HABEAS DATA: PRESSING FOR A RIGHT TO OBLIVION

I lost a friend of mine about a year ago. Hard experience when you are confronted to death for the first time, but that’s Life. He is gone. But virtually, he is still there....

I. Web information: Eternal data?

Comments on facebook are regularly left on his wall, friends keep on commenting on his status and on some occasions, they tag him in his loving memory. While some Facebook activists would claim the advantage of making people eternal, others would just consider his page as a modern burial place, where smiley-hearts replace flowers, left ads the tomb, and pokes long prayers and monologues. Some, however, see that as an unacceptable disrespect to the family and their son’s memory. With over 300 million ‘clients’ worldwide, no doubt that facebook users would share one of this stance. From the buildings of Wall Street to the bank of the Nile, Facebook seems also hardly integrating the cultural aspects of its customers, while in fact being the most important cutural imperialist in history. As a non-American I was pretty shocked of this situation, but if you are a US citizen and think there is no issue at all here, keep in mind that in other countries we do not have a culture of personal data transaprency. Names on legal cases in France for example or other civil law countries, are kept anonymous, contrary to common law countries and specifically the US. We also do not have any regulations similar to Megan laws , or passenger name’s records ( which actually led to an intense arm-wrestling with the EU.) etc..

You overgeneralize by assuming that civil law framework determines attitudes about data transparency. Norway is a civil law country in which everyone's tax return is public information, for example. French attitudes are, as always, French, and are assumed by the French to be universally applicable to everyone except Englishmen and barbarian Americans.

This situation actually confused me, and showed me how important data conservation was and how infringed is our privacy, even when passed away. Facebook is not the only web tools that makes us eternal. Imagine yourselft caught in trouble, and for some reason you have a record. You were young, and now a responsible grown up, you regret it. The person you sent your resume to will also have the regret to learn this little secret when googling you. Or, imagine yourself in Wendy Whitaker’s shoes , name-listed forever on the web… in a very ungloriously manner. Data are kept, we don’t know where, by who, and how. More worrying, as Eben noted in class, some information given without risk at a point, such as religion, sexual preference etc.. could be used against you later on. Some might argue that this web issue only occurs when bad reports, articles, or facts are spoiling one’s reputation: after all, who has never been sensitive to the positive information people all over the world can find about you on google, facebook etc… However, one would be entitled to be freed on any stigma and not reduced to one’s past, when it applies. More importantly, one should not see his life exposed to the public if not consented…

II. Legally solving this tension between the right to information and the respect to privacy

Pursuant to this confusing situation, some countries have therefore asked Facebook and other social networks to comply with their home legislation. For instance, Canada pressed last August Facebook to delete people’s profile within a year after they decease, proposing Facebook users to suppress their accounts- and not solely ‘deactivate’-, or limiting access to personal information by application developers. Good compromise to be applied in my friend’s example, some might say, between the necessity of a common burial place and the respect of one’s privacy life, family’s mourning…and facebook’s reputation. But can we expect the establishment of a general right to oblivion?

III. Habeas data: A relevant concept to apply to the web?

Going further than considering a right to be virtually left in peace when passed away, I am personally one of those that demand the application of a web right to oblivion. ‘That it is our capacity for forgetfulness, for oblivion, which allows us to be happy. (…) Oblivion "maintains order and etiquette in the household of the psyche; which immediately suggests that there can be no happiness, no serenity, no hope, no pride, no present, without oblivion". Not only reflecting a pilosophical principle- cf Nietzsche, in_ Genealogy_- the right of oblivion also echoes a legal principle that is found in many jurisdictions all over the world. When a reprehensible act is committed by a person, records are made but generally elapse in oblivion throughout a certain amount of time, contrary to the virtual world, which is putting an eternal stigma on people involved on ‘particular’ issues . While in real life a moral statute of limitation applies, this right is not respected virtually, allowing people to get reintegrated to the society thanks to this right of oblivion that has been echoed, in legal matters, through the principles of limitation: the duration of any crime committed is temporaly limited, and one should not be judged all his life on his past errors. Specifically, this right to oblivion would command the suppression of personal data after a certain amount of time, as suggested and already implemented in Canada.

IV. Global answers for a wolrdwide issue

Facebook does not know any borders, and it would be hard to apply a specific body of laws that would be in force in a particular country. People need, therefore, to rely on domestic agencies to protect the right to privacy, which more often than are insufficient. Through the 4th Internet Forum Governance , the recent talks that were under the UN supervizion were to explore this issue. Participating countries came up with an unsatisfactory agreement with a charter establishing international standards on data protection and privacy life. Nowhere can be found any trace of right to oblivion, an issue the French secretary of state made her priority. Shocking, I thought. But understandable, when you look closer to the funding contributors list.

