The Right to Forget and the Right to Remember

Human Rights archiving was a major theme present throughout the class when I was enrolled in IS 431: American Archives and Manuscripts. In keeping with my interest in home movies, and also influenced by my simultaneous enrollment in IS 289: Intellectual Property Law, I chose to focus on the issue of privacy in archives.

Oftentimes items in archives, such as home movies, can contain materials of a sensitive nature, and archivists must be attuned to these issues in order to avoid causing trauma to archive subjects. Items in archives are meant to last forever, but should all material be kept forever, or should subjects be granted the “right to be forgotten?”

The Right to Forget and the Right to Remember: Defining Privacy, and Encouraging Accountability

When it comes to privacy, the E.U. and the U.S. have different ideas of what should be private and different laws on how to protect those privacy rights. By looking at different laws in these two countries, one can gain an understanding

Howard University Ferguson Protest
Howard University Ferguson Protest, Photo from Flickr user Debra Sweet

of what those ideas are. While the E.U. is oftentimes said to be ahead of the U.S. in terms of its privacy legislation, laws on privacy can be restricting, especially when the records they are obscuring can be used to increase transparency and accountability. In her book, Without Consent, Heather MacNeil states that there are three factors to consider in the debate over the legitimacy of the right to privacy:

  • “How do we define privacy?”
  • “To what extent is this moral right supported by law?”
  • “On what moral grounds can we defend a ‘right to privacy’?”[1]

The European Union has recently passed a “Right to be Forgotten” legislation, and similar legislation is being discussed in the United States. In order to fully understand what personal information should be kept in archives, and how to handle that information, it is important for archivists to have an understanding of privacy laws. In order to truly understand these laws we must also understand the cultural and historical factors that have shaped the way we think about privacy. The European Union and the United States have two very different ideas about what privacy means and how it should be protected. One way in which these ideas can be determined is by looking at the different laws within each culture. Cases like Roe v. Wade and recent acts of legislation such as the California Eraser Law, can help to determine the ways in which privacy is valued in the U.S. Finally, it is necessary to look at ways in which the right to privacy can be a moral issue, and ways in which it is may be necessary to infringe upon those rights to privacy. In an increasingly global world, archivists must understand and acknowledge those differences.

When it comes to archival records, the decision whether to delete a record or to keep it should be made on a case-by-case basis, but overall it is the archivist’s duty to anticipate the need for records in the future. At times, this can mean ensuring that material exists for future generations even when the current generation wishes it removed. By retaining records rather then destroying or altering them, archives can give individuals and communities a chance to build up and add to the context of records in order to present a more complete version of the story, and to allow those that the records may harm a chance to talk back to them. This does not mean that all records should be retained, but in order to determine what should be kept, and what should be erased, archivists must first determine when the right to privacy trumps the need for accountability.

Defining Privacy: The E.U. and The Right to Be Forgotten

Privacy laws in Europe have a very long history, and many factors play into the creation of E.U. laws and the European definition of privacy. These ideas developed in response to Word War II, when public records were used to identify minority ethnic and religious groups for persecution. However, beliefs about the importance of privacy date back even further than that, to the 18th century when a good reputation was essential to those of the higher classes. [2] Unlike current thoughts on privacy, during this time dignity was reserved for those of the upper classes, and it was only through the rise of Fascism and Nazism that class boundaries were diminished in this regard. Though, unfortunately, class differences were exchanged for ethnic and religious differences during this period instead, which led to increased importance placed on privacy for everyone in the post-war period. These events illustrate the beginning of privacy law in the E.U. today, and give some background as to why certain aspects of privacy, mainly personal dignity, are more valued in Europe.

The “Right to Be Forgotten” legislation in the European Union originated with the passing of the 1995 Data Protection Directive, which established certain rights to privacy for European citizens. Under this directive, an individual has the right to the “rectification, erasure or blocking of data…because of the incomplete or inaccurate nature of the data.”[3] In 2010, these rights were expanded after the European Court ruled that Google must remove the links from their search engine, at an individual’s request, which returned information that is “inaccurate, inadequate, irrelevant, or excessive.”[4] This decision stemmed from a case brought against Google by the Spanish citizen Mario Costeja González, who argued for the removal of a news article about the sale of a home he owned that had been auctioned to pay off Costeja’s debts several years earlier.[5] The newspaper that originally posted the notice digitized their articles and made them available online, and a Google search for Costeja’s name then began to turn up the notice. Costeja, having paid his debts and settled his financial difficulties, was frustrated that this article appeared in a Google search for his name, and demanded that it be removed.

While the 1995 Data Protection Directive was already in place, protecting the privacy of E.U. citizens, this particular case is notable for ruling that Google, despite the physical server being located in the United States, has a branch in a member state of the E.U. and must comply with European laws. Due to this ruling, E.U. privacy concerns are no longer just a matter for member states of the E.U. but now affect a global audience. The 2010 case also resolved that search engines were not exempt from privacy legislation, as they could be considered “controllers of personal data.”[6] While the court ordered Google to remove the links to the newspaper articles on its search page, the newspaper that digitized and published the articles online was not made to remove their articles. As most information online that is not accessible by a search engine, such as Google, is very difficult to find, this demonstrates a compromise between retaining the information, yet limiting its availability to someone who knows where to find what he or she is looking for.

