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‘Right to Be Forgotten’ Legislation Attempts Foothold in New York

Is it about privacy or about government censorship? Maybe that’s a false choice.

Censor buttonJakub Jirsák / Dreamstime.comThe state of New York wants to tell you what's appropriate to post online and what should be removed. The concept behind the European Union's "right to be forgotten" has crossed the Atlantic, and two state lawmakers in New York want to attempt to institute it here.

The "right to be forgotten" in the European Union originated from a court ruling demanding Google and search engines remove links to a story that embarrassed a Spanish man because it detailed a previous home repossession. The story was not factually inaccurate. He insisted it was no longer relevant and that it embarrassed him, and the court agreed he had the right to have the information censored from search engines.

Since 2014, search engines like Google have received hundreds of thousands of requests to have links to news reports removed and not because there's anything factually incorrect about them, but because the people within them are embarrassed by having the information public.

Now, in New York, Assemblyman David Weprin and State Sen. Tony Avella (both Democrats) are attempting to implement such a law in the United States.

The bill (readable here) appears remarkably far-reaching. It would allow people to demand that identifying information and articles about them to be removed from search engines or publishers if the content is "inaccurate," "irrelevant," inadequate," or "excessive." And yes, there are potentially fines involved ($250 dollars a day plus attorney's fees) for those who don't comply. Here's how the legislation defines the rather vague justifications for removal:

[C]ontent, 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 the light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester's professional, financial, reputational or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester's role in regard to the matter is central and substantial.

This would put the courts in the position of having the authority to declare what is or isn't relevant for the public to know. Reason asked First Amendment attorney Ken White of Brown, White & Osborn (and also of Popehat fame) for his analysis of the bill. He did not hold back in an emailed statement:

This bill is a constitutional and policy disaster that shows no sign that the drafters made any attempt whatsoever to conform to the requirements of the constitution. It purports to punish both speakers and search engines for publishing—or indexing—truthful information protected by the First Amendment. There's no First Amendment exception for speech deemed "irrelevant" or "inadequate" or "excessive," and the rules for punishing "inaccurate" speech are already well-established and not followed by this bill. The bill is hopelessly vague, requiring speakers to guess at what some fact-finder will decide is "irrelevant" or "no longer material to current public debate," or how a fact-finder will balance (in defiance of the First Amendment) the harm of the speech and its relevance. The exceptions are haphazard and poorly defined, and the role of the New York Secretary of State in administering the law is unclear. This would be a bonanza for anyone who wanted to harass reporters, bloggers, search engines, and web sites to take down negative information, and would incentivize such harassment and inflict massive legal costs on anyone who wanted to stand up to a vexatious litigant.

Also of relevance: The law extends the statute of limitations for defamation complains for online content in a way that pretty much all but removes them. The clock for the statute of limitations for defamation claims wouldn't start ticking until the defamatory statement has been removed from the internet, meaning that publishers could be sued for content posted years ago. White noted that this change "encourages and incentivizes legal harassment."

But not all First Amendment attorneys are opposed to the idea of the "right to be forgotten." CNN contributor Marc Randazza (who just recently won a case defending a doctor's right to critique a type of Alzheimer's treatment) has written in support of bringing the concept to the United States. He told Reason that he still supports a right to be forgotten and thought the New York bill actually didn't go far enough to allow citizens' to have information about themselves deleted from social media over time. But he also didn't believe this New York law would survive a legal challenge. The European Union does not have the same type of free speech First Amendment protections that exist in America.

"Even if it gets signed, it is pre-empted by federal law and will be struck down the first time someone tries to use it," Randazza responded in an e-mail. "How is a New York state law going to be enforced against a Silicon Valley company? Good luck with that."

Additional analysis from Eugene Volokh at The Washington Post here. And the New York Post details a recent revenge porn case being used to justify these kinds of legal efforts.

Photo Credit: Jakub Jirsák / Dreamstime.com

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  • kbolino||

    I think you have as much right to be forgotten as you contracted for upfront.