Kamel,

Since you suggested comments from the class, I added this comment box to your page. You can delete it if you like of course, just find the text that says %COMMENT% and delete it. It will be near the bottom of the page in edit mode. I also modified the hyperlinks since they previously all linked to http://.../. All I did was copy the text of the link that you included in your essay into the hyperlink code. Here's how it works so you can do it too (I'm copying from Justin's explanation of this elsewhere). A link should be coded in edit view like this:

[[LINK][LINK TEXT]]

So if you wanted "Megan's Laws" to hyperlink to http://en.wikipedia.org/wiki/Megan's_Law you would use the above syntax with:

LINK = http://en.wikipedia.org/wiki/Megan's_Law 
LINK TEXT = Megan's Law

So in the end, it would look like this:

[[http://en.wikipedia.org/wiki/Megan's_Law][Megan's Law]]

I hope that is helpful. I will try to return to provide substantive comments at a later time.

-- BrianS - 03 Dec 2009

Hi Brian, Thank you very much for the tip!!

-- KamelB - 05 Dec 2009

Kamel - After reading this piece, I was reminded of this TIME article. It discusses Facebook's and Myspace's policies regarding deceased users, and also discusses services that individuals can use to protect their legacy, such as Legacy Locker? . You appear to focusing more on legal remedies, which is very interesting, but it also might be useful to discuss possible non-legal remedies for this problem. For example, do you think this is an issue that could be dealt with through provisions in a will?

-- BradleyMullins - 06 Dec 2009

Hi Kamel, I enjoyed reading your piece, and it reminded me of the general conversation we had in class regarding social networking sites commodifying relationships. Although commodifying death is unfortunately nothing new, sites like facebook achieve that process more simply and subtly, which I think you touch upon when you refer to facebook as a "modern burial place." I was also curious whether your focus is mainly on information available on social networking sites like facebook, since you briefly discuss information found through Google as well.

-- JuvariaKhan - 10 Dec 2009

Hello Bradley,

Thank you for your comment. I think law has this extraordinary power to protect everyone, no matter the economic financial situation of the citizens. Specifically, the will provision would not be even thought by some people, only informed ones would probably consider this option. Not only imformed, but also ‘well-off’ persons could resort to it. The 300 million of ‘clients’ seems to me a deceptive figure. Internet and facebook have probably reached the most remote and poorest places, I think of cyber-cafes in African countries for example. Not sure those users could consider legal services. Beyond the economic parameter, the cultural one is also pregnant with the difficulty to formalize such provisions when customs in a given country place a huge stress on heritage and does not even recognize a right to privacy. Also, a probable perverse effect to consider generalizing such a process is to offer facebook and other social networks an affirmative defense based on the absence of such a provision in a person’s will. Apart from making the discussion about such a provision legally mandatory when drafting a will, the risk is to allow, implicitly, facebook and other social tools to keep confidential information, consented through silence, ie an absent provision.

Thus I do think a general and universal right to oblivion is a better alternative in terms of efficiency.

-- KamelB - 28 Dec 2009

Hello Juvaria,

Thank you also for your comment. As you know the word limit prevents to discuss both issues in a torough manner, but I think your point is worth developing. Contrary to Google, Facebook offers all the features of a modern burial place. While the latter offers only information on a person, facebook gives the opportunity to remember one’s memory. I would have never imagined such a thing before seeing all the messages left on my friend’s wall, and it gives the extraordinary convenience for a person to drop a thought at any time of the day anywhere in the world. Virtual life started to scary me, to be honest, and the reasons why I decided to deactivate my account was mainly because I was somewhat lost between all these new landmarks internet offers. Coming back to the discussion, the distinction between Facebook and Google gets irrelevant when dealing with a right to oblivion. This right would recognize a person’s virtual identity to be elapsed, be on a social network or a search engine. To what extent ? For how long ? From when ? Even our politicians still ignore it, and the network lobbies seem to be active in delaying the debate. But maybe all together, if interested, could determine the shape of this right.

-- KamelB - 28 Dec 2009

Much as I yield to nobody in my belief that Facebook's a problem, this seems to me an evidently trumped-up issue. No one gains legal rights by being dead, so this whole "right to oblivion" stuff is obvious nonsense. But people don't lose legal rights in this particular situation by being dead either: the executor or other legal representative has all the powers the decedent had to shut down the Facebook account or do whatever else is desired. When Bradley raised this you treated it as a solution for rich people, but that's untrue: next of kin wind up the matters of their dead relatives among the poor of the world, too. Arguing about the default rule for those whose executors or other representatives have taken no action is

foolish
the matter is evidently committed to their prudence and discretion. You don't have to instruct your executor specifically to cancel your magazine subscriptions. The technicalities are what they are: there's all sorts of complexity about the frequent flyer miles of the dead, too, and we don't need international treaties or in fact any transnational institutions to deal with that, either.

You consider it shocking when a French minister talks total political bullshit and nobody bothers to scrape and bow? Hostile, doubtless English-speaking, bribery is the only possible reason, of course.

From the revision point of view, I think you need to go back to basics. Either you can convince a skeptical editor that there's really a problem here, or you can't.

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r21 - 06 Jan 2013 - 16:27:41 - EbenMoglen

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