Two Democratic lawmakers in New York are pushing for a law that allows residents the right to remove information about them from the public sphere, even if that information is completely accurate.
Also known as the "right to be forgotten," these types of laws already exist in the United Kingdom where a court ruled that a man had the right to force Google and other search engines to remove links to a factually accurate story about him simply because he believed it was no longer relevant and it embarrassed him.
New York Assemblyman David Weprin and state Sen. Tony Avela are pushing bills filed last month that would amend the civil rights law and civil practice law, essentially giving New Yorkers the same right that courts in the U.K. have recognized.
"Upon the request from an individual, all search engines, indexers, publishers ... shall remove information, articles, identifying information, and other content about such individual ... that is 'inaccurate,' 'irrelevant,' 'inadequate,' or 'excessive,' " the identical bills read.
At first glance, it may seem reasonable to some, especially in the day and age where anyone can publish any false information they want on social media and the world wide web and pass it off as truth. Certainly inaccurate information should not be published as fact, but what about irrelevant, inadequate, or excessive? This is where it gets muddy:
For purposes of this section, "inaccurate," "irrelevant," "inadequate," or "excessive," shall mean content, which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester's professional, financial, reputational, or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester's role with regard to the matter is central and substantial.
If enough time has passed, or if the subject matter is deemed "no longer material" to current public debate, a resident could argue for removal of the information — except convicted felons or people involved in "matters of significant public interest."
This law would put the courts in the position of determining if enough time has elapsed since an embarrassing publication to force search engines to make the information disappear. Judges would decide if the information is significant to public interest, again, even if that information is 100 percent true and accurate. And in the blue state of New York, it isn't difficult to imagine which direction these cases would go.
Search engines who don't abide by the request would also be slapped with fines of $250 a day for each day of non-compliance after the 30-day grace period.
In addition to free speech concerns, First Amendment attorney Ken White explained to Reason why this bill is a problem.
"It purports to punish both speakers and search engines for publishing — or indexing — truthful information protected by the First Amendment," White said. "There's no First Amendment exception for speech deemed 'irrelevant' or 'inadequate' or 'excessive,' and the rules for punishing 'inaccurate' speech are already well-established and not followed by this bill."
"The exceptions are haphazard and poorly defined, and the role of the New York secretary of state in administering the law is unclear," he said. "This would be a bonanza for anyone who wanted to harass reporters, bloggers, search engines, and web sites to take down negative information, and would incentivize such harassment and inflict massive legal costs on anyone who wanted to stand up to a vexatious litigant."
But if Weprin and Avela have their way, some New Yorkers may be able to thwart the First Amendment and rewrite history in the process. Bills A05323 and S04561 have been referred to the Committee on Governmental Operations, and Codes Committee, but have not yet been heard.