The Overlooked Systemic Impact of the Right to Be Forgotten: Lessons from Adverse Selection, Moral Hazard, and Ban the Box

Abstract

The right to be forgotten, which began as a part of European law, has found increasing acceptance in state privacy statutes recently enacted in the U.S. Commentators have largely analyzed the right to be forgotten as a clash between the privacy interests of data subjects and the free speech rights of those holding the data. Framing the issues as a clash of individual rights largely ignores the important scholarly literatures exploring how giving data subjects the ability to render certain information unobservable can give rise to systemic effects that can harm society as a whole. This Essay fills this gap by exploring what the right to be forgotten can learn from the literatures exploring the implications of adverse selection, moral hazard, and the emerging policy intervention know as ban the box.

Keywords: privacy, right to erasure, right to deletion, General Data Protection Regulation (GDPR), Google Spain, asymmetric information, hidden information, hidden action, insurance

JEL Classification: D82, K29