Right to be Forgotten: Delete & Live in the Moment

It’s the end of another year and many of us are reflecting on our accomplishments of 2015. While remembering can be very useful, in this post I would like to make a case for forgetting.

Forgetfulness is often seen as something negative. This may be due to the fact that it can be associated with the side-effects of ageing or disease. It could also be due to the stressful memories of college days during which we so desperately attempted to hold on to vast amounts of information with the aid of a wide range of mnemonics. The disadvantages of forgetting are however, offset by a number of virtues. This is more of a personal post on the Data Protection Regulation (Regulation) and looks at the reasons behind the introduction of The Right to Be Forgotten in the Regulation.

The Philosophy of Forgetting: Back to 1984

A discussion of forgetfulness would be incomplete without including an expert’s views on the matter. Viktor Mayer-Schönberger makes a compelling case for why it is crucial for our society to reintroduce the capacity to forget. I highly recommend reading his book ‘Delete!’ in which he reviews the surprising ways in which technology allows nothing to be deleted or forgotten and how this could be detrimental to society’s functioning.

Forgetting: Orwellian or the Human Default?

Schönberger addresses the fundamental principles relating to the Right To Be Forgotten. However, in contrast to many academics, who argue that the Right To Be Forgotten is ‘Orwellian’ and therefore, unnatural, he believes it is in fact natural for information to be forgotten over time. He takes a scientific, even anthropological approach.

Human beings have across time always had the capacity to remember with the use of tools such as painting and through the written word. Forgetting is easy and remembering is difficult and often costly. In short: “forgetting is the default, remembering the exception.” In the light of this point, it is only fitting to take a closer look at the purpose of the human capacity, or habit, to forget certain information. While this would generally fall outside the scope of a legal discussion of Data Protection, the nature of the right makes such an analysis appropriate. Eliminating the naturally occurring phenomenon of forgetting does have consequences that far beyond information efficiencies. According to Schönberger the two most important negative results of remembering everything relate to power and time.

Time: Steve Jobs, Subways and Decision-Fatique

There is a clear link between forgetfulness and the human consciousness. Our capacity to forget allows us to manage the concept of time and ‘the human experience’. Many of us have heard of decision fatigue (one of the reasons Steve Jobs always opted for the same Issey Mayake oufit). Forgetfulness can have a similar purpose as Jobs’ turtle neck. Forgetting helps us to deal with the vast amount of sensory data our mind is confronted with during our daily routines. It would overwhelm our consciousness if we were unable to forget the majority of stimuli received by our brain during the course of a day.

A wide range of smart people have caught on. For example, journalist and nutrition activist Michael Pollan has illustrated this point very effectively by asking the question: “Do you really want to remember all of the faces you saw on the New York subway this morning?” On the other end of the spectrum: in 1874 Nietzsche wrote an essay bearing the title ‘uses and disadvantages of history for life’ in which he elaborately discussed the virtues of remembering which he writes contributes to human health and happiness. He acknowledged that we, as human beings, need the knowledge we gain from history but that we should not use events of the past to avoid living in the present. Furthermore, we cannot fully appreciate life in the present if we continually compare current experiences to those that we have experienced before. He observed that individuals, who spend too much time remembering the past, become unable to ‘get lost in the moment’. The concept of being ‘lost in the moment’ is sometimes seen as a transcendental experience in human life.

‘Forgive & Forget’ is More Than an Aphorism

Forgetting can play an import role in our social lives as there is a clear link between forgetting and forgiving. Lastly, it is noteworthy that the necessity for us to have the capacity to forget was one of the elements that laid the foundation of Sigmund Freud’s controversial theory of repression, by which unwanted memories are exiled to the subconscious mind.

The People who Remember Literally Everything

Another good way to illustrate the importance of forgetting comes from the field of medicine. Medical science has shown that individuals suffering from an extremely rare condition called ‘Hyperthymesia’. People with this condition posses a superior autobiographical memory and are unable to forget. This creates numerous social and psychological problems.

