NY Legislators Looking At Installing A Free Speech-Stomping 'Right To Be Forgotten'

from the order-your-Constitution-Doormat-today! dept

Wed, Mar 15th 2017 9:30am — Tim Cushing

New York state legislators apparently think the state's so cosmopolitan it may as well be Europe. As Adam Steinbaugh points out on Twitter, though, local comparisons aren't nearly as flattering.

New York legislature working diligently on overtaking California and Arizona on demonstrating least understanding of the First Amendment. https://t.co/ERjhw6Gphi

— Adam Steinbaugh (@adamsteinbaugh) March 14, 2017

[If you can't read/see the tweet]

New York legislature working diligently on overtaking California and Arizona on demonstrating least understanding of the First Amendment

There's nothing like being negatively compared to Arizona (remember the short-lived "First Amendment-protected activity is against the law" bill?) to take the gloss off the latest legislative ridiculousness. A new bill in the state legislature would make New York an outlier in constitutional protections (or no, it wouldn't, because it wouldn't survive a constitutional challenge, but for the sake of argument…). For no conceivable reason, the bill seeks to implement a New York-located "right to be forgotten." How that's supposed to work out when it's not the law in the other 49 states remains unexplained.

§ 50-f. Right to be forgotten act.

1. Upon the 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, and without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing. 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, especially when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester's professional, financial, reputational or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester's role with regard to the matter is central and substantial.

This is a horribly-written, horribly-broad, no good, terrible-all-around proposal. I have no idea what sort of information could be described as "inadequate" or "excessive," and the chances are information that's truly "irrelevant" will sink to the bottom of search engine rankings soon enough.

The bill does not define any of these terms (well... not in any meaningful way), nor does it address how information that fits its inadequate definitions will be removed from the web when a great deal of hosting services lie far outside the law's jurisdiction.

On top of that, there's the question of what's "material to public debate/discourse." Who gets to decide what's still material? The person bringing the complaint? If so, the law is entirely subjective and provides no affirmative defense for those facing charges/fines under the law. It's as if the legislators crafting this law looked at the DMCA and decided it just wasn't abusable enough. Citizens clearly deserve a second, more streamlined route for the removal of criticism, unflattering photos, or whatever doesn't further the marketing of a person's brand.

Then there's the prior restraint. (This bill is truly breathtaking in its sheer level of unconstitutional shittiness.) The law forbids those served with a "right to be forgotten" order from discussing the government's content removal demands.

...without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing.

It's not just prior restraint on those served with an order. It's prior restraint that effectively silences everyone in the law's jurisdiction. Site A's order and subsequent content removal can't be discussed anywhere on that site. And Site A can't point to other sites discussing Site A's content removal, even if these other sites lie outside the law's jurisdiction.

This bill should -- if there's any amount of brain activity in the NY legislature -- die a swift and unceremonious death. But nothing this bad stays dead forever. It will return in some other shape or form months or years later because some people truly believe information doesn't want to be free -- it wants to be forgotten.

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Filed Under: first amendment, gag order, new york, ny, prior restraint, right to be forgotten

48 Comments

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Ninja (profile), 15 Mar 2017 @ 8:39am

"if there's any amount of brain activity in the NY legislature"

I'd suspect someone with 0 brain activity would fare better than the ones behind this because they wouldn't present anything at all.

A helpful politician is the one that doesn't muddle stuff it seems.
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rw (profile), 15 Mar 2017 @ 8:44am

Re:
No, a helpful politician doesn't exist. It's a myth created by government to keep the sheep in line.
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Anonymous Anonymous Coward (profile), 15 Mar 2017 @ 8:53am

I might be for...
...a right to be forgotten law if the requester could be anyone, and the subject be (insert favorite in office brain dead politician or candidate here) and the result be a clean sweep of anything and everything about the subject so long as they hold or run for office. So much so that they might have trouble getting social services because their SS number has been wiped out.

But that might make a mess of our current political system.
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Anonymous Coward, 15 Mar 2017 @ 9:37am

Just how would Techdirt protect itself from the so called inventor of email if such a law existed?
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Roger Strong (profile), 15 Mar 2017 @ 9:44am

Techdirt: In 2008, former mayor Mike Bloomberg and Verizon signed (behind closed doors) a new franchise agreement promising "100% coverage" of FiOS across the city by 2014.

There's your example right there of irrelevant and excessive content which after a significant lapse in time is no longer material to current public debate or discourse when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester's professional, financial, reputational or other interests.
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Dan, 15 Mar 2017 @ 9:49am

I was waiting for this moment
So, based on this I can request credit reporting agencies to remove my bad credit information.

