'People Don't Forget': The Necessity of Legislative Guidance in Implementing a U.S. Right to Be Forgotten
37 Pages Posted: 2 Nov 2016 Last revised: 3 Feb 2017
This Note argues that U.S. policymakers should use the spirit of the EU’s decision in Google Spain to implement an American right to be forgotten — consistent with the U.S. Constitution — in order to regulate the currently unregulated discretion of Google and other search engines in removing search results. Part I outlines the history of the right to be forgotten, the Google Spain decision, and emergence of the right around the world. Part II outlines the current debate in the U.S. and discusses the constitutional and philosophical underpinnings that justify a right to be forgotten. Part III applies the spirit and principles discussed in Parts I and II and proposes a substantive and procedural legislative solution for the U.S. policy silence on search engine regulation and the right to be forgotten. The proposal in Part III sets forth a multifactor balancing test to clarify delisting criteria, as well as options for an appeals process, with the goal of channeling modern developments of the right to be forgotten into a constitutionally sound regulation.
Keywords: Right to Be Forgotten, RTBF, Google Spain, First Amendment, privacy, EU, search engine, Google, ISP, constitutional law, cybersecurity, cyber, Internet, international law, EU, telecommunications, regulatory, search results, data privacy, philosophy, comparative law, innovation, technology, policy
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