The Right to be Forgotten?

By now I would hope that most everyone knows that all US citizens have a right to privacy as described by the Fourth amendment to the Constitution, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This has been interpreted by the Supreme Court as a guarantee that the government will respect your privacy. Even in the Age of the Internet, privacy (described by justice Brandeis as “the right to be let alone”) is still perceived as an important part of our concept of Liberty and Freedom; in fact, in an article by Leo Mirani

(qz.com/228121/these-are-the-things-people-want-google-to-forget-about-them/)

the single most important item cited was, “invasion of privacy”.

Wait, you may be thinking --- is that even possible? Can Google “forget” web links? The short answer is, “We shall see...” because, as Jeffrey Rosen writes in the Stanford Law Review, “At the end of January, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right—the “right to be forgotten.” The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation. “ (www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten?em_x=22).

The implications of this new ruling are potentially stupendous mainly because it directly affects two giants of the Internet: Google and Facebook. Rosen goes on, “ Although Reding depicted the new right as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.”

As Reding indicates, from a European perspective this is no big deal; the principle of le droit à l’oubli or “the right to be forgotten” has been part of French law since 2010 (http://en.wikipedia.org/wiki/Right_to_be_forgotten). It is commonly used to expunge the publication of a criminal’s trial and conviction after he or she has served their time. The underlying assumption is that prison is a rehabilitation process and it is cruel to continue punishing someone who has paid their debt to society and just wants to get on with life. Back here in the US, however, there is this pesky First Amendment which not only guarantees citizens the rights of free expression, it is usually deemed the most important of our rights. This means that if I want to point out that my political opponent spent some time in the slammer when he was a juvenile, I am completely free to do so over the multitude of media that are available to me today. Why? Because the First Amendment allows me to do so.

But let us suppose that Google and Facebook follow he European demands in order to stay in business within the EU communities --- what happens when a story or video has already gone viral? How much time, effort and treasure must Google or Facebook expend chasing down and removing these millions of links? And how much time reinstating false positives or removed links that were actually OK as Google did with the Guardian recently? And what about “revenge porn” where the request for removal comes not from the perpetrator of a crime but the victim? But all these questions are just one small piece of the issues involving the complex relationships between privacy, free speech and anonymity. To learn more, just enter “Yelp lawsuits” or “the right to be forgotten + revenge porn” into your favorite search engine and prepare to be amazed.