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

-- By TracyRizk - 8 May 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, and the extent to which the proposed legislation can survive an attack based on the First Amendment.

Conflicting Rights Implicated by the “Right to be Forgotten”

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. 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permanently available, search engines have an unprecedented ability to make writings readily available, no matter how outdated, and a tendency to ensure that our most controversial writings rise to the top of search results, no matter how our views may have evolved over time.

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. As encoded by 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. The United States, unlike the European Union, prioritizes freedom of speech over privacy.1 Given that this is the case, can we codify a “right to be forgotten” to solve this problem of freedom of thought?

Addressing First Amendment Concerns

Two aspects of this bill threaten First Amendment rights. 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. That the “right to be forgotten” abridges freedom of speech is clear.

Nevertheless, the Supreme Court has the power to create or expand First Amendment exceptions. Proponents of a “right to be forgotten” in the US might point to prior balancing acts by the Supreme Court to protect rights in conflict with freedom of speech. Though libel laws abridge freedom of speech, the Court weighs reputational concerns against First Amendment rights. Some lawyers have suggested that restrictions imposed on credit reporting agencies, sometimes raising First Amendment objections, can be expanded to include online search engines, considering the amount of personally identifiable information they make available.2 Outside of credit reporting regulations, the “right to be forgotten” already exists in different forms in U.S. bankruptcy and criminal law. In brief, proponents may argue that, when performing the familiar balancing act of harm to the individual against the public benefit of information, the “right to be forgotten” wins.

Possible Solutions

The “right to be forgotten” might be tailored to maximize protection of freedom of thought for the individual and freedom of speech for others. Creating exceptions in the law for public figures might ensure that the powerful do not tailor their online identity at the expense of transparency, and would satisfy the Supreme Court’s stated goal of applying stricter scrutiny to protect speech about “public” issues. Allowing individuals to erase only the information they originally submitted prevents infringement on the First Amendment rights of others. The extent to which this solves our issue is limited, as references to the person’s work may then remain prominently displayed on the net.

It is important to consider that the problem I have outlined is largely a social one. Rather than enact legislation that could further invade individual rights (and which might logically be extended to other realms of civilian life), it might be necessary to reexamine our usage of social media, and the way it is designed to promote groupthink. Using federated social media services is one way to give individuals more control over their information and how it is distributed. More generally, the U.S. might adopt a policy of educating people on the long-term consequences of their online behaviors while still young. That way, people may learn to manage their online identities, and to maintain anonymity when necessary.

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”).

2 In fact, the Supreme Court has already acknowledged the threat posed to privacy when public information becomes easily searchable, concluding that there is a “vast difference” between public records that may be found after diligent search and those that are located in a “single clearinghouse of information.”

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