Too Little Too Late

Regulators in the US, UK, Spain, Italy, Germany, Canada and the European Commission are finally getting serious about privacy. First, there’s the bevy of cases and crackdowns recently introduced against Google’s Street View. Secondly, there’s the EC’s new privacy proposal, mandating that in the future companies ask such consent for all the data they take, and (more radically) make it possible for users to have it deleted at any time. They’re calling this the ‘right to be forgotten.’ [A direct response to Eben Moglen, perhaps?]

This is comforting news for those of us who have been talking about data and digital rights for some time, to be sure. But I am wondering it’s ultimately too little too late.

See, most of the major holders of user data online are–or are close to becoming–monopolies within their niche: Google in search and advertising, Facebook in social, etc. And it seems to me that the history of monopolies is that once they get in place, it’s very difficult, legally, to break them up and almost impossible to muster the political will for radically restricting their business practices when a massive majority of the populace are their customers. [Can you see I’ve been reading Tim Wu?] That’s one reason that I’ve been arguing for two years that the way to best Google on privacy was to take it to task on antitrust issues early on, before it became unbeatable.

But given we haven’t done that, it now seems to me that the best possible scenario is [and I can’t believe I’m saying this] NOT to sue Google’s more offensive services out of existence, or to try and take it apart, but to essentially acknowledge it as a legitimate monopoly, and then slap it with a huge list of monopolist’s burdens: forbid it from further M&A activity, say, forbid them from collecting things like payload data, and mandate that all data-collecting services become voluntary, not at the individual level, because that’s now untenable, but at the municipal level. If the majority of a town’s population votes to be mapped, Google can photograph in the town. I think the municipal level is basically the smallest level that is still feasible, and the largest level that is still democratic. Is this a crazy idea?

As for the right to be forgotten, I regard it as pretty sound when I think of individuals and companies like Google or Facebook, but I am less convinced about how it might extend to other types of websites. Jeff Jarvis has correctly pointed out that a very broad reading of such a clause could lead to the idea that people can demand takedowns of news stories about them. Which is something that doesn’t make any sense to me, not least because news coverage is NOT something you consent to have written about you. It is not data YOU give away (and therefore own) but data which we as a society have decided can be collected involuntarily so long as you have the right to correct the record, and to extract a pound of flesh when the journalist is wrong. I’m inclined to say that the right to be forgotten should apply to everything except IRS and other federally mandated disclosures, and stories about you in the press. But I must admit that my sense of surety about these issues has declined the more I learn about them, so, please, sound off.