  • SomeGuy||

    what do you mean? Sorry i dont understand.

  • kbolino||

    Take social networking, like Facebook or Twitter or whatever. Let's say you want information about you that is more than five years old to be deleted from their servers. So, make sure you get that in writing from the site when you sign up.

  • SomeGuy||

    ah kk but the evil corporation have all the control ;)

  • Zeb||

    Damn Facebook, forcing people to sign up and post embarrassing stuff about themselves.

  • Jickerson||

    Damn all the people posting information and pictures of other people who want nothing to do with this garbage. It may be legal, but they are scum and/or morons.

  • JFree||

    That assumes that:
    a)people actually have complete knowledge about how persistent Internet info is (vs the historical info - spoken words, writing on paper, etc) - that have informed our cultural ideas of what 'privacy' is
    b)gatherers actually tell customers what info they are gathering
    c)gatherers actually tell you that they are purchasing such info and that you no longer own it because it is their property now
    d)gatherers actually intend to fulfill the contracts rather than rely on the size of their lawyers intimidation

  • kbolino||

    a) is your problem not somebody else's

    b) and c) are already required by law

    d) is a different problem entirely

  • JFree||

    A is not just my problem. Contract law requires that both sides understand what is being contracted, that both sides agree that they are contracting something, and that something is being contracted. Your assertion is simply - you can't even have standing in court to dispute it cuz its your problem.

    Personally, I think contracts are the WORST justification for libertarian ideas. As if liberty depends on hiring a lawyer 24/7 to do everything - go online, go to the supermarket, etc.

  • kbolino||

    And statutes don't require lawyers? At least with a contract you don't have to get a lawyer involved until it's breached.

  • JFree||

    oh - and it doesn't much matter if b and c are 'already required by law' if a powerful group of people believe they are above the law and hire lawyers to win their cases in a legal system that is based on power (adversarial system) rather than abstract 'justice'.

    It ain't just kings who have a long history of believing themselves above the law. And it ain't just kings who think laws are just for the peasants.

  • kbolino||

    That's neither here nor there with respect to the proposed bill or laws like it.

  • Chipper Morning Wood||

    I think we all know Anthony Weiner is behind this bill.

  • Scarecrow Repair & Chippering||

    Don't be such a dick

  • Fist of Etiquette||

    Now, in New York, Assemblyman David Weprin and State Sen. Tony Avella (both Democrats) are attempting to implement such a law in the United States.

    I think I know of a couple Democrats who are going to want to be forgotten after this fiasco.

  • Rich||

    Namely, Assemblyman David Weprin and State Sen. Tony Avella. Remember them in the upcoming elections.

  • ||

    I think I know of a couple Democrats who are going to want to be forgotten after this fiasco.

    That or Team Blue has a death grip on the memory hole and is magnanimously granting access to us plebeians. Only time will tell... for at least a little while anyway.

  • Rich||

    It would allow people to demand that identifying information and articles about them to be removed from search engines or publishers if the content is ... "excessive."

    OK. *Everything* about me is "excessive".

  • Leo Kovalensky||

    I'd like to exercise my right to be forgotten by the govt servers. It's embarrassing to have to pay the IRS once a year. And who knows what embarrassment the NSA/FBI/CIA could cause me.

    Please, forget me.

  • Diane Reynolds (Paul.)||

    But not all First Amendment attorneys are opposed to the idea of the "right to be forgotten." CNN contributor Marc Randazza (who just recently won a case defending a doctor's right to critique a type of Alzheimer's treatment) has written in support of bringing the concept to the United States. He told Reason that he still supports a right to be forgotten and thought the New York bill actually didn't go far enough to allow citizens' to have information about themselves deleted from social media over time. But he also didn't believe this New York law would survive a legal challenge.

    I suppose that in this case a "First Amendment Attorney" is an attorney that specializes in limiting the first amendment?

    The Right to Be Forgotten is censorship. It's the very definition of censorship, and any so-called '1st amendment attorney' has to be completely aware of that. When a government shuts down a newspaper or bans a communication or piece of information from the public sphere, that is the government exercising it's right to be forgotten.

