Those of us who watched the December SOPA markup hearings in the House Judiciary Committee got our fill of members saying, “I don’t know much about the Internet, but… .” The experience was captured in Joshua Kopstein’s headline, “Dear Congress, it’s no longer OK to not know how the Internet works“, and then analyzed brilliantly and at length.
Yesterday in an excellent article, Julian Sanchez returns to the meme.
You cannot implement an analogy. The rules that you’d want to apply if you could make it so just by wishing are not always the rules it is wise or feasible to attempt to actually put in place, once you’ve factored in the probable efficacy of that attempt and its unintended side-effects. Both of these, alas, are determined by annoyingly stubborn “facts” about the nature of the technological context in which you want to enforce the rules.
The Sanchez piece brings to mind Clarke’s Third Law: Any sufficiently advanced technology is indistinguishable from magic. To those who would regulate the Internet without understanding it, the pixie dust of political contributions coupled with the incantation “This bill only targets foreign rogue Web sites” is all it takes to make censorship disappear. That’s how magic works.
Which brings us to another excellent article, from Law Professor Jeffrey Rosen, on the European Union’s attempt to create a “right to be forgotten”. Mincing no words, Rosen calls this “the biggest threat to free speech on the Internet in the coming decade”. He leans heavily on an earlier article by Peter Fleischer, Google’s Chief Privacy Counsel, which carefully considers a number of ways to interpret “forgotten”. Do we mean the right to delete an embarrassing photo from the page where we uploaded it in our carefree youth? What about the far worse photo uploaded by our ex-lover to her own Web page? Or the copies made of either by acquaintances or voyeurs and now residing on Web pages, hard drives, and cell phones around the planet? And what about the links to these photos and the search engines that generate or find them? Of these examples and others, Fleischer says:
Most conversations about the right to oblivion mix all this stuff up. I can’t imagine how to have a meaningful conversation (much less write a law) about the Right to be Oblivion without some framework to dis-entangle completely unrelated concepts, with completely unrelated implications.
But the EU proceedings sound distressingly like the SOPA discussions in Congress, with phrases like “any information relating to a data subject” and “personal data [people] have given out themselves” thrown about with little regard for the huge distinction between them. And yet, according to Viviane Reding, the European Commissioner for Justice, Fundamental Rights, and Citizenship:
This regulation needs to stand for 30 years — it needs to be very clear but imprecise enough that changes in the markets or public opinion can be maneuvered in the regulation.
Second star to the right and straight on til morning.