What a relief... Thank you NY
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Thad, 15 Mar 2017 @ 9:51am

Re: Re:
Yeah, Thomas Jefferson and Abraham Lincoln never helped anybody.
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Anonymous Coward, 15 Mar 2017 @ 10:04am

Re:
My reading of this is they wouldn't be able to if a judge decided this wasn't relevant. However, since the guy's suing them...
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Anonymous Coward, 15 Mar 2017 @ 10:10am

Publishers and digitezed newspapers
It would be almost impossible for publishers who put a digitized copy (PDF or JPEG images) of their print newspaper online to remove such content.
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btr1701 (profile), 15 Mar 2017 @ 10:20am

Worse
> New York state legislators apparently think the state's
> so cosmopolitan it may as well be Europe.

It's worse that Europe. Europe only requires the de-listing of articles from search engines so that the information isn't so easy to find. This NY law apparently requires the web sites hosting the actual content to take down anything someone doesn't like.

It's the difference between Europe requiring Google to de-list a TechDirt article from its search results, and NY requiring TechDirt to take down the actual article itself.
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btr1701 (profile), 15 Mar 2017 @ 10:21am

Re:
> Just how would Techdirt protect itself from the so called
> inventor of email if such a law existed?

Simple. Point out that TechDirt is a California company and as such has no obligation to follow the laws of New York.
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Nathan F (profile), 15 Mar 2017 @ 10:23am

This almost makes me want to go digging into this legislators background to see what it is they want to make disappear.
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btr1701 (profile), 15 Mar 2017 @ 10:23am

Re:
> There's your example right there of irrelevant and
> excessive content

And yet still completely, fully, 100% protected speech under the 1st Amendment to Constitution of the United States of America.
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hij (profile), 15 Mar 2017 @ 10:35am

Re:

Just how would Techdirt protect itself from the so called inventor of email if such a law existed?

That is the opposite problem. The inventor of Email is going out of his way to make sure nobody forgets he invented Email. Whatever his relationship is with email is something that the courts have to determine. Unfortunately, that will happen on techdirt's dime.
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Anonymous Coward, 15 Mar 2017 @ 10:36am

Re:
What does "individual" mean in New York? Courts have found corporations to legally be people. Could Verizon use this law?
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Roger Strong (profile), 15 Mar 2017 @ 10:41am

Re: Re:
If the law passes, "100% protected" means as much as Verizon's "100% coverage."
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Anonymous Coward, 15 Mar 2017 @ 10:58am

anyone really surprised about this? anything done in the EU comes here just as anything done here goes to the EU! the really scary thing is that these laws only protect the government and security service members, along with the rich and famous, whether in industry or media services! the aim being to stop ordinary people from finding out when those mentioned above make pricks of themselves and stop leaks from the likes of Snowden. however, the slightest little thing that an ordinary person does, whether true or not, will be plastered across the front page of every newspaper as well as every possible internet page too. the fact that life could be completely ruined for that person just because it can be, will be totally irrelevant! just another example of how the world is being turned into a giant corporation, run by the richest people on the Planet, while everyone else is persecuted and got not rights, all with the help of every bought and paid for government!!
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David, 15 Mar 2017 @ 11:09am

Re: Re:
But in a world of social media, streaming, and apps, perhaps he is now "irrelevant", "immaterial", and no longer material to public discourse - and we can scrub the net on information about him?
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donny, 15 Mar 2017 @ 11:10am

This is a good law, a great law ...
it is the best and greatestest law ever written.

Now, about those tweets you say I sent ...
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Ninja (profile), 15 Mar 2017 @ 11:11am

Re: Re: Re:
THEY WERE FILTHY COMMIES.
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Jordan Chandler, 15 Mar 2017 @ 11:18am

Who wrote this
Who wrote this "Law"? Do we get names? Can we ask them questions to determine their understanding of the constitution? How did they graduate law school? Why are they wasting the state's time with this garbage?

Honestly, do they hate free speech? \
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NotGonnaHappen, 15 Mar 2017 @ 11:24am

How would this effect WebArchive.org
Curious if these politicians know about or understand how archiving works?

Would they next start raiding libraries and burning books that reference them in anyway? Cause this looks like book burning in the modern age...
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Thad, 15 Mar 2017 @ 11:26am

Re: Re: Re: Re:
Nah, you're thinking of Franklin.

Why should I have to pay for a fire department? My house isn't even on fire!
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Anonymous Coward, 15 Mar 2017 @ 11:30am

Re: Re:
Yeah, this is what really gets me about a state trying to pass something like this. Even if somehow it could survive a constitutional challenge, how the fuck could they ever enforce it. All anyone would have to do to get around it is move their servers out of that state.

