Bill Moran
Bill Moran ()

While all Internet posts may live forever, a negative post can be a personal disaster. It can ruin one’s reputation, cause the disapproval of leases, bar admission to memberships and prevent gainful employment.

As long as a negative post is true, there generally is no legal recourse in the United States for the posting of details of a criminal arrest, an old bankruptcy, an embarrassing photograph, or a mugshot. In view of the fact that 68 percent of Internet users believe current laws are not good enough to protect people’s privacy online, it is not surprising that the drumbeat for Internet privacy regulation is getting louder. Lee Rainie, “The State of Privacy in Post-Snowden America,” Pew Research Center (Sept. 21, 2016).

Internet privacy proponents, however, are being met with daunting opposition. Orwellian erasing of history is a slippery slope, it is argued. It will lead to abuse, most likely by the elite. More significantly, the First Amendment of the Constitution details bedrock principles in the United States that counter the “right to be forgotten” movement proceeding in Europe and elsewhere.

But a debate is needed over where to find the proper balance between our inherent privacy rights concerning at least some of our personal online data on the one hand, and the constitutional rights to freedom of speech and freedom of the press on the other. Since this is no easy task to carry out with a broad brush, a more focused approach might strike the balance and thereby advance a foundation for Internet privacy regulation.

De-Linking, De-Indexing

One such focus is on outdated, online news reports referencing details of an individual’s arrest where those criminal charges were not only subsequently dismissed, but also all records of that arrest were erased, expunged and/or sealed by state law. A reasonable balancing of the competing interests should allow the subject of that online data to require a search engine or the website publisher to keep that information private by de-linking or de-indexing it. But for now, that is not the case.

In the summer of 2016, a man was arrested in Connecticut and charged with minor crimes arising from an altercation with an Uber driver. Numerous articles soon appeared in online news publications. Many of these posts included an ugly mugshot of the man, looking haggard and distressed. Soon after all of this appeared online the man was fired by his employer, a financial institution in New York City.

By the end of 2016, however, all of those criminal charges were dropped by the state of Connecticut. Moreover, the state saw fit to erase that arrest pursuant to Connecticut’s Erasure Statute, so that he “shall be deemed to have never been arrested … and may so swear under oath.” Conn. Gen. Stat. §54-142a(e). Hoping to clear his name online, and to protect himself from any stigma during his job search, all of the posting news agencies were asked to remove or de-index the data. While most of the news agencies acquiesced, one online/television news agency refused. It cited its responsibility to provide its online content as historical artifact and a public record of accurate information, to mimic the function of print archives, to avoid diminishing transparency and trust with its readers, and to avoid any action that erases history. The most that it agreed to do was to update the story, in a conspicuous fashion, to make clear that the charges at issue were dismissed. But this hardly addresses the problem.

While Connecticut, New Jersey and New York, among other states, have enacted laws that provide for the erasure, expungement and/or sealing of the record for non-conviction dismissals (Conn. Gen. Stat. §54-142a; NJ Rev Stat §2C:52-6 (2015); N.Y. Crim. Proc. Law §170.55 and §160.55) these laws may not be used as an enforcement against any search engine providers or any news agencies to remove or de-index content. Indeed, the U.S. Court of Appeals for the Second Circuit in New York ruled as much in a 2015 case known as Martin v. Hearst, holding that Connecticut’s Erasure Statue impacts only the state and does not mandate erasure, despite the title, upon the news media or anyone else outside of the courts or the law enforcement agencies. 777 F.3d 546, 551 (2d Cir. 2015). Accordingly, it is for the state lawmakers to remedy this wrong.

New York’s legislature presently has a version of a “right to be forgotten” bill pending (New York Assembly Bill 5323; Senate Bill 4561), which is a broad-stroke effort akin to the law in the European Union. But passage of that bill appears to have been held up. A better effort, therefore, may be a new bill proposing a narrowly tailored law providing that where an individual has had an outright dismissal of criminal charges combined with erasure (Conn.), expungement (N.J.) and/or sealing (N.Y.), then upon a search engine receiving a request from that individual it must de-link any post concerning that arrest. Further, upon request to any publisher of postings concerning that arrest, including news agencies, it must either remove or de-index that post so as to prevent a search engine from returning that information in an online search. In the alternative, that search engine or publisher must provide just cause in court explaining why it will not do so. That bill should pass the balancing test.

First Amendment, Free Speech

With respect to First Amendment concerns, freedom of speech has never been free from regulation; the old adage of yelling fire in a crowded theater comes to mind. Indeed, Internet postings are regulated by other statutes, such as the copyright laws. Furthermore, Google already will voluntarily remove some sensitive content based upon privacy concerns, such as Social Security numbers, bank account information and nude photographs posted without consent. So it is reasonable to expand that list of shielded privacy items by a law protecting dismissed charges combined with erasure, expungement and/or sealing.

In addition, requiring the de-indexing of archived information so that it will not become a “hit” on Google searches would not violate freedoms of the press. First of all, online archiving is not the same as news reporting. Reporting and publishing news to the public is the protected freedom, not archiving. Furthermore, de-indexing content from archives is not deletion. The news item will still remain in the news agency’s archives, and can still be accessed by any website visitor. But it will be coded so that online searches from third-party search engines will be unable to return it as a search result. In fact, such would more closely mimic the functions of print archives before the advent of the Internet, when such content was only discovered by painstaking review of archived microfiche on-site.

The existing Connecticut, New Jersey and New York laws cited herein all demonstrate a determination made by those states that to allow an arrest without any conviction to stigmatize an accused person is wrong. Indeed, they correspond with another bedrock principle of this country: the presumption of innocence. Accordingly, the balancing test here should weigh in favor of privacy over transparency, and allow a pathway to laws requiring that such sensitive online information stay private.