Does the U.S. Need a Legal Right to Be Forgotten?

04/11/2016 10:09 am ET Updated Apr 12, 2017

Within the past ten years, the European Union (EU) has enacted laws creating a "right to be forgotten." The basic idea is that individuals should not be perpetually stigmatized by past actions. While not without practical problems, I suggest that a formal U.S. blue-ribbon panel of experts, perhaps at the level of the American Bar Association or American Law Institute, to name two examples, study the numerous issues surrounding the question of whether or not the U.S. needs a specifically identifiable legal right to be forgotten.

Many capable commentators have already written about the pros and cons of the right to be forgotten and the right of privacy. Much recent commentary occurred after a 2014 decision by the Court of Justice of the European Union (CJEU) in Google Spain v. Agencia Espanola de Protection de Dados, Mario Costeja Gonzalez. The CJEU held that an Internet search engine must consider individual requests to remove links to Web pages when the search results "... appear to be inadequate, irrelevant ..., that they are not kept up to date,... or no longer relevant or excessive... in light of the time that had lapsed." A rejection of the request could be appealed to public authorities.

The CJEU decision in reviewing European Union law noted that the preamble of the relevant Directive (Directive 95/46) states "... data-processing systems are designed to serve man;... they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to ... the well-being of individuals;...." Essentially the EU law envisions in particular situations a balancing test between the "legitimate interest of internet users potentially interested in having access to that information..." and "the data subject's fundamental rights...." The case in question involved a Google link to a newspaper publication 16 years earlier mentioning a private individual's name and relating to a real estate auction for the recovery of certain debts. The CJEU ordered that the Google search link be deleted but noted that the result might be different under a variety of circumstances including "the role played by the data subject in public life."

The following is a brief and incomplete overview of the current US legal environment with minimal legal citations in the interest of brevity.

1. The word "privacy" does not appear in the U.S. Constitution although significant U.S. Supreme Court decisions have inferred that a right to privacy does exist. The First Amendment does specifically provide powerful protection to freedom of speech and press. Hence, a preliminary question is if a Constitutional amendment directly addressing privacy is desirable, and if so, how should it be worded?

2. The idea of a right to privacy in U.S. law dates from an 1890 Harvard Law Review article, "The Right to Privacy," written by Louis Brandeis and Samuel Warren, in reaction to the sensational journalism of the yellow press. The concept was expanded to a "right to be left alone" that recognized legal tort actions for intrusion upon seclusion, public disclosure of embarrassing private facts, publicity that places one in a false light, and commercial appropriation of one's name of likeness. Thousands of court decisions address these issues. However, much of this law was developed before the Internet age.

3. The right of speech has never been considered absolute. Hence, defamation and invasion of privacy torts exist and advertising may be regulated. The First Amendment applies to actions by government and not private employers who have broad authority to regulate workplace speech.

4. Truth is a legal defense in a defamation case but not in an invasion of privacy case where the issue becomes if a reasonable person would find the intrusion highly offensive or objectionable. However, the so-called "Streisand effect" indicates the legal attempts to suppress information only leads to more dissemination.

5. Whether or not one has a "reasonable expectation of privacy," a phrase appearing in thousands of criminal and civil cases, is very dependent upon the specific facts of a given situation. In a variety of ways, individuals are determined to have waived (given up) any expectation of privacy.

6. The rapid advances of the information age and social media have left legislatures and courts struggling to keep-up and adapt. Legislation tends to be piecemeal and directed to specific situations in a whack-a-mole fashion and not to overarching principles.

7. Simultaneously, with the rise of terrorism, there is a never ending debate concerning the appropriate balance between security and privacy. The EU, most recently in the West, is being forced to reconsider this question.

8. Issues of confidentiality permeate numerous legal problems, from trade secrets and intellectual property to attorney-client relationships and access to public records, to name but three examples.

9. A small number of states provided limited regulation of Internet dating sites, frequently in the form of mandatory disclosures in their terms of service agreements concerning safety, identity screening, and background checks. The California Attorney General in 2012 reached an agreement with three major national services that these services would check subscribers against a national sex offender registry. There is a federal statute, The International Marriage Broker Regulation Act (2005) that requires, among other provisions, background checks for marriage visa sponsors and for U.S. citizens using these services. Lawsuits brought by generally dissatisfied users of Internet dating services against the service provider tend to be dismissed by the courts. The service also may not be legally liable for the fraud or criminal activity of a third party user. If the service is legally classified as a computer service provider, then the federal Communications Decency Act (1996) exempts these intermediaries from liability. However, a lawsuit based upon some fraudulent activity by the dating site, such as posting fake profiles or sending the user fake responses, or otherwise promising services that are not rendered, has a greater likelihood of success. The Federal Trade Commission (FTC) has become involved in some situations.

