Laws to Hide Behind

Personal information in internet sites comes from many sources. People voluntarily put their own information in many places such as Facebook and chat rooms. News sites and blogs publish information about the actions of others. Government property tax and court clerks put information about individuals and corporations on the internet. Those posters usually intend the information for public uses such as reading, copying or archiving for personal use later. That is an important difference from telephone and email records which are not intended for the public to access.

Anyone old enough to surf the internet knows that if you publish your personal information, you cannot retract it. Further, if news media publish an accurate report of your involvement in events, you cannot expect them to retract it merely because it memorializes instances of your embarrassing or criminal behavior. What’s a blatherskite sinner to do?

Along comes the European Union (EU) with a “solution.” The EU has contrived a new internet right – the “right to be forgotten” (RTBF). It allows any citizen within an EU member country to demand that stored information about his or her past be made unavailable. The EU has informed Google that RTBF must be implemented not just in the EU countries (Google.uk, Google.fr and so on) but worldwide, including on Google.com. Evidently, EU demanded that we forget details of the agreement where it earned the right to specify law worldwide.

In a somewhat related US development, a court has taken on what law enforcement (LE) can do with a seized hard drive. Suppose LE has authority to collect specific evidence stored on a hard drive, but the hard drive also contains unrelated information. The LE might seize the hard drive and collect the evidence, then hold onto the hard drive. The court will probe whether it is permissible for the LE to use the unrelated information for a separate case. Surely the court will balance the efficacy of LE against the individual’s right of privacy. On the other hand, the concern is that a potentially broad information source such as a hard drive could equip prosecutors with hints on how to prosecute a person rather than prosecute a crime.

The seized hard drive and RTBF developments leave unanswered questions. If a US internet author has been collecting information on another individual, for legitimate purposes such as to write a book, and the individual of interest has demanded RTFB treatment, does the EU’s RTFB edict apply? For example, does it bar the author’s mention of the person of interest’s “forgotten” behavior? Or, if the person of interest is being investigated by US LE agencies, and the author donates his collected data for LE’s use, does the EU’s RTBF apply? If a LE agency obtains a court order for some of the author’s data, does that preclude its use of “different topic” information that the author submits? Can’t a LE agency get anything it legitimately needs by asking a court for that specific authority?

The EU’s right to be forgotten is lopsided. It re-writes history available to the public and imposes costs on the innocent worldwide, merely to hide the embarrassing behavior of one individual.

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