(comparably all any one has to do to get around some nation's right to be forgotten law is move their servers out of that nation)
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orbitalinsertion (profile), 15 Mar 2017 @ 11:33am

Re: Who wrote this
They have already claimed their Right Not To Be Known At All. Further, their Right To Forget things like the Constitution and all other manner of hindrances allowed them to innovate in this legal space.
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Anonymous Coward, 15 Mar 2017 @ 12:07pm

Re:
Yeah I suspect this is being pushed by politicians that have done or plan to do stupid things. May be better to have a law against invoking the Streisand effect. Then no-one will ever hear of your mistakes again.
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ECA (profile), 15 Mar 2017 @ 12:10pm

sARCASM MODE ON..
wow, I can request that ALL my past Illegal activities NOT be Published??
Murder, rape, and Child molesters, are going to have a PARTY..
ANY site that places info on these subjects will be GONE...

LOVE IT.,.
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That Anonymous Coward (profile), 15 Mar 2017 @ 12:14pm

My mind works in odd ways, we knew this.
I would question what the sponsor of this bill did that they desperately want to hide.

The easiest solution is - Don't sleep with hookers rather than try to make a law to let you try to hide it.
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Anonymous Coward, 15 Mar 2017 @ 1:20pm

For those that don't know it, NY State has some of the most crooked politicians in the country.

The following NY Politicians have been convicted of crimes while in their office.

Majority Leader of the New York State Senate Dean Skelos (R) convicted of federal corruption charges. (2015)[119][120]
Speaker of the New York State Assembly Sheldon Silver (D) convicted of federal corruption. (2015)[121]
Deputy Majority Leader of the New York Senate Tom Libous (R) was convicted of lying to FBI. (2015)[122]
Minority Leader of the New York State Senate John L. Sampson (D) was convicted of obstructing justice and making false statement. (2015)[123]
Majority Leader of the New York State Senate Malcolm Smith (D) was found guilty in federal court of conspiracy, wire fraud, bribery and extortion for trying to bribe a Republican Party official to let him onto the Republican ballot in the 2013 New York City mayoral race. (2014)[124]
State Assemblywoman Gabriela Rosa (D) sentenced to a year in jail for entering into a sham marriage in order to gain U.S. citizenship. (2014)[125]
State Assemblyman William Boyland, Jr. (D) convicted of bribery (2014)[126]
State Assemblyman Eric Stevenson (D) found guilty of bribery, conspiracy and other related charges. (2014)[127]
State Assemblyman Nelson Castro (D) convicted of perjury (2013)[128]
State Senator Shirley Huntley (D) convicted of mail fraud.[129] She was sentenced to one year and a day in prison. (2013)[130][131]
State Assemblyman Vito J. Lopez (D) fined $330,000 after groping, intimidating and manipulating young female staffers. (2013)[132]
Majority Leader of the New York State Senate Pedro Espada Jr. (D) On May 14, 2012, a federal jury found Espada guilty of embezzling money from federally funded healthcare clinics, after 11 days of deliberation he was sentenced to five years in prison. (2012)[133]
State Senator Vincent Leibell (R) found guilty of felony bribery, tax evasion, and obstruction of justice charges related to $43,000 in cash kickbacks he took from 2003 to 2006. (2012)[134][135]
State Senator Nicholas Spano (R), Spano pleaded guilty to a single count of tax evasion. He was sentenced to 12 to 18 months in federal prison. (2012)[136]
New York State Comptroller Alan Hevesi (D), was convicted on charges surrounding a "pay to play" scheme regarding the New York State Pension Fund, and was sentenced to 1–4 years. (2011)[137]
State Senator Carl Kruger (D) resigned his seat and pleaded guilty to charges of corruption and bribery. (2011)[138]
State Senator Efrain Gonzalez Jr. (D) was convicted of fraud and embezzling $400,000 from the West Bronx Neighborhood Association Inc. and was sentenced to seven years in federal prison (2010)[139]
State Health Commissioner Antonia Novello (R) pleaded guilty to depriving the taxpayers of $48,000 by making her staff do personal chores for her, such as taking her shopping and picking up her dry cleaning. Her plea deal called for 250 hours of community service at an Albany health clinic, $22,500 in restitution and a $5,000 fine. (2009)[140][141]
Local[edit]
Mayor of Mount Vernon Ernie Davis (D) was convicted on federal misdemeanor tax evasion. (2014)[142]
New York City Council member Dan Halloran (R) convicted of taking bribes and orchestrating payoffs. (2014)
New York City Council member Larry Seabrook (D) On February 9, 2010, a federal grand jury indicted Seabrook on 13 counts of money laundering, extortion, and fraud.[143] Seabrook was convicted on 9 charges (2012).[144]
President of the New York City Council Andrew Stein (D) was convicted of tax evasion regarding a Ponzi scheme (2010).[145]
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btr1701 (profile), 15 Mar 2017 @ 1:32pm

Re: Re: Re:
> If the law passes, "100% protected" means as much as
> Verizon's "100% coverage."

