Is the ‘Right to Be Forgotten’ Coming to America?

Free-speech concerns abound when users are allowed to erase the Internet.

National Journal
May 13, 2014, 6:30 a.m.

Europe’s highest court ruled Tues­day that Google must al­low its users to de­lete links about them­selves that they find em­bar­rass­ing, out­dated, or un­sa­vory — a wide-reach­ing judg­ment that will af­fect oth­er search gi­ants and po­ten­tially so­cial-me­dia sites as well.

The court de­term­ined that European pri­vacy laws grant a per­son the right to have cer­tain links con­tain­ing private in­form­a­tion ex­punged from a search query, even when they are law­ful. Be­cause the search of a per­son’s name dis­plays what can be con­sidered a per­son­al pro­file, that in­form­a­tion should be sub­ject to some per­son­al pri­vacy pro­tec­tions. Google and its brethren, there­fore, hold some re­spons­ib­il­ity for the con­tent they dis­play.

Back­ers of the “right to be for­got­ten” quickly hailed the de­cision. Vivi­ane Red­ing, the European com­mis­sion­er for justice, trum­peted the de­cision on Face­book as “a clear vic­tory for the pro­tec­tion of per­son­al data of Europeans.”

The rul­ing, while sur­pris­ing to some leg­al ob­serv­ers, fol­lows years of bold at­tempts by the Europe Uni­on and oth­er coun­tries, such as Ar­gen­tina, to ush­er in more di­git­al pri­vacy pro­tec­tions, even as the In­ter­net be­comes a place where most people are will­ing to share ever-in­creas­ing amounts of per­son­al data on the web.

So, is the right to be for­got­ten com­ing to Amer­ica?

While lim­ited forms of such a “right” do ex­ist in some states, such a sweep­ing, carte blanche stand­ard is un­likely any­time soon, if a chor­us of free-speech evan­gel­ists are any in­dic­a­tion. Jef­frey Rosen, a law pro­fess­or at George Wash­ing­ton Uni­versity, took to the Stan­ford Law Re­view in 2012 to call the right to be for­got­ten the “biggest threat to free speech on the In­ter­net in the com­ing dec­ade.”

Rosen’s ar­gu­ment cen­ters on the idea that Amer­ica’s cher­ished free-speech prin­ciples ward against such data de­le­tion, and that the right to be for­got­ten is a veiled form of cen­sor­ship that could al­low for all sorts of ab­uses.

Rosen ex­plains (em­phas­is ad­ded):

In the­ory, the right to be for­got­ten ad­dresses an ur­gent prob­lem in the di­git­al age: it is very hard to es­cape your past on the In­ter­net now that every photo, status up­date, and tweet lives forever in the cloud. But Europeans and Amer­ic­ans have dia­met­ric­ally op­posed ap­proaches to the prob­lem. In Europe, the in­tel­lec­tu­al roots of the right to be for­got­ten can be found in French law, which re­cog­nizes le droit à l’oubli — or the “right of ob­li­vi­on” — a right that al­lows a con­victed crim­in­al who has served his time and been re­hab­il­it­ated to ob­ject to the pub­lic­a­tion of the facts of his con­vic­tion and in­car­cer­a­tion. In Amer­ica, by con­trast, pub­lic­a­tion of someone’s crim­in­al his­tory is pro­tec­ted by the First Amend­ment, lead­ing Wiki­pe­dia to res­ist the ef­forts by two Ger­mans con­victed of mur­der­ing a fam­ous act­or to re­move their crim­in­al his­tory from the act­or’s Wiki­pe­dia page.

Put more plainly, Europe has ad­op­ted form­al rights to pri­vacy, while the U.S. has al­ways been more am­bigu­ous on the is­sue. Our Con­sti­tu­tion lacks any form­al de­clar­a­tion of an in­nate right to pri­vacy, mean­ing such mat­ters are of­ten left to the states.

Rosen and oth­ers ad­di­tion­ally point to the way Amer­ic­an jur­is­pru­dence ap­plies dif­fer­ent pri­vacy stand­ards to private and pub­lic en­tit­ies. Should an elec­ted of­fi­cial prone to vir­al gaffes (the com­par­is­ons are in­fin­ite, but pic­ture an Amer­ic­an ver­sion of Toronto May­or Rob Ford if it helps) be al­lowed to scrub the In­ter­net of com­prom­ising pho­tos from a re­cent night out? Does the pub­lic in­terest in hav­ing ac­cess to in­tim­ate de­tails of that of­fi­cial’s life su­per­sede pri­vacy con­cerns? Celebrit­ies and politi­cians pos­sess looser pri­vacy pro­tec­tions in the U.S., and that nu­ance fur­ther com­plic­ates any right to be for­got­ten rules.

Google and its fel­low tech ti­tans, whose busi­ness mod­els mean they have no in­terest in play­ing cen­sor, are no stranger to pri­vacy chal­lenges. Tues­day’s de­cision by the European Court of Justice in Lux­em­bourg marks just the latest ex­ample of the pro­found leg­al ques­tions the rap­idly ex­pand­ing di­git­al world presents.

Whatever the res­ults, the In­ter­net is still a place where just about any­thing can be found if someone looks hard enough. And that’s true wheth­er the U.S. ad­opts the right-to-be-for­got­ten rules or not.

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