Yes, Our Constitution Might Be on the Side of Facebook

In Europe, you have the right to be forgotten. In America, you may only have the right to be remembered.

"Oh golly, does this mean I should still run for president?" Photo: Official White House, Pete Souza.

Unless you’ve spent the last few months experimenting with a hip, well timed social media cleanse, you’ve likely observed Facebook vehemently promoting recent changes to its terms of service. In conjunction with these changes, Mark Zuckerberg, famed boy billionaire and Facebook CEO, has written multiple posts that attempt to assuage the rising concerns about private information being inconspicuously made public on America’s favorite social media site. Even if you’re on that aforementioned social-media cleanse, you know why Facebook is suddenly so concerned with privacy: Cambridge Analytica. After the data-collection firm with ties to the Trump campaign was found to be collecting and maintaining records of thousands of users’ data in violation of Facebook’s terms of service, the world went a little crazy.

When it became increasingly apparent the extent to which Facebook and its various apps are, and were, monitoring our online lives, Congress got involved. If you had the pleasure of watching any of Zuckerberg’s testimony to the Commerce and Judiciary committees — and oh, boy, was it a treat! — you likely got the keen sense that our nations’ political leaders were mad about something, they just weren’t really sure what thing it was. Or how it worked. Or what was to be done about it. What we learned was that most senators, who are trusted to address and protect our most sacred rights as citizens, don’t understand the difference between emails and encrypted messages, or even between Facebook and Twitter. While the senators kept threatening to slap government regulations on Facebook, it became increasingly clear that they had no idea what those regulations would be because they didn’t understand the underlying technology. Almost every response from Zuckerberg started with “Facebook already does that, senator.” Oh, boy, indeed.

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None of this is to say that the instinct to regulate found in these historically old senators is wrong, or that social media, as an industry, does not desperately need regulations that go beyond the merely self-imposed. Social media entrepreneurs like Zuckerberg have a long history of using their technology for unsavory means first and apologizing later. Facebook epitomizes the cliché “it’s better to beg forgiveness than ask permission,” despite insistent reminders that they do. This game of hide-the-ball-till-you’re-caught only works when your rules are self-enforced. Someone should finally step in.

Yet the hesitation from Congress to spell out and enforce actual regulations on Facebook’s data harvesting likely stems not just from technological ignorance, which is real, but from a real constitutional conundrum. We all want Facebook to stop taking and profiteering off our personal information, but the company is not lying when it says it asked for our permission. How can we be concerned with privacy when we’re deliberately inviting publicity into our personal lives? Maybe what we’re really asking for is the right to be forgotten, the right to tell social media platforms that even when we use an application for a purpose, we want it to let go of that information upon completion of that purpose.

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Europe has laws to protect this “right to be forgotten.” It stems from a 2014 European Union court decision basically holding that members of the public have a right to send requests to search engines to have certain data removed from their results. Whether the search engines must abide by these requests depends on still-vague standards of whether the information is considered current and relevant to the public. Information that is found to be outdated or incorrect must be removed. Starting next month, these standards will go even further: all social media accounts in the EU, including Facebook, must allow users to export all their data and delete it. They can delete embarrassing posts from their youth, or data on personal interests and preferences, and it will criminalize intentionally or recklessly creating situations in which someone can be identified from anonymized data. All this will be the case even if a user once checked a box that granted others the right to use their personal information. In the age of viral this and retweet that, people will finally have the cathartic right to return to obscurity should they choose to do so.

It all sounds like the perfect solution. Can Americans have the right to be forgotten, too? Legal scholars aren’t so sure. Europe, for one thing, doesn’t have a First Amendment to worry about; some would argue that the right to be forgotten is actually the right of the government to suppress speech in disguise. Speaking to The Washington Post, UCLA School of Law Professor Eugene Volokh argues that the right to be forgotten is really “the power to force people (on pain of financial ruin) to stop talking about other people, when some government body decides that they should stop.” The Electronic Frontier Foundation, which advocates for digital rights, argues that “the right to publish information on matters of public interest… acquire[d] legally, even in the face of significant interests relating to the privacy of the interested parties,” would be fundamentally offended by the adoption of any right to disappear.

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The US Supreme Court has been downright skittish on the right to be forgotten, and hasn’t ruled on its constitutional application. One could create an argument that our social media information falls under our constitutional right to privacy, or isn’t the kind of speech meant to be protected by the First Amendment. But until this seemingly inevitable and herculean issue is addressed by our judicial system, America will be left high and dry, with the perfect antidote to Facebook’s dastardly deeds kept out of reach by our most sacred legal document. How tragically ironic.

In the meantime, Facebook has already begun to cozy up to the idea of privately adopting the right to be forgotten in their terms of service. Nice try, but it smacks of an ex caught cheating and then promising not to do it again. Fat chance. Until we get real protections from our lawmakers — and given their track record I wouldn’t hold your breath — the best bet might be to make sure you know what you’re signing up for when using a social media platform. To that end, might I suggest TSDOR (Terms of Service; Didn’t Read), a website that reads a platform’s terms of service for you, ranking it A to F. It provides a bullet-point summary of the terms, so you can know what you’re agreeing to without your eyes bleeding out from boredom. At least you’ll know what you’re giving away. It’s only a band-aid for a gaping wound, but America has gotten used to that lately, amiright? LOL. *Sad cringe* :-(