WHAT CAN A STATE DO TO PROTECT ITS CITIZENS’ RIGHT TO PRIVACY?

RIGHT TO BE FORGOTTEN

Right to be forgotten is a law in the European Union and it is codified in General Data Protection Regulation (GDPR) which was entered into effect in May 2018. As per Article 17 (Footnote 2) of GDPR a data subject has the right to erasure (‘right to be forgotten’) whereby a ‘data subject’ will have a “right” to ask the controller of its data to erase it from the internet history based on certain grounds. Additionally, it is not a superficial right, it has acquired a status of deemed fundamental right and is deemed to be an integral part of the fundamental right of privacy (Footnote 3) . This right has been largely discussed with respect to deletion of data regarding past misdemeanors for which one has already suffered punishment and a reminder on the internet is a form of double jeopardy. This right can be used on a day to day basis to ensure your data is protected. However, extending the right to be forgotten globally is said to threaten free speech, burdens private companies, intrudes on sovereignty, and is fraught with looming risks. Not incidentally, it would also do next to nothing to advance its stated goals (Footnote 4) . Additionally, right to be forgotten is inconsistent with fundamental US values i.e freedom of expression and of the press (footnote 5) and US has traditionally emphasized freedom of expression over privacy as a fundamental value. A representative of Facebook, for example, suggested that the EU approach was to "shoot the messenger," in that the "source of the content" rather than the "places where the content is shared," should be the focus of any efforts to promote privacy controls (footnote 6).' The SCOTUS has time and again held that newsworthy, true stories are protected by freedom of press even if they cause embarrassment or harm or the subjects of the stories (footnote 7). However, Courts have rejected claims that other kind of privacy violate the First Amendment like trespass, eavesdropping, wire tapping, stalking, industrial espionage nor do professional duties of confidentiality like the attorney-client privilege or contractual agreements not to disclose information receive special First Amendment protection (Footnote 8). The other argument that data is speech and must be protected under First Amendment is irrational. Just because something is speech does not mean it cannot be regulated. Equal Protection Clause of the Fourteenth Amendment faces the same issue. A superficial reading of the clause may mean government cannot treat people differently other they are denied “equal protections of the laws”, however the government treats citizens differently all the time, on the basis of age, on the basis of wealth, education, criminal activity etc. As long is it is rationale, it is constitutional. Therefore, same goes with speech, it is everywhere and gets regulated all the time. First Amendment does not provide absolute protection for all uses of works, let alone for automated and mechanized data flows or sale of information as commodity. Therefore even though opinion about right to be forgotten is largely divided amongst various jurisdictions, depending upon the core values of a State, right to be forgotten may be adopted in a lighter/milder form so that it can pass off as constitutional.

Transparency

USERS MUST BE NOTIFIED

2. Article 17. 1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: a.the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; b.the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; c.the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2); d.the personal data have been unlawfully processed; e.the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject; f.the personal data have been collected in relation to the offer of information society services referred to in Article 8(1). 2.Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replic_ation of, those personal data. 3.Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: a.for exercising the right of freedom of expression and information; b.for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; c.for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3); e.for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or d.for the establishment, exercise or defence of legal claims.

5. https://www.psfk.com/2011/05/the-right-to-be-forgotten-questioning-the-nature-of-online-privacy.html

RIGHT TO BE FORGOTTEN

An actual right to be forgotten would imply a duty imposed on others to forget. That would plainly violate the First Amendment, and given that anything known in the US will be known elsewhere in the world, it is self-evidently nugatory. Hence the EC's reformulation of this principle as a "right to -de-index," which imposes a duty only on search services. That this too is repugnant to any system that protects the freedom to learn deserves at least some comment. Nor is it clear why a provision that makes it difficult for individuals to find information that businesses are entitled to collect and use as the basis of inferences without limitation contributes significantly to the protection of rights.

DATA TRANSFER PROJECT

We have attempted here to discuss the importance of freedom to read privately. Concentration on the "owning of your data" doesn't address the monitoring of a access, which is the more significant problem. Transferring photos from one third-party surveillance platform to another is hardly significant. Why shouldn't we enable people to store their data in forms that don't leak access information?

Why has this not been completed? Software ecologies that don't depend on advertising or surveillance of the user aren't hard to write about: the free software movement provides more than 30 years of history to write from, while outside the domain of smartassphones and "tablets" principles of software-making pioneered by the free software movement are now dominant.

Why are these footnotes not links? You are writing for the Web, after all.

This draft has to be completed, so we can look at it as a whole before we try to make it better in another draft. Please do that swiftly, Aparna. When we have seen a complete draft we can begin making it better.

1.Denegri, Natalia Ruth v. _Google Inc. (Right to be forgotten was also enforced in Argentina for the first time by Argentinian Court in 2020)

2. Article 17. 1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: a.the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; b.the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; c.the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2); d.the personal data have been unlawfully processed; e.the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject; f.the personal data have been collected in relation to the offer of information society services referred to in Article 8(1). 2.Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replic_ation of, those personal data. 3.Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: a.for exercising the right of freedom of expression and information; b.for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; c.for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3); e.for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or d.for the establishment, exercise or defence of legal claims.

3. Article 8, Preamble of the Unified Treaties of the European Union.

4.This service is currently available only in Australia, Canada, the European Union, Iceland, Liechtenstein, New Zealand, Norway, Switzerland, the United Kingdom, and the United States.__

Facebook, Privacy and its old nemesis, Apple.

-- By AparnaPujar - 10 Mar 2021

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