Is New York Poised to Adopt a Right to be Forgotten?

For all of the good things the Internet provides, there are some significant downsides. These include forwarded news items from crazy relatives, kitten videos and insufferable fans of the St. Louis Cardinals and Pittsburgh Steelers bragging about their favorite teams.

One other downside is the permanent accessibility of information. The Internet not only facilitates the publication of unflattering or embarrassing information, it pretty much makes it easily accessible forever. And it is really the easy accessibility that creates the problem. Microfilm has been around for decades. And so it’s not like a newspaper account of someone’s youthful misadventure went away in the good old days. It’s just that finding it was enough of a hassle that it was less likely to surface.

But these days, a smart phone and a Google account pretty much give us access to every piece of data there is. Great for answering trivia questions, a problem for hiding dirty laundry.

In Europe, there are laws to combat this phenomenon. They are typically referred to as “right to be forgotten” laws. In Europe under certain circumstances, a person can take steps to block search engines from unearthing private information.

The state of New York is apparently considering legislation that would bring this sort of process to America. The bill provides:

Upon the request from an individual, all search engines, indexers, publishers . . .that make available, on or through the internet . . .information about the requester, shall remove information, . . . and other content about such individual . . .that is "inaccurate", "irrelevant", "inadequate" or "excessive" within thirty days of such request . . . .

Failure to abide by the request results in statutory damages of $250 per day plus attorney fees (way more than $250 per day).

In an effort to be clear, the legislation provides this definition:

For purposes of this section, "inaccurate", "irrelevant", "inadequate", or "excessive" shall mean content, which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse . . . .

The legislation may not aim to re-write history, but it sure seems like it’s trying to edit it. There is no exception for biographical or autobiographical material. There is no exception for educational materials. And there is virtually no limit on who it applies to. Political or historical figures (or more likely their heirs) can apparently invoke the new law as they see fit. All it takes is the passage of time.

The bill is censorship in its worst form. It allows the government to order the take down of accurate information (information can be “irrelevant”, “inadequate” and “excessive” and still be true) based on the incredibly amorphous “no longer material” standard. If free speech is all about the “marketplace of ideas” this bill would effectively shut down lots of aisles.

I see a dim future for this bill. Ideally it will never be enacted. But if it is, I think the first court that has the opportunity will strike it down. In short, this bill is what should be forgotten.