Schönberger makes references in his book to a real individual called AJ who suffers from this condition and is “haunted by her past so much that it limits her ability to decide in the present”. It should be noted that Schönberger is not against the remembering of information through new technological means. In fact he pointed out that remembering and storage of data leads to increased accuracy and improvements in efficiency and may help us transcend human mortality. However, as the cases of Hyperthymesia clearly demonstrate, accuracy and detail are not always desirable.

Policy-Makers & IT People, We Need Your Help

The collection and storing of data about peoples’ activities must not be uncritically accepted. Perhaps there is a need to re-kindle respect for the moment — for being-here-now.” Policy-makers and system designers (IT people I’m looking at you) and that they should not blindly follow technological opportunities for having ever more data recorded, to the detriment of living and decision-making in the here and now.

Self-Censorship: Privacy v Freedom of Expression

An analysis of the Right To Be Forgotten clearly demonstrates that the Right to Privacy and the Right to Freedom of Expression are two rights that may be in opposition.

To end this post, I want to draw your attention to the issue of self-censorship. This is an issue which is seldom discussed in its relation to the Right To Be Forgotten. It appears that forgetting in the virtual world leads to a singular conclusion: it will negatively impact the right to freedom of expression. To clarify: when the Right To Be Forgotten is implemented, the right of others to express themselves could be stifled. On the other hand, if we don’t implement the right, the freedom of expression could be jeopardised.

Why Context is Crucial

The storing of information published by and about individuals nowadays often lacks the context of the situation in which the information was originally expressed. This could pose a threat to the formation and maintenance of someone’s identity; if individuals do not know how their expressions/tweets/status updates will be used, and by whom, in the future they must assume the worst and self-censor. The issue of self-censorship is particularly interesting because usually, when two rights are in opposition with each other the situation concerns two individuals who each wish to exercise one particular right. In the case of the Right To Be Forgotten, it appears that the right to freedom of expression and the right to privacy cannot be exercised by simultaneously by a single individual. In other words, the individual must prioritise between two fundamental rights.

Live in the Moment

To conclude this post it seems fittings to draw from Nietzsche’s writings once more as he identified the value of living in the present many years ago when he wrote: “‘The person who cannot set himself down on the crest of the moment, forgetting everything from the past, who is not capable of standing on a single point […] will never know what happiness is’.

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Sources: 
1. B. Koops, “Forgetting Footprints, Shunning Shadows. A critical analysis of the ‘right to be forgotten’ in Big Data Practice” [2011] SCRIPTed Vol. 8. No. 3.
2. V. Mayer-Schönberger, Delete: The virtue of forgetting in the digital age (Princeton: Princeton University Press, 2009).
3. Professor William H. Dutton: <http://www.csls.ox.ac.uk/conferences/oxpilsconference2012/Transcript-SmithJayHustinxHouse-HowpracticableisittoapplyDPtoactivitiesinvolvingFreedom.php>
4. M. Pollan, The Botany of Desire: A Plant’s-Eye View of the World (London: Bloomsbury Publishing PLC, 2002).
5. F., Nietzsche, On the Advantage and Disadvantage of History for Life, translated by P. Preuss (Indianapolis: Hackett Publishing Company, 1980). Original Text: F. Nietzsche, “Vom Nutzen und Nachteil der Historie für das Leben” [1874].
6. <http://www.scientificamerican.com/article.cfm?id=trying-to-forget>
7. <http://www.wired.com/medtech/health/magazine/17-04/ff_perfectmemory?currentPage=all> 
8. L. Bannon, “Forgetting as a Feature, not a bug: The Duality of Memory and Implications for Ubiquitous computing” [2006] CoDesign, Vol. 2. No. 1.
9. <http://www.christopher-parsons.com/review-delete-the-virtue-of-forgetting-in-the-digital-age>

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