Written By: Michael Hoven
Edited By: Albert Wang
When the European Commission recently proposed a “right to be forgotten,” U.S. commentators sprang to criticize it. “More Crap from the EU,” said Jane Yakowitz at the Info/Law blog. At Techdirt, Mike Masnick called it a “ridiculous idea.” Granting people the right to erase information about themselves would give them the power to stamp on the speech rights of others. Allowing this in the aggregate could produce profound social costs: increased costs of doing business could stunt innovation; research data could be lost; history could be erased.
This comment takes a different position. I argue that the right to be forgotten attempts to solve a privacy problem that is serious and deserves our attention. However, the social costs of establishing such erasure rights in data are nonetheless real. Individual privacy rights should not be allowed to decimate our networked information environment, or our ability to study the data within it and learn about ourselves. The right to be forgotten, and analogous privacy frameworks, contain exceptions — for example, for journalism or free expression — but additional measures should be taken to provide sufficient protection for expression and research.
In any privacy regime that incorporates erasure rights, there are two partial solutions that should be instituted to preserve some (if not all) of the social value of personal information. The first partial solution, data anonymization, has many skeptics in the law review literature, but has already reaped many benefits and imposes less of a privacy cost than many other privacy risks that we already tolerate. The second partial solution, eventual opening of suppressed information, is inspired by archival practice and rests on the premise that remembering, not forgetting, is crucial to the democratic process.[i] As a remedy for privacy harms, forgetting is overbroad. Information that was once available but was removed should not permanently vanish, but rather should be restored once the potential for harm is no longer substantial enough to justify the suppression of information. (more…)