You can watch a debate about the right to be forgotten between me and Paul Nemitz (pro) and Jonathan Zittrian and Andrew McLaughlin (con) here. Nemitz is a top EU privacy official with extraordinarily deep knowledge of privacy matters, while Zittrain is an internet law expert and McLaughlin is the CEO of Digg with extensive government and NGO experience.
I like to think our side landed some blows, but measured by audience reaction, our clock was thoroughly cleaned (is that the right expression?). Nemitz emphasized the political dangers of a world in which information about everyone is available on the Web, and hence available to the government, which can use it to monitor and control the public. I emphasized the personal costs in a world in which one’s identity is defined by search results that reflect a slip-up from decades ago.
I suspect that Nemitz’s argument made little headway with the New York audience because government repression based on surveillance is just not a part of historical memory in America, unlike in Europe. And my argument was probably too abstract (despite my uncharacteristic effort to pluck heartstrings). Although there are famous examples of people who lose jobs and suffer other harms because of some indiscretion that makes its way on the web, I think this worry seems remote to most people, at least so far, and there is a tendency to blame people for their indiscretions, however minor and whatever the consequences.
On the other side, McLaughlin and Zittrain warned of the dangers of censorship, and the risk that the right to be forgotten would be enforced in an arbitrary fashion. They also skilfully painted a dynamic and optimistic portrait of the Web as self-correcting; the harms that the right to be forgotten would address in blunderbuss fashion will eventually be addressed by the Web itself, as search engines and other institutions respond to public demand for more nuanced and fairer search results. Regulation at this point would short-circuit these developments.
The bottom line is that in America (unlike in Europe), even in the upper west side of New York, people trust corporations more than they trust the government.