There isn’t an official Privacy Person of the Year award.  If there were, Edward Snowden almost certainly would have won it last year.  Instead, he finished in second place, behind Pope Francis, as TIME Magazine’s 2013 Person of the Year.  The honor goes to the person whom the editors of TIME believe has most influenced the news that year, whether for good or bad.  TIME will announce its winner on December 6th, but I’m usurping their poll and announcing my choice for the person who most influenced privacy this year, whether for good or bad.  And it isn’t Edward Snowden.

Reasonable people might protest me overlooking Snowden.  He is, after all, revered amongst privacy advocates and has achieved international fame and recognition. The documentary “Citizenfour” about Snowden’s momentous decision to leak the NSA’s most intimate secrets was a sensation.  Oliver Stone has secured the movie rights to Snowden’s story, and the film will star Joseph Gordon-Levitt (whoever that is!).  Indeed, Snowden just received the Right Livelihood Awardthe so-called alternative Nobel—“for outstanding vision and work on behalf of our planet and its people.” His apparent accomplishments are recognized as stratospheric, so how can I overlook him?

It is true that thanks to Snowden, we arguably have greater transparency into the Surveillance State than ever before.  But he’s still just a close second this year in my view.  My vote as the Privacy Person of the Year goes to the unforgettable Mario Costeja González.  He took on Google, ultimately in the European Union’s Court of Justice, and won the right to be forgotten.  The opinion, which forever will be known as the Costeja decision, has empowered individuals to force Google and other search engines ”to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person” when the information is "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine."    

As a result of the decision, Google dedicated significant resources to complying with the opinion.  Google provides a form online for the removal requests, as does Microsoft.  The difficulties of implementation have been outlined by Google in a letter to the Article 29 Working Party.  To help develop policies to implement the order, Google convened a committee of international experts to offer their views.  Google has held “town hall” meetings throughout Europe to listen to users, publishers and others about the right to be forgotten.  

As expected, the Article 29 Working Party has criticized Google’s implementation, (and warned other search engines) in its newly published Guidelines.  The group says that the court’s decision applies globally, otherwise Google would circumvent the order and privacy protections won by Costeja: “Decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that E.U. law cannot be circumvented.”  Google must therefore remove links on all of its domains rather than just the domain serving the user in his or her country (e.g., remove links from Google.com as well as Google.es in the case of Costeja).  Moreover, Google cannot tell publishers who host the offending material that links to their sites have been removed, nor can Google tell users that some links have been removed from their search results.  

The opinion has legs too.  Courts in Canada and France have ordered Google to remove search results based in part on the Costeja decision.  A bill was recently introduced in Brazil, PL 7881/2014, to provide Brazilians with a right to be forgotten: “It is required, by request of any citizen or person involved, to remove links from Internet search engines that make reference to irrelevant or outdated data.”  

Still, in the face of all the uncertainty, Google reports this month that it has reviewed about 170,000 requests to delist search results that covered over 600,000 links, with 42 percent of the requests being granted by the team that looks at each and every request.  Google even publishes a transparency report on the requests received, the countries of origin and the aggregate actions taken.

All of this Costeja has wrought.  Perhaps no one will make a documentary or movie about him but that does not diminish his worthiness of the award.  Snowden took down the NSA, but Costeja beat Google.  He is the Privacy Person of the Year for 2014. 

© 2014 Perkins Coie LLP


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