The Right to Be Forgotten: Sixty-Three
I’m still hoping for a bit of time with the others at the warehouse tonight, so I skip eating and dive into my ideas. But when I open my mouth, Birch speaks over me.
“Look, when I first read these ideas, I thought they were cuckoo for cocoa puffs. But they’ve grown on me. She might have enough of base here for something dynamic. Go on.” He motions to me.
“Okay. We have two different issues. The first is governmental documents available on the web that portray people in a negative light.”
“Like convictions,” Birch says.
“Right. But there is a relevant need to maintain those kinds of documents for legal research and precedent. It’s the second kind of document – the private document – that causes so much trouble. These are the videos, memes, and other privately produced artifacts. These are the ones that can create viral stars and viral nightmares for people. Ideally, we would introduce a bill that would tackle both concerns.”
“Legislation can’t keep people from posting memes. That’s basic First Amendment,” Nan says through a mouthful of noodles.
“She isn’t talking about the First Amendment, though. Okay, how about we eat and you explain,” Birch says to me.
“Forget the governmental documents for a minute and just think about the private kind. In an 1890 Harvard Law Review, Warren and Brandeis talked about adopting a right to privacy in America. They started by writing:
“We know today that the right to privacy was successfully enacted in the United States with several limitations. One of those is that ‘the right to privacy ceases upon the publication of the facts by the individual, or with his consent.’That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession — intangible, as well as tangible.
“That poses a problem for memes because many of them begin with content the individual has either posted herself or consented to posting. However, in the days of instant photography, Brandeis and Warren argued that people should be allowed to be naturally forgotten by not permitting stigmatizing information to be widely available.
“They could not have anticipated the technological changes that have transpired, but they acknowledged the need for new laws to recognize new rights to meet society’s demands.”