The U.S. Has No “Right To Be Forgotten.” But One News Outlet Has Been Weighing The Costs Of The Internet’s Long Memory.
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Last week on the podcast “On the Media,” Molly Webster looked at the unusual experiment underway at a Cleveland paper. In a 2014 decision, the European Union’s highest court recognized a “right to be forgotten” enforceable against Google and other search engines. The decision recognized a right, for all individuals in the countries within the court’s jurisdiction, to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”
As the consequences of that decision reverberated across Europe and globally, the newsroom of Cleveland.com began to grapple with the easy accessibility of its own online archives and the consequences for people whose past is chronicled in them. (Last month, the EU’s Court of Justice declined to broaden the scope of the decision and said it requires Google to delist applicable search results only on platforms identified with an individual’s country of residence or the EU as a whole. In other words, on Google.de or Google.fr, for example, but not Google.com.)
In the United States, where there is no recognized right to be forgotten (and First Amendment jurisprudence makes the likelihood of one far-fetched), a quick Google search can dredge up newspaper accounts of convictions or even arrests that are years or decades old. This means that people in a wide variety of circumstances—who were arrested but not convicted of a crime, who were convicted of crimes less serious than the arrest charges, who had legal justifications or defenses for the actions they engaged in, whose convictions were eventually expunged, who were wrongfully convicted and later exonerated—must deal with the possibility that a potential employer, or landlord, or neighbor, will find information about them that is damaging, and possibly inaccurate.
In Cleveland, Chris Quinn, editor and president of Cleveland.com/Advance Ohio began considering the question publicly in a number of columns in the wake of the EU decision. Quinn announced in a column in July 2018 that the outlet would start to “consider requests for removal of names from dated stories about minor crimes from people who have had their records expunged.”
The publication also decided to substantially reduce its use of mug shots because of the concern that the photos, “taken while people are in crisis, often inebriated and usually angry, afraid or upset,” reinforced racial stereotypes for no justifiable reason. Additionally, Quinn announced that the publication would “stop naming most people accused of most minor crimes,” arguing that there was little public value in sharing the names of people arrested for low-level offenses.
The “On The Media” episode captured a newsroom grappling with the requests it received from people asking, years after a low-level conviction, often after a court-ordered expungement, for the site to remove their names from stories that continued to play an outsize and harmful role in their reputations, their prospects, and their ability to live, grow, and change.
What had moved the newsroom to action was a recognition, as Quinn said, that previously “you had to really want to find something about a person’s past” and “spend hours or days scrolling through microfiche slides” to read a newspaper’s archives. Now the same thing was available in a few minutes of idling on the internet.
Webster spoke with Viktor Mayer-Schönberger, an Oxford professor who has been described as “one of the intellectual godfathers of the right to be forgotten.” Mayer-Schönberger said: “I’m not in favor of annihilating memories. I’m in favor of putting them in the shoebox and stashing them in the attic. If you really want to make the effort to go up there you can take them down, pour yourself a glass of wine and go through them but you don’t stumble over them every day.”
He also illuminated the costs of that easy, constant access to another person’s history, including their mistakes, saying, “We don’t know how to forgive if we remember. So as we become a remembering society, we become an unforgiving society.”
The United States has long been an exceptionally unforgiving society, especially for Black, Latinx, and Native people, and for poor people, from the point of police contact through the scores of consequences, including voting rights, that trail people with criminal legal system contact for years, or for life. Convictions, even arrests, can diminish a person’s chances at employment, education, and housing—the ingredients necessary for a stable, healthy existence.
In recognition of the damage a criminal record can do, state governments have begun to take steps to make sealing and expungement of records an option for people convicted of low-level offenses. So far the best of these, like Pennsylvania’s Clean Slate law, provide for automatic expungement. A recent Appeal article pointed out that in New York, where a record-sealing law that could apply to more than 600,000 eligible people, only 1,758 people had availed themselves of its provisions in the two years since it took effect, due to the complexity of the process.
Yet even the best record-sealing laws cannot address the damage of online information about a person’s criminal record. While we need generous expungement laws we also need news outlets to consider what value, if any, they add when they report on arrests; action by state actors to stop the flow of information to unethical actors; and restrictions on state actors themselves. And, of course, the recognition that the reams of information available online about contact with the criminal legal system are the byproduct of a system that inserts itself in millions of Americans’ lives.
That long, unforgiving reach of the criminal system is a stark contrast with the secrecy that surrounds the work of the state actors. As Sarah Esther Lageson wrote for Slate in March: “it’s far more important to demand access to public records that actually tell us about police, prosecutor, and prison officials’ behavior.” In New York, a law banning the release of mug shots and arrest information faced hostility from news outlets on grounds of transparency, even accountabiltiy,, as Lageson chronicled. But the NYPD has fought for years to restrict public access to information in police disciplinary records, an issue that first received widespread attention after the killing of Eric Garner in 2014 by NYPD officer Daniel Pantaleo.