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Thursday, March 26, 2015

Erasing Adolescence

One of the urban legends of childhood is that individuals get a fresh start when they turn 18. Of course, like many urban legends, it's not entirely false. Policies linked to this fresh start include a separate juvenile court that offers enhanced confidentiality, including sealing records. The unsuccessful litigation by a blogger and the St. Louis Post-Dispatch to force the disclosure of Michael Brown's juvenile records (if there were any) in the wake of his shooting by Ferguson Police Officer Darren Wilson demonstrated that, even in a world where criminal records are increasingly available to anyone, we still strive to protect individuals from the disclosure of their youthful mistakes.

Of course, it was never true in the past that individuals got a clean slate at 18, and is decidedly not true today. Because we all carry pocket-sized cameras and video-recorders around, adolescence will more publicly haunt the young people of today than any other prior group. But it's not just recorded behavior that lives on. Thanks to facebook and other social media, young people say cringe-inducing things that either seemed like a good or funny thing to say at the time, or that don't reflect their beliefs as they mature and learn more about the world.

To minimize the downside of recorded adolescence, California passed a law (SB 568) in late 2013 that came to be called the online "Eraser Button." The law requires operators of websites, online services, or apps to permit a minor to remove, or to request and obtain removal of, content or information posted online. In short, it allows those under 18 to scrub the internet of embarrassing videos and pictures of themselves, or unsavory posts. 

It's true that most websites already have a delete button. At the same time, it can be quite difficult to delete content from the internet. Photos spread virally, and the wayback machine has already saved, according to its website, 456 billion web pages. But I'm less interested in the technical efficacy of the eraser button (though it can't be ignored when considering such policies). Instead, I'm interested in whether the ability to erase adolescence in a world devoted to record-keeping is good or even necessary.

In 2014, the Court of Justice of the European Union issues a ruling that, under certain conditions, individuals have a right to have search engines remove links with personal information about them. It's been dubbed the right to be forgotten. I'm no privacy scholar, but a right to be forgotten strikes me as facing a steeply uphill road in the United States. 

But maybe youth have a stronger claim to the right to be forgotten than adults. There's the historical commitment to greater (but not absolute) confidentiality for youthful mistakes. There's a continuing,(though diminishing) commitment to a fresh start. And I sense there's a broad recognition that the super-charged informational accountability imposed by the internet exceeds the appropriate amount of accountability for young people, even for things that people willingly post to the internet themselves (thus, the Eraser Button law in California).

This deserves much more space and thought than it's getting here, but it strikes me that were a right to be forgotten develop here, it will probably start (and possibly end) with adolescents.

Posted by Kevin Lapp on March 26, 2015 at 02:44 PM | Permalink


In my more pessimistic moments, I see all of law as an advantage for the savvy and well-heeled. But you're certainly right - those with resources and knowledge will be able to more successfully erase their adolescent indiscretions. There are plenty of high-cost companies that offer scrubbing services.

That alone may make laws like the Eraser Button more important, but only to the extent they facilitate low-cost accomplishment of erasing adolescence. And it may make it all the more important that it be ISPs that do the scrubbing, rather than making individuals go from website to website to website.

Posted by: Kevin Lapp | Mar 27, 2015 3:21:11 PM

It also strikes me as an advantage for the savvy and well-heeled. I can easily imagine a world in which some kids have their past misdeeds erased and many others do not.

Posted by: Matthew B. | Mar 27, 2015 8:37:02 AM

A very important issue, and very interesting post. As for RtbF: given the ideological biases of the Roberts Court, sure, the EU approach would not fly in the US. But it's hard to see how key parts of FCRA survive a 1st Amendment absolutist take on RtbF. There will be a good discussion of the topic at Loyola Chicago April 9th.

Posted by: Frank | Mar 26, 2015 4:39:03 PM

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