The Eraser Button Law in California

Privacy laws are getting pretty stringent and far-reaching in the European Union. In the United States, however, the debate is fueled by the fact that privacy laws often conflict with U.S. Constitutional protections of free speech. In 1995, the European Union signed into law the ‘European Data Protection Directive. It has since been revised to include a concept that was not adopted originally that has come to be known as the ‘right to be forgotten.’ This concept was conceived from the notion that individuals have a right to determine the development of their lives in an ‘autonomous way,’ without being perpetually stigmatized by things they did in the past. In the law, the EU gives individuals power to have erased from the internet information previously published on the web. In a response to this law, Governor Jerry Brown of California signed into law Senate Bill 568, which requires websites to provide to minors an online ‘erase button,’ giving them the ability to remove their own web posts.¬†

When a newspaper in Spain published negative information regarding his previous foreclosure, Mario Costeja Gonzalez requested that the paper remove it from its website. He noted that he had since remedied his situation and the foreclosure information no longer applied, but that it could cause still damage to his life because of its embarrassing nature. When the newspaper refused, he asked Google to remove it from its search engines. Google also refused, and Gonzalez fought both the newspaper and Google to have it removed. The newspaper’s information was permitted to remain, but the Court ruled that Google must remove it. And the concept of the ‘right to be forgotten’ was born.

In 2013, Common Sense Media CEO James Steyer wrote a letter to Governor Brown urging him to sign Senate Bill 568 that would improve the online and mobile experience for California’s minors. In the letter, Steyer noted that kids and teens who grow up surrounded by, and steeped in, technology and social media. This can provide, along with opportunities, many pitfalls that include privacy risks that can cause serious damage and even dangers. Steyer added that, because teens are especially apt to ‘self-reveal before they self-reflect,’ and this results in their posting of sensitive personal information without realizing the negative consequences. He also cited a Common Sense Media poll that found that 94 percent of adults and 92 percent of teens agreed that they should be able to request the deletion of all personal information held by search engines, social networks, and marketing companies after a specific time period. Governor Brown subsequently signed what has commonly been referred to as California’s ‘eraser button law.’

The first thing this law does is to prohibit websites, mobile or online apps, and online services that target minors as customers from marketing specified age-inappropriate or dangerous products and services to them. In addition, it permits minors to remove their content or information that they, themselves, personally posted on such websites and online services or mobile apps. It requires these sites to have, in essence, an ‘eraser button’ provided solely to minors because ‘too often, young people post information they later regret but can’t delete.’ Proponents of the law believe that Senate Bill 568 is a groundbreaking protection for children. The law also prohibits websites from targeting minors with advertisements, selling such things as tattoos and e-cigarettes. The law goes into effect in January of 2015.

This law has become one of the most vehemently debated laws in history. Opponents sharply contest the concept of the right to be forgotten, saying it combats the very essence of the First Amendment’s free speech protection. In fact, the Center for Democracy and Technology (CDT) recently released a statement citing the law’s broad and vague nature, adding that it would ‘trample the rights of other users,’ as well as violate the Constitution’s commerce clause. CDT President Leslie Harris states that such an ‘eraser button’ is not an ideal mechanism for implementing such a privacy law. Harris adds that America would be better off working to create comprehensive privacy protections for users based on ‘long-recognized principles such as transparency, data minimization, and individual access to data.’ Opponents also contend that such a law would limit minors’ access to constitutionally protected material. Additionally, because the law only provides for minors to delete information they have put on the internet and not information others have uploaded about them, it is not sufficient protection.

As more and more socializing and communication happens over the internet, more debate is likely to occur regarding online privacy laws and protections. While some consider such protections to be a vital part of modern technology, others see it as nothing but a ‘well-intentioned’ but misguided violation of free speech and free expression, with far-reaching ramifications.

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