The U.S. Should Adopt the 'Right to Be Forgotten' Online

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RightToBeForgottenDebate Illustration by Thomas James

Wednesday, March 11, 2015

In 2014, the European Union’s Court of Justice determined that individuals have a right to be forgotten, “the right—under certain conditions—to ask search engines to remove links with personal information about them.” It is not absolute, but meant to be balanced against other fundamental rights, like freedom of expression. In a half year following the Court’s decision, Google received over 180,000 removal requests. Of those reviewed and processed, 40.5% were granted. Largely seen as a victory in Europe, in the U.S., the reaction has been overwhelmingly negative. Was this ruling a blow to free speech and public information, or a win for privacy and human dignity?

  • NemitzHiRes90

    For

    Paul Nemitz

    Dir. of Fundamental Rights & Citizenship, DG Justice & Consumers, EU Commission

  • PosnerWeb90px

    For

    Eric Posner

    Professor of Law, University of Chicago

  • McLaughlinWeb90px

    Against

    Andrew McLaughlin

    CEO, Digg and Instapaper & Fmr. Dir. of Global Public Policy, Google

  • Zittrain90px

    Against

    Jonathan Zittrain

    Professor, Harvard Law & Co-Founder, Berkman Center for Internet & Society


    • Moderator Image

      MODERATOR

      John Donvan

      Author & Correspondent for ABC News

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NemitzHiRes90

For The Motion

Paul Nemitz

Dir. of Fundamental Rights & Citizenship, DG Justice & Consumers, EU Commission

Paul F. Nemitz is the director for fundamental rights and union citizenship in the Directorate General for Justice and Consumers of the European Commission. The free movement of people in Europe, data protection, and children's rights are also key responsibilities of his Directorate. Before joining DG Justice, Nemitz held posts in the Legal Service of the European Commission, the Cabinet of the Commissioner for Development Cooperation, and the Directorates General for Trade, Transport, and Maritime Affairs. In addition to broad experience as agent of the commission in litigation before the European Courts, he has published extensively on EU law, which he is currently teaching as a visiting professor at the College of Europe in Bruges. Nemitz studied law at Hamburg University and obtained a Master of Comparative Law from George Washington University Law School, where he was a Fulbright grantee.

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PosnerWeb90px

For The Motion

Eric Posner

Professor of Law, University of Chicago

Eric Posner is the Kirkland and Ellis Distinguished Service Professor of Law at the University of Chicago. His current research interests include financial regulation, international law, and constitutional law. His books include The Twilight of International Human Rights (2014), Economic Foundations of International Law (with Alan Sykes) (2013), The Perils of Global Legalism (2009), and The Limits of International Law (with Jack Goldsmith) (2005). He is of counsel at Boies, Schiller & Flexner, and writes a column for Slate on legal issues. He is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute.

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Against The Motion

Andrew McLaughlin

CEO, Digg and Instapaper & Fmr. Dir. of Global Public Policy, Google

Andrew McLaughlin is currently CEO of Digg and Instapaper and a partner at betaworks. From 2009-11, he was a member of Obama's senior White House staff, serving as deputy chief technology officer of the U.S., responsible for advising the president on Internet, technology, and innovation policy. Previously, he was director of global public policy at Google, leading the company's work on issues like freedom of expression and censorship, surveillance and law enforcement, privacy, and Internet regulation. McLaughlin has lectured at Stanford Law and Harvard Law, and held fellowships at Stanford’s Center for Internet & Society, Princeton's Center for IT Policy, and Harvard’s Berkman Center for Internet & Society. He helped launch and manage ICANN, the Internet's technical coordinating organization, and has worked on Internet and telecom law reform projects in a number of developing countries. After clerking on the U.S. Court of Appeals for the 8th Circuit, he started his career as a lawyer in D.C., where he focused on appellate and constitutional litigation.

