California has passed a well-intentioned law allowing teens to scrub their youthful indiscretions from the Internet. Starting in 2015, any minor can request that a digital service provider delete pictures of themselves passed out drunk at a Justin Bieber concert. The law doesn’t make a whole lot of sense, since nearly every imaginable service offers a delete button.
Perhaps more importantly, it ignores the reality that it’s nearly impossible to delete information from the net: embarrassing photos spread virally, and Internet archives automatically create copies of nearly every piece of information on the web.
Yet, as written, it appears to create a head-on collision between privacy law and the First Amendment. There are no clear rules on what will survive when a friend comments or interacts with a given piece of regrettable content that will inevitably end up being deleted.
The web is chaotic, viral, and interconnected. Either the law is completely toothless, or it sets in motion a very scary anti-information snowball.
The Law As Written
California SB 568 requires “the operator of an Internet Web site, online service, online application, or mobile application to permit a minor who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application, to remove, or to request and obtain removal of, content or information posted”.
The law kicks in on January 1st, just in time for hung-over minors to delete their New Year’s Eve shenanigans. It also prohibits websites from targeting minors with a host of fun, yet regrettable products, such as e-cigarettes and tattoos.
If a vengeful ex-boyfriend shares a naughty picture of his former lover with the Facebook universe, SB 568 doesn’t give a minor the right to erase it. Users can only delete data they upload. Also, if a teenage mother posts a picture of her toddler toking weed out of a bong, that’s also exempt: law enforcement can subpoena the information.
Perhaps most importantly, more and more of the social media world is automatically archived. The Sunlight Foundation, for instance, automatically archives tweets in case a politician deletes one. Some deleted tweets are pretty hilarious.
On top of all this, nearly every website imaginable permits users to delete a post. So, in reality, the law is completely unrealistic/unnecessary. Still, James Steyer, chief executive of child advocacy group, Common Sense Media, calls the law “a very important milestone.”
4th Vs. 1st Amendment
As written, the law is about giving a specific group, prone to stupid decisions, the ability to delete information they don’t like. In this, in comes dangerously close to the European Union’s proposed “right to be forgotten“.
“The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already,” explains Jeffrey Rosen, a law professor at George Washington University.
While SB 568 attempts to restrain court orders to information that hasn’t been reposted by other users, it’s not clear how that would work in practice. If, for instance, I “like” a photo of my friend at a strip club, but he later wants it erased, what should happen? Facebook “likes” are now protected as First Amendment speech.
To have any sort of teeth, the law will eventually have to permit the erasure of data that has been reposted, archived, or interacted with. And, as a result, must create a grow a whole new body of case law dedicated to choosing when the right to be forgotten trumps our right to share and discuss information.
The French, have already made their decision on this matter. “le droit à l’oubli—or the “right of oblivion”—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration,” explains Rosen. If EU proposals go through, this type of censorship will extend to the Internet.
Realistically, the only thing SB 568 did was open up a can of worms on the right to erase information from the Internet. From here, things are only going to get more bizarre.