photo of Google's EU headquarters in Dublin by Tobias Abel
The concept of American exceptionalism is often dismissed as empty jingoism.
I disagree. America is, in fact, different. A recent ruling from the European Union’s highest court illustrates why.
America exalts the truth, even though Americans rarely agree on what exactly the truth is. That is why the First Amendment and its guarantee of free and open speech is so central to what it means to actually be an American. No matter what your position on climate change or income inequality or same-sex marriage happens to be, you can discuss your conclusions and whatever you believe to be the facts that underlie them more or less to your heart’s content.
Even among countries that see themselves as just as democratic as America, or in some cases more so, our approach to free and open inquiry stands almost alone. Witness the European Court of Justice’s conclusion on the so-called “right to be forgotten,” which could also be characterized as the “right to bury the truth.”
The case in question began in 2009, when a Spanish lawyer complained that Google pointed users searching for his name to a newspaper article from 1998 detailing various debts, which were resolved years ago, and the forced sale of his property. The lawyer, Mario Costeja, asked the newspaper to remove the article and Google to remove the links to it. Both refused.
Costeja filed a complaint with the Spanish Data Protection Agency. The agency did not take action against the newspaper, but ordered Google to remove the links. Google’s challenge to that order ended up at the ECJ in Luxemburg and, to the surprise of many, was ultimately denied. The court said that “as a general rule,” search engines should place the personal right to privacy over the right of the public to access information, The New York Times reported. Because the court is Europe’s highest, its decision cannot be appealed.
In balancing what it sees as a question of personal privacy against society’s right to store, access and use its own public information as each member of society sees fit, the European court has imposed censorship on data retrieval in Europe in ways that I sincerely hope will never stand up in America.
It is important to note that Costeja never claimed that the 1998 report was untrue. The court’s decision is not in the same vein as allowing individuals redress for false and defamatory information or requiring corrections of erroneous credit history data, both of which are easily accommodated here in the U.S. under current law. This decision instead creates the right to prevent others from readily accessing the truth, simply because someone finds the truth about his or her past inconvenient or embarrassing. Think of all the politicians and moralists who would take advantage of such powers if they were available here.
The so-called privacy rights now recognized in Europe amount to the right to Photoshop your own history. It is inherently deceptive, because to reveal the truth selectively is to not reveal the truth at all.
Or at least, that’s my opinion, which is colored by the fact that, when it comes to the importance of free speech, I am about as American as they come.
Imposing such rules on an American company like Google necessarily exports Europe’s crabbed view of freedom to our own shores. We can resent this, but we are not in a good position to criticize it when our own Congress shows little reluctance to impose our own priorities on institutions outside American territory. The Foreign Account Tax Compliance Act, which when fully implemented will require foreign banks with U.S. accountholders to annually report those customers’ activities to the IRS, springs readily to mind. Europe’s attempt to shape how Google conducts business may be a bitter pill, but it isn’t an unfamiliar one.
Of course, Google always has the option to withdraw from Europe, but that eventuality is vanishingly unlikely. Google has already created a page for individuals who wish to report content they would like removed under “applicable laws.” But Google spokesman Al Verney said the company was surprised by the ruling. “This is a disappointing ruling for search engines and online publishers in general,” he told The Wall Street Journal.
Since it seeks revenue from European advertisers, Google may have little choice but to comply with the ECJ, even if it goes against the core principles of the company’s founders. The same likely goes for existing competitors like Bing or Yahoo. However, this decision may create a business opportunity for a new company that aims to serve as a purely American repository of global data for those seeking the unvarnished truth. Would such a business model work? Hard to say. But the European court’s decision could certainly create a demand for such a company.
The legal technicalities are not yet entirely clear, and it remains to be seen how various European countries will attempt to apply this ruling. The court did specify that simply keeping servers off European soil will not be enough to exempt a company from the ruling’s effect. It is not at all clear whether people in Europe would be able to access such a hypothetically uncensored system - let alone users living in truly repressive societies like Russia or China. It might turn out that such a database would give Americans unique access to the truth, in ways the rest of the world would be unwilling or unable to match.
American exceptionalism? You bet. We should be grateful for it.