurt Waldheim (centre)

Imagine a world in which nothing is ever deleted. All the data, the images, the videos, the scanned documents from down the ages are sucked into vaults of humming servers belonging to a single social media enterprise. Millions of tiny cameras record all but the most intimate aspects of the lives of its willing employees. A vast network of webcams allow you to check out the surf on a Californian beach, or the snow on Mount Fuji. Many of the cameras are mobile – ordinary people are encouraged to contribute to the vast panoply of global image feed by launching personal mini-drones.

A company that started with a mission to encourage transparency in private and public has embraced America in a cult-like grip. 1984 fuses with Facebook and Google. But what George Orwell didn’t foresee was that pervasive surveillance has come about not through compulsion but thanks to overwhelming peer pressure. Those who wish to opt out are becoming a marginalised minority.

In an auditorium full of excited employees, Mae, the central character in Dave Eggers’ novel The Circle, demonstrates how quickly someone can be found when you crowd-source a physical search for a person using networked video camera feeds. She selects a former friend who doesn’t want to be found and is now trying to escape:

“On the screen behind her, Mae saw that two SeeChange cameras, positioned on the bridge, had been added to the grid. A third came alive seconds later, offering a view of the span from the riverbank far below.

Now another voice, this one a woman’s and laughing, boomed from the third drone: “Mercer, submit to us! Submit to our will! Be our friend!” This last entreaty was rendered in a child’s whine, and the woman transmitting through the electronic speaker laughed at its strangeness, this nasal entreaty emanating from a dull black drone.

The audience was cheering, and the comments were piling up, a number of watchers saying this was the greatest viewing experience of their lives.

Mercer turned his truck toward the drone, as if intending to ram it, but it adjusted its trajectory automatically and mimicked his movement, staying directly in sync. “You can’t escape, Mercer!” the woman’s voice bellowed. “Never, ever, ever. It’s over. It’s over. Now give up. Be our friend!”

I was halfway through writing a review of Eggers’ latest work of art when life intervened, in the form of the ruling by the European Court of Justice that we have the right to be forgotten.

The judgement was against Google. The two plaintiffs in the case were a businessman who went through a financial crisis, and a plastic surgeon accused of botching an operation in 1991. The court determined that links to on-line evidence of our past antics, misfortunes, sins and misdemeanours can be erased from the databases of search engines if they are no longer relevant or their existence is no longer in the public interest.

Yet to be defined is the meaning of relevant and public interest. Would it have been in the public interest to know that Kurt Waldheim – the UN Secretary General in the 1970s – lied about his war record as an intelligence officer in the German Wehrmacht? Was his war record no longer relevant to his candidacy for the Presidency of Austria?

If you search on Google for Waldheim, you will find prompts that include “Kurt Waldheim war crimes” and “Kurt Waldheim Waffen SS”. Yet he was never convicted of a war crime. Relevant? In the public interest? Something of a moral dilemma perhaps. Judge for yourself after reading his obituary in the New York Times. Under the EU ruling Google could probably defend the inclusion of this link on the grounds that Waldheim was a public figure, and that there was a “preponderant public interest” in the subject. But then you have the problem of defining public figure and preponderant interest. For example, does one become a public figure through on-line exposure, possibly abetted and proliferated by Google? A blogger, for example, or someone accused of a crime that attracts a large amount of public attention, even though the person is subsequently acquitted?

Also to be determined whether the ruling is likely to be extended to include the search engines of content providers. Are we just talking about the likes of Google and Bing, or does the ruling also apply to any application or content provider that has its own internal search engine. This blog, for example. Or Facebook, through which we can winkle out all the embarrassing photos and posts from the lives of people who might wish to re-invent themselves as sober citizens after a youth of debauchery and excess – especially when the headhunters, HR watchers and journalists come sniffing.

The judgement itself, for those of you who have the patience to plough through it, is here. I hear the sweet sound of lawyers cackling with glee.

