Welcome to Util/Trutil. We’re back this week after a one-week hiatus with a two-part special focusing on a plan that implements the right to be forgotten in the US. Today’s piece will discuss inherency and solvency questions. Tomorrow we’ll focus on advantage areas.

The right to be forgotten (RTBF) has recently drawn global attention due to a May ruling by the European Court of Justice that established the right of individuals to request that search engines like Google take down links to irrelevant, inaccurate, or overly personal information online. Though the jurisdiction of the ruling is limited to the EU, many journalists and academics alike have considered the possibility of the RTBF being extended to the US. Let’s start with the question of inherency.

The “status quo” stance on RTBF is obviously different depending on which region you specify. RTBF does not currently exist in the US as an explicitly codified right, though there is a Fourth Amendment right to privacy of property from search and seizure, and tort law that allows individuals to request certain information be removed from the Internet. However, these measures are nowhere near as far-reaching as the ECJ ruling. Much of the discrepancy has to do with different cultural and historical experiences between the US and EU. The two cards below do a decent job of highlighting the main points of tension.

The EU’s decision directly conflicts with US law.

Fisher 14, Daniel Fisher (Forbes staff writer). “Europe’s ‘Right To Be Forgotten’ Clashes with U.S. Right To Know.” Forbes. May 16th, 2014. http://www.forbes.com/sites/danielfisher/2014/05/16/europes-right-to-be-forgotten-clashes-with-u-s-right-to-know/ [PDI]

Where Europeans see the “right to be forgotten,” many Americans see George Orwell’s memory hole. Where Europeans seem to have faith in the ability of regulators and de facto monopolists like Google and Microsoft MSFT +0.72% to protect the privacy of private citizens, I think most Americans accept the fact that the Internet is a wide-open place where new entrants can pop up at any time.  Schmidt criticized the decision by the Court of Justice of the European Union at Google’s annual meeting, saying it was “disappointing” and “went too far”.  The decision treats search engines like publishers, with the power to pick and choose what other people can see when they type in an individual’s name. That conflicts directly with U.S. law, which protects the free flow of information through the First Amendment and relies upon tort law, primarily libel and invasion of privacy, to protect individuals. Search engines and Internet providers in the U.S. are generally protected from liability for passing on data unless they have direct knowledge it is false or violates copyright law. (Though Google, like most search operators, has mechanisms for requesting takedowns of copyrighted or private material.)  It’s ironic that the flashpoint is the “right to be forgotten,” since the U.S. for most of its existence has been a place where people come to put the past behind them. The country’s strong protections against political persecution and liberal bankruptcy laws to allow them to escape crushing debts both served as powerful magnets for immigrants seeking escape.  How, then, could the U.S. get so far out of whack with Europe on personal privacy?  English: Eric Schmidt, Executive Chairman of G… Schmidt: Change your name at 18? (Photo credit: Wikipedia)  Europe has long had a much different conception of privacy and how to protect it. The EU court technically was enforcing a 1995 EU directive on privacy that treats search engines as data “collectors” subject to regulation. But the decision has its roots in the older  French concept of droit à l’oubli, or the right to oblivion. As this useful article by Internet-privacy experts Meg Leta Amrose and Jeff Ausloos explains, EU regulators have long been more concerned than their U.S. counterparts about personal privacy and the role of government in enforcing it.  The European Convention on Human Rights, adopted in 1953, explicitly introduced the right to “respect for private and family life.” A 1981 provision specifically targets the automatic processing of data and the European Commission declared the right to be forgotten a a pillar of the Data Protection Regulation in 2010.  So the EU court’s decision shouldn’t have come as such a surprise to Google, given the explicit language that preceded it. That decision requires Google to take down data that are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” This mirrors existing EU regulations prohibiting companies from holding personal data for an unreasonable time.  In this case it was articles about the the 1998 repossession of a Spanish man’s home. But the decision could result in large swaths of currently public information being removed from the view of European Internet users, although how Google, Yahoo and other search engines will accomplish this — or how consistently the 28 member countries will enforce the decision –  is still unknown.  Will it create yet another World Wide Web, censored, like in China, to protect users from knowing too much? Or will it prove unworkable, as did Europe’s generally toothless regulations on the long-term storage of personal data?  Privacy isn’t the only area where European and U.S. views toward individual rights diverge. European law is more protective of individual creative rights, in a way that might strike Americans as paternalistic or interfering with other fundamental rights like property and the right of contract. In Europe, artists possess inalienable “moral rights” — based again on the French “droit moral” — over their creations that supersede copyright and allows them to prevent alterations that they think would show them in a bad light. In the U.S., artists can sell their works to the highest bidder with no strings attached, as many novelists have learned to their horror after watching their works translated into Hollywood films.   The right to be forgotten reflects a similar concern with how individuals are viewed by the rest of the world. It is to a large extent based on the right to have only correct information about oneself available to the public. Most Americans would understand that, in the context of requiring credit reporting agencies to delete incorrect records of unpaid debts, for example.  Where it gets tricky is when the state requires a passive processor of information like Google to actively interfere with the ability of users to call up information that other people don’t want them to see. In the U.S., the presumption is against the government interfering with that flow of information in favor of allowing citizens — or in the case of a slander suits, a jury of their peers — to decide whether it is accurate. Americans also are skeptical about enlisting large companies as the government’s collaborators in restricting the flow of information.  In Europe, apparently, that is part of Google’s job.

