Academic journal article Vanderbilt Law Review

The Right to Domain Silent: Rebalancing Tort Incentives to Keep Pace with Information Availability for Criminal Suspects and Arrestees

Academic journal article Vanderbilt Law Review

The Right to Domain Silent: Rebalancing Tort Incentives to Keep Pace with Information Availability for Criminal Suspects and Arrestees

Article excerpt

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.

-Cox v. New Hampshire, 312 U.S. 569, 574 (1941)

INTRODUCTION

One nondescript evening, Dale Menard waited in a park for a friend to pick him up.1 When his friend did not arrive on schedule, Menard looked into the window of a nearby retirement home to check the time.2 Shortly thereafter, Menard was arrested based on a resident's prowler report and held by the Los Angeles Police Department for two days.3 The arrest was based purely on a misunderstanding, and the LAPD never brought charges against Menard.4 The police did, however, forward his arrest record and fingerprints to the FBI as part of a routine record exchange.5 One misunderstanding culminated in extended litigation to expunge Menard's criminal FBI file.6 While expungement alone seems an arduous task, this problem has become even more significant because of the internet. Menard would have faced nearly insurmountable hurdles to removing an online story about the incident, revealing an area of law in serious need of reform.7

This type of misleading information is especially troubling as it relates to internet publications. The internet makes vast amounts of information readily available and does not require much expertise or effort to find it.8 This has led to an unprecedented ability to find out about anyone-from ourselves to random strangers. Menard, for example, might dread the repercussions if, instead of just social media profiles, a search of his name yielded information about his arrest and detention. If charges were dropped or never filed,9 the "publishee"10 may be under no requirement to disclose his arrest, yet an easily accessible record exists via a quick Google search by anyone who knows his name. That individual has no control over whether the information gets updated or removed regardless of how false or misleading it might be in light of subsequent events. The harm of incomplete information stemming from this lack of control is exacerbated by the accessibility of online information.

In contrast to the expansiveness of information accessibility, an individual who finds himself the subject of online stories about his arrest or criminal investigation has only extremely limited options. Extra-judicial solutions range from inadequate to nonexistent.11 An individual suing under privacy tort or defamation is unlikely to prove the elements of the offense,12 much less survive a First Amendment challenge.13 With no realistic cause of action, a publishee is left to request that the information be removed and is at the mercy of the publisher to honor that request.

Individuals wishing to protect sensitive or harmfully unflattering information would appreciate the availability of options such as removal of the information-or search results that lead to it- or adding a disclaimer providing updated, and likely more flattering, information. But though an individual in this predicament would want those options, any interest in privacy must be balanced against freedom of the press.14 Publishers have compelling reasons to publish information of this type and strong rights that protect their ability to do so.15 Thus, it is necessary to consider the interests of both publishers and publishees in crafting a solution that creates a proper balance of rights and resulting incentives. The problem with the status quo is that it tips the scales too far in favor of publishers and leaves publishees without any meaningful leverage to assert their privacy interests.16

This Note examines the proper balance between an individual's privacy interests and a publisher's rights in the age of the internet. Specifically, this Note is primarily concerned with internet disclosures regarding the arrest or criminal investigation17 of an individual against whom charges were never pursued. …

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