  • John||

    All privacy laws are censorship. What makes the right to be forgotten different than any other privacy protection?

  • Chipper Morning Wood||

    The fuck, John? Not letting someone else hack into your email is censorship? This is rich, even for you.

  • John||

    I am not talking about hacking. I am talking about invasion of privacy and private facts tort suits. Take the Hulk Hogan Gawker suit. There, Gawker had a stolen tape and stuck on the web. Hulk demanded it be taken down. Gawker refused and then the courts hammered them. Here we have accurate information, the tape was legitimate and not defamation and the speaker being punished for publishing it. Now there is as White points out no "embarrassing information" exception to the 1st Amendment. Now explain to me why such suits are consistent with the 1st Amendment under White's view and right to be forgotten suits are not.

    As an aside, you really are a fucking moron. This is a simple thing to understand but you still can't get it. How can one person be as dense as you appear to be?

  • Chipper Morning Wood||

    You said "all privacy laws," John. It is right there. If you are gonna redefine basic words to fit your weird agenda, don't be surprised if people don't react the way you expect.

  • John||

    Yes. All privacy laws are a restriction on speech. What is "privacy" if not my ability to keep you from knowing something or telling others if you do know?

  • Chipper Morning Wood||

    That is not how most people would define privacy. But go ahead and forge on to die on yet another molehill.

  • Diane Reynolds (Paul.)||

    Those are two entirely different things. The judge ordered Gawker to take it down, it didn't order Google to erase any memory or history of it. The video was shown to be stolen property. Right to be Forgotten doesn't address that. It doesn't come within 10,000 miles of addressing stolen property. It merely says that a mention of a story is illegal. Sure, based on a lawsuit, a judge can order recompense to someone who was a victim of slander or libel. But I can still read and know what the National Enquirer said about Carol Burnett, even though she won the lawsuit. The mere mention of the case or its details aren't banned.

  • John||

    it didn't order Google to erase any memory or history of it.

    That is irrelevant. Google sure as hell can't put the tape up on the website. And invasion of privacy cases applies to facts and information, not just videotapes. These suits result in embarrassing and private facts being taken down and the people who published them paying damages. The principle is the same. The only difference is the nature of the information.

    The video was shown to be stolen property

    So what? The law applies to embarrassing facts. The fact that the video was stolen only mattered because it showed that Hulk never consented to it being published. But the case in no way relied on it being stolen property. All that matters is that the person suing didn't consent to the information being made public.

  • John||

    l. Sure, based on a lawsuit, a judge can order recompense to someone who was a victim of slander or libel. But I can still read and know what the National Enquirer said about Carol Burnett, even though she won the lawsuit.

    We are not talking about defamation. We are talking about the law restricting your ability to publish truthful information. And invasion of privacy and private fact laws do that. So the question is, why does expanding the scope of those laws violate the 1st Amendment if the laws as they don't now? I don't see why they would and White never bothers to explain why. He just wrongly assumes the government can never punish the publication of truthful information. It can and does.

  • Diane Reynolds (Paul.)||

    And invasion of privacy and private fact laws do that.

    100% of which are predicated on information that is not publicly known being published sans your consent.

    And we wonder why bad cops keep getting rehired in other police departments-- because the union was able to negotiate a right to be forgotten clause in their contracts.

  • John||

    100% of which are predicated on information that is not publicly known being published sans your consent.

    So what? It is still truthful information that can't be published because you don't want it out there. There is no "but you didn't consent initially" clause to the first amendment. The principle is the same in either case.

  • Diane Merriam||

    We're talking about information that was not obtained legally. The penalties were for the theft and the direct harmful consequences thereof assessed upon the person/organization that committed the crime. There was and could be no order to subsequently find all person or places where that information had subsequently gone and remove it from there (as if you even could remove information in a person's mind).

  • JFree||

    The Right to Be Forgotten is censorship.