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Against The Motion

Jonathan Zittrain

Professor, Harvard Law & Co-Founder, Berkman Center for Internet & Society

Jonathan Zittrain is the George Bemis Professor of Law at Harvard Law School and the Kennedy School of Government, co-founder and faculty director of the Berkman Center for Internet & Society, and professor of computer science at the School of Engineering and Applied Sciences. His research interests include battles for control of digital property and content, cryptography, electronic privacy, the roles of intermediaries within Internet architecture, and human computing. He performed the first large-scale tests of Internet filtering in China and Saudi Arabia, and, as part of the OpenNet Initiative, co-edited a series of studies of Internet filtering by national governments. He holds board positions at the Electronic Frontier Foundation and Scientific American, and was a trustee of the Internet Society, a forum fellow of the World Economic Forum, and a distinguished scholar-in-residence at the FCC, where he chaired the Open Internet Advisory Committee. He is the author of The Future of the Internet -- And How to Stop It (2009).

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Declared Winner: Against The Motion

Online Voting

Voting Breakdown:
 

46% voted the same way in BOTH pre- and post-debate votes (21% voted FOR twice, 22% voted AGAINST twice, 3% voted UNDECIDED twice). 54% changed their minds (8% voted FOR then changed to AGAINST, 5% voted FOR then changed to UNDECIDED, 5% voted AGAINST then changed to FOR, 1% voted AGAINST then changed to UNDECIDED, 9% voted UNDECIDED then changed to FOR, 26% voted UNDECIDED then changed to AGAINST) | Breakdown Graphic

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    19 comments

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    • Comment Link Witcher Thursday, 05 November 2015 16:04 posted by Witcher

      I believe that the right to be forgotten should be allowed. The reason I believe this is be added because when someone doesn't want their face to be shown on the Internet but Google isn't allowed to remove their face in the U.S.A. They want their face GONE if someone busted their mugshots or stole their identity, and google can't do that.

    • Comment Link Keser S Monday, 15 June 2015 02:46 posted by Keser S

      Eric Posner referred to a tort in U.S. law protecting the right to privacy. It should be noted that this tort (of public disclosure of private facts) is heavily disfavored even in those states that still have it because of its conflict with the First Amendment. It seems to me extremely doubtful that the U.S. Supreme Court would uphold a right to be forgotten under the tort.

      For more on this tort, see Constitutional Law Professor Chemerinsky’s short 2008 article on it: https://www.chapman.edu/law/_files/publications/CLR-11-erwin-chemerinsky.pdf

    • Comment Link Alex Tuesday, 31 March 2015 05:14 posted by Alex

      @kristen indallas I think you misunderstood what was being said about relevance to the public.
      "All the rhetoric about things "in the public interest" being exempt left me feeling quest. It seems like they consider the tawdry details of a celebrity or politicians custody battle to be in the public interest."
      As has been the case for a long time, those who deliberately step into the public arena do forgo many of their rights to privacy. If you run to be president, the new and extra privacy law should not apply to you, as this would be open to abuse. For example, if a governor talks about his or her views on women in 2014 which would hurt his or her presidential campaign in 2015, it should be easily findable for the electorate as this is relevant and they have an interest --stake-- in knowing about them. It would be very difficult to create a 'right to be forgotten' law that would allow what we would agree should be private to remain so (for those in the public sphere) without being open to the kind of abuse I mentioned before. This is why it simply shouldn't apply to them, as both sides agreed.
      Consider that 'in the public interest' does not mean 'people are interested' as in curious.

    • Comment Link Marna Anning Thursday, 26 March 2015 23:31 posted by Marna Anning

      This is ridiculous. Slowly eroding our privacy rights. The people against the motion focused solely on semantics not on the focal issue: privacy. Privacy for private individuals who don't commit crimes or do anything of public interest. This is not a "generalized right," they framed it too broad. I have a right to close my window to prevent the world from looking into my house.