US and EU disagreements over RTBF stem from different historical experiences

Messenger 12, Messenger, Ashley, Michigan Law. What Would a “Right to Be Forgotten” Mean for Media in the United States? Communications Lawyer : Publication of the Forum Committee on Communications Law, American Bar Association. 29.1 (Jun 2012): 29-37. [PDI]

Commentators have postulated that significant cultural and philosophical differences explain the preferences for various policies in the United States and the EU. It has been suggested, for example, that the European concern with data collection stems from the continent’s experience with the Gestapo and the Stasi, both of which maintained their power via information.101 Americans have not endured that kind of system, and, instead, rebel against the abuses from their own history: government attempts to squelch dissent by controlling speech and press.102 Thus, Europeans tends to value privacy over the free dissemination of information, whereas Americans favor a free press over other interests. James Whitman has argued in an influential law review article that the fundamental clash is one between dignity and liberty, and the differences in Western concepts of privacy can be traced to which of those interests the nation values more deeply 103 Regardless of the philosophical roots of the cultural differences, the practical effect is that European privacy interests and the U.S. conception of free speech are in conflict.

So both technical legal distinctions and more wide-sweeping value differences have pushed the US to adopt a different stance on privacy rights and RTBF than the EU. Those two warrants should serve as a sufficient basis for an inherency claim to the affirmative. A civil RTBF does not exist currently in the US, and is not likely to be established in the status quo due to legal and cultural differences between the US and EU. Censorship concerns surrounding RTBF can be used to further justify this claim; proving that RTBF in its current form is unconstitutional under the First Amendment would also demonstrate a significant barrier to implementing RTBF in the US.

The more important part of the plan concerns solvency. Specifically, codifying RTBF in the US requires a detailed discussion of procedures and mechanisms such that the aff actually works. I will discuss two such mechanisms here.

First, the aff may decide to implement a version of RTBF that is much more limited than that which was defined by the ECJ ruling. Using the ECJ definition would be unconstitutional under the First Amendment because it has the potential to stifle free speech on the Internet. The vague terms of the ruling allow way too much room for online censorship to be permitted under current US law. So instead, a version of RTBF in the US would simply allow users to delete information they themselves had posted online. The following piece of evidence outlines this approach:

RTBF can be constitutional—the right to speak entails a reciprocal right not to speak.

Walker 12, (ROBERT KIRK WALKER, J.D. Candidate at University of California, Hastings College of the Law, “Note: The Right to Be Forgotten,” Hastings Law Journal, No. 64, pp. 257-286, 2012, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/hastlj64&section=9) [PDI]

However, even though applying the full weight of the right to be forgotten would be unconstitutional, the First Amendment does not proscribe all potential data deletion rights. The First Amendment not only grants Internet users a right to speak, but also the right not to speak. “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.”. 35 Moreover, the First Amendment does not compel anyone to speak,”36 nor does it forbid voluntary agreements not to speak.’37 Therefore, just as Nell may exercise her right to free expression by posting photographs on her website, she also has a right to stop speaking by removing the pictures, thereby muting the instrument of her speech. Similarly, nothing in the First Amendment forbids Nell from entering into a contract with her website hosting company where she could mandate that data she posts be permanently removed from their servers upon request. In instances where a user submits her own personal data to a website and then demands removal, both actions are variations on the same underlying constitutional right. As such, a circumscribed version of the right to be forgotten-a right to delete voluntarily submitted data-would not offend the First Amendment.