    The right to be left the fuck alone is a core of individual liberty - and that applies regardless of who is attempting to fuck with you. Is modern libertarianism based on eliminating that right unless one has a slew of lawyers to secure that right - or that only govt can fuck with you?

  • John||

    According to Dopehat, yes it is. But he is a 1st Amendment lawyer, as he always informs us.

  • kbolino||

    Is this supposed to be an argument for or against the law?

  • JFree||

    Neither. The only real firm opinion I have on this is that we don't have near enough judges who really understand how technology itself can change - and thus potentially eliminate - natural rights that we think we have.

    And when it comes to technology, it ain't just govt that is a threat to those.

  • Diane Merriam||

    However you have no right to privacy when your actions are taken where others can see them. If someone sees (or hears or reads or obtains by whatever other means) you in a location or forum accessible by the public and then they make it known to others, like it or not, you had no expectation of privacy to be infringed upon.

  • mtrueman||

    "The Right to Be Forgotten is censorship. "

    So is the expunging of records of criminal wrong-doings of minors, wouldn't you say? This seems a reasonable practice regardless of how 'First Amendment People' view it.

  • kbolino||

    Expunging official records is not the same thing as punishing people for talking about it.

  • Libertymike||

    There is nothing like the tension between the rights of inquiry and speech, on the one hand, and the rights of privacy and being left the fuck alone, on the other hand, for interesting Wednesday afternoon discussion.

  • mtrueman||

    "Expunging official records is not the same thing as punishing people for talking about it."

    I agree. Expunging official records is not the same thing as punishing people for talking about it. However, expunging official records is censoring records. Reason could just challenge the practice on much the same grounds, couldn't it?

  • Libertymike||

    Assume you are wrongfully arrested.

    Assume further that your arrest was motivated by pure harassment.

    Assume further still that you are processed (arresting officer's arrest reports, fingerprints, mug shots, summons to court for arraignment, etc.) connection with your arrest.

    Assume still further that your attorney manages to dismiss the case with prejudice and the judge also grants your attorney's motion to expunge all records related to your arrest.

    Is your right to have all of the arrest records expunged greater than any other person's right to obtain those records?

    If not, why not?

  • mtrueman||

    I agree with the expunging of a minor's records, even if the perp is guilty. Still there is a case to be made for the other side, their being public records compiled by civil servants and all.

  • Diane Merriam||

    Why, in this particular situation, is because there was never a valid cause for having those records to begin with.

    On the other hand, reports of your having been arrested and on what charge that were released at the time to the public can't be ordered gotten rid of as it was lawfully obtained at the time. You could sue the police for wrongful arrest as a civil case and receive reparations and an order to release an official recognition of their bad actions to be available to the same sources, but that's as far as that part can go.

  • kbolino||

    expunging official records is censoring records

    Not in any sense relevant to the discussion at hand.

  • Diane Merriam||

    Minors are not regarded as having either full rights nor full responsibilities. That's what makes the record expungement for crimes that were not prosecuted as adults reasonable.

  • mtrueman||

    I get your point, I think, but it's the rights of adults enquiring into these records that is in question. It's also a matter of bureaucrats going over public records and expunging (or censoring, as Reason editors would prefer) them. I don't see a much a Libertarian would like here.

  • Careless||

    Randazza is a famous defender of free speech.

  • Diane Reynolds (Paul.)||

    Let me put it another way: You know who else supported a right to be forgotten?

  • Unicorn Abattoir||

    The Silents?

  • Chupacabra||

    Bill Buckner?

  • american socialist||

    Can cheeto jesus as a citizen of ny be forgotten?

    Wonder how much space that save. I do wonder if cheeto jesus is the most talked about in history based on past 2 years except for actual jesus

    I think the world is obsessed with trump

  • John||

    The problem with White's constitutional argument is that it would invalidate privacy laws altogether. White is correct when he says It purports to punish both speakers and search engines for publishing—or indexing—truthful information protected by the First Amendment. There's no First Amendment exception for speech deemed "irrelevant" or "inadequate" or "excessive,". There isn't a First Amendment Exception to speech deemed "private" either. Suppose a publication published my medical records. Under current law, that is a violation of HIPPA and I could force the publication to take them down and have a nice civil suit as well. Assuming that those records were accurate, how does that square with White's view of the 1st Amendment? It doesn't. Yet, I seriously doubt White would endorse declaring HIPPA contrary to the 1st Amendment.

