Escaping Your Online Mistakes: Should There Be a Law?


Protecting Both Privacy and Free Speech

The concept of a "right to be forgotten" is at once seductive and deceptive. Seductive because it plays to that visceral longing for a second chance that lingers in all of us; deceptive because, while the notion is easily grasped, a thoughtful discussion on the issue quickly becomes mired in a labyrinth of complications. Here's a thumbnail view of a few broad scenarios and the questions that underlie a "right to be forgotten" in different settings.

The most obvious scenario is when a user provides the data herself in a setting she expects to control, such as when you fill out a social networking profile, create a YouTube channel, or post in your personal blog. Another scenario is when a user posts information on someone else's online space – when you post comments on someone's blog, respond to a friend's Facebook status updates, or write a restaurant review and post it on Yelp. A third situation arises when a third party copies information from the previous two scenarios and posts it elsewhere. This would include when someone retweets your Twitter post, quotes your comment to a news article in their own reply comment, or perhaps takes a screenshot of an argument between two Facebook users and posts it to their own blog.

The 'Right to Be Forgotten'

In considering a new "right to be forgotten" in the context of the three scenarios presented above, many policy and technical challenges are evident. The first scenario is the simplest to interpret, and even that raises questions. It seems clear that a user should be able to request that a site or content host to remove information that user initially provided from the user's "own" space on the site -- you should be able to delete your profile page or the blog you created. But should a site that provides a platform for multiple users to communicate -- a description that covers most user-generated content sites out there -- be required to "forget" a user's contribution to aggregate data about use of the site, such as rankings, ratings, or "likes"? How much of the user's presence on the site must be erased? And does the scope of this type of "forgetting request" mean that the site owner has to scour all caches and backups when "forgetting" a piece of information, or is it sufficient for a site to render the information inaccessible to other users?

In the second scenario, where a user posts information to someone else's space and then seeks to make it forgotten, the questions get more complicated. How far out in the margin should this request be taken? Should users have a "right" to disappear their half of a conversation that takes place in the public comment field to a news article? (If you're inclined to answer "yes," then I'd ask if your answer changes if the user is, for example, a politician who comes to regret the statements he's made or the photos he's tweeted.) Some user-generated content platforms do allow their users to delete every trace of their communications from the site when the user deletes their account. When this type of policy is decided by a site individually, and voluntarily (rather than through a legal mandate), it raises far fewer First Amendment questions.

Free expression issues also abound in the third situation, when users want to remove information about themselves that has been re-posted to a third-party. A "right" to this kind of forgetting implicates news reporting, quoting for purposes of commentary and discussion, and fair use of another's work. In addition, there is the challenge of the third party site having to verify that the user requesting the "forgetting" is actually the subject of that data. This set-up lends itself to the kind of abuse stemming from a classic "heckler's veto" scenario. This asserted "right" would put website operators in the untenable position of making fine-grained judgments about users' identity, the truth or falsity of allegedly defamatory claims, and a host of other determinations necessary to protect users' free expression rights that no entity short of a court is equipped to make.

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