Computers, Privacy & the Constitution

The “Right to Be Forgotten” as a Protection for Freedom of Thought

-- By TracyRizk - 22 Mar 2017

A recent bill in the New York State Assembly proposes the establishment of a “right to be forgotten.” The bill would require that “all search engines, indexers, publishers and any other persons or entities that make available, on or through the internet or other widely used computer-based network, program or service, information about [a] requester” remove information upon request, as long as that information is “inaccurate,” “irrelevant,” “inadequate” or “excessive.” This “right to be forgotten” in the context of online privacy is inspired by a 2014 ruling from the European Union’s highest court giving internet users the right to erase their presence on the web. The bill implicates three central themes from our class: First Amendment freedom of speech, Ninth Amendment right to privacy, and the broader concept of “freedom of thought.” This paper discusses whether a “right to be forgotten” may protect freedom of thought, though it may encroach on freedom of speech.

Conflicting Rights Implicated by the “Right to be Forgotten”

Two aspects of this bill raise serious First Amendment concerns. First, the determination of what is “irrelevant,” “inadequate,” and “excessive” requires a substantial amount of discretion from the courts, and raises concerns that the government will gain the ability to police what individuals talk about. Second, this “right to be forgotten” grants the right to remove the writings of third parties about an individual, and does not include an exception for writings about public figures or politicians.

At the same time, this bill rectifies a problem of freedom in cyberspace: the chilling effect caused by the permanence and searchability of our writings on the net. Where once someone might have voiced a controversial thought at a gathering, raised a few eyebrows, and had the whole thing forgotten by morning, now a tweet can follow someone around for years and ruin their life. What once might have been a limited-distribution editorial in a college newspaper can now eclipse a person’s online identity.

As discussed in class, “freedom of thought” requires the ability to read anonymously, and to form one’s individual thoughts away from prying eyes. A logical extension of this, in my opinion, is the right to express passing thoughts, to think out loud, without long-term and catastrophic consequences to one’s livelihood. Establishing a “right to be forgotten” helps protect freedom of thought. At the same time, individuals have a right under the First Amendment to criticize passing thoughts no matter how outdated and regrettable.

To a large extent, this problem is a social one. It is also a problem stemming from mainstream social media, and the way it is designed to promote groupthink. Nonetheless, if we can codify freedom of thought, we should. Given the potential threat to our First Amendment rights, can this problem be solved legislatively?

Providing a Legal Framework

Though publication has always made writings permanently available, search engines have an unprecedented ability to make writings readily available, no matter how outdated, and a tendency to ensure that our most controversial writings rise to the top of search results, no matter how our views may have evolved over time. The Supreme Court has acknowledged the threat to privacy that occurs where information that was formerly publicly yet narrowly available becomes easily searchable. In asking whether, “the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information,” the Court concluded that there was a “vast difference” between public records that may be found after diligent search and those that are located in a “single clearinghouse of information.”

In the European Union, the “right to be forgotten” is a privacy right, protected under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. Under U.S. law, unlike European law, privacy rights tend to give way to freedom of speech.1 For this reason, I believe there is some value in framing the “right to be forgotten” as encompassing both First Amendment and Ninth Amendment rights, in that it protects an individual’s right to speak freely on the net without facing potentially lifelong consequences, by making it possible for the individual to request erasure of his writings and, potentially, references to his writings. The right to be forgotten already exists in different forms in U.S. law in bankruptcy, credit reporting, and criminal law. Lawyers have suggested that restrictions imposed on credit reporting agencies can be expanded to include online search engines, due to the amount of personally identifiable information they make available.

Possible Solutions

A person might preserve their freedom to think out loud on the net by maintaining anonymity. However, anonymity should not be the requirement for those who do not wish to be dogged by an opinion for life. Young people may not realize that there is a need to speak anonymously, and they may not understand the long-term consequences of their online behaviors.

The “right to be forgotten” may be tailored to maximize protection of freedom of thought for the individual and freedom of speech for those who wish to write about the individual. Limiting the right to the ability to erase information originally submitted by the individual prevents an individual from infringing on the First Amendment rights of others. The extent to which this solves our issue is limited, as references to the person’s writings may remain prominently displayed on the net, but it does at least give an individual control over their own contributions. Creating exceptions in the law for public figures might ensure that the powerful are not able to tailor their online identity at the expense of transparency. Requesting that courts balance harm to the individual with the public benefit of having the information available may be necessary as well.

That statements are "inadequate," "irrelevant" or "excessive" does not provide any ground whatever for the imposition of regulation under the First Amendment. So there isn't any way that this censorship can be seen as consistent with the First Amendment, and the NYS bill is presumptively unconstitutional.

You can't make thought control a First Amendment right. You can't make memory subject to government order. A right to be forgotten implies a duty to forget, to unpublish, and that cannot be made a matter of right no matter how hard you try.

Which doesn't mean you shouldn't try. But you have to meet the objection, not try to ignore it. That's the route to improvement here.

1 Bartnicki v. Vopper, 532 U.S. 514, 534 (2000) (“privacy concerns give way when balanced against the interest in publishing matters of public importance”).

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r2 - 30 Apr 2017 - 18:37:35 - EbenMoglen
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