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NY Legislators Looking At Installing A Free Speech-Stomping 'Right To Be Forgotten'

from the order-your-Constitution-Doormat-today! dept

New York state legislators apparently think the state’s so cosmopolitan it may as well be Europe. As Adam Steinbaugh points out on Twitter, though, local comparisons aren’t nearly as flattering.

[If you can’t read/see the tweet]

New York legislature working diligently on overtaking California and Arizona on demonstrating least understanding of the First Amendment

There’s nothing like being negatively compared to Arizona (remember the short-lived “First Amendment-protected activity is against the law” bill?) to take the gloss off the latest legislative ridiculousness. A new bill in the state legislature would make New York an outlier in constitutional protections (or no, it wouldn’t, because it wouldn’t survive a constitutional challenge, but for the sake of argument…). For no conceivable reason, the bill seeks to implement a New York-located “right to be forgotten.” How that’s supposed to work out when it’s not the law in the other 49 states remains unexplained.

§ 50-f. Right to be forgotten act.

1. Upon the request from an individual, all search engines, indexers, publishers and any other persons or entities that make available, on or through the internet or other widely used computer-based network, program or service, information about the requester, shall remove information, articles, identifying information and other content about such individual, and links or indexes to any of the same, that is “inaccurate”, “irrelevant”, “inadequate” or “excessive” within thirty days of such request, and without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing. For purposes of this section, “inaccurate”, “irrelevant”, “inadequate”, or “excessive” shall mean content, which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester’s professional, financial, reputational or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester’s role with regard to the matter is central and substantial.

This is a horribly-written, horribly-broad, no good, terrible-all-around proposal. I have no idea what sort of information could be described as “inadequate” or “excessive,” and the chances are information that’s truly “irrelevant” will sink to the bottom of search engine rankings soon enough.

The bill does not define any of these terms (well… not in any meaningful way), nor does it address how information that fits its inadequate definitions will be removed from the web when a great deal of hosting services lie far outside the law’s jurisdiction.

On top of that, there’s the question of what’s “material to public debate/discourse.” Who gets to decide what’s still material? The person bringing the complaint? If so, the law is entirely subjective and provides no affirmative defense for those facing charges/fines under the law. It’s as if the legislators crafting this law looked at the DMCA and decided it just wasn’t abusable enough. Citizens clearly deserve a second, more streamlined route for the removal of criticism, unflattering photos, or whatever doesn’t further the marketing of a person’s brand.

Then there’s the prior restraint. (This bill is truly breathtaking in its sheer level of unconstitutional shittiness.) The law forbids those served with a “right to be forgotten” order from discussing the government’s content removal demands.

…without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing.

It’s not just prior restraint on those served with an order. It’s prior restraint that effectively silences everyone in the law’s jurisdiction. Site A’s order and subsequent content removal can’t be discussed anywhere on that site. And Site A can’t point to other sites discussing Site A’s content removal, even if these other sites lie outside the law’s jurisdiction.

This bill should — if there’s any amount of brain activity in the NY legislature — die a swift and unceremonious death. But nothing this bad stays dead forever. It will return in some other shape or form months or years later because some people truly believe information doesn’t want to be free — it wants to be forgotten.

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Comments on “NY Legislators Looking At Installing A Free Speech-Stomping 'Right To Be Forgotten'”

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48 Comments
Anonymous Anonymous Coward (profile) says:

I might be for...

…a right to be forgotten law if the requester could be anyone, and the subject be (insert favorite in office brain dead politician or candidate here) and the result be a clean sweep of anything and everything about the subject so long as they hold or run for office. So much so that they might have trouble getting social services because their SS number has been wiped out.

But that might make a mess of our current political system.

Anonymous Coward says:

Re: Re: Re:

Yeah, this is what really gets me about a state trying to pass something like this. Even if somehow it could survive a constitutional challenge, how the fuck could they ever enforce it. All anyone would have to do to get around it is move their servers out of that state.

(comparably all any one has to do to get around some nation’s right to be forgotten law is move their servers out of that nation)

That One Guy (profile) says:

Re: Re: Re: Re:

(comparably all any one has to do to get around some nation’s right to be forgotten law is move their servers out of that nation)

Which, as insane as it is, wouldn’t necessarily help so long as a company has any real presence in the country and is therefore under it’s jurisdiction. Both France and Canada have argued that Google for example, when presented with a ‘right to re-write history’ order has an obligation to de-list the content globally, such that it’s not just blocked in the country where the order originates, but everywhere.

hij (profile) says:

Re: Re:

Just how would Techdirt protect itself from the so called inventor of email if such a law existed?

That is the opposite problem. The inventor of Email is going out of his way to make sure nobody forgets he invented Email. Whatever his relationship is with email is something that the courts have to determine. Unfortunately, that will happen on techdirt’s dime.

Roger Strong (profile) says:

Techdirt: In 2008, former mayor Mike Bloomberg and Verizon signed (behind closed doors) a new franchise agreement promising "100% coverage" of FiOS across the city by 2014.

There’s your example right there of irrelevant and excessive content which after a significant lapse in time is no longer material to current public debate or discourse when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester’s professional, financial, reputational or other interests.

Anonymous Coward says:

Re: Re: Re:2 Re:

Someone has not been keeping up with the last century or so of American politics and law enforcement.

