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What if the Right to Be Forgotten Came to America?

There’s been plenty of buzz lately about Europe’s “Right to Be Forgotten,” where citizens can have old or irrelevant information dropped from search results. The idea has been copied by Canada and proposed in a much spookier form in Russia. And even in Europe there’s an ongoing battle about whether their regulations can be imposed worldwide.

I think it’s a safe bet that Americans don’t want European laws governing our technology. But what if the United States had its own Right to Be Forgotten (RTBF)?

That’s the proposal that’s been put before the Federal Trade Commission (FTC) last week. It comes from the non-profit group Consumer Watchdog and contains a surprisingly strong argument.

The Precedent for RTBF

Consumer Watchdog isn’t attempting to create a RTBF out of whole cloth. Instead, it argues that the RTBF already exists in the US, or at least a precedent for it does.

That precedent comes from credit report rules. Credit reports essentially pull together all kinds of personal, financial and legal information on a consumer—whether they want that information available or not—and provides their personal history to any interested party. To Consumer Watchdog, that’s a lot like running a Google search on a person and seeing what you dig up. But ever since the 1970 Fair Credit Reporting Act, US law has required that credit reports leave out older information. Generally this means anything more than seven years old and includes, “information about debt collections, civil lawsuits, tax liens, and even arrests for criminal offenses.”

Consumer Watchdog’s argument is that US law has already acknowledged the unfairness of opening up long-dead events to public scrutiny. If it applies to credit reporting, it should apply to search engines too.

A Difficult Case

So what’s the likelihood that Consumer Watchdog’s request will become law? Not very high, at least via the FTC.

First there’s their argument itself. Credit reports and Google are apples to oranges. Credit reports serve a very specific purpose: to make decisions on loans, lines of credit, and financial products. Clearly, if someone has spent the last seven years paying all their bills, a 15 year-old parking ticket shouldn’t affect their credit. The Fair Credit Reporting Act appropriately forces financial companies to look at recent patterns, not ancient history. But people use the internet for a lot of reasons, not just evaluating credit. It’s not clear that all personal information more than seven years old is irrelevant to the world.

More important, it’s unlikely that the FTC will make such a sweeping change. They exist to enforce existing laws, not make up new ones. And while they have some leeway in interpreting those laws, it would probably take an order from the top—the President—to get them to implement something so drastic.

It makes sense that Consumer Watchdog would pursue this approach, since it’s an easy and very public way to get the idea into the headlines. But ultimately, if the United States develops a Right to Be Forgotten it will come through Congress. That means it will take overwhelming citizen support, not just a letter to the FTC, to get the ball rolling.

To Forget or Not to Forget?

Generally the United States has been far more committed to freedom of information than protection of privacy. In that regard we’re clearly the odd ones out among developed nations. But the internet was built on information being free, and it tends to work best when people can choose for themselves what to read, see and access.

At the same time, a majority of Americans say they would take advantage of RTBF if it existed.

Is this a law we should have in the US? Would it protect people or would it just make search engines less useful?