The tech firms hate the Google verdict, but they can't be beyond the law
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Version 0 of 1. Politics is full of things that are desirable in principle but frustratingly difficult to achieve in practice. Regulating the banks for one; curbing global carbon emissions for another; rescuing kidnapped schoolgirls in the midst of civil wars for a third. All of them are desirable. None of them is easy. Downsides and unintended consequences have to be acknowledged. In all these cases, though, politics does not permit difficulty to trump the need to do the right thing if we can. This is surely right. Difficulty has to be acknowledged, of course, and in some cases is prohibitive – which is why the world left Syria alone. But that didn't make it right in principle to do nothing. Most of the time, however, the majority of people try to stand up for a principle as best they can, even if what they do is imperfect and incomplete. In the 19th century industrial revolution, it was better to have some factory legislation that protected some workers rather than no laws protecting anyone at all – the course that most factory owners would have preferred. Bit by bit, though, the worst aspects of workplace exploitation were eventually curbed. This is the approach we should apply when faced with threats to privacy from cyber-giants in the private or the public sector today. The internet and the digital world in general are forces of liberating potency – rather as the cotton mills were in their day. But that does not mean that democratic and legal enforcement of their proper place in modern life can be off limits. This issue stands at the heart of the European court of justice's landmark ruling against Google this week. The court found that European data protection laws entitled a Spanish complainant, Mario Costeja González, to require Google to erase links to stories about his debt problems in the 1990s because they were no longer relevant. The ruling confronts Google and similar companies with an expensive obligation to deal with what could be a mountain of similar complaints, many of them more controversial than the one made by González. To judge by some of the reactions to the ruling you would think that the court's wish to protect personal data and privacy – principles which are embodied in legal codes across the world – were holding a dagger to the throat of civilisation. The widely voiced claim that this ruling was a blow to freedom of expression should be treated with icy scepticism. And as for the argument that this ruling poses a commercial threat to the internet companies – well, just get over it. Critics have immediately dumped a steaming heap of practical reasons why the ruling will not work on the court's doorstep: bad people may try to exploit the ruling for bad reasons; doors can never be wholly sealed; there will be cases where a public interest supervenes; the accountability process could be costly and vast; there are jurisdictional issues too. All these things must be acknowledged, but practical problems exist to be worked around. They do not obviate the principle. No business wants to be regulated more than it can handle. That is fair enough. But the tech companies' libertarian embrace of deregulation is not rooted in the desire for freedom of expression, as they often claim, but in the desire to be unrestricted from making as much money as possible. That is why, in some accounts, Google may be planning to operate, literally, from huge ships on the world's oceans, with a view to avoiding jurisdictions and taxes. Citizens and governments need to stand up to this exceptionalism. No right, whether it is the freedom of the market, freedom of expression or the freedom of the seas, is absolute. The internet and the cyber-billionaires do not exist in some untouchable dimension of human activity which suddenly came into being towards the end of the 20th century with no connection to previous human history or ethics. Being cool, wearing chinos and doing recreational drugs does not provide them with a free pass from the rules that apply to the rest of us. The internet is a product as well as a tool; it is a human product. Morality therefore applies, as it does to all human activity. So does law. It is a proper subject for citizens and governments to consider. That, after all, is also the lesson of the Edward Snowden leaks. Digital advances and secrecy have allowed the American government to acquire undreamed-of information power about every new media user on the planet. Snowden's revelations confront us with the responsibility to apply proper controls and necessary safeguards to that activity. Gradually and unevenly, something along these lines is now happening in the US – though not yet in this country, let alone in oppressive regimes. When the Obama administration and the US Congress finally agree their post-Snowden proposals this summer, they will be imperfect. Their scope will be limited and the powers will almost certainly lag behind the dynamic abilities of the technology to reinvent itself. But they will be of some practical value rather than none. And they will be an assertion, albeit probably too weak, of the principle that rules apply in the digital world too. The anti-regulatory ideology of the digital world still squirms about this, rather as the bankers and parts of the media do in their respective bubbles of self-interest. There are cries about censorship. Yet anti-censorship cannot be an absolute when faced with a technology which has facilitated the largest bombardment of pornography on human beings of all ages in history, or which has seen the glory of email brought frequently to its knees by spam and by hackers. The digital industries have transformed the world in wonderful ways. But every revolution in human history has generated adverse consequences that need to be put right. That is the place in which the digital industries are today. Partly because of Snowden, partly because of the threat to personal data so brilliantly illuminated in James Graham's play Privacy, partly because of porn and grooming, the industry is facing a crisis of public confidence to which governments are obliged to respond. The global danger, in the absence of a more humble industry response, is that the initiative will eventually be seized by governments whose motives could be genuinely chilling. If they don't want China, Russia and Saudi Arabia to get their hands on the internet, the tech firms should swallow their pride and cooperate with western legislatures which, for all their faults, remain rooted in a culture of rights and law. |