The Privacy Precedent

Do we have the right to be forgotten?

John Oliver explores this query in a 2014 segment, following a ruling in the EU that allowed its citizens to request that Google and other search engines take down links to embarrassing content. In other words, European search engines must comply with “the right to be forgotten.”

But, as Oliver says, “The right to be forgotten is no longer workable in the Internet age.” The effort to delete unseemly information, if applied in the States, would not only be a slippery slope when it comes to freedom of speech and press, but also futile. I’m reminded of my sister’s eighth grade yearbook quote, a Bloodhound Gang song title: Foxtrot Uniform Charlie Kilo. The military alphabet cleverly (and hilariously, to eighth graders) spelled out a word decidedly forbidden in middle school. When the administration realized, my sister had to cross out her quote in every copy of the yearbook, only calling more attention it; what would likely have gone largely unnoticed became the talk of the school (until someone made and distributed brownies with soap in them— middle schoolers are so strange). The same is true for the Internet, at Oliver notes. Someone deletes a Tweet, for example, and a screenshot of the Tweet goes viral. The less attention you try to call to something, the more you call to it.

As Anthony Lewis discusses in chapter five of Freedom for the Thought We Hate, William Sidis did not have the right to be forgotten, according to the Supreme Court’s 1940 ruling. As a child, Sidis has been force-fed obscene amounts of knowledge (I was surprised that this did not turn into a child abuse or child labor discussion). As a result, he was reading The New York Times at 18 months and beginning his studies at Harvard University by age eleven. The unwanted attention pushed Sidis into reclusion, where he remained until 1937, when The New Yorker published a piece mocking Sidis’ less than glamorous adult life. Though Judge Clark sympathized with Sidis and called the article “merciless” (Lewis, 60), he claimed that it was legal. Clark said that any published invasions of privacy were allowable unless they were “so intimate and so unwarranted in view of the victim’s position as to outrage the community’s sense of decency” (61).

In the decades since, the issue has only grown more complicated. In this age rife with technology, I don’t think we do have the right to be forgotten (with some exceptions, like revenge porn). The Internet is an unfortunate case of having to take the good with the bad. We can’t exclude ourselves from the content of the Internet, but also use the Internet’s contents to our advantage. If everyone chose to remove themselves from the conglomeration of information that is the World Wide Web, there would be no content to populate it.

As Lewis writes, “Nowadays it is hard to imagine any revelation so intimate that it would offend the public’s sense of decency” (77). Lewis’ diction brings to mind the words of Joseph  Welch directed at McCarthy during the Army-McCarthy hearings: “Until this moment, Senator, I think I never really gauged your cruelty or your recklessness…Have you no sense of decency?” I wonder, what would offend our modern-day sense of decency? Does anything go? Or, is it time to establish a new precedent?

I’m tempted to side with the latter, but with more than one Supreme Court seat nearly ripe for the filling and Trump’s finger hovering over the trigger, the thought of the court establishing any new precedents anytime soon makes me feel queasy. As we redefine privacy’s place in a society built on the principles of free speech and press, we need our best minds at work. Hold on a little longer, Ruth Bader Ginsberg.

One thought on “The Privacy Precedent

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  1. This is a great reflection on the issues. I would however parse it a little differently. Although one can certainly argue that Sidis was arguing for the right to be forgotten, that was not his claim. He was suing for invasion of privacy. Sidis’ desire is closer to Warren & Brandeis’ desired right- the right to be let alone. While Sidis wanted damages, those who argue for the Right to Be Forgotten are asking that search engines and websites take down information after it is published (sort of a future facing prior restraint). It is, as you and Oliver suggest, impossible and counter productive. I fear that our answer to Welch’s question is that no, at long last, we have no sense of decency.

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