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

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

National Journal
Dustin Volz
Add to Briefcase
Dustin Volz
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.

What We're Following See More »
FUNDING RUNS OUT ON FRIDAY
Federal Agencies Prepare for Govt Shutdown
1 hours ago
THE LATEST

As Congress continues to bicker on riders to a continuing resolution, federal agencies have started working with the Office of Management and Budget to prepare for a government shutdown, which will occur if no continuing resolution is passed by 11:59 p.m. on Friday night. The OMB held a call with agencies on Sept. 23, one that is required one week before a possible shutdown. The government last shut down for 16 days in 2013, and multiple shutdowns have been narrowly avoided since then. It is expected that Congress will reach a deal before the clock strikes midnight, but until it does, preparations will continue.

Source:
OBAMA’S ENVIRONMENTAL LEGACY IN THE BALANCE
Obama’s Clean Power Plan Faces Courts
1 hours ago
THE LATEST

President Obama's Clean Power Plan, a large pillar of his efforts to leave a lasting environmental legacy, "goes before the full U.S. Court of Appeals for the D.C. Circuit today." The plan "imposes the first national limits on carbon pollution from power plants." A number of consolidated cases finds 27 states challenging this plan, which was blocked by the Supreme Court in February pending decisions from lower courts. The states will argue that the government doesn't have the right to impose restrictions requiring them to shutter plans and restructure full industries.

Source:
UNCLEAR IF THIS WILL AFFECT POLLS
Instant Reaction: Clinton Won Debate
1 hours ago
DEBATE UPDATE

There seems to be a clear consensus forming about Monday's debate: Hillary Clinton was the winner. One focus group of undecided Pennsylvania voters, conducted by GOP pollster Frank Luntz, found 16 favored Clinton while five picked Donald Trump. In a Florida focus group organized by CNN, 18 of 20 undecided voters saw Clinton as the winner.

DIDN’T BECAUSE CHELSEA WAS IN THE ROOM
Trump Wanted to Bring Up Bill Clinton
2 hours ago
DEBATE UPDATE

As both candidates walked off the stage, Donald Trump lauded himself for being restrained and for not bringing up Bill Clinton. "I didn’t want to say—her husband was in the room along with her daughter, who I think is a very nice young lady—and I didn’t want to say what I was going to say about what’s been going on in their life," Trump said. Trump claims he stopped himself from hitting Bill Clinton because daughter Chelsea was in the room.

Source:
REPEATS CONTROVERSIAL CLAIM
Trump: Clinton “Doesn’t Have The Stamina” to be President
13 hours ago
DEBATE UPDATE

At the end of the debate, moderator Lester Holt asked Donald Trump if he stands by his statement that Hillary Clinton didn't have the look of a president. Trump responded by saying Holt misquoted him, instead saying that Clinton "doesn't have the stamina." Clinton responded by saying that when Trump visits 112 countries as secretary of state, he can talk to her about stamina.

×