If it ends up having real teeth – enforcement will be down to national agencies and judiciaries, so uniform implementation is by no means guaranteed – it seems to me that the European Court of Justice has gone some way towards restoring the natural way of the world. For the past decade we have had unprecedented access to relatively unmediated information that would have been impossible for an ordinary person to find without substantial expenditure of time, and, by implication, money.

Before Google and its less sophisticated predecessors there was little – apart from state and commercial secrets – that you couldn’t discover if you were prepared to put a team of researchers or private detectives to work. Suddenly much of that information became available through internet searching. True, you have to exercise critical thinking skills to extract diamonds from the dross. But the information is there, waiting to be turned into knowledge.

So at least for those of us who live in the EU, our ability to find stuff will depend on decisions about relevance and public interest that will not be ours to make. If the EU ruling is enforced, there will once more be two classes of information – what governments and the wealthy can see, because they have the necessary resources, and what is easily available to the rest of us.

Thinking globally, you could also say that there are now three classes, segmented by location: countries where links are purely at the discretion of the search engine operators, such as the US, countries where they can be erased on request, such as Germany, and countries where they are mediated by the state on a massive scale, such as China. Multinational companies will therefore find it easy to avoid privacy strictures simply by doing their searching in the most open environment.

For those concerned about a right to privacy, the ruling will only bring limited comfort. There is a vast amount of information relating to each of us that will never be linked to Google. Given that governments frequently outsource their data collection and maintenance, and some government agencies are willing to sell the data, there will also be a yawning gap between bought data and stuff obtained for free. Who owns this stuff? Clearly not us. And the frequency with which personal data stored by private companies – eBay being the latest example – is hacked into by criminal and even state players suggests that on-line privacy cannot be guaranteed, nor ever will be.

Ultimately what is important is not just the collection and maintenance of data but the truth or otherwise of the information, what people do with it and what decisions are made on the basis of what they discover.

No freedom of information legislation will fully allow a person to understand decisions made relating to themselves, because decisions, when they are documented, can be dressed up under false premises.

Take hiring decisions, for example. The records might show that “I decided not to hire you because you did not have the appropriate qualifications”. The real reason might be because you are black, Muslim, lesbian, have  unpleasant body odour or poor dental hygiene. Or simply because “I don’t like you”, or “you’re not like me”.

Equally unfathomable are the decisions of juries. Supposedly arrived at on the basis of fact and reasoned argument, if this were the case there would be no interest in courtroom dramas. Abu Hamza, for example, might be, by Western moral standards, a thoroughly bad man. But I read nothing from reports of his recent trial in New York that suggested an open-and-shut case against him for the terrorist offences he was alleged to have committed. Did the fact that he was being charged in a city grievously wounded by people with whose views he clearly sympathises, and that with his self-induced disabilities – one eyed, hook-handed, he looks like an archetypal baddie -have anything to do with the speed of the jury’s decision to find him guilty?

If ever there was a moral maze, it lies in the confusion surrounding free speech, access to information and the ability to hide it. A small illustration can be found in the pages of emotional on-line comments about the Wall Street Journal’s article on the EU court judgement.

In my rather cynical world view, the legislation, court judgements, ringing declarations and constitutional guarantees are vain attempts to stem the tide of human curiosity and ingenuity. Freedom of speech and information, and the right to privacy are illusions. If you want them, you have to actively fight for them. If you have time, money, intelligence and motivation, you have a better chance of speaking without fear of persecution and disapproval, you can discover information that others can’t, and you have a reasonable chance of reinventing history – be it your own or that of others. But there are no absolutes, otherwise thousands of journalists, historians and lawyers would be out of a job.

The internet hasn’t changed these constants – it’s just enabled us to howl more loudly about them.

If you’re one of those people who engage in endless debates about rights and freedoms that exist only in theory, you could do worse than to check out The Circle. It’s a thought-provoking, witty and compelling view of how technologies used by Facebook and Google seduce us effortlessly, and where those technologies might lead us to in the very near future.

But right now, I have to run off and change my eBay password in case those evil hackers – who presumably have the time, money, intelligence and motivation – get hold of my personal information.

From → Books, Politics, Social, UK, USA

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