The Right To Be Forgotten

The Unites States can be proud of a long history of enacting, at the federal level, numerous laws that protect individual privacy rights. In the period roughly from Watergate to 9/11, many federal laws were established, like the Privacy Act of 1974 and the Electronic Communications Privacy Act of 1986. Most (although not all) of these, however, focused mainly on constraining the powers of the government to intrude on people’s lives and freedoms. This reflected the mood of a country distrustful of powerful institutions, a mood that originated with Watergate, and perhaps ended with the USA Patriot Act. During this time, legislation to constrain private or commercial practices has not kept nearly to the same pace, even as the power of entities like Google, Facebook and many others to track and record our every move has increased.

Something like the opposite has occurred in Europe. You may know that the EU countries have much stronger legislation in place that regulate just how far business can go in collecting information on customers and private citizens, and how they must store, safeguard and use that information.

The EU Privacy Directive is the umbrella regulation, which is frequently updated (and strengthened) and which all businesses must follow in the EU. It is very pro-consumer and contains many requirements which have no counterpart in the United States.

One of these that I find fascinating is the so-called “Right to Be Forgotten,” which is now being debated in Europe (though it is not yet fully in force).  If this sounds new or unusual to you, it is because no such thing exists in the US, or to my knowledge is even being contemplated.

The current RTBF proposal (recently passed by the European Parliament, and now awaiting ratification by the 28-nation European Council), works like this: any user would have the right at any time to direct an internet site to delete all data about him/herself. Sounds simple, but it also follows that the provider (not the individual) would then have to seek out all links and re-quotes of that material, and ensure (via “best efforts”) that those were deleted as well. This may present a nightmare of administration, competing claims and obligations, plus a hefty dose of litigation to go along with it.

(Interestingly, this right has its origin in the French legal principle called “le droit à l’oubli,” the right of oblivion; originally this was the right of a convicted criminal, who had served out a sentence, to have his record suppressed from publication thereafter.)

The issue hinges on the principle that an individual should be in control of the information about himself, but this principle, in practice, clashes with rights of free expression and the freedom of the press. (RTBF rights would not apply fully to public figures, whose privacy rights are legally reduced – both in the US and the EU – by virtue of their place in the public eye.)

Freedom of the press and free speech are rights that conflict with the protection of private information, and courts have shown a preference for the former over the latter. It’s unlikely that a program requiring the deletion of massive amounts of online information, from databases to news archives to blogs to reams of Facebook timelines and Twitter feeds, would ever gain acceptance in the states, or withstand a challenge in court, if it came to that.

Such a law in the United States is also likely to have a chilling effect on internet commerce and the growth of social sites, web journalism and other start-ups, all of which fill a need and serve a purpose. While surveys and opinion studies frequently show that Americans are concerned about online privacy, the fact is that they don’t act that way – just as frequently oversharing and failing to police their own behavior online. Convenience and ease of use often trump privacy for many (though not all) users; this may not be right, but I think it’s true.

The complexity of implementing and practicing the Right To Be Forgotten in the EU may ultimately prevent it from being implemented there. I think a similar right would have to be carefully crafted, and essentially weakened beyond usefulness, for it to gain acceptance in the United States.

What do you think?

Recent coverage of this issue, including the vote by the EU Parliament, can be found at the Wall Street Journal and at Businessweek.