This version of RTBF has its own set of benefits and drawbacks. First, a limited version of RTBF gives the negative a lot less to say against the aff. This mechanism abides by the constitution, avoids censorship concerns, and does not limit the growth of the Internet in a significant way. The aff can claim advantages from increased user trust in online activity, since they know they have the right to later remove anything they decide to post. However, this version of the aff does not allow requests for removal of information that the requesting person did not him/herself create. So information that is generated about a person by a third party cannot be removed at the request of said person. Such is the tradeoff of reading a small affirmative: your advantage areas are more limited, but so are negative disadvantages.

The second possible way to implement RTBF in the US is much more sweeping in scope. In light of the First Amendment concerns surrounding the right, affirmatives may decide to codify RTBF via a new constitutional amendment. This method would also be constitutional (by definition) and would allow for a much more robust conception of the right as laid out by the ECJ. Solvency advocates for this approach are a little more difficult to find, but they do exist. The following, for example, cites Jeffrey Rosen’s (tepid) endorsement of a constitutional amendment to regulate internet companies that contains elements of RTBF.

Levitsky 14, (Allison Levitsky, Journalist, The Chautauquan Daily, “Rosen looks to Constitution to frame 21st-century privacy,” Transcribed interview with Jeffrey Rosen, Professor of Law, The George Washington University, July 7, 2014, http://chqdaily.com/2014/07/07/rosen-looks-to-constitution-to-frame-21st-century-privacy/)

Q: Do you think there will be an amendment to the Constitution taking into account the digital age?¶ A: Do I think there will be? Of course, constitutional amendments are difficult to pass. They have to be proposed by two-thirds of Congress and ratified by two-thirds of the state legislatures or by special constitutional conventions summoned for the purpose, so its difficult to pass constitutional amendments. What I would ask the audience is: Do you believe there should be a constitutional amendment to regulate Google and Facebook, and if so, what would it say? James Madison proposed a series of amendments that were unsuccessful. The amendment that he proposed at the time of the Bill of Rights that he thought was the most important one in the set would have prohibited the states as well as the federal government from abridging basic rights of speech and religious liberty. That amendment was rejected and it wasn’t until the Fourteenth Amendment, passed after the Civil War, that our Constitution required the states as well as the federal government to respect the Bill of Rights. But neither of those amendments governs private properties. Madison proposed another amendment that didn’t pass or at least he — Anti-Federalists proposed and Madison considered it — and that was an anti-monopoly amendment. It said that Congress cannot grant any company exclusive advantages of commerce and Anti-Federalists, especially Thomas Jefferson, were especially concerned about monopoly power, which would give unfair advantage to certain competitors over another and threaten liberty. So there was concern, both at the time of the framing and in the Jacksonian era, with the dangers of monopolies and class legislation that would favor big business over individual, smaller businesses. So, that’s a long way of saying, I’m going to propose an amendment and see who would support it. Private companies shall not infringe the right of the people to be secure in our persons, houses, papers and effects. That would be the Google and Facebook Amendment. Who would support such a constitutional amendment? And who would not? There is some tepid non-voting there. It’s a complicated question. I think I’m not sure which way I would vote either but the fact that there’s an ambivalence about it suggests that, in America, although we have a strong tradition of restricting the government, there’s much less of a tradition of restricting private companies. In Europe, it’s the opposite. They have a status tradition that actually gives the German and French intelligence service far broader access to private data than our U.S. government has, but they have these sweeping dignitary rights like the right to be forgotten and also data privacy laws that say that information shared with a private party for one purpose may not be disclosed for another. They’re much more sweeping than ours, so I think this has to do with our culture and the vote suggests that such an amendment, although it might or might not be a good idea, is unlikely to pass anytime in the near future.

Sure, the card doesn’t have the topic word-for-word transcribed into the text, but since when do we use topic literature to inform which topics we should debate about? This interview expands somewhat on a previous editorial by Rosen in which he talks about the need to amend the constitution for the digital age more generally.

The amendment aff will obviously be able to claim much larger advantages than the aff that severely limits the scope of RTBF. Individuals would have a codified right to remove any information that was irrelevant, outdated, inaccurate, or overly personal, within reason. This version of the aff also brings the US into conformity with the ECJ ruling, which has its own set of benefits. Of course, this aff also links much more strongly to the censorship DA, and has the potential to negatively impact the openness of the Internet. Debaters should take care to craft the affirmative mechanism in a deliberate, specific manner to balance these concerns.

What are your thoughts about potential ways to implement RTBF in the US? Leave a comment below to let us know! And, be sure to check back tomorrow for Part 2 of this article where we’ll explore the advantage areas offered by a US plan.