Consumer Group Asks FTC to Adopt EU’s Right to be Forgotten

Last year we wrote about the EU’s adoption of an individual’s “right to be forgotten”, which gives Europeans the right to require search engines to remove information about them from search results for their own names, if the information is inaccurate, inadequate, irrelevant or excessive. We also wrote that neither Congress nor the U.S. courts have shown much of an appetite for adopting a stance similar to the EU, so there was little chance that the right to be forgotten would be established in the United States. This is still the case, but there appears to be some (albeit small) momentum building among consumer groups and companies to take steps toward the EU approach.

On July 7th, a consumer advocacy group, Consumer Watchdog, filed a formal complaint with the Federal Trade Commission, arguing that Internet users in the United States should also have a similar right as EU citizens have available to them. Consumer Watchdog argues that Google’s current practices are both “unfair and deceptive, violating Section 5 of the Federal Trade Commission Act.” The letter urges the FTC to “investigate and act” on Google’s practices.

Separately, Google already has taken steps in the U.S. to remove certain types of information at the request of users. However, the types of information are fairly limited and in most cases it is very clear when the information should be removed in compliance with Google’s policies. For example, social security numbers can be removed. Google also has a policy that permits the removal of offensive images, which is more subjective but it is set at such a base level of “offensive” that it still offers a fairly bright line test (e.g., child sexual abuse imagery and, more recently, “revenge porn”). At the time of our post last year, Google had received 91,000 requests to remove links in the EU. Since then Google has evaluated over 1,000,000 URLs, which does not include the number of requests from individuals that require more information in order for Google to even perform the evaluation. The volume of links that Google is evaluating is not slowing down, and it would no doubt spike tremendously if the “right to be forgotten” was implemented in the United States.

While the letter of one consumer advocacy group and limited action by Google should not be construed as a harbinger of change in the United States, it does reflect growing concern among U.S. consumers about how their information is shared and used. It addition, the issue raised by Consumer Watchdog highlights one of the many difficulties that we face in establishing a global privacy framework. With many companies having global footprint with operations and consumers located in multiple countries, there continues to be an inherent friction and ambiguity about the “right” policies to put into place with respect to the treatment of data.