How Close Is An American Right-To-Be-Forgotten?
By Rebecca Heilweil, FORBES
March 4, 2018
If you were reading this post in Europe now, and thought it “inaccurate” or” “excessive,” you would have the legal right to request that Google remove it from its search results, thanks to a 2014 European Court of Justice ruling.
The Court, which is charged with interpreting E.U. law, determined that Europeans had a “right to delist,” meaning that individuals, corporations and even government officials could request that material be removed from Google’s search results, if deemed “inaccurate, inadequate, irrelevant or excessive,” and not related to discourse regarding the public interest.
While 88% of Americans support this so-called “right-to-be-forgotten,” the prospects of similar legislation or court decision in the U.S. are dim.
Since Google’s European right-to-be-forgotten program began, the company has de-listed 43% of 2.4 million URL removal requests, according to its recent transparency report. Close to 90 percent of those filing requests were private individuals. Web pages that users wanted to be delisted included directories, social media, news articles and government pages.
The New York State Assembly has come nearest to an American version of a right-to-be-forgotten. The Bill, A05323, titled “An act to amend the civil rights law and the civil practice law and rules, in relation to creating the right to be forgotten act,” in large part mimics of the European Court of Justice’s decision.
The Assembly’s government operations committee is currently reviewing the legislation for the second time.
Consumer Watchdog, a progressive non-profit, has vocally supported efforts to establish an American right-to-be-forgotten, and has endorsed the proposed legislation in New York.
In 2014, the organization wrote to Google, arguging that “Google is clearly making the Right To Be Forgotten work for its users in Europe, but that is because you must under the law. We call on you to voluntarily offer the same right to Google users in the United States.”
“They clearly can do it, because they’re doing it in Europe,” says John Simpson, the organization's privacy project director. He says that Consumer Watchdog never received a response from Google.
In 2015, the organization filed a complaint with the Federal Trade Commission. The complaint forwarded that “Describing yourself as championing users’ privacy while not offering a key privacy tool – indeed one offered all across Europe – is deceptive behavior." The organization also argued that Google had, therefore, violated Section 5 of the Federal Trade Commission Act.
Simpson adds that other than acknowledging receipt of Consumer Watchdog’s letter, there have been no developments.
Before the internet, he argues, young people who made mistakes—from embarrassing statements to minor crimes—that ended up in the public record eventually benefitted from “privacy-by-obscurity.”
“Those things slipped out of the general consciousness of the public,” he says. Now, a youthful offense can remain at the top of search results indefinitely.
Some believe that a legally mandated American right-to-be-forgotten would violate the First Amendment.
“[T]he deeper problem with the [New York] bill is simply that it aims to censor what people say, under a broad, vague test based on what the government thinks the public should or shouldn’t be discussing,” wrote American law professor Eugene Volokh in the Washington Post last year.
He continued: “There is no “right to be forgotten” in the abstract; no law can ensure that, and no law can be limited to that. Instead, the “right” this aims to protect is the power to suppress speech — the power to force people (on pain of financial ruin) to stop talking about other people, when some government body decides that they should stop.”
Simpson acknowledges that “Europe does not have a First Amendment the way we do.”
However, he says that right-to-be-forgotten does not censor material, but simply changes Google’s search results (and it’s unclear whether search lists are protected speech).
Free speech organizations, including the Electronic Frontier Foundation, are also worried about current efforts by French regulators to extend the European right-to-be-forgotten from European internet domains to world-wide delisting. EEF argues these efforts could run afoul of the U.S. Constitution.
Another American law that seems to mimic some aspects of the European right-to-be-forgotten is California’s “eraser law” for minors, which, in a sense, “seals” juvenile internet records.
Ultimately, if ever passed, the New York State Assembly bill would certainly inspire a slew of legal challenges. “It would affect Google.com, and then I suspect there would be some sort of battle over whether New York could have jurisdiction over a broader area,” says Simpson.