[Author's Note: White isn't the only possible American basis for a right to be forgotten]
Recently, there has been some push in Congress for some kind of bill to give internet users greater privacy rights. First, we saw Senator Leahy (D-VT) and Hatch (R-UT) release S.3804: Combating Online Infringement and Counterfeit Act (COICA). (While COICA does not explicitly address privacy concerns it broadens the ability of U.S. based law enforcement to engage with internet actors). Then, just a few weeks ago, Senator Kerry (D-MA) released a draft of a new privacy bill. Kerry's as-of-yet unnamed privacy bill has several provisions similar to the broad outlines of the European right to be forgotten. (Infosec Island has a great plain language summary of Kerry's bill).
These movements in Congress may provide a new, federal, basis for an American right to be forgotten. But, even without new federal involvement, there is some basis in White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir. 1993), to infer a future the rise of an American right to be forgotten.
White v. Samsung stands as a core basis for the right of publicity. In White Vanna White sued Samsung for running an advertisement that showed a robot doing her job on what appeared to be the set of Wheel of Fortune. The 9th Circuit, over Judge Kozinski's dissent, held Samsung liable. Judge Kozinski, in his dissent, argues that "every famous person now has an exclusive right to anything that reminds the viewer of her." While it is not clear the 9th Circuit's expansion of the right of publicity was that broad the 6th and 10th Circuits have found cause to agree with Judge Kozinski. (ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003); Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996)). Both the 6th and 10th Circuits note that the holding in White has significant interplay with the First Amendment.
What does all this mean for the internet? It's hard to say. But, it's possible that, at least in the 9th Circuit, a court might find cause to expand the right of personality to the everyday internet user, specifically in the commercial context. As a result, those pesky tailored ads might violate the user's rights, especially if they specifically incorporate information about the user.
Tailored ads are a difficult issue to tackle. On one hand, tailored ads are economically efficient. Companies are willing to pay more money to make sure their target demographic hears their message. Advertising engagement rings to married people, for instance, is a waste of money. Married people don't need and won't buy engagement rings. Being able to target unmarried men in committed relationships, however, would be a goldmine for Zales, Kay, Jarred, and every other jewelery company. And, consumers would probably like advertising more (or, inversely, hate advertising less) if they were only exposed to advertisements that were relevant to them. So it only makes sense that the push for tailored ads continues to gain ground.
On the other hand, Minority Report-esque ads are deeply disturbing. But companies seem determined to make those ads a reality. See the Corning's ad below:
There's something a little chilling about walking into a store and having a robotic customer service agent recognize you. It makes sense that there would be push back against this form of technological change.
While White alone seems to provide good cover for internet user's right to be forgotten as far as advertisers go it doesn't really cover non-commercial transactions. In non-commercial transactions, the extent of the basis for a right to be forgotten depends on the legal theory under which the internet is approached. Courts may follow the 6th and 10th Circuits and use a 'speech' based theory or they may follow a 'property' theory like the New Hampshire Supreme Court in State v. Nelson, 150 N.H. 569, 571, 842 A.2d 83, 85 (2004). (There are, of course, other theories about digital "things" but I won't address them here. For further reading about "things" see Michael J. Madison, Law As Design: Objects, Concepts, and Digital Things, 56 Case W. Res. L. Rev. 381, 385 (2005)).
A property theory, as in Nelson, depends on the categorization of "things" on the internet as property, rather than "speech." In essence, content is chattel. In non-legalese, that means that the content you post to the web is something you "own" like your car. If someone comes and takes your car without your permission you can sue them. It is your car and, generally, you can control who uses it. Essentially, Nelson said the same thing except about photographic content. The defendant, Nelson, took several photographs laying on top of a dresser and copied them. The court found that the owner of the photographs had a property right in the content of the photographs.
While Nelson was a criminal case the reasoning seems applicable to civil cases as well. But, it is not clear how far that reasoning extends. Does it include just photographs (and, presumably, videos (which are just a series of photographs)) or does it include other kinds of content as well?
Even if Nelson includes other content it only protects content that users own. So, when Nelson is cobbled together with White internet users would only have a right to be forgotten insofar as commercial entities and misappropriation of content is concerned. Cyber-Bulling Statutes might expand that right to some degree but even with their inclusion information published about someone would not necessarily be subject to forgetfulness. At its extreme, the patchwork of rights established by White are still much more limited than the European Union's (EU's) right to be forgotten. The central concern at the heart of the EU's right to be forgotten, the publication of content about a person is not really addressed by this line of cases.