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Law in the Internet Society
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Ready for review. All comments welcome.
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.... Immortality… and 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, other 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 [[http:// en.wikipedia.org/wiki/Megan's_Law][http://en.wikipedia.org/wiki/Megan's_Law] [ Megan laws]] , or [[http://en.wikipedia.org/wiki/Passenger_Name_Record][http://en.wikipedia.org/wiki/Passenger_Name_Record][passenger name’s records]] ( which actually led to an intense arm-wrestling with the EU.) etc..
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 [http://www.theagitator.com/2008/11/23/woman-may-lose-home-over-decade-old-blowjob/][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…
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, [[http://www.priv.gc.ca/media/nr-c/2009/nr-c_090827_f.cfm][http://www.priv.gc.ca/media/nr-c/2009/nr-c_090827_f.cfm][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?
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.
The necessity to be global
made her priority. Shocking, I thought. But understandable, when you look closer to the [[http://www.intgovforum.org/cms/index.php/funding][http://www.intgovforum.org/cms/index.php/funding][funding contributors]] list.
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