Swedish newspaper Aftonbladet today has an interesting piece on what the Internet does to forgetting. The barebones version is simple: a man murders his then-girl friend, is sentenced to psychiatric care, gets better in a year and is released.
The murder is high-profile: all the tabloids at the time featured the man pleading for anyone to come forward if they knew anything about his girlfriend’s disappearance. All the while her body lay hidden in a well out at his parents place in the country. His mother commits suicide a day after the murder, but the story does not detail if it is because she cannot live with the knowledge that her son has murdered the mother of his children. After four days of interrogation he confesses and is sentenced to psychiatric care.
He then slowly, painstakingly, reconstructs his life, gets a new family and a new job as a successful manager in a municipality. He reveals nothing about his past, not even to his new children. His new wife knows the story, but agrees that the kids do not need to know. Then, by chance or by design, someone finds out. They start flooding his now-employer, the county, with e-mails and letters detailing the story. His new employer is shocked, removes him from his position and then the story re-surfaces in all the tabloids.
The man now has lost his job, and, the article notes, what is worse: he has to tell his kids.
This story seems to give us the perfect example of why there has to be a right to be forgotten in the information society (as discussed in Viktor Mayer-Schönbergers works and in France), and how that right to be forgotten can be seen as an important aspect of any set of privacy protections. I don’t think there is any easy answer here, and I will not attempt to provide one. But let us analyze the example more in-depth.
First, let us acknowledge the moral nature of the claim that there should be a right to be forgotten. The whole story in Aftonbladet pivots around this very aspect of the case, with the man arguing that there should be a right to start anew, and the anonymous users of the forum detailing the man’s history and charting his present life arguing that someone’s deeds should always follow them. The idea that there should be a right to be forgotten is at the most basic level an ethical claim. It is possible to imagine someone arguing that we should be judged on the sum of our actions, and that others should be free to judge us on the sum of our actions too — and that allowing someone to obscure his or her history would be unethical.
This raises more questions.
To me, one of the crucial questions is whether forgetting is really a moral act? We seem to be conflating two different things here. I would recognize, gladly, that forgiving is a moral act, but I sincerely hesitate to call forgetting a moral act. Forgetting to me seems to be less of an act and more of a passive process, like a flower wilting or the sea grinding stones to sand. True, there are cases where not forgetting is a moral act (as in “nie wieder”), remembering can be a moral act, but forgetting to me seems to be something else. Are we really looking for something else, then? A right to be forgiven?
Another question that is tricky is what this says about the relationship between privacy and social norms.
I find that I often think that the level of privacy in a society is absolutely dependent on social norms in that society, and that this leads to a number of difficult challenges – not least the question about what communities can actually carry and enforce norms, and if the wider networked communities on the internet are too low density to actually produce norms that carry the enforcement needed to guarantee privacy levels that we have grown to expect in offline environments. But there is an alternative way to think about privacy, best expressed in Eric Posner’s work on law and social norms. Posner argues that the reason a state provides privacy protections at all is because of the pathologies of social norm enforcement. That is: social norms can sometimes be so harsh and destructive that they sub-optimize overall welfare and destroy important values – like the ability for a murderer to be rehabilitated.
In that scenario, privacy is not produced by norms, privacy is what we are guaranteed by the state in spite of the norms that would have us exposed to others in a way that is ethically, or, for that matter, economically, indefensible.
Second, the debate around the right to be forgotten also seems to high-light the relationship between privacy, identity and time. It has long been well-known that identity and time have an interesting relationship. Locke and Hume examined the idea of personal continuity and this idea is essential to understand the case at hand. What is questioned here is whether a man can really, truly change, or if he is the same now as he was long ago. The idea that there should be a right to be forgotten is related to the idea that man changes over time and that it makes little sense to hold someone accountable now for what happened 25 years ago. In one way this would be as irrational as holding one man responsible for what another man does today, you could argue, and there would be some truth to this. In fact, you could argue that there is very little in terms of identity at all, and that through the course a lifetime you are – perhaps both simultaneously and sequentially – several different persons (think about how the law tries to grapple with multiple personality disorders). In order to fully understand the relationship of forgetting, time, privacy and identity we would need to dig deeper into this question (and I intend to), but suffice it to say that if we believe in some version of the psychological approach to identity we could be open to an argument about “a right to be forgotten” that is really not about forgetting, but about changing as a person. It would be a right to define cut-off points for personal continuity, rather than anything else.
Now, paraphrasing John Maynard Keynes, we can also note that in the long run we all have privacy. As we die and time goes on, most of us will not have a right to be forgotten, but will simply be forgotten. This seems to be to be qualitatively different from a right to be forgotten, and if anything also raises questions about the coherency of the meme.
The time aspect of privacy has been discussed far too little. There are several things here that need to be examined in-depth, not least the issue of how privacy plays out in time, but this will have to wait for another day. With Wittgenstein we could ask if privacy has Echte Dauer – real duration – like pain, or if it is more like a pattern discerned over time, like sorrow. Indeed, we may ask with Aristotle if privacy is something we can only say if someone has had after studying their entire life – Aristotle’s example was the happy life, but perhaps we can say the same about the private life, or, the probably different life lead in privacy.
The third point I would like to make is a point relating to the relationship of forgetting to law. Law has a number of different mechanisms for forgetting. The idea of a statute of limitation is one such aspect. For some crimes there is no such statute, for others the statute can be as little as three years. I sometimes wonder if this is a figure of thought that lies underneath the discussions around the right to be forgotten, and if so if it is really appropriate. The criticism I have in mind is this: what a statute of limitation does is not that it forgets, nor that it forgives, but only that it allows law enforcement to efficiently allocate its resources. This may only be partly true, but it seems to me to be one significant difference between a right to be forgotten and the statute of limitations.
To conclude, though, I would like to point out something entirely different. I think that the debate surrounding the issue of whether or not there should be a right to be forgotten is truly fascinating and worthwhile. I also think that it has very little to do with technology. The story I have told could as easily have been from Jane Austen. The stranger with a dark past, that if revealed will destroy his social standing and chances for advancement is old, and a persistent feature of art and literature. When we raise it in the context of information technology we make the argument that things have changed at some basic level. That the cost, perhaps, of revealing the past of anyone has been reduced to near-zero. I am not sure that is true. It is admittedly a pet peeve of mine, but what if the wealth of information also obscures the past? What if the noise in the machine will actually allow someone to renew their life more efficiently in the future?
We do not know yet.
What the story in Aftonbladet does not tell us was how it all started: did somebody find something on the net that allowed them to make the connections that led to the man being revealed as a murderer? Or did someone who knew about the story simply use the net as a way to disseminate it? Does it matter?
Ultimately the right to be forgotten is not a debate about design and technology, but about the freedom of individuals to remember and then use their knowledge to harm others.