Academic journal article Harvard Journal of Law & Technology

Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow

Academic journal article Harvard Journal of Law & Technology

Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow

Article excerpt

TABLE OF CONTENTS  I. INTRODUCTION II. HIDING FROM HISTORY: THE EUROPEAN RIGHT TO BE FORGOTTEN    A. Early Developments in European Privacy       1. The Treaty of Lisbon and Privacy       2. OECD Privacy Principles       3. The Charter of Fundamental Rights of the EU    B. The Data Protection Directive of 1995       1. Rights and Duties Under the Data Protection Directive       2. Extraterritorial Effects of Directive 95/46/EC    C. Google Spain v. AEPD       1. Facts       2. Procedural History of Google Spain v. AEPD       3. Pitfalls of Google Spain v. AEPD    D. The General Data Protection Regulation       1. An Anatomy of the GDPR's Right To Be Forgotten       2. Duties of Data Controllers       3. Exceptions to the Data Protection Regulation    E. Negative Consequences of the GDPR's Right To Be Forgotten       1. The GDPR and Censorship       2. The GDPR and the Chilling Effect on Journalists III. THE TRANSATLANTIC CLASH: THE U.S. PERSPECTIVE    A. U.S. Sectorial Approach to Consumer Privacy    B. Aspirational Consumer Privacy Bill of Rights    C. The Restrictive Right To Be Forgotten Under U.S. Law       1. Right of Expungement for Juvenile Offenses       2. California's Right To Be Forgotten for Children IV. NONLEGISLATIVE SOLUTIONS TO THE DILEMMA OF PERPETUAL MEMORY    A. Formation of New Norms Initiated by User Communities    B. Market-Based Approaches    C. Expiration Dates for Personally Identifiable Data       1. Operationalizing Expiration Dates for Personal Data       2. Technical Enforcement of a Shelf Life for Data    D. Contextualization    E. Cognitive Adjustment V. A PROPOSAL TO RECONCEPTUALIZE THE RIGHT TO BE   FORGOTTEN TO ACCOMMODATE EXPRESSION    A. Background       1. The Need to Harmonize the Right To Be Forgotten       2. The Three Degrees of Deletion          a. First Degree of Deletion: Erasing Data Originating            from the Data Subject          b. Second Degree of Deletion: Erasing Reposted Data            that Originated from the Data Subject          c. Third Degree of Deletion: Erasing Other People's            Data About the Data Subject       3. Google Spain v. AEPD's Collision with Freedom of Expression    B. Extending N.Y. Times v. Sullivan to the Right To Be Forgotten       1. New York Times v. Sullivan and Its Progeny          a. The First Amendment and Private Persons          b. The First Amendment and Public Officials          c. The First Amendment and General Public Figures          d. The First Amendment and Limited Public Figures       2. Operationalizing the Right To Be Forgotten to Balance         Expression       3. Balancing Third-Degree Deletion Requests and the         Freedom of Expression       4. Data Link Delisting Forms          a. Vetting Takedown Requests          b. Burden of Locating URLs on the Data Subject VI. CONCLUSION: REMEMBERING AND FORGETTING IN THE DIGITAL AGE 

I. INTRODUCTION

Today, children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their ABCs: Apple, Bluetooth, and Chat followed by Download, E-Mail, Facebook, Google, Hotmail, and Instagram. Eric Schmidt, Executive Chairman of Google, has stated that we are creating the equivalent amount of information every other day as all of humanity created from the beginning of recorded history to 2003, and this is in large part enabled by the World Wide Web. (1) "[G]lobal IP traffic will reach 1.1 zettabytes per year" by 2016, "or 91.3 exabytes (one billion gigabytes) per month, and by 2018, global IP traffic will reach 1.6 zettabytes per year or 131.9 exabytes per month." (2)

The human brain's ability to forget is as critically important to consciousness as the ability to recall. Stedman's Medical Dictionary defines human forgetting as "being unable to retrieve or recall information that was once registered, learned, and stored in short-term or long-term memory." (3) Forgetting is useful because it enables humans to adjust and reconstruct memories, to generalize, and to construct abstract thoughts. …

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