Page 131 - Privacy in a Cyber Age Policy and Practice

THE RIGHT TO BE FORGOTTEN 119

B. A Hedged Right to Be Forgotten

What is needed is a mixture of technological and legal means to ensure a
hedged right to be forgotten that is differentiated according to the scope of
the harm done by the initial act, the extent to which the person has reha-
bilitated himself, and the scope of privacy that will be granted.
For example, where the inefficiency of paper records once ensured that
information would not travel far, the digitized world now requires restric-
tions if certain kinds of information are to be kept isolated. Formerly, in
smaller communities, if a person was arrested his neighbors would learn
whether he had been exonerated or convicted. The community might even
have had a sense of whether a person who was released had in fact com-
mitted the crime, or whether the arrest was unjustified. These days, it is
possible to access an arrest record across the globe, but it may be difficult to
find out if the arrest was justified. Either arrest records should not be made
public (although they might be made available to police in other jurisdic-
tions), or they should be accompanied by information about the outcome
of the case.
In addition, a criminal record could be sealed both locally and in online
databases after a set period of time, for example after seven years, if the
person has not committed any new crime. Considerable precedent for such
a move exists. For instance, information about juvenile offenders and pre-
sentations to grand juries are often sealed.
One other major concern is that lawbreakers who have paid their debt
to society will face hiring and housing discrimination. Protections against
such discrimination are already in place, but others could be added. For
instance, employers cannot, as a general rule, legally maintain a policy
of refusing to hire people merely because they are ex-cons, whether the
employer gets this information from a police blotter or a computer.
Internet databases should be held accountable for the information they
provide. If they rely on public records, then they should be required to keep
up with the changes in these records. They should also provide mechanisms
for filing complaints if the online data are erroneous, and they should make
proper corrections in a timely fashion, the way those who keep tabs on
credit records are expected to do.
These are a few examples of measures that provide obscurity equiva-
lents in the digital age. Still, it is important to remember the importance
of gossip fueled by public records. As a rule, people care deeply about the
approval of others. In most communities, being arrested is a major source
of humiliation, and people will go to great pains to avoid ending up in jail.
In such cases, the social system does not work if the information is not
publicly available. This holds true for the digitized world, where the need