Right to Removal of "Inaccurate, Irrelevant, Inadequate, or Excessive" Information About People …

proposed as a "Right to be Forgotten Act" in Iowa, apparently prompted in part by the Carson King controversy.

|The Volokh Conspiracy |

Iowa Senate File 2236, introduced by Sen. Zach Nunn, would define "content of minimal value" as "information related to an individual that is inaccurate, irrelevant, inadequate, or excessive," including

information which, after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in light of the demonstrable harm the information is causing or may cause to an individual's professional, financial, reputational, or other interest

(though excluding "information related to criminal convictions, potential or pending litigation relating to a violent crime, or a matter that is of significant current public interest").

Whenever a person asks a web site or a search engine to remove "information the individual contends is content of minimal value related to the individual from the operator's search engine, index, or internet site," the information must be removed (and no indication may be given to the public that the material has been removed). If it isn't removed, the site or search engine will be liable for damages and may be subject to enforcement proceedings by the Iowa Attorney General.

A clearly unconstitutional speech restriction, it seems to me, both because of its breadth and its vagueness. Seriously, do you want the Iowa Attorney General and Iowa courts to have the power to censor a wide range of speech—newspaper articles, blog posts, consumer reviews, academic articles (e.g., law review articles that discuss the facts of civil ligitation), and more—based on government decisions about what is "irrelevant," "inadequate," or "excessive," and "is no longer material to current public debate or discourse"? (To the extent something is inaccurate, that is already made either actionable or not by the existing law of libel.)

For more on the Carson King backstory, see here. For more on a similarly worded New York bill from 2017, see this post; for a similarly worded New Mexico bill that I had missed, see here. Thanks to the Media Law Resource Center's MediaLawDaily for the pointer.

Advertisement

NEXT: Today in Supreme Court History: February 20, 1933

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. information which, after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in light of the demonstrable harm the information is causing or may cause to an individual’s professional, financial, reputational, or other interest

    But, as we know from common experience, information that today seems unimportant tomorrow becomes very important. Look at all the stories about statements and actions taken by Michael Bloomberg over the last 30 years that have emerged since he declared his candidacy.
    So the notion that some bureaucrat or judge is going to say, this fact is immaterial to the public debate, is really off. Someone may well consider it material today, and certainly circumstances may change later that render it material.

  2. Seems like this by EV is very right and very wrong at the same time.

    It is right in that it conforms nicely with previous orthodoxy about the sanctity of published speech, and the need to keep it free from government censorship. Those are old values, accustomed values, and worthy ones which proved their mettle long ago.

    It is the long-ago part which creates the problem. Since long-ago, the published record is no longer what it used to be. Previously, it was a record published after private editing, with the editing motivated to avoid error, and particularly to avoid defamatory errors. In short, it was a record in which enough effort had been invested to make it worth preserving.

    Now, publishing typically occurs with no one reading anything in advance, except the people (or AI robots) writing the material in the first place. That creates a record in which almost no care has been invested. It is a record riddled with errors, including damaging errors. In short, the new record is one which in many instances might better be erased than preserved.

    The new record is stuffed with an immense backlog of never-edited material, which may or may not be false and defamatory, or damaging in other ways. Indeed, the modern presumption—no matter how foolish—is that to vet published material, you publish it first, and then edit later, if and when someone objects—typically after damage has been done which may never be fixed.

    With that as background, it can hardly be sensible to create yet another legal presumption, this time that this new lower-quality record ought henceforth be entitled to some kind of permanent never-edit presumption. That would further sabotage the previous (already foolish) standard, thus making the abiding published record both that much worse, and that much more permanent.

    Taken altogether, the effect of EV’s speech advocacy is to remove from publishers any responsibility for accuracy and non-defamation, and instead to put that responsibility on the public at large—while hampering with legal impediments the public’s ability to act, even in its own defense. Remarkably, EV finds ways to present this program of radical legal change as if it were merely traditional advocacy on behalf of speech freedom.

    1. Taken altogether, the effect of EV’s speech advocacy is to remove from publishers

      You keep on using that word. I do not think it means what you think it means.

      1. Also, you didn’t even bother to read the post before vomiting your usual pro-censorship agenda across the digital page. EV was not advocating creating any presumptions or for any legal change, radical or otherwise. He was criticizing a bill that would do those things.

  3. A clearly unconstitutional speech restriction, it seems to me,

    Also preempted by § 230 in many of its applications, no?

  4. I’ve been concerned about privacy for a long time and view most efforts to protect it as an overcomplicated, inadequate waste of time. There is only one way to get to the heart of protecting private information about people (as distinguished from news about public figures or public events). That way is to pass federal legislation that states that all information about a person is the *property* of that person. Anyone possessing or trafficking in such an information would need to describe that information and request permission to keep it or use it.

    Without written permission in advance, the company will be committing the crime of trespass. This will not burden individuals with the costs of mounting individual law suits and will punish violators for violating a standard of public behavior.

    Yes, there’ll have to be some exceptions for government activities such as taxation and criminal investigation. That’s pretty easy to define.

    Any other possessors of such information will have to request permission from the person to keep or use that information. If the person denies the information or simply doesn’t respond within a certain period, the information will have to be purged.

    This, of course, gives the opportunity to people to grant certain permissions in exchange for a share of any income generated by that information. For example, people could make deals with credit reporting firms to continue their activities for a significant share of the fees those companies charge for credit reports. Also, should such a firm give out false credit information for any reason, it would again result in criminal trespass.

    This approach is so simple and direct that it amazes me that it hasn’t been implemented already.

    1. Caltrop0, how does your proposal interface with news reporting and historical scholarship?

    2. This approach is so simple and direct that it amazes me that it hasn’t been implemented already.

      “Mr. Physicist, I have this great idea for a perpetual motion machine. I can’t believe nobody has thought of this before. It’s really obvious.”

      That way is to pass federal legislation that states that all information about a person is the *property* of that person. Anyone possessing or trafficking in such an information would need to describe that information and request permission to keep it or use it.

      Yes. “This One Weird Trick can eliminate the first amendment. Click here to find out how.”

      No, Congress can’t criminalize speech simply by defining that speech as belonging to someone else. (Yes, except copyright, but because copyright is expressly provided for.)

      Also, should such a firm give out false credit information for any reason, it would again result in criminal trespass.

      If the information is false, then it really doesn’t belong to the person, does it?

Please to post comments

Comments are closed.