The Right to be Forgotten is a concept that has been discussed for many years, and is now law throughout the European Union (and in Argentina). At a high level, it refers to the right of people to either have certain adverse data about them blocked from being Internet accessible, or to have entries removed from search engine results on their names if the information in those entries is outdated or irrelevant. (In the EU the right resembles the latter of the aforementioned two options.)
The rationale behind the Right to be Forgotten is that it is the interest of all of humanity that people not be perpetually adversely judged, stigmatized, and/or punished as a consequence of some long-ago minor infraction that does not accurately represent who they are today. For example, if a 48-year-old professional with a stellar professional and personal history and no criminal record applies for a job, he or she should not lose that opportunity because search engine results seen by a potential employer show that he or she was charged with disorderly conduct at age 18, for a non-violent and non-damaging noisy prank carried out when he or she was an immature high school senior 30 years prior.
In January, the Karnataka High Court in India – a country with no laws on the books guaranteeing anyone the Right to be Forgotten – upheld a woman’s Right to be Forgottenin a case in which the publication of true information about her would reasonably have impacted her reputation, with one justice noting that the ruling “is in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”
This ruling seems to extend the notion of the Right to be Forgotten to adverse information that may not be outdated, but that is likely to inflict harm on someone while providing little benefit to anyone else.
It is also important to note that while the specifics of the Karnataka case may seem a bit unusual when viewed from the vantage point of modern-day American culture, the implication of the ruling is that in the eyes of at least one high court in India, the Right to be Forgotten is a right – and not something that needs to be legislated in order to exist. Furthermore, there is currently a case in front of the Delhi High Court in which a petitioner has requested the removal of a judgment involving his mother and wife from an online judgment portal, because he believes the presence of his name on the judgment is unfairly harming his reputation and employment opportunities. While that case is still ongoing, there are indications that the judges are sympathetic to the petitioner – and, when combined with the Karnataka case, seem to indicate that the Right to Be Forgotten in some form is going to spread to the world’s most populous English-speaking country in the near future.
Here in the USA, however, citizens do not (at least as of yet) enjoy the Right to be Forgotten.
I believe that that is a serious problem that Congress needs to address.
Americans need and deserve the Right to be Forgotten not only because it is just, and benefits both individuals and society as a whole, but because it will help restore to Americans rights that, according to the law, we already have, but which have been de facto stripped from us by technology.
According to the Fair Credit Reporting Act, for example, credit reporting bureaus must remove various forms of adverse information from people’s credit reports after specific timeframes elapse. If you don’t pay a credit card bill on time while you are in college, for example, it is against the law for the late payment to be listed on your report and factored against you into your credit score when you apply for a mortgage two decades later. The law even allows people who declare bankruptcy in order to “start over” to have records of the bankruptcy removed; after all, what good would starting over be, if the bankruptcy forever prevented someone from having a clean slate.
Today, however, technology undermines the FCRA protections; how hard is it for a bank’s loan officer to scan online databases of court filings related to bankruptcies? Doing so takes just seconds, and there are no laws that prohibit such databases from including records old enough to be gone from credit reports.
Likewise, our justice system has various laws that, in many cases, allow young people to keep minor offenses off of their permanent criminal records, and affords judges the ability to seal certain files and to expunge other forms of information from people’s records. These laws help people start over – and many wonderful, productive members of society might not have turned out as they did without these protections.
But what good are such laws if a prospective employer can find the supposedly purged information within seconds by doing a Google search on a candidate’s name? Google returns results from local police blotters and court logs published in local newspapers and now archived online. Someone who was cited for a minor offense, and then had all of the charges against him or her dropped, can still suffer professional and personal repercussions decades later – even though he or she was never indicted, tried, or found guilty of any offense. This is not just, and harms both individuals and society as a whole.
Likewise, a generation ago, it was common to use Social Security Numbers as college ID numbers. The world was so different “back then,” that for privacy reasons, many schools even posted people’s grades using Social Security Numbers! Should everyone who went to college in the 1970s, 1980s, or early 1990s really have that their Social Security Numbers exposed to the public because various college materials that were created in the pre-web-world have now been archived online, and are indexed in some search engines?
I could continue with numerous other examples, but the point is clear – Americans need and deserve the Right to be Forgotten, not only because that right is in itself just, but because without it, all sorts of other protections that Congress has granted the People will continue to be eroded and rendered impotent by technology. Implementation of the Right is not simple – there are complex issues to address such as who determines whether something should qualify for removal from a search engine, and using what criteria is that decision made – but, if the EU has managed to grant its residents a right, there is no reason that we cannot do the same in the Land of the Free.