Scrubbing the Past

NY Times: Two German Killers Demanding Anonymity Sue Wikipedia’s Parent. Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them.

The legal fight pits German privacy law against the American First Amendment. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society, noted Alexander H. Stopp, the lawyer for the two men, who are now out of prison.

Old laws are inadequate to new eras and technologies, and political boundaries have limited meaning in a networked world.

The German law balanced the rights of those who’d served their time against public knowledge, and came down, by any American First Amendment standard, absurdly far on the wrong side. But it is well-meaning, and was written in a time when it was possible to control what media did within a political jurisdiction, at least for widespread public attention, not in a time when anyone can publish for a global audience.

The networked-world element of the case is a reminder of an ongoing problem in the Digital Age. It’s bad enough that the Germans have such a law, but it’s their country. What’s clearly over the top is trying to pull this information from the English version. The Wikimedia Foundation has rightly refused. (This reminds me to make a donation to the project.)

I worry that the German lawyers — and authorities — will escalate. Even though Wikimedia has no assets in Germany, I’d be unsurprised if the case finds its way into American courts, for no other purpose than forcing the foundation to spend money defending itself. That’s a punishment in its own right.

And suppose the German lawyers persuade courts there to order the arrest of Wikimedia Foundation employees should they visit the country. This isn’t probable, no doubt, but if I were on the board I’d keep a close eye on the risks of stopping in Germany even to change planes.

The broader lessons are part of the changing nature of communications — and of changing norms. The Electronic Frontier Foundation’s Jennifer Grannick addresses the former, in context of this case, in this way:

At stake is the integrity of history itself. If all publications have to abide by the censorship laws of any and every jurisdiction just because they are accessible over the global internet, then we will not be able to believe what we read, whether about Falun Gong (censored by China), the Thai king (censored under lèse majesté) or German murders.

We’ll be fighting these fights for decades to come. People who would control what others can read (listen to, view, etc.) — in order to control what they think and, ultimately, do — will not stop trying to have such powers. (Reminder to self: Send EFF a donation, too.)

But the deeper, harder issue is changing norms, because we have to ask ourselves if we truly want permanent records of everything we’ve ever done — and if there’s no choice in that matter whether we want people only to know us for the worst of our actions, not the sum of ourselves.

The German murders, Werlé and Lauber, don’t get much sympathy in this regard. Nor should they: Murder strikes me as the central act of these men’s lives, though we should also note that they have paid the debt to their society that entitles them to re-enter that society with some respect from others, difficult as that may be. Do they really expect, however, that even a ban on publishing their names will expunge their deeds from people’s knowledge? Yet the motive behind the German law is a sound one: to help those who’ve transgressed restore their membership in society.

As the Wall Street Journal reported this week, job seekers are trying to get minor criminal offenses fully expunged from court records and online databases, especially ones where plea agreements promised such nullifying of the record. We are apparently so unforgiving as a society that even an arrest at some point in your life can be a job disqualification, even if you were totally innocent or if the charge was absurdly petty.

Here’s the problem. Databases will keep this stuff around, and on a Web where duplication is the nature of the system, there will ultimately be no way to fully get rid of anything — or at least we won’t be able to rely on its disappearance, whether through the obscurity of printed records in dusty courthouse basements or actual destruction of records as promised.

Which comes back to changing norms. Until we start weighing old acts against the totality of someone’s experiences and deeds, we’ll hold a sword over each others’ head. Is this really the way we want to live?