The Right to Delete’s Infrastructure

clippy.jpgShould every keystroke you ever enter into your computer be preserved for inspection forever? Worry over that possibility has led to some very interesting scholarship, including Paul Ohm on the right to delete. Ohm has suggested that a right to delete is akin to the property right to destroy what one owns, for “when an owner loses control of a copy of her data, she loses the ability to dispose of or alter that data.” By contrast, Ohm notes Orin Kerr ‘s “worries that during the time after [data is captured] and before it is analyzed, the Fourth Amendment may not apply since the owner of the original drive has not been deprived of a possessory interest.”

I don’t know enough about the relevant Fourth Amendment law to comment on that dispute, but I do find Google’s recent commitment to deleting personally identifiable data from search history records (after about 2 years) to be an interesting development. Jack Balkin has noted various “infrastructural requirements” for the enjoyment of certain rights. He states:

[A]n infrastructure of free expression. . . . includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.

The right to delete appears to require commitment by search engines and other massive databases to allow some “cataloguee” discretion over what to retain and what to delete from records. The big question is whether the market will ultimately reward or punish search engines that put that infrastructure in place. As Elizabeth van Couvering has noted, current trends do not bode well for the development of public-minded search engines:

Resources in search engine development are overwhelmingly allocated on the basis of market factors or scientific/technological concerns. Fairness and representativeness, core elements of the journalists’ definition of quality media content, are not key determiners of search engine quality in the minds of search engine producers.

As with digital music, we may need Europe to lead the way. But perhaps there is one powerful constituency fully behind the right to delete:

From 2001 to 2004, the RNC’s highly unusual “document retention” policy was to intentionally destroy all e-mails that were more than 30 days old. In the summer of 2004, due to “unspecified legal inquiries,” the RNC changed its policy by allowing — but not mandating — the indefinite retention of e-mails sent and received by White House staffers on their RNC accounts.

Perhaps eventually technology to preserve data will become more transparent.

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

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