Not sure where you went to school, but if you paid for it, you ought to consider asking for a refund.

Civics for Dummies:

State laws do not trump the U.S. Constitution.
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Anonymous Coward, 15 Mar 2017 @ 1:36pm

Re:
Seems about right. Hillary was a NY Politician.
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Anonymous Coward, 15 Mar 2017 @ 1:50pm

Re: Re: Re: Re:
Someone has not been keeping up with the last century or so of American politics and law enforcement.

I have some free toilet paper for you sir... please ignore the writings and signatures on it, they have been there for a while and they won't come off...

What's that? O yea, ignore the shit already on there... surely you understand you will not be the first person needing to wipe their ass with something...
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JoeCool (profile), 15 Mar 2017 @ 1:57pm

Re: Re: Re: Re:
Um - you're reading his comment wrong. He was saying that if the law passes, it will protect 100% of free speech in the same way that Verizon will provide 100% coverage for FiOS.
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Anonymous Coward, 15 Mar 2017 @ 3:08pm

Re: Re:
She lost, get over it.
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ECA (profile), 15 Mar 2017 @ 4:26pm

Re:
hOW MANY still IN jAIL, OR SERVED no time??
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Eldakka (profile), 15 Mar 2017 @ 4:40pm

Re: Re: Re: Re: Re:
Because if you don't, it soon will be.
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Thad, 15 Mar 2017 @ 4:42pm

Re: Re:
Remind me: what state is Trump from, again?
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Eldakka (profile), 15 Mar 2017 @ 4:49pm

Re:
A politician is a criminal that hasn't been caught yet.
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NickM, 15 Mar 2017 @ 7:14pm

Re: Re:
Being caught often does not stop them from continuing to be politicians.
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TechDescartes (profile), 15 Mar 2017 @ 10:47pm

Re:
He wouldn't use it. He claims to be entitled to $15M plus making the posts go away. This law does nothing to help him make a claim for the $15M.
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Anonymous Coward, 16 Mar 2017 @ 1:19am

Re: sARCASM MODE ON..
Nope, there was an exception for that, but I suppose it would make spam blacklists illegal... the more spam for everyone act.
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Anonymous Coward, 16 Mar 2017 @ 5:27am

Re: Re: Re: Re:
Then explain to me how civil forfeiture still exists
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Cephei, 16 Mar 2017 @ 5:57am

Re: Re: Re:

She lost, get over it.

We all lost. Get used to it.
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Cephei, 16 Mar 2017 @ 6:02am

Conspiracy
Shouldn't conspiracy to violate the law be illegal? Isn't The Constitution the supreme law of the land? Shouldn't conspiring to violate it be punished accordingly?
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Anonymous Coward, 16 Mar 2017 @ 6:23am

There was a Chinese guy (not sure if he was a National or a Chinese American) that was convicted and served time for bribing a US Senator. I think it was Menendez. So the guy went to prison. No charges were ever brought against the Senator.

That is how it works.
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That One Guy (profile), 16 Mar 2017 @ 7:04am

Re:
Balderdash, I'm sure that a bunch of politicians that would really like if if they could get their sordid history removed as not important anymore has absolutely nothing to do with a bunch of politicians trying to pass a law that would allow one to be able to force information to be removed online.
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That One Guy (profile), 16 Mar 2017 @ 7:17am

Re: Re: Re:
(comparably all any one has to do to get around some nation's right to be forgotten law is move their servers out of that nation)

Which, as insane as it is, wouldn't necessarily help so long as a company has any real presence in the country and is therefore under it's jurisdiction. Both France and Canada have argued that Google for example, when presented with a 'right to re-write history' order has an obligation to de-list the content globally, such that it's not just blocked in the country where the order originates, but everywhere.
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Anonymous Coward, 16 Mar 2017 @ 6:22pm

One of my favorite quotes from the movie 1776:

Lewis Morris: Mr. President, have you ever been present at a meeting of the New York legislature?
[Hancock shakes his head "No"]
Lewis Morris: They speak very fast and very loud, and nobody listens to anybody else, with the result that nothing ever gets done.

As a resident of NY, reading about this makes me wish we could go back to *those* days when nothing got done, rather than today's stupidity...
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