Google’s hypocritical move on European privacy

In May 2014, Google responded swiftly to a ruling by the European Court of Justice that in order to respect Europeans’ “right to be forgotten,” it must establish a procedure for evaluating people’s requests to have “inadequate, irrelevant or no longer relevant or excessive” personal information delisted from Google search results. The company has since fulfilled 41.3 percent of 290,353 such requests, involving more than 1 million URLs. But Google’s level of compliance was not sufficient for France’s data protection authority, the Commission Nationale de l’Informatique et des Libertés (CNIL), since results were delisted only on European extensions of Google (Google.fr, Google.uk, etc.). In other words, if someone successfully petitioned Google to delist certain links, a search on Google.fr would not turn up that information, but a search on Google.com would. In June the CNIL issued Google an ultimatum: Extend delisting to all domains or face significant fines.

Citing the “chilling effect” of global delisting and echoing commentary from legal quarters about the dangerous precedent of allowing one nation’s laws to govern the whole world, Google announced last week that it would not accede to the CNIL demand.

Why? After all, long before its public squabble with the European Union, Google regularly removed content that contained a person’s Social Security, bank account or credit card numbers from searches, and it readily agreed to copyright-related take-down requests by large corporations such as Disney and Sony.

In truth, Google is not particularly interested in protecting free speech. In 2012 after the legal case that first brought to public attention Google’s conflict with the European right to be forgotten, prominent legal theorist Jeffrey Rosen expressed concerns about Google becoming “censor-in-chief for the European Union.” Wikipedia founder Jimmy Wales concurred, worrying that Google may now be legally positioned to decide which parts of history are preserved and which are not.

In the meantime, Google’s public statements about the European ruling and the CNIL demand have been cautious in referring to censorship and free speech interests. This is unsurprising; Google is not merely a neutral pointer to information. Because of the near global monopoly of its search algorithms, Google is a significant determiner of what information Internet users see. Google controls over 90 percent of searches in Europe, 64.2 percent in the U.S. and 88.2 percent worldwide, lending plausibility to the quip “If it isn’t on Google, it doesn’t exist.”

That’s not strictly true, but for most practical purposes, it is. Because the company already effectively controls access to information, it would be more than a little disingenuous of Google to complain that globally complying with the right to be forgotten ruling would take the company into new territory or constitute a major blow to free speech. (And in any event, content excluded from a Google search does not simply disappear; it is just harder to find.)

Nor is Google particularly interested in protecting privacy.

Certainly, the big search engines’ new revenge porn policies seem to be premised on the importance of protecting individual privacy. Google has moved to address the problem of revenge porn, along with Microsoft, recently adding to the list of things it is willing to remove globally “a nude or sexually explicit image or video of you that’s been shared without your consent.”

In announcing the imminent launch of its website dedicated to reporting and requesting the delisting of revenge porn, Google’s search senior vice president, Amit Singhal, said that “revenge porn images are intensely personal and emotionally damaging and serve only to degrade the victims — predominantly women.” But that might just as well apply to other kinds of content that Europeans wish to have delisted. For my now sober neighbor, for example, his alcoholism is intensely personal, and he might be seriously emotionally damaged by the ready availability of information about his decades-old spousal abuse and DWI convictions.

Cynical observers might therefore wonder about Google’s timing. Just as it was considering its response to the CNIL demand, the company declared its stance on revenge porn. That Google’s policy about this kind of content applies globally suggests that the company takes individual privacy seriously. But if Google were committed to protecting the dignity of the person (a main value that personal privacy protects), why does it insist on maintaining geographical limits on delisting requests from Europeans, requests that Google’s own evaluation team deemed legitimate?

In its announcement that it would not comply with the CNIL demand, Google explicitly raised the issue of who has the authority to regulate informational content, stating, “We believe that no one country should have the authority to control what content someone in a second country can access.”

But Google sidesteps the obvious corollary: Should one corporation have that kind of authority? Apparently, Google’s answer is yes.

What is thus really at issue here is power. Given the constitutional protections of free speech in most contemporary democratic societies, no such state could maintain its legitimacy if it exercised the same kind of control of information that Google can and does. The member states of the European Union are able to distance themselves from any appearance of repression by outsourcing decisions about delisting to Google — and doing it under the guise of protecting fundamental human rights.

Let’s be clear: No state has the technological or fiscal resources to do what Google can do. Google’s power to control access to information is unparalleled, and its existence does not depend on the will of any electorate. Now the European Union has unwittingly amplified that power. Google was able to have it both ways. It agreed to provide local delistings (thereby being seen to cooperate in upholding human rights) while refusing to provide global delistings (thereby maintaining its autonomy and being seen as a champion of fundamental principles of international law).

It will be interesting to watch how relationships between world governments and Google develop. Governments will need to secure Google’s cooperation regarding data management, but Google has demonstrated that it has the power to say no to any state’s bidding.

In the popular imagination, the state is seen as the most dangerous enemy of expressive liberties and access to information. But Google has shown what free speech theorists have known all along — that nonstate actors can wield just as much power as states, if not more.