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Privacy Perspectives | Data expungement: An argument for a limited right to be forgotten Related reading: Canadian court makes 'landmark' ruling that could establish its own right to be forgotten

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In June 2015, Google announced that it would grant requests for the removal of non-consensual pornography, otherwise known as revenge porn. Google rationalized its decision to remove revenge porn by stating that its new policy was “narrow and limited,” and akin to how Google treats the removal of similarly sensitive types of personal information, “such as bank account numbers and signatures.”

Google should be applauded for its efforts to address the harms created by revenge porn, a detestable product of the internet. While Google was open to delisting webpages publishing revenge porn, Google has been resistant to any movement toward a broader “right to be forgotten,” which would allow individuals additional rights to delist other forms of undesirable content about themselves from its search engine.

In 2014, the European Court of Justice issued a decision granting citizens of the European Union the right to request search engines de-list webpages containing personal information about themselves that is “inaccurate, inadequate, irrelevant or excessive.” Under the European right to be forgotten, for example, a British citizen was able to remove from Google a link to an article about a minor crime that the citizen committed that appeared when searching for the individual’s name. Europe’s application of the right to be forgotten is highly controversial, raising fears over censorship and that such a right in America could threaten the freedom of the press and the First Amendment.

Provided the political climate of Washington, it is unlikely that Congress would pursue a controversial right to be forgotten. That being said, Google, as well as other search engines, remains free to set their own policies regarding the removal or delisting of objectionable content.

Provided the political climate of Washington, it is unlikely that Congress would pursue a controversial right to be forgotten. That being said, Google, as well as other search engines, remains free to set their own policies regarding the removal or delisting of objectionable content.

As a company, Google has been extremely vocal in its support for criminal justice reform, providing grants to criminal justice reform organizations, sponsoring summits to highlight the problems endemic in the American justice system, and instituting a “Ban the Box” policy with respect to potential Google applicants. David Drummond, Alphabet’s vice president of corporate development summarized Google’s corporate philosophy by saying, “We like disruption, and there’s a system worth disrupting, it’s the criminal justice system.”

Once a person is able to obtain an expungement of their arrest or conviction, the public policy should shift in favor of allowing an individual to delink such records from a search for their name.

While Google works to disrupt the criminal justice system, the company should examine its own role in exacerbating the problem. Most notably, mug shots, criminal records and news articles about a person’s arrest or conviction can be easily discovered on Google through a simple search for a person’s name. Certainly, there is a basis for being able to discover criminal records. However, once a person is able to obtain an expungement of their arrest or conviction, the public policy should shift in favor of allowing an individual to delink such records from a search for their name.

Prior to the Internet, an expungement offered a fresh start, the ability for a person to seal their criminal arrest or conviction and deny to prospective schools, employers and landlords that they possessed a criminal record. If an article had been published about a person’s arrest or conviction, the article would likely be forgotten and largely irretrievable within days of its publication. This all changed with the internet. Nowadays, no matter how insignificant a crime, an arrest or conviction can remain a stain on a person’s record, forever available on the internet and with the ability to impact future educational, housing and employment opportunities.

A limited right to be forgotten to solely address the removal of expunged criminal records would ensure that expungements, and the purpose underlying them, remain relevant in the Internet Age. Although the government may not act, Google, as well as other search engines, should voluntarily set their own policies to delink webpages that reference expunged criminal records from a search for a person’s name and not simply reset algorithms to minimize their impact, as Google has already done with websites publishing mug shots.

If a person can satisfy the requirements to have their criminal records expunged, they should also be able to cleanse their digital footprint of any trace of their arrest or conviction. Absent federal legislation, a narrowly tailored right to be forgotten to address criminal expungements would require buy-in from Google and other search engines. If Google is to talk about reforming the criminal justice system, agreeing to delist references to an individual’s expunged criminal records would be a good place to start.

photo credit: simpleinsomnia Mug shot of an elderly man in Seattle via photopin (license)

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