10. Pre-employment background checks are typically subject to the Fair Credit Reporting Act (FCRA) (1970) that, in broad overview, limits utilizing information concerning civil suits, judgments, and arrest records to events occurring within the previous seven years. Background checks provide employers with a defense to negligent hiring claims by an injured third party. The Equal Employment Opportunity Commission (EEOC) is concerned that background checks and employee screening could be discriminatory and has published guidelines.

11. Volunteer and tenant background checks are widely utilized also and tend to be subject to FCRA. Agencies dealing with children, the elderly, and the disabled should, at a minimum, screen with the National Sex Offender Public Registry (2006). Most states have background check regulations addressing child care and fewer for other categories. The federal National Child Protection Act (NCPA) (1993) addresses background checks, among other provisions.

12. The extent that background checks should be required for firearms purchases is controversial. The major system is the National Instant Criminal Background Check System (1998).

13. The federal government, in addition to most states, has a Combined DNA Index System, authorized by The DNA Identification Act (1994). It may be utilized to identify criminal offenders, unidentified human remains, and missing persons.

14. Over half of the states have enacted so-called "revenge porn" legislation involving the capture and frequent Internet distribution of sexually explicit materials without the subject's consent. However, an overly broad statute may be invalidated on First Amendment grounds. Even in the absence of such legislation courts have heard both criminal and civil cases based upon the subject's copyright rights, invasion of privacy, and the intentional infliction of emotional distress.

15. A few states (approximately ten) have begun enacting legislation regulating the commercial exploitation of publicly available mug shots, where the publishing entity requires an individual to pay a fee to remove the information from its Website. Some law enforcement entities have stopped posting this information. Of course, a mug shot says nothing about guilt or innocence or the ultimate disposition of a case.

16. To what extent and under what circumstances public records should be available, and indeed what constitutes a "public record," is an unfolding issue. The federal Freedom of Information Act, effective in 1967, and the federal Privacy Act, effective in 1974, demonstrate two side of the issue. Of course, this legislation was created before Internet technology became commonplace. Additionally, most states have procedures for the expungement or sealing of certain criminal records, especially addressing juvenile offenders.

17. New media, as is well known, provides an international forum for the dissemination of information and various social media platforms contain valuable data that may be utilized for marketing and political purposes. U. S. courts have tended to enforce "terms of service" agreements that frequently provide limited rights to the user.

18. A few states have enacted legislation addressing the disposition of social media assets when the owner dies. However, how these statutes interact with terms of service agreements is an unfolding legal question. These developments are comparable, in the digital world, to celebrity rights state legislation of the 1980s that made fame and the right of publicity an inheritable asset. Thus, the owners of deceased celebrities' fame are able to create licensing agreements for an asset that historically did not exist after death.

19. Social media and publicity issues related to marriage are being addressed in prenuptial agreements. Privacy and other limitations are contractually addressed. Commentators note that social media usage and the information that social media provides is increasingly significant in divorce cases.

20. Precisely what the future holds for social media and the individual and society is unfolding. Already research indicates that numerous computer mediated technologies are altering the way individuals think and how they are capable of interacting. What is the impact on personal autonomy and privacy if virtually all significant actions and events are in some fashion "on the record" and never disappear from public view? Is political, economic, religious, and social freedom possible?

While this brief list could be multiplied, the point is that the European approach is a step beyond current U.S. law. As a generalization, it is said that Europeans tend to be more sensitive that U.S. citizens to data collection and related privacy issues because of centuries of political and social oppression of dissidents and other nonconformists.

Of course, one may always argue that even if there were a legal right to be forgotten, it could never be implemented due to digital archives and other technical issues. However, the EU approach is being currently implemented.

California enacted legislation effective in 2015, "Privacy Rights for Minors in the Digital World," that allows minors who are registered users of online sites to request the removal of information that they have posted (a "digital eraser").

I suggest that our best minds and experts spend some time, a few years, discussing the merits, limitations, and negative aspects of a legal right to be forgotten and issue a report of conclusions and recommendations. This is a difficult issue that has already been the subject of debate forums and scholarly commentary. In my opinion the EU approach has merit. Generations before Internet search engines possessed de facto forgetfulness (due to the difficult task of research) and an invasion of privacy remedy if offensive private facts were published.

This comment provides a brief educational introduction to a complex topic and is not intended to provide legal advice. Consult an experienced attorney in specific situations.