Laws Seen Unlikely to Ever Require Search Engines to Extend Right to Be Forgotten to Americans
Despite calls from consumer advocates for U.S. search engines to extend a “right to be forgotten” to U.S. citizens, there’s virtually no chance those companies will ever be legally required to do so, several lawyers told us Friday. “No and no,” said Christopher Wolf, a Hogan Lovells Internet privacy lawyer who also helped found industry-backed privacy advocate Future of Privacy Forum. Lawyers agreed: It’s long odds EU or U.S. law would ever require that. And businesses have little reason to extend the right voluntarily, unless it’s for moral reasons, they said. The First Amendment and the Communications Decency Act (CDA) likely prevent a new law; complications over changing privacy policies and possibly data collection and use practices likely prevent discretionary adoption, lawyers said. “We would have to change our Constitution,” David Gingras, an Internet free speech attorney.
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Google last week started removing third-party links from search results based on EU citizens’ requests (WID June 27 p7). It’s the first search engine to do so, just over a month after the European Court of Justice ruled search engines companies -- and perhaps other online service providers -- are responsible for the presence, and potential removal, of those links (WID May 14 p5). Consumer Watchdog immediately asked Google to extend the same right to its American users. “It clearly can be done,” Consumer Watchdog Privacy Project Director John Simpson told us. “I don’t think it would be a big burden.” Consumer Watchdog is considering legal arguments that would require such an extension, Simpson said. Google, Microsoft and Yahoo had no comment.
State laws and the U.S.-EU cross-border data flow negotiations are two slim routes that could lead to such an extension, said Clark Hill intellectual property lawyer Jennifer Woods. California passed SB-568 requiring websites to grant an “eraser button” for users under the age of 18, allowing them to delete or make requests to have removed any content about them. It’s widely expected to face First Amendment -- and possibly Commerce Clause -- challenges after it takes effect Jan. 1, 2015, said Woods and other lawyers.
If the law stands, “that could set an interesting precedent,” said Woods. Privacy law is mostly enforced “on a state-by-state basis,” she said: Certain state laws “end up becoming the defacto standards.” While California’s “eraser button” does not directly equate to the EU’s “right to be forgotten,” -- not to mention it’s “far more limited in scope” -- it would represent “a little chipping away” in the EU’s direction, Woods said.
The CDA “preempts all state law,” said Gingras. When he first heard about the California bill, Gingras thought “it was directly conflicting with the CDA and it would not apply -- period.” Gingras has been representing thedirty.com’s operators in a case over liability on third-party posted content (WID June 19 p17). There’s no CDA carve-out for minors, he said -- a common misperception.
Woods said the Obama administration’s decision last week to try to give EU citizens a right to sue in U.S. courts over misuse of their personal data (WID June 26 p16) raises interesting possibilities. “Should that happen, it sets a precedent for allowing EU law to generate a right of action for an EU citizen in the U.S.,” she said. That could possibly lead to EU citizens filing lawsuits in the U.S. over the right to be forgotten, Woods said. “These things seem kind of crazy on face. But who knows?” Envisioning U.S. citizens doing the same, however, is more far fetched, said Woods. Any EU exceptions would “crafted in such a way as to be a fairly limited carve out,” she said.
Consumer Watchdog’s Simpson said extending the right to be forgotten to Americans could create a competitive advantage. Now that Google has acted, Microsoft and its Bing search engine could follow and say, “Microsoft is the company that is really privacy-friendly,” Simpson said. Privacy policies usually offer companies “the greatest flexibility,” said Woods, and making widespread changes is often not in the business’s interest.
Online services already offer methods to remove self-posted content, Wolf said. “If people post materials online and later wish to remove their posts, that is an option most platforms provide, and that makes sense.” Morally, there’s an argument to be made that some services should go beyond that, Gingras said. “I appreciate that idea.” But he said “once you open that door, where do you draw the line? Who’s going to make those decisions?” He pointed to reports (http://bit.ly/SFoVcD) that convicted sex offenders have been submitting requests to Google to have links removed to information about them: “Is that consistent with what U.S. policy is?” The right to be forgotten “sounds good in a sound byte,” Gingras said. “In practice, it’s a whole different ballgame.”