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

Free Speech

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.

Filed Under: first amendment, gag order, new york, ny, prior restraint, right to be forgotten