I have some free toilet paper for you sir… please ignore the writings and signatures on it, they have been there for a while and they won’t come off…

What’s that? O yea, ignore the shit already on there… surely you understand you will not be the first person needing to wipe their ass with something…

btr1701 (profile) says:

Worse

> New York state legislators apparently think the state’s
> so cosmopolitan it may as well be Europe.

It’s worse that Europe. Europe only requires the de-listing of articles from search engines so that the information isn’t so easy to find. This NY law apparently requires the web sites hosting the actual content to take down anything someone doesn’t like.

It’s the difference between Europe requiring Google to de-list a TechDirt article from its search results, and NY requiring TechDirt to take down the actual article itself.

Anonymous Coward says:

anyone really surprised about this? anything done in the EU comes here just as anything done here goes to the EU! the really scary thing is that these laws only protect the government and security service members, along with the rich and famous, whether in industry or media services! the aim being to stop ordinary people from finding out when those mentioned above make pricks of themselves and stop leaks from the likes of Snowden. however, the slightest little thing that an ordinary person does, whether true or not, will be plastered across the front page of every newspaper as well as every possible internet page too. the fact that life could be completely ruined for that person just because it can be, will be totally irrelevant! just another example of how the world is being turned into a giant corporation, run by the richest people on the Planet, while everyone else is persecuted and got not rights, all with the help of every bought and paid for government!!

Anonymous Coward says:

For those that don’t know it, NY State has some of the most crooked politicians in the country.

The following NY Politicians have been convicted of crimes while in their office.

Majority Leader of the New York State Senate Dean Skelos (R) convicted of federal corruption charges. (2015)[119][120]
Speaker of the New York State Assembly Sheldon Silver (D) convicted of federal corruption. (2015)[121]
Deputy Majority Leader of the New York Senate Tom Libous (R) was convicted of lying to FBI. (2015)[122]
Minority Leader of the New York State Senate John L. Sampson (D) was convicted of obstructing justice and making false statement. (2015)[123]
Majority Leader of the New York State Senate Malcolm Smith (D) was found guilty in federal court of conspiracy, wire fraud, bribery and extortion for trying to bribe a Republican Party official to let him onto the Republican ballot in the 2013 New York City mayoral race. (2014)[124]
State Assemblywoman Gabriela Rosa (D) sentenced to a year in jail for entering into a sham marriage in order to gain U.S. citizenship. (2014)[125]
State Assemblyman William Boyland, Jr. (D) convicted of bribery (2014)[126]
State Assemblyman Eric Stevenson (D) found guilty of bribery, conspiracy and other related charges. (2014)[127]
State Assemblyman Nelson Castro (D) convicted of perjury (2013)[128]
State Senator Shirley Huntley (D) convicted of mail fraud.[129] She was sentenced to one year and a day in prison. (2013)[130][131]
State Assemblyman Vito J. Lopez (D) fined $330,000 after groping, intimidating and manipulating young female staffers. (2013)[132]
Majority Leader of the New York State Senate Pedro Espada Jr. (D) On May 14, 2012, a federal jury found Espada guilty of embezzling money from federally funded healthcare clinics, after 11 days of deliberation he was sentenced to five years in prison. (2012)[133]
State Senator Vincent Leibell (R) found guilty of felony bribery, tax evasion, and obstruction of justice charges related to $43,000 in cash kickbacks he took from 2003 to 2006. (2012)[134][135]
State Senator Nicholas Spano (R), Spano pleaded guilty to a single count of tax evasion. He was sentenced to 12 to 18 months in federal prison. (2012)[136]
New York State Comptroller Alan Hevesi (D), was convicted on charges surrounding a “pay to play” scheme regarding the New York State Pension Fund, and was sentenced to 1–4 years. (2011)[137]
State Senator Carl Kruger (D) resigned his seat and pleaded guilty to charges of corruption and bribery. (2011)[138]
State Senator Efrain Gonzalez Jr. (D) was convicted of fraud and embezzling $400,000 from the West Bronx Neighborhood Association Inc. and was sentenced to seven years in federal prison (2010)[139]
State Health Commissioner Antonia Novello (R) pleaded guilty to depriving the taxpayers of $48,000 by making her staff do personal chores for her, such as taking her shopping and picking up her dry cleaning. Her plea deal called for 250 hours of community service at an Albany health clinic, $22,500 in restitution and a $5,000 fine. (2009)[140][141]
Local[edit]
Mayor of Mount Vernon Ernie Davis (D) was convicted on federal misdemeanor tax evasion. (2014)[142]
New York City Council member Dan Halloran (R) convicted of taking bribes and orchestrating payoffs. (2014)
New York City Council member Larry Seabrook (D) On February 9, 2010, a federal grand jury indicted Seabrook on 13 counts of money laundering, extortion, and fraud.[143] Seabrook was convicted on 9 charges (2012).[144]
President of the New York City Council Andrew Stein (D) was convicted of tax evasion regarding a Ponzi scheme (2010).[145]

Anonymous Coward says:

One of my favorite quotes from the movie 1776:

Lewis Morris: Mr. President, have you ever been present at a meeting of the New York legislature?
[Hancock shakes his head “No”]
Lewis Morris: They speak very fast and very loud, and nobody listens to anybody else, with the result that nothing ever gets done.

As a resident of NY, reading about this makes me wish we could go back to *those* days when nothing got done, rather than today’s stupidity…

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