    • Comment Link KevN Wednesday, 25 March 2015 15:52 posted by KevN

      I lean towards the for side but the against side were definitely the better debaters. They kept the for side on the defensive by redefining the debate towards censorship and implementation. The for side had in their arsenal powerful moral arguments:
      Google has the power to rank information(they're always tweaking their algorithm, and they can take down things if they want to). An underage girl passes out at a party and photos of her in the nude show up on google. News sites pick it up and those articles become top results. Searching her name actually displays those photos at the top. Sure, some people could get out ahead like Kim Kardashian and drown out the past. But can you? What if it was your daughter? Sure, internet is full of nasty people and there may be those that will keep those photos available on their server. But does that girl not have the right to ask that those photos not be the one of the first things she is associated with on the internet? Would you seriously bring up the piano guy taking down a bad review if this girl commits suicide?
      I'm kind of on the fence about the issue but I would have liked to see the against sides reaction against this kind of argument. They deserved the win though.

    • Comment Link kristen indallas Monday, 23 March 2015 16:39 posted by kristen indallas

      The pro side was actually what persuaded me to be against this. All the rhetoric about things "in the public interest" being exempt left me feeling quest. It seems like they consider the tawdry details of a celebrity or politicians custody battle to be in the public interest, while the ability to find out if a potential online date match had a criminal record is not. The internet is a microphone for the things we actually do and say in real life. It's one thing to say, don't put a microphone in r these specific private spaces. It's quite another thing to tell google tip run sound dampening software on the nose that is already out there.

    • Comment Link clarinette02 Wednesday, 18 March 2015 09:30 posted by clarinette02

      It is very unfortunate that the audience was misguided by the assumptions of censorship from Andrew McLaughlin. Jonathan Zirttrain was very clear to admit that the content of the information remained untouched. All Google is asked to do is to stop pointing to this irrelevant past to allow the individual to move on. As Paul Nemitz explained, this right did not concerned any famous or wealthy people as balanced with the public right of information. You can read more about what the European Court of Justice actually ruled and the background of case here http://itsecurity.co.uk/2015/03/the-right-to-be-forgotten/

    • Comment Link Kai Jones Wednesday, 18 March 2015 01:27 posted by Kai Jones

      I feel that it should be online and accessable to the public indefinately. Employers and other sources have access to backround information to a persons past, education, criminal records, and finances.

      I feel that hate speech should not be considered free speech and a right. If a hate crime is illrgal, then the hate speech that leads to and is linked to the mentality of a hate crime should also (logically) be illegal; just as possession of illegal drug parafanalia 'devices' (for the assistence and use of illgal narcotics) are illegal and grounds for arrest, though the person may 'not' have any actual illegal drugs on their person.

      We cannot seek to outlaw, end, criminalize, or call radical Islamic hate speech and what it leads to wrong and dangerous, while calling our own "freedom of expression" or "freedom of speech" any longer.

      It would be 'ideological,' 'inhumane' and clear hypocrisy to do so. Plain and simple.

    • Comment Link jdgalt Tuesday, 17 March 2015 19:55 posted by jdgalt

      As William Ferrall points out, the Internet never truly forgets anything unless every last private copy of the information in question is hunted down, maybe by spyware, and erased. I don't doubt the ability of agencies like the NSA to achieve this result -- but if they do, the world becomes a "1984"-like place where only the politically favored are allowed to keep their memories of the past, or to be able to trust it. If this happens once, it is irreversible. The public must never permit it.

    • Comment Link Brux Tuesday, 17 March 2015 14:55 posted by Brux

      I am torn on this and I supposed it would have to do with details of how things are implemented. I don't really think I can make a decision on it, nor do I think even the most educated opinions or arguments hold sway in every circumstance.

      The problem with these issues is that they are very complex, inconsistent, non-linear, and can define human life virtually forever. Once we start to do something one way, i.e. the internet is a good example, can you see it changing? Even though we all knew the Internet had holes and problems with it we implemented it, commercialized it, and now we force people's behavior through it - like we do with those grocery discount cards.

      We do it so finally that let's be clear, there is no real debate, nothing the people say or want is going to affect anything at this point. I was on the Internet in the 80's as I worked for a tech company. I have gone from thinking it was the solution to many of our problems to one of the greatest forces for oppression, and not in the hands of anything reasonable or considerate.

      Still, we see the possibility of reform, so we keep on, sliding deeper and deeper into the quicksand.

