The Right to Be Forgotten:  An Equilibrium-Adjustment Perspective

In Europe, there is now a conditional “right to be forgotten.”  Though the right is “not absolute” and “has clear limits,” the Court of Justice of the European Union ruled that in some cases, a person can compel a search engine or internet information aggregator to remove information that is “no longer necessary or irrelevant.”  See Factsheet on the “Right to be Forgotten” Ruling, European Commission, available at http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf. In general, a European citizen has the right, in some circumstances, to erase embarrassing information about herself when that information no longer serves a compelling purpose.

Though many Americans would undoubtedly enjoy such a right, it doesn’t easily fit into our privacy traditions or our speech traditions.  The speech tradition analysis is easy:  Americans value free speech much more highly than do Europeans.  European cultures are much more inclined to limit speech that is not immediately dangerous because that speech is offensive or unpalatable.  See, e.g., § 130 Volksverhetzung (German criminal code penalizing any “assault[ on] the human dignity of others by insulting maliciously maligning,” or otherwise demeaning a national, racial, or religious group).  American culture used to limit speech much more, but our Constitutional traditions and general national consensus venerates the “marketplace of ideas” described by John Stuart Mill and Justice Holmes. See Abrams v. United States, 250 U.S. 616, 629 (1919) (Holmes, J., dissenting).

The American privacy tradition likewise isn’t conducive to a “right to be forgotten,” at least not at first glance.  American privacy traditions are heavily linked to concepts of property, especially the tangible real property of the home.  See, e.g., Florida v. Jardines, 569 U.S. ___, at *3-5 (2013) (describing tradition of homestead privacy); accord id. at *1-5 (Kagan, J., concurring) (acknowledging the Katz v. United States expansion of privacy rights to encompass reasonable expecations).  Americans have a firm view of that from which we can exclude others; we are quick to shut out nosy neighbors.  But equally embedded in the culture is an acknowledgement that once, through our own actions, information enters the public square, that information is discoverable.  We do not as easily acknowledge a right to wipe out information once we have released it.  The law likewise views such already-released information as fair game.  See Smith v. Maryland, 442 U.S. 735 (1979) (noting information released to third parties enjoys no reasonable expectation of privacy).

However, a specific theory of Fourth Amendment privacy may explain better why an American right to be forgotten would be justified and how it would work.  Orin Kerr, a GW professor, has popularized an “equilibrium adjustment” theory of Fourth Amendment jurisprudence.  See Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 479 (2011).  Essentially, equilibrium adjustment says that “the Supreme Court adjusts the scope of Fourth Amendment protection in response to new facts in order to restore the status quo level of protection.”  Id.  So when a new technology gives the police the ability to monitor our lives more closely than they previously could, the Court responds appropriately.  Kerr gives many examples of the equilibrium adjusting, but the phenomenon can be perfectly seen in Kyllo v. United States, 533 U.S. 27 (2001), where the Court disallowed the warrantless use of thermal imaging technology even after previously approving of numerous technology-aided searches.  See Kerr, 125 Harv. L. Rev. at 479 n.8.  Equilibrium adjustment does a very good job explaining updates in the Fourth Amendment, and it also seems to explain some cultural attitudes—it just seems unfair that the police can search anyone’s house with thermal imaging technology, even if we can’t articulate why.

Equilibrium adjustment has interesting implications for an American right to be forgotten.  In essence, an EA-influenced American right would seek to return the public information available about a person to the kind of information available to her neighbors and countrymen throughout the course of history.  (Of course, the Fourth Amendment only applies to government searches, so such a “right” and its equilibrium-adjusted contours would exceed pure Fourth Amendment principles).  The ability to search through a person’s entire electronic life at the click of a mouse unquestionably represents a profound equilibrium shift from the first two hundred years of the Republic, and we could acknowledge that without upending other core American concepts of speech and privacy.  Indeed, such a public-perspective equilibrium shift would mirror a potential shift in actual Fourth Amendment law.  See United States v. Jones, 565 U.S. ___, at *1 (2012) (Sotomayor, J., concurring) (questioning continued validity of third party doctrine).

Overall, equilibrium adjustment presents a way of thinking of a right to be forgotten that does not require us to radically rethink American values.  Society can adjust its privacy equilibriums through legislation as well as through Constitutional fiat, and a law attempting to restore a pre-digital degree of “forgottenness” would merely restore a balance that was uncontroversial for decades.

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The Right to Be Forgotten:  An Equilibrium-Adjustment Perspective

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