Every time Gary Katcher sees the article, he feels that his reputation is being dragged through the mud again.
It's an article from Forbes, dated Jan. 13, 2012, touching on a lawsuit between him and an ex-partner in his investment firm over a nasty business divorce. The article was accurate, reporting fairly on the claims of wrongdoing exchanged between the former partners during four years of litigation. It eventually was settled in Katcher's favor, but the magazine never ran a follow-up.
Now, if you type Gary Katcher's name into Google, the first item that pops up is the article, with all its murky innuendo.
"This article unfairly casts a shadow on my reputation because it is out of date," Katcher, 57, told me last week. "Ultimately the record clearly shows that I did nothing wrong. I have always acted with the utmost integrity and ethical behavior."
In a perfectly fair world, the 2012 article would long ago have vanished. Instead, it lives eternally on the Internet. Under U.S. law, Katcher has no way to force the deletion of a link to the story. "Although all the evidence vindicated Mr. Katcher," says his Washington lawyer, Howard Schiffman, "there's no legal remedy to get the truth into the public domain."
In Europe, however, Katcher might have a shot at forcing Google to delete the piece from its search results. Last May, the European Court of Justice upheld and strengthened the "right to be forgotten" — the right of individuals to ask that personal information be deleted because it's outdated, irrelevant, incomplete or no longer necessary to achieve its original purpose.
In the U.S., privacy experts are taking a new look at whether a right-to-be-forgotten law aimed at Internet search engines can coexist with the constitutional protections of freedom of speech and the press. Some see the answer in a combination of property and privacy rights — "the concept that people have the right to control their private facts held by commercial entities, and that they don't expect to be widely available," says Marc Rotenberg, president of the Electronic Privacy Information Center.
Fears about a European-style ruling's impact on free speech and the press are probably overwrought. The case arose in 2010 after a Spanish lawyer discovered that a Google search turned up newspaper reports more than a decade old about a property foreclosure that he had resolved years earlier. He asked that the reports be removed from the newspaper's website and the links be expunged from Google's search. The court ordered the Google links taken down but allowed the newspaper reports to remain online.
As the European Commission explained, "the right to be forgotten is not absolute," but must be balanced on a case-by-case basis against freedom of expression and the public interest; it's "not about making prominent people less prominent or making criminals less criminal."
Google says it has received about 163,000 removal requests, approving 41.7%. It granted a crime victim's request to remove links to crime reports appearing in searches for her name. It turned down requests from accused perpetrators for removal of reports of crimes.
Concerns about technology's incursion into personal space are nothing new. The future Supreme Court Justice Louis D. Brandeis wrote of "the right to be let alone" in 1890, when he made a very modern observation about how "mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'"
For a century after that, the spread of personal information was limited by the "security of obscurity." Years ago, people searching for your listed home phone would have to know where you lived, in order to consult your local phone book. Today a simple search from anywhere on Earth can turn up your number and address.
Notwithstanding free speech guarantees, limits on the dissemination of even public information are widespread in the U.S. Most states allow juvenile criminal records to be sealed or expunged. Information about gun permits, which was once easily available in many states, is now closed or available only through physical searches at local law enforcement or court offices. California's pioneering Eraser Law allows minors to demand that some websites remove posts they've made public themselves. Copyright owners can force Web services to take down videos and other material that infringe their rights.
On the whole, however, the right to be forgotten in the U.S. belongs to the rich and powerful. When nude photographs of well-known actresses made it onto the Web, the stars managed to get them taken down by major websites in short order. When the Orlando Sentinel and other publications sought autopsy photos and other public records related to the 2001 crash death of NASCAR driver Dale Earnhardt, the release was barred by an act of the Florida Legislature.
There was no such luck for the Orange County family of Nikki Catsouras, photos of whose grisly 2006 fatal car crash proliferated over the Internet after their unauthorized release by two California Highway Patrol employees. Because the family didn't own the photos, its efforts to get links to them removed from search engines and websites were unavailing. Even the CHP "shut the door on us," says Nikki's mother, Lesli. "It's difficult when you're just a housewife in a living room trying to figure things out." The Catsouras family settled its lawsuit against the CHP for $2.37 million in 2012, but the photos haven't entirely disappeared from the Web.
Options for an American right to be forgotten are beginning to emerge. Jonathan Zittrain, co-founder of Harvard's Berkman Center for Internet and Society, says focusing on search engines "allows for the information itself to remain public, with a question of how to narrow the indexing of it." He also praised an experiment launched by Google years ago, allowing people quoted or mentioned in a news article to append a clarifying comment next to the article on the Google News service. The function doesn't appear to be available any longer.
Can Google and other search companies make the fine distinctions required by the European court's case-by-case balancing test? There will be obvious candidates for removal, such as crime stories that place innocent people in a false light, and obvious absurdities, such as the recent request from a professional musician that the Washington Post remove an old, unfavorable review. "I'm willing to acknowledge it's not always easy to draw the line," Rotenberg says. "There will be hard cases, but they'll exist as an exception."