This blog is a part of the S.J. Quinney College of Law Spring semester 2016 Information Privacy Law course. This blog features a "Question of the Week" (which all students answer "yes" or "no"); a weekly "Featured Blog Topic" (where one student writes about a selected course topic on which all students comment); and a weekly "What Have I Learned" summary based on the week's readings, posts and class discussions.
Thursday, January 14, 2016
Question of the Week No. 1
Should the U.S. Congress statutorily recognize a
“right to be forgotten”?
Yes. The law needs to stay in step with technological advances. Historians are horrified that history will be erased. But the "right to be forgotten," at least in the EU model, only removes the searchable information from databases--not the original online sources. It used to be that if one wanted to find news about a person, they would go to a local library and scroll through microfilm--it was not easily searchable by a national audience. The internet, and specifically Google and other databases, have made information searchable in seconds, on personal electronic devices, by anyone in the world. I do not believe that history will be erased if we raise the effort required to do a person search, even to the level it was before the internet and Google. The "right to be forgotten" legislation would do just that--raise the bar for doing person searches, while keeping the information out there for those searchers willing to put forth the effort.
Yes. In consideration of data aggregation and the growing elimination of "practical obscurity" the privacy oriented approach in Europe, seems to combat the anguish that many feel in regards to their data being collected and aggregated not only due to privacy concerns but for things such as the ease of fraud. Early on, many people would not foresee that companies were using and selling their information to the extent that they were; because of this, and the privacy concerns the construct of Europe's law seems equitable in it's balance of the privacy right and a companies compelling interest to keep said information. The ability to delete data that is no longer viable to a company would not necessarily contribute to a re-writing of history--as news stories and other important information could arguably fall under a compelling interest; however, society doesn't always know what is of historical significance at the moment it occurs. Because many people do not have knowledge that others are posting information and photos about them, it seems appropriate to have some repercussion that one can take to protect their own privacy and the privacy of their children. In addition, a law such as Europe would arguably protect the rights of children in the future from their parents overzealous positing on Facebook from vacations to hospital stays.
Yes. The same way the general right to privacy has been inferred from the First, Third, and Fourth Amendments, the right to be forgotten van be inferred from the existing common law causes of action of Public Disclosure of Private facts. Although much of the information about a person that is easily searchable on the internet is not likely objectively offensive, it still may still be personal and not the type of information someone would want to be public knowledge such as a person's address, picture, birth date, and other related information. The right to be forgotten can be inferred from this cause of action because there is not substantive difference between a person formally publishing a news article disclosing a private fact about a person and that same information remaining on a searchable database. Moreover, the requirement that the facts to be "offensive" to prevail on a Disclosure of Private Fact doesn't not adequately protect the fundamental right to privacy. There are many private facts that may not be offensive for others to know, yet it would still be information that an individual would not want readily accessible to anyone with an internet connection. Thus, creating this right, would broaden the public privacy rights and ensure and curb passive disclosures of private data.
Yes, the Right to be Forgotten is an important right that the U.S. Congress should adopt by statute in order to protect free speech and privacy in the technological age. The internet age has enabled many powerful communication technologies that have the power to enable as well as erode the freedom of speech. The First, Fourth, Ninth and Fourteenth Amendments provide the Constitutional foundation for the Right to Privacy, which, in turn, is the foundation for a modern day Right to be Forgotten. The Ninth Amendment states that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. The Right to Privacy, therefore, is in the domain of state law, rather than federal law, which has led to variations in how the states implement the Right to Privacy by statute or common law. However, the Internet is a disruptive medium that crosses state lines by its very nature, and there is a need to recognize the Right to Privacy as well as Right to be Forgotten by statute at the Federal level, which would preempt state law, and provide a floor for these rights, as in the Internet age. Other constitutional questions may arise however, due to the police power under the Tenth Amendment: powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Ultimately, enacting a U.S. Right to Privacy and Right to be Forgotten may raise constitutional questions that would almost certainly have to be answered by the U.S. Supreme Court.
