My talk at Personal Digital Archiving 2015
I’ve been meaning to put the text of this up since I spoke at Personal Digital Archiving back in the spring on the ethics of web archiving. A 5-minute talk was probably not the best vehicle to knit together both the ethics of web archiving and the huge-o topic of the right to be forgotten, but I gave it my best shot. You can see me blast through it somewhere in one of the Friday lightning talk videos. There is also an annotated bibliography I released shortly before the talk.
Side note: The work Ed Summers and Bergis Jules have done on web archiving with Ferguson and the terrorism in Charleston has made me massively re-assess my thoughts on the balance issue when it comes to work in the public interest and elevating voices too often missing from the archival landscape. With that in mind, I still think as a profession we need an ethical framework for determining what’s okay for us to accession into our repositories when we are working with materials for which we have no donor agreement.
The text below is what I prepared for my talk in New York, though I tend to ad-lib quite a bit once I’m at the lectern.
###
Large-scale archiving and the right to be forgotten
Public is not universal
People often say, “Don’t post anything online you wouldn’t want to be seen or shared by the whole world,” which I suspect is an easy thing to say if your personal online content has never been used in ways you didn’t anticipate. Last year, news spread that a team of university researchers at the University of Southern California were studying the phenomenon of black Twitter. Many users initial reaction to the research study likened it to forms of historical surveillance activity against black Americans, and questioned the research ethics since there was no informed consent from those being studied {Kim, 2014, Kim, 2014, Newitz, 2014}.
The idea that if self-published personal content is publicly findable on the web, it’s fair game for journalistic, academic, or archival re-use is so common that few question it or consider the downstream effects. This deeply concerns me, particularly with large-scale archiving of personal content when we have not worked to secure permission from individual users. I realize this provocative position flies in the face of how archivists must race to save the ephemeral digital record before it’s lost.
I am not advocating to stop archiving others’ self-published personal content. Indeed, as many have pointed out, harvesting and archiving online content before it disappears is critical to preserving the voices that are often missing from traditional archival custody. However, I am asking us archivists to consider how we balance openness and privacy from the point of accession to access. For example, consider if we archive and publish content around a political disruption that has long-term ramifications. How should we respond if authorities subpoena the archives? Would our response be different if we learn that the subpoena came after activists removed their content offline, fearing for their safety? What are our responsibilities to either party?
Public vs. Private
While US courts have generally assumed that if you put something on the web, you’ve surrendered your right to privacy, user’s online privacy expectations are dramatically different from the court’s usual treatment of the public/private dichotomy.
Few users who engage in social media or other forms of online self-publishing view their output as fitting a definition of public consistent with the courts’ interpretation. Researchers have shown that users have different degrees of privacy expectations depending on their intended audience for disclosure {McNealy, 2011-2012}, and that they often rely on obscurity to stand in for privacy {Hartzog and Stutzman, 2013}.
If you sit outside and have a conversation with your friend about your horrible sister, it’s understood that the context, not the setting, means that it’s a private conversation. Saying public things online are fair use misunderstands that our understandings of privacy are not easily muted in an online environment.
Right to be Forgotten
Many research communities are beginning to formulate ethical best practices when working with self-published online content. It’s time for archivists to work through ensuring privacy in an environment where large-scale archiving of online user-content does not include a donor agreement, and where archivists don’t always seek user consent. We need to have this conversation now, because if the right to be forgotten gains traction, the legal landscape may force our hand before archival ethics have caught up.
The right to be forgotten is an idea gaining ground and is intended to give users the right to request removal of their content in many situations. The right to be forgotten was recently tested in court, when a Spanish citizen unsuccessfully attempted to get a newspaper to remove digitized back issues documenting his previously foreclosed home. The man felt that the Google search results linking to the digitized back issue arguably damaged his reputation, despite having cleared his debts. The European Court of Justice ultimately ruled against Google, requiring it to remove search result links to the Spanish newspaper story.
Even in the current EU proposal, a significant revision recently watered down the right to be forgotten to a right to erasure, and explicitly allows archives to process personal data in the public interest with a recommendation for further work on issues of archival confidentiality {European Parliament, 2014}.
Archivists are very familiar with how records over history have been abused to hurt those not cognizant of how their public statements could be captured and used out of context against them. It is imperative upon us to ensure that however we archive other people’s online public lives, we do it in a way that protects their right to privacy.
References
European Parliament. “European Parliament Legislative Resolution of 12 March 2014 on the Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation),” October 14, 2014. http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2014-0212&language=EN.
Hartzog, Woodrow, and Frederic Stutzman. “The Case for Online Obscurity.” California Law Review 101 (2013): 1.
Kim, Dorothy. “Social Media and Academic Surveillance: The Ethics of Digital Bodies.” Model View Culture, October 7, 2014. https://modelviewculture.com/pieces/social-media-and-academic-surveillance-the-ethics-of-digital-bodies.
Kim, Dorothy. “The Rules of Twitter.” Hybrid Pedagogy, December 4, 2014. http://www.hybridpedagogy.com/journal/rules-twitter/.
McNealy, Jasmine. “Privacy Implications of Digital Preservation: Social Media Archives and the Social Networks Theory of Privacy, The.” Elon Law Review 3 (2012 2011): 133.
Newitz, Annalee. “What Happens When Scientists Study ‘Black Twitter’?.” io9. Accessed April 21, 2015. http://io9.com/what-happens-when-scientists-study-black-twitter-1630540515.
Categorised as: Uncategorized