The decision of Europe's highest court ordering Google to delete, on request, search results embarrassing to private individuals, is a watershed -- and not a good one -- for the Internet and for freedom of speech.
Not that I'm unsympathetic to the college senior whose high school bust for marijuana possession is the first thing prospective employers see when they "Google" her in a job interview. But the issue is not whether she should have some recourse -- she should! -- but whether a government, any government, may dictate to Google what it may or may not publish in response to users' searches.
This is a free speech issue, make no doubt. It is the very free speech issue over which Google chose in 2010 to abandon China, the biggest Internet market in the world, to Baidu, Alibaba, Tencent and other Chinese clones of American tech firms that have thrived in a market insulated from competition from, not just Google, but Facebook, Twitter, YouTube and others.
In America a court would be powerless to order Google to delete, or alter, or change the sequence of its search results. We call this censorship, forbidden by the First Amendment, and US courts draw a very clear and bright line that governments dare not cross. In the American paradigm, Google is a "publisher," just like the New Yorker or The Huffington Post. Such publishers have editorial discretion to decide what content to publish, what to say in that content, how to position it relative to other content, and what not to publish.
Such choices are also referred to, quaintly but accurately, as "editing."
That Google's editing is on auto-pilot, managed by computer algorithms rather than journalism school graduates, is irrelevant. Google makes choices. Its computers are programmed to make choices. While Google errs on the side of inclusiveness, there are vast areas of the Internet that (by Google's choice) do not show up in Google searches. Also, the sequence or ranking of search results, while endlessly gamed by SEO consultants, reflects Google's choices about the relative importance of one website over another, or one content selection over another.
This isn't to say that Google is constitutionally immune from regulation in the US. On the contrary, it is subject to regulation under federal antitrust laws, privacy laws, rules of intellectual property (copyright and patent mostly), contracts, even libel laws. But no court in America can order Google to remove or change published content (except, perhaps, in the rare circumstance where the very publication of disputed content is a crime).
Moreover, Google should exercise its constitutionally protected editorial discretion, in appropriate circumstances, to elect to remove search results which Google deems unfair or a breach of privacy. Google claims to do this already on an informal basis, but the company should be more open to such requests. George W. Bush (binge drinking, DUIs) and Barack Obama (cocaine, marijuana possession), growing up in an analogue world, were able to overcome their "youthful indiscretions" and run successfully for president. But for today's youth, "Googling badly" can be a lifetime disability.
It is ironic that the new EU decision should come within weeks of Google's announcement that it had encrypted all search queries from China, thereby thwarting China's monitoring of its citizens' Google searches and search results. Chinese citizens, accessing Google through its Hong Kong-based Chinese-language website, can now find all "banned-in-China" content. China's censors, meanwhile, see only random code.
The EU court decision is an embarrassment. It reads like a bureaucracy interpreting tax regulations, not a high court balancing first principles of free speech and individual privacy. If it can't be appealed, Google should defy the order and plan to relocate its Spanish-language search business outside of Spain (where the case was filed). The Obama administration should stand by Google, treating this decision as an infringement of free speech and a breach of America's free trade rights.
Peter Scheer is executive director of the First Amendment Coalition, a nonprofit advocating for free speech and government accountability. The views expressed here are Scheer's alone and do not necessarily reflect the views of FAC's Board of Directors.
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