Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, April 24, 2012

The Right To Be Forgotten and U. S. Constitutional Law

Robert Kirk Walker, University of California Hastings College of the Law, has published Forcing Forgetfulness: Data Privacy, Free Speech, and the 'Right to Be Forgotten'. Here is the abstract.

Information posted to the Internet is never truly forgotten. While the persistence of data offers benefits, it also carries substantial risks to a data subject if their personal information is used out of context or in ways that are harmful to his or her person’s reputation. The potential for harm is especially dire when personal information is disclosed without a subject’s consent. In response to these risks, European policymakers have proposed the legislative recognition of a “right to be forgotten” that provides individuals with a legal mechanism to compel the removal of personal data from electronic repositories. This right has been defined as, “the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes.” 

In this essay, I put forward the claim that only a limited form of the right to be forgotten is compatible with U.S. constitutional law. This form — a right to delete voluntarily submitted data — has only limited utility against the myriad privacy issues raised by networked technologies with limitless digital memories. It is, nevertheless, an essential component of a properly balanced regulatory portfolio. As such, this right should be legislatively enacted on the federal level as an implied-in-law covenant in contracts between data processors and personal data disclosers.

Download the paper from SSRN at the link.

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