    This leads to the question if the government can declare medical records "private" and create a private cause of action for publishing them, why can't it declare other forms of information "private" and do the same thing? And what are the limits if any to that power. That is the issue here. And White doesn't address it. He may be right but his reasoning is very poor and lazy.

  • Unreconstructed (Sans Flag)||

    I think that's covered in other areas. If *I* publish my medical records, then I'm on the hook for their publishing, etc. No one else who has my medical records (with my permission) has my permission to publish them, and by doing so they've violated contractual obligations, even without HIPAA regulations (I signed a limited release permission at the doc's office - I'm sure most everyone has). If someone that I *didn't* give my records to (with the related limited-release permission) publishes them, then they've stolen from me (or my doc) and have violated other rules. Same goes for a stolen sex tape, or private photos, or whatever.

  • John||

    If someone steals my medical records and gives them to you and you publish them, I have a cause of action against you for invasion of privacy if you don't immediately take them down. Here we have accurate information about me. And the government is forcing you through the threat of civil judgment to take it down. It is no different than what would happen under this statute. Now according to White, the government can't consistent with the 1st Amendment punish people for speaking truthful information. So, assuming the records are truthful, how can my being able to force you to take the records down from your website be constitutional under White's view?

  • Diane Reynolds (Paul.)||

    There isn't a First Amendment Exception to speech deemed "private" either. Suppose a publication published my medical records. Under current law, that is a violation of HIPPA and I could force the publication to take them down and have a nice civil suit as well. Assuming that those records were accurate, how does that square with White's view of the 1st Amendment?

    Your medical records belong to you, therefore putting them online without your consent is akin to peddling stolen property. You're still confusing the story itself with mention of the story. Right to be Forgotten laws make the mention of your medical records a crime.

  • John||

    You are begging the question. The privacy laws are not based on ownership of the information. The fact that I am being treated for HIV and the clap doesn't "belong to me". But if someone wrongly looks in my medical records and publishes those facts, I can sue them for invasion of privacy. Ownership has nothing to do with the issue.

  • Diane Reynolds (Paul.)||

    It has everything to do with it. You just used the word 'steal' above, so even you seem to tacitly acknowledge there's a property issue at stake. And if it's found that you have HIV, stories can appear and discuss that fact. The Right to be Forgotten law banishes that discussion.

    Text from the law: determine the development of their life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past."

    How you conflate this with someone releasing private information without your consent with the forced-removal of publicly known facts that are part of the public record is a mystery to me.

  • John||

    How you conflate this with someone releasing private information without your consent with the forced-removal of publicly known facts that are part of the public record is a mystery to me.

    That is because you are either too obstinate or too dim to understand the underlying principles here. In the same way, there is no "but it's irrelevant" clause to the 1st Amendment, there isn't any "but I didn't consent" clause either. Remember, we are not talking about the person who took the information. We are talking about a third party. Gawker didn't steal the tape. Yet, Hulk could sue them and a judge could effectively prevent them from publishing truthful information. The nature of the information doesn't change the underlying concept that yes in some cases the government can stop you from speaking truthful information. You can say "but I own the information" all you want. You "own" the information because the law says you can sue for it being revealed. Okay, well this law wants to say you "own" more information. It's the same thing. I don't know how to make it any more clear to you.

  • Diane Reynolds (Paul.)||

    To exercise the right to be forgotten and request removal from a search engine, one must complete a form through the search engine's website. Google's removal request process requires the applicant to identify their country of residence, personal information, a list of the URLs to be removed along with a short description of each one, and attachment of legal identification.[17] The applicant receives an email from Google confirming the request but the request must be assessed before it is approved for removal. If the request is approved, searches using the individual's name will no longer result in the content appearing in search results. The content remains online and is not erased.[18]

    This is literally the reverse of the Gawker situation, to which you compare Right to be Forgotten.

