The Legislation

Finding a balance between safeguarding online identities and the freedom of speech and expression

The Need

Search results are key to an individual’s reputation online

The goal of the Right to be Forgotten (R2BF) movement is to give the American public an effective way to control old, inaccurate and irrelevant information in their search results. Increasingly, ordinary Americans find themselves misrepresented by Internet search algorithms, causing pernicious real-world problems, from major privacy violations to permanent professional and reputational harm.

It has been nearly 20 years since Congress passed a major piece of legislation to protect consumers in the expanding technology and Internet Age, and none of the existing laws adequately address the negative effects of outdated search results. The Right to be Forgotten Movement is proposing that American legislators work to find a solution for this lack of effective regulation.

State of Proposed Legislation

Data privacy regulations don’t do enough

The work to find a reasonable balance for how companies operate online has begun in states like California and New York. Even the technology industry is starting to focus on the issue, beginning discussions around what reasonable data privacy laws might entail. However, the focus on data protection and privacy neglects a key issue: the persistence of outdated, inaccurate or inappropriate materials in online search results.

The R2BF movement focuses on developing legislation that protects the reputations of individuals in online search results while still adhering to America’s traditions, values and rules of law surrounding access to information and freedom of expression.

There are models for R2BF legislation to draw inspiration from – both outside the United States and within it – which strike a balance between regulations that safeguard individuals on the one hand and the need to fuel innovation and preserve access to information and free speech on the other. However, many of these policies and laws don’t place enough focus on search engine results.

General Data Protection Regulation
The GDPR passed by the European Union in April 2016, and put into effect in May 2018, is mostly regulation to enforce that data belongs to consumers and not companies. There is a clause called “Data Erasure,” also known as “Right to be Forgotten,” that entitles an individual to have a data controller erase his or her personal data. It also allows that individual to cease further dissemination of the data, and potentially have third parties halt processing data. The prerequisites for erasure include the data no longer being relevant to original purposes for processing or a data subject’s withdrawing consent. It should also be noted that this right requires controllers to compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests.
New York Right to be Forgotten Act
In March 2017, politicians in New York brought forward a bill that could introduce the Right to be Forgotten in the U.S. The New York Assembly Bill 5323 was brought forward by David Weprin while a simultaneous Senate Bill 4561 was proposed by Senator Tony Avella. The motions outline a citizen’s right to request that certain personal information published about them be removed from public circulation online. The Senate bill was withdrawn in March 2017 and the Assembly bill is still pending.
California Consumer Privacy Act of 2018
California passed the nation’s toughest data privacy law in June of 2018, which is slated to go into effect in 2020 and will give individuals far-reaching control over their personal data. The law grants Californians the right to know what information companies like Facebook and Google are collecting, why they are collecting it, and who they are sharing it with. The law also provides California residents with the right to request that a business disclose what categories and specific pieces of information are being collected.
The Policy Points

Creating legislation that enables autonomy over online information

The R2BF movement supports well-crafted legislation that enables individuals to request that search engines and similar online entities remove content about them, including links and indexes to any of the same, if that information is demonstrably inaccurate, irrelevant, misleading or excessive.

Individuals should have the ability to request that outdated or inaccurate information be deindexed from search engines such that this information is no longer searchable using the person’s name, including:

  • Photos posted as a minor
  • Information about arrests and/or mugshots that did not end in conviction, ended in acquittal, or that are erroneously associated with an individual’s name
  • Revenge porn and other sexual material
  • Bullying or harassment against the individual
  • Attacks based on race, citizenship, religious beliefs, or political affiliations
  • Private information about interpersonal relationships, health conditions, disabilities, drug use, financial status, or personal identification

Content about individuals would be open to removal under the Right to be Forgotten if the material is no longer applicable to current public interest and a significant amount of time has passed since its first publication. Information about political figures, business people, and other well-known individuals would generally not be eligible for removal, due to its ongoing public interest.

To be eligible for removal under the Right to be Forgotten, content would need to cause demonstrable and unwarranted harm to the individual in question or be reasonably certain to cause such harm in the future. In addition, the content must not serve any legitimate public purpose. As such, information about convicted felons, violent acts, and other matters that are significant to the public interest and to which the requester’s role is central would not generally be eligible for removal.

Organizations and companies violating an individual’s Right to be Forgotten, as deemed by governing bodies, would be held accountable via the Federal Trade Commission or appropriate regulatory body. Enforcement measures could include fines plus attorney’s fee payments for failures to comply.

The law should include clear definitions of the types of personal information eligible for removal.

The law should include a time frame by which requests for removal of information should be completed before fines or penalties are levied.

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