    • Comment Link Bob Bolton Wednesday, 11 March 2015 23:30 posted by Bob Bolton

      I actually wrote a law review article on this very subject (I mostly took the negative side). Might be of some slight interest to some.

      http://repository.jmls.edu/jitpl/vol31/iss2/1/

    • Comment Link Andrew Caudell Wednesday, 11 March 2015 20:28 posted by Andrew Caudell

      Superb debate.I think the proposers of the motion lost because they did not provide reassuring answers to challenges laid out by the opposition, specifically regarding the issue of who does and does not get to benefit from the 'right to be forgotten'. They kept saying concert pianists will not be allowed to have unfavorable reviews taken down, but the opposition pointed out that that was exactly what is happening, so the proposers came across as disingenuous if not outright dishonest.

    • Comment Link Rebentisch Wednesday, 11 March 2015 11:34 posted by Rebentisch

      It is a misleading claim that "In 2014, the European Union’s Court of Justice determined that individuals have a right to be forgotten". In fact the high court only ruled that the existing right also applies to Spanish subsidiaries of an American search engine.

      It is stunning from a European perspective to read the unrealistic depictions and fear scenarios from valley companies. No need to drama. Transatlantic harmonisation makes sense. Rules that work for 27 independent nations of the West may also apply to 28 nations and would create a level playing field.

    • Comment Link KATHLEEN BERGER Tuesday, 10 March 2015 13:01 posted by KATHLEEN BERGER

      Like most things there is a balance that needs to be maintained! Unfortunately there are those with more aggressive tendencies who will violate and abuse the system! They will always be her!
      The problem arises when the overly aggressive seekers of power take over the systems meant to bring about balance and fairness. They are loud now and flexing their muscle. They feel in control but we must not let them take away good moral common sense and the rights of the innocent to justice with their twisted sense of reason!

    • Comment Link Matthew Horan Tuesday, 10 March 2015 11:49 posted by Matthew Horan

      Should Facebook have the right to remove beheading videos posted by a user after complaints have been made?

    • Comment Link William Ferrall Saturday, 07 March 2015 10:38 posted by William Ferrall

      Why do you want to be forgotten online? Surveillance and its abuse.
      Can ‘net anonymity be guaranteed? No. This relates to the basic functioning of digital machinery. Any software safeguard can broken by adequate computing power.
      The motion merely supports restricting info. to those who can afford the computing power – ultimately, the corporistocracy/1%. A more worthwhile approach would be focus on generation of integrity.

    • Comment Link P B Saturday, 07 March 2015 01:07 posted by P B

      Obviously information that is part of the public record cannot and should not be tampered with. It's when corporations like Google and YouTube are able to monetize on content simply because it fires up the public imagination that an individual should have the right to make those "facts" (true or false) unsearchable. The personal cost to an individual that results from the kind of reality-show mobbing we see daily should not benefit these ad farms.

    • Comment Link Andrew Caudell Sunday, 01 March 2015 14:53 posted by Andrew Caudell

      The problem with search companies being forced to remove links to information that is 'irrelevant or no longer relevant' is the question of who gets to decide what information is no longer relevant? Are landlords going to be allowed to have bad reviews taken down because they're 'no longer relevant'? Can I have some unfavorable reports taken off my credit score because I think they aren't relevant any more? What nonsense.

    • Comment Link Dan Bednarik Tuesday, 17 February 2015 16:10 posted by Dan Bednarik

      The internet has crossed lines of privacy and wrongfully denies the ability of someone who has served a penalty, even when they were not guilty to begin with, to recover and contribute to society. Those that are against the right to be forgotten simply have not experienced a negative consequence this way (or have not been discovered yet). Certain rulings that are published and searchable themselves were always intended to have a life span - when the time was served, the ruling expired and was to be expunged. Yet, somehow through no act of legislation, certain people have taken the liberty to preserve these records in perpetuity. One could say that they are acting illegally or without legal challenge themselves. So, instead of ruining the lives of those who just might be innocent and wrongfully indicted, maybe it would serve society well to err on the conservative side and allow them the "right to be forgotten".

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