New York

In 2017, New York lawmakers proposed a bill that would amend civil rights law and civil practice law and rules, and create the Right to be Forgotten Act. This bill requires search engines, indexers, publishers and any other persons or entities which make available, on or through the internet or other widely used computer-based network, program or service, information about an individual to remove such information, upon the request of the individual, within thirty days of such request.

New York State Senate Assembly Bill A5323, 2017-2018¹ proposes that upon a 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.[…] 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.

This ambitious law incorporates elements of the European right to be forgotten law; while EU courts haven’t always cared about whether information is “accurate” or not in the context of the right to be forgotten, accuracy is one of the EU factors. The proposed New York law also echoes EU law by listing the factors of “irrelevant” and “excessive,” as well as the “outdated” factor with its reference to “significant lapse in time from first publication.” For GDPR enthusiasts this is super exciting.

Sadly, the exceptions of New York’s proposed right to be forgotten act puts the right to erasure out of reach for the New York residents who need it most. The proposed New York law explicitly states that it aims to provide relief for individuals who have had financial difficulties and whose reputations have been damaged. This, however, is “with the exception of content related to convicted felonies.” These are the individuals whose experience prompted the UK and France to come up with the right to be forgotten, to give these individuals a chance to erase the digital record of their past convictions and build new lives. Here we see the philosophical rift between the two continents, and something more sinister. The North American carceral system does not even pretend to rehabilitate. Instead, it oppresses and punishes and stamps and marks individuals impacted by the criminal legal system. Most of the time, formerly convicted individuals are forgotten, but they are remembered when a right given to others is from them affirmatively deprived.

This bill is still sitting in the New York Senate. If that part can be amended, it must. It may be that New York lawmakers put that sentence “with the exception of content related to convicted felonies” in the bill so that it would pass, knowing that with all the hysteria about supposed rises in crime - hysteria fueled by precisely those algorithms throwing around data we want to erase - it is doubtful other lawmakers will vote it in. We hope the bill passes, amended, but better it pass without amendment than not pass at all.

On a more positive note, the proposed New York Law includes damages, and casts a wide net. Section 3 states that “this act shall apply to all articles and other content that either is presently being made available on the internet […] regardless of whether the respondent search engine, indexer, publisher, or other person or entity is located within or without the state of New York or the United States of America, to the fullest extent permitted by the United States Constitution.”

If you have any information about this bill or ideas about how to get the “convicted felonies” exception taken out, please reach out to me. My contact information is in the “About” section of this website.

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