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July 13, 2014

The right to be forgotten?

By now I would hope that most everyone knows that all US citizens have a right to privacy as described by the Fourth Amendment to the Constitution, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This has been interpreted by the Supreme Court as a guarantee that the government will respect your privacy. Even in the Age of the Internet, privacy (described by Justice Brandeis as “the right to be let alone”) is still perceived as an important part of our concept of liberty and freedom; in fact, in an article by Leo Mirani the single most important item cited was, “invasion of privacy”. 

Wait, you may be thinking, “Is that even possible? Can Google ‘forget’ web links?” The short answer is, “We shall see...” because, as Jeffrey Rosen writes in the Stanford Law Review, “At the end of January, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right — the ‘right to be forgotten.’ The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation.” 

The implications of this new ruling are potentially stupendous, mainly because it directly affects two giants of the Internet: Google and Facebook. 

Rosen goes on, “Although Reding depicted the new right as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to 2 percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.”

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