Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the First Amendment and the desire of some people to force Internet companies to delete unflattering or personal information from websites.
THE STATEMENT AT ISSUE:
“Our nonprofit consumer group has petitioned the Federal Trade Commission to grant every American ‘the right to be forgotten.’…We believe that people should have the right to ask the Internet’s corporate gatekeepers to stop elevating deeply disturbing, unauthorized, irrelevant, excessive or distorted personal information to the top of search results associated with their names….With a right to be forgotten, Google, Yahoo and other corporations – not the government – would decide what material should not be provided in response to search requests.”
– Excerpt from an op-ed column in The Washington Post on September 14, by Liza Tucker, a consumer advocate on the staff of the non-profit organization, Consumer Watchdog. Since July 7, the Federal Trade Commission has been reviewing a plea by the group to create what the petition calls a “basic privacy tool” to be used to challenge continued display on websites of personal information that is considered damaging or hurtful.
WE CHECKED THE CONSTITUTION, AND…
America’s Constitution was not quite a decade old when Congress began experimenting with the idea that some ideas are too dangerous to be allowed to be written or even heard about by the people. The Alien and Sedition Acts of 1798 treated public criticism of the government and its leaders as a form of “seditious libel” that would be – and, in fact, was -- severely punished.
From the day that President John Adams signed those Acts into law, they drew severe criticism, especially from Thomas Jefferson’s followers. They were a rallying cry, for example, among the German farmers in eastern Pennsylvania who staged “Friese’s rebellion” – the last of the three citizen uprisings that threatened the stability of the new Republic but also created a lasting tradition of dissent from the government’s over-use of its powers.
The constitutionality of the four measures was never tested in the Supreme Court, but it has long been assumed that they violated the First Amendment’s guarantee of free expression. Indeed, the Supreme Court strongly hinted at their invalidity in the 1964 decision in New York Times v. Sullivan, putting strong new limits on the enactment of laws to punish for libel or slander.
With the growth of the mass media in the 19th Century, and especially with the arrival of sensationalist journalism as a way to sell more newspapers, the instinct to turn to the government for protection from public expression took a new form, the plea for a “right to be let alone,” to be enforced – naturally – by the institutions of government.
That idea got its fullest early exploration in a Harvard Law Review article in 1890, titled “The Right of Privacy.” It was a response to what was then the new technology of mass media, and its fascination with intensely personal information about people. It ultimately gave rise to a host of privacy laws, designed to erect a governmentally policed barrier to invasion of people’s private realms.
All of this history has come rushing back to the fore, with the rise of the Digital Age and with the enormous capacity of the Internet to expose the most intimate details of private lives – and, especially, its technological capacity to keep such details open to inquisitive computer users for years and years to come. Is there no way to scrub this intrusive detail from digital platforms? Not surprisingly, a new movement has formed, one that reaches again for a shield provided by the government against the profound loss of privacy, or the threat of such a loss. A new concept has been born (and already has taken legal shape in Europe): a “right to be forgotten.”
It has become obvious that traditional laws against invasion of privacy, or laws against libel and slander, have been found wanting against this perceived new cultural problem. And the size of the major private firms that tend to dominate the Internet – and especially, those that are the providers of the search engines that can call up this private information – has inhibited some who would advocate a right to scrub invasive websites.
One advocacy group, known as Consumer Watchdog, has not been inhibited, however. It has turned to a federal law that is designed to protect American consumers from unfair and deceptive business practices. That is Section 5 of the Federal Trade Commission Act, a law enforced by the agency of that name. The FTC, under that section, has the authority to police business practices that “cause substantial injury to consumers,” and that are beyond the power of consumers themselves to rectify.
Consumer Watchdog, in its formal plea for action by the FTC, insisted that the creation of a “right to be forgotten” by that agency would not be censorship, because the FTC itself would not remove from the Internet any specific content to which a consumer objected. “The right,” the group’s petition said, “simply allows a person to request that links from their name to data that is inadequate, irrelevant, no longer relevant, or excessive to be removed from search results.”
Even so, as an arm of the government, the FTC would have to provide some mechanism for enforcing such a right. And, in the process of doing so, it would have to provide official definitions of what would qualify as, for example, “no longer relevant” or “excessive.” Those are not terms that define themselves, and the operators of search engines would clearly have a constitutional right (under the Due Process Clause as well as under the First Amendment) to be told – in advance – just what enforcement of such terms would entail.
Europe, of course, is moving toward a regime that enforces a “right to be forgotten.” But European collective government is not restrained by a First Amendment in the way that the American government (including the FTC) is. Already, as could be expected, news organizations and other sentinels of First Amendment rights are objecting to a role for the FTC in defining and enforcing this new right.
Although digital technology is now very highly developed, it is fair to say that the constitutional law of regulation of digital expression is still in its infancy, and is sure to experience growing pains. A “right to be forgotten” is thus not a sure thing.
