The Right to Delete

Most of us have incidents in our past that we'd rather leave there, but that is increasingly difficult in a world teeming with devices and services that capture our words and actions and record them indefinitely. Instead of organically being forgotten, records of the past increasingly persist in digital storage unless and until they are deleted by someone. Should an individual have the right to demand that records about her be deleted? Does it matter who holds these records or what forms the records take? And even if this right would be socially beneficial, can it be implemented? In this paper, we argue that an individual should have the right to delete information about her that is held by others, and sketch out frameworks of how such a right might work. We suggest methods of implementing this right using technical tools, legal regulation, and/or social norms and market forces. Even without the legal component, we believe that collective action has the potential to give individuals greater control over their own personal information by establishing a widely (if not universally) accepted right to delete. Introduction: Do We Need a Right to Delete? For human beings, forgetting is easy and remembering is hard. While this can be a challenge, it is also in many ways a boon: we can distill the past into a few simple memories rather than reliving it verbatim over and over again; we can “forgive and forget;” we can grow and change without being forever linked to our past (Mayer-Schönberger 2009). Modern technology changes this paradigm. With computers and electronic devices, remembering, rather than forgetting, is increasingly the default. Search engines record every search to improve their performance, and have only recently begun to delete the oldest records on their servers. Social networks take the transient “tweets” and “status updates” of millions of users and turn them into 1 Chris Conley is the Technology and Civil Liberties Fellow of the ACLU of Northern California. The views expressed in this paper are those of the author and should not be ascribed to the ACLU-NC. The author is grateful for the assistance of Tamar Gubins and Hari O’Connell in preparing this paper. permanent records. Cell phones and email services generate logs of our conversations, however mundane and “forgettable” they might be. These records of the past can have consequences long after the event they record is forgotten to the human mind. A teacher's career may be ruined by a picture of her holding a drink at a party long ago. Candidates for a job may be evaluated based on their student activism years prior. Off-color remarks or former relationships may reappear in unexpected contexts. The preservation of even innocuous information can have disturbing consequences when that information is aggregated. Companies and governments can increasingly infer a great deal about our private lives from records of our “public” activities. For example, recent research has shown that sexual orientation can be predicted solely on the basis of a person's network of friends on Facebook. (Jernigan and Mistree 2008). With a far richer and deeper set of data available on the Internet, our intimate secrets may well be exposed to the world. Deletion and Privacy The concerns here should seem familiar, as they are the fundamental concerns that underlie arguments for privacy rights: without control over our own information, we are vulnerable to external forces—and this vulnerability affects the way we think, behave, and grow. Privacy, understood broadly, protects us from abuses of power and allows us to maintain our individuality and liberty (Schneier 2006). Indeed, observers have noted the risks of persistent data retention within the context of privacy. The Supreme Court recognized that we should not be forever under the shadow of past events or mistakes when it suggested that some information, even public information, should remain in "practical obscurity" (DOJ v. Reporters for Freedom of the Press, 1989). But due to today's vast data retention and search capabilities, we cannot simply rely on our personal information remaining hidden while we move on with our lives. As one scholar stated, "technologies are making the past easily and eternally present" (Allen 2008). Can we retain our privacy, and the freedoms that come with it, absent a counterbalance to this trend? Without some mechanism to delete records that have escaped our