Freedom of speech suffered a serious blow when, last May, the European Union's highest court, in the so-called "Right to be Forgotten" decision, ruled that Google must remove search results that infringe individual citizens' privacy rights under EU law. A first amendment red line had been crossed. A major publisher of information -- which is what Google, in its search business, most emphatically is -- had been directed by government authorities to censor its content.
But the impact on free speech could soon get much worse. Google has received over 186,000 requests for deletion of search results and has agreed to approximately 40 percent of those requests. It has complied with Right to be the Forgotten ruling by removing search results and links on the foreign language versions of the Google search engine serving EU member countries. (google.fr, google.de, google.it, etc.). Not from Google search engines worldwide, however; and most significantly, not from the English language version of Google seen in the US (google.com).
But the EU now says that's not enough.
In new guidelines, the region's privacy regulatory body interprets the Right to be Forgotten ruling as requiring Google, when removing search results and links, to remove them from all of the company's search sites worldwide. "Limiting de-listing to EU domains . . .cannot be considered a sufficient means to satisfactorily guarantee the rights of data subjects according to the (Right to be Forgotten) ruling," the guidelines declare. "In practice, this means that . . . de-listing should also be effective on all relevant domains, including .com."
That is a big step, one that even China, the master of internet censorship, has never taken. While China's "Great Firewall" prevents Chinese citizens from accessing numerous websites based abroad -- like FaceBook, most Google services, Twitter and the Wall Street Journal, to name some of the biggest -- it does not try to block you or me from using those websites or to limit what we can see on those websites.
Of course the Chinese government cares not at all about protecting the privacy interests of its people, which is what the Right to be Forgotten is about. The EU version of internet censorship, because of its relatively benign motivation, may seem to pose at most a minor threat to free speech. That, however, is a grave miscalculation.
That the EU, or any foreign government, can dictate what Americans may read on U.S.-based websites is an alarming prospect. Although the Right to be Forgotten ruling, to date, may have affected content that is mostly trivial, the precedent of governmental censorship across borders, once established, can't be easily confined to information that society doesn't much care about.
If bureaucrats in Belgium have the power to force Google's removal, worldwide, of links to a Spanish citizen's 10-year-old record of an arrest for marijuana possession, then they also have the power to purge all search engine links -- including on the English language version of Google -- to a Mother Jones magazine story about corrupt EU banks, or articles on Wired about EU members' collaboration with NSA's mass surveillance of European internet and phone traffic.
The assault on first amendment safeguards consists of the exercise, by a foreign sovereign nation, of extra-territorial censorship--specifically, to deny US citizens access to information on US-based websites, accomplished through removal of links on Google (and other search engines) and, in some cases, removal of the linked content itself from the publishing website.
It is one thing for a foreign nation to limit what its own citizens can find on the internet. It is quite another for that country to dictate what Americans can see on the internet.
Extra-territorial censorship, a new phenomenon, is a form of governmental extortion made possible by the internet and the global reach of information businesses. Google is particularly vulnerable due to its size and the importance of particular foreign markets. Google can't risk being excluded from the huge EU market. It's share of EU internet search stands at about 85 percent, nearly three times as big as Google's share of the China internet search market at its highest, before Google withdrew from direct competition inside China.
The U.S. government has been on the sidelines of Google's battles with the EU (which is also pressing an antitrust investigation against Google). Relations between Google and the Obama administration have chilled considerably as a result of revelations about the excesses of US intelligence agencies (which, quite apart from their harm to civil liberties, have hurt Google's business with foreign customers).
But the issue of foreign government censorship of Google -- and through it, of the myriad U.S.-based news and content businesses to which Google links -- cries out for U.S. government push-back against the EU. The administration has a responsibility both to protect American sovereignty and to assure that the first amendment's guarantee of a free and independent press does not become a casualty of globalization.
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here are his alone; they do not necessarily reflect the opinions of the FAC Board of Directors.
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