Yes, I think that adopting a statute that would allow citizens a mechanism to enforce their right to be forgot would be a good move. Some people may not want their online life to continue after their physical life ends. Passing a law that could mandate that a persons online existence terminates upon death, or some other predetermined event would be a step in the right direction for private rights.
Yes. The law needs to stay in step with technological advances. Historians are horrified that history will be erased. But the "right to be forgotten," at least in the EU model, only removes the searchable information from databases--not the original online sources. It used to be that if one wanted to find news about a person, they would go to a local library and scroll through microfilm--it was not easily searchable by a national audience. The internet, and specifically Google and other databases, have made information searchable in seconds, on personal electronic devices, by anyone in the world. I do not believe that history will be erased if we raise the effort required to do a person search, even to the level it was before the internet and Google. The "right to be forgotten" legislation would do just that--raise the bar for doing person searches, while keeping the information out there for those searchers willing to put forth the effort.
ReplyDeleteYes. In consideration of data aggregation and the growing elimination of "practical obscurity" the privacy oriented approach in Europe, seems to combat the anguish that many feel in regards to their data being collected and aggregated not only due to privacy concerns but for things such as the ease of fraud. Early on, many people would not foresee that companies were using and selling their information to the extent that they were; because of this, and the privacy concerns the construct of Europe's law seems equitable in it's balance of the privacy right and a companies compelling interest to keep said information. The ability to delete data that is no longer viable to a company would not necessarily contribute to a re-writing of history--as news stories and other important information could arguably fall under a compelling interest; however, society doesn't always know what is of historical significance at the moment it occurs. Because many people do not have knowledge that others are posting information and photos about them, it seems appropriate to have some repercussion that one can take to protect their own privacy and the privacy of their children. In addition, a law such as Europe would arguably protect the rights of children in the future from their parents overzealous positing on Facebook from vacations to hospital stays.
ReplyDeleteYes. The same way the general right to privacy has been inferred from the First, Third, and Fourth Amendments, the right to be forgotten van be inferred from the existing common law causes of action of Public Disclosure of Private facts. Although much of the information about a person that is easily searchable on the internet is not likely objectively offensive, it still may still be personal and not the type of information someone would want to be public knowledge such as a person's address, picture, birth date, and other related information. The right to be forgotten can be inferred from this cause of action because there is not substantive difference between a person formally publishing a news article disclosing a private fact about a person and that same information remaining on a searchable database. Moreover, the requirement that the facts to be "offensive" to prevail on a Disclosure of Private Fact doesn't not adequately protect the fundamental right to privacy. There are many private facts that may not be offensive for others to know, yet it would still be information that an individual would not want readily accessible to anyone with an internet connection. Thus, creating this right, would broaden the public privacy rights and ensure and curb passive disclosures of private data.
ReplyDeleteYes, the Right to be Forgotten is an important right that the U.S. Congress should adopt by statute in order to protect free speech and privacy in the technological age. The internet age has enabled many powerful communication technologies that have the power to enable as well as erode the freedom of speech. The First, Fourth, Ninth and Fourteenth Amendments provide the Constitutional foundation for the Right to Privacy, which, in turn, is the foundation for a modern day Right to be Forgotten. The Ninth Amendment states that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. The Right to Privacy, therefore, is in the domain of state law, rather than federal law, which has led to variations in how the states implement the Right to Privacy by statute or common law. However, the Internet is a disruptive medium that crosses state lines by its very nature, and there is a need to recognize the Right to Privacy as well as Right to be Forgotten by statute at the Federal level, which would preempt state law, and provide a floor for these rights, as in the Internet age. Other constitutional questions may arise however, due to the police power under the Tenth Amendment: powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Ultimately, enacting a U.S. Right to Privacy and Right to be Forgotten may raise constitutional questions that would almost certainly have to be answered by the U.S. Supreme Court.
ReplyDeleteYes, I think that adopting a statute that would allow citizens a mechanism to enforce their right to be forgot would be a good move. Some people may not want their online life to continue after their physical life ends. Passing a law that could mandate that a persons online existence terminates upon death, or some other predetermined event would be a step in the right direction for private rights.
ReplyDelete