    With RTBF, Gawker could actually keep the video up, but Google (and every search engine in existence from now until forever) must not be allowed to index it and present it in search results.

  • John||

    You are just helping my case. You are just saying this is less of an infringement than what is already going on. Okay.

    Beyond that, how is telling google to stop searching for something any more or less of an infringement of its rights than telling Gawker they can't put that same something online?

    You really just don't get it. And I am afraid you are untrainable.

  • Jgalt1975||

    Suppose a publication published my medical records. Under current law, that is a violation of HIPPA [sic] and I could force the publication to take them down and have a nice civil suit as well.

    Unless the publisher in your hypothetical was a "covered entity" or "business associate" subject to regulation under HIPAA and obtained your medical records in one of those capacities, no, it is not a violation of HIPAA. (That's why Trump's doctor was probably committing a HIPAA violation by giving interviews about Trump's health unless Trump authorized him to do so, but Trump couldn't sue media outlets that reported the doctor's statements.) You probably have a privacy tort claim (e.g., public disclosure) depending on the specific circumstances, but you'd still need to prove damages, AFAIA.

  • John||

    Yes, you are right HIPPA does not create a private cause of action. Sorry to imply it did. But, you would have an invasion of privacy claim. The problem with White's argument is that he pretends invasion of privacy claims are somehow different in principle than a right to be forgotten claim. They are not. All right to be forgotten statutes are is an expansion of what kind of information is considered "private" under state tort laws. That may be a bad idea but I don't think it is necessarily unconstitutional.

  • John||

    I don't see a problem with eliminating the statute of limitations for online defamation. Unlike a physical publication or the spoken word, something online can last forever. It can also lie dormant for years only to be discovered and brought to the public's attention. If someone writes something slanderous on the internet unknown to the subject, why should the statute of limitations start to run before there has been a request to take the slander down?

  • Unreconstructed (Sans Flag)||

    I agree with this point - if you're continuously publishing something defamatory, then you're still doing it. I don't think an indexer/publisher (not an author) can or should be held responsible for anything prior to notification that the published material is out of bounds, but once such notice is served, they could be on the hook for not removing it (pending outcome of challenges).

  • kbolino||

    What if I was not the original author, but I link to the index? Is that actionable defamation? What if I cite the actual claim along with the link, without endorsing it?

  • kbolino||

    Although, my questions are beside the point of the statute of limitations.

  • Zeb||

    Unlike a physical publication or the spoken word, something online can last forever.

    It can be more readily copied, but as with spoken or written records, the do need to be copied repeatedly to last forever. Under ideal conditions, paper will last longer than digital storage media.

  • XenoZooValentine||

    He's done some good work for free speech, but most of his blogging has always been silly bullshit like this. On the plus side, you don't have to guess where he stands, and he's willing to defend free speech of people he doesn't like.

    I disagree with Marc Randazza and Ken White on a lot of things, but I'm glad they're out there doing what they do.

    I'm still disappointed that Clark got booted over the infamous Space Nazis Must Die post, but I don't know what went on behind the scenes there, and I've lost friends over political bullshit myself, so I guess it's not my place to judge.

  • John Titor||

    Did he get booted over that post? I thought he left sometime after that.

  • XenoZooValentine||

    I think it was the last straw, judging from the comments. His official Farewell to Popehat post was a month later.

    He started a new blog called Status 451, which has interesting stuff mostly by and for techno-libertarian types and an-caps and whatnot. The Days of Rage article I posted a while ago was from one of the bloggers there.

  • buybuydandavis||

    Now, in New York, Assemblyman David Weprin and State Sen. Tony Avella (both Democrats) are attempting to implement such a law in the United States.

    The Left are totalitarians. They've been gunning for the 1st Amendment for years. Always and everywhere trying to control speech.

  • Freedomist||

    I might be willing to go along with this small intrusion on my freedom, if it included my right to be forgotten by government too. But that'll never happen.

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