It is important to note that the “Right to be Forgotten” does not give citizens the right to have just anything removed and that the right is not absolute: it must take into account freedom of the media, and is only granted on a case-by-case basis.

Defining Privacy in the U.S.

There has been push for legislation similar to the E.U.’s “Right to be Forgotten” in the United States, and there are currently laws in place that do protect Americans’ rights to privacy. However, privacy is often at odds with freedom of speech, and freedom of speech plays a very important role American society. In fact, the main difference between the European and American views of privacy is not that Americans find privacy to be less important. Instead, differences can be attributed to varying cultural belief systems that arise from two very distinct ideas of what privacy should be protecting. For the Europeans privacy protects the dignity of individuals, while in America, privacy is an aspect of liberty.[7] Privacy legislation in the United States generally focuses more on private lives, and what people are allowed to do within the comfort of their owns homes, rather than their public-facing lives, as Europeans tend to focus on. Unlike the E.U., the U.S. has limited national laws on privacy. Rather, the passing of such legislation tends to fall to the individual states or privacy rights are determined by court cases, such as Roe v. Wade, which states that the right to privacy extends to a woman’s decision to have an abortion[8], or Lawrence v. Texas, which enforces the protection of sexual privacy.[9]

The laws passed in the U.S. that defend the right to privacy can give an insight into other cultural beliefs held by American citizens. For instance, there are many laws in place to protect the privacy of minors. Recently, California passed the Eraser Act, which allows minors to erase content that they have posted online while they were under eighteen. Some issues with this law exist, however, as it does not specify when a minor can remove this material—do they still need to be under eighteen at the time, in which case, would someone that young be responsible enough to make the decision to remove potentially embarrassing content?[10] Also, it leads to the questions of what effect this law will have on material posted by others, in which the minor requesting the removal may have participated. With the ease at which one can spread or link to documents, it is either impossible or incredibly difficult to ensure that something posted on the Internet is permanently removed.

The California Eraser Act is unique in that it allows an individual to remove content that they themselves have posted. The majority of legislation in place protects an individual from content that others have posted about them. For instance, another recent law passed in California is the Revenge Porn law, which makes it illegal for someone to post nude or otherwise compromising photos of someone online.[11] Similar to Lawrence v. Texas, this law also demonstrates the importance of sexual privacy. The Revenge Porn law only covers photos that were taken by someone other than the subject, however. This means that in cases such as the iCloud hack that released nude photos of celebrities, individuals must find another way to encourage people to remove their images. In this particular case, copyright law was used.[12]

Despite the issues arising from the lack of privacy protection laws, the U.S. still tends to err on the side of freedom of information. Verne Harris and Christopher Merrett provide an explanation for why American value their liberty above their privacy: “information is essential to efficient and thereby effective democracy, which is why the concept of the right to know is recognized as fundamental in democratic societies.”[13]

Moral Ground: Right to Privacy vs. Need for Accountability

Regardless of the importance of the right to know, there are some instances in which the law in place is not sufficient, and leads to the availability of terrible and often times traumatizing materials. In these cases, like others, it can be very challenging, and even impossible, to have information removed. It is difficult to look at modern privacy issues in the United States without encountering the story of Nikki Catsouras, a teenage girl who was killed in a gruesome car accident in California in 2006. Catsouras’ family encountered many difficulties while trying to have photos of their daughter’s crime scene removed from the Internet after two California Highway Police officers leaked them. As the U.S. right to privacy only covers an individual until their death, the Catsouras family was not able to claim their daughter’s right to privacy in order to have the photos removed when they started appearing in Internet searches for their daughter’s name. They attempted to thwart this by acquiring the copyright of the photos from the CHP. When this failed, they had to find other measures, which included filing a lawsuit against the CHP,[14] but essentially they were forced to attempt to have these photographs removed without any laws on their side to do so. Despite years of asking sites to remove the pictures, they are still readily available, making the use of the Internet a terrifying situation for the Catsouras family. To show just how prevalent this photos still are, while researching this story I performed a Google search for ‘Nikki Catsouras’ and the second result that the search returned was from a website called, an incident that simply appalled me. Were the U.S. to implement a law such as “The Right to be Forgotten,” perhaps the Catsouras family would be able to remove the photos, or perhaps they would at least have the ability to eradicate them from search results.

Protecting privacy may not be of the utmost importance in some situations, and preserving transparency can prove to be of more importance that one’s dignity, or even liberty. The subject of privacy brings up a multitude of issues regarding transparency and accountability. While privacy may be useful to control one’s reputation, given free range to control the level of your own privacy could allow someone to cover up information that the rest of the population has a right to know. This is taken into account in many privacy laws as, “…in any democracy the private doings of at least some public figures are a matter of legitimate public interest, and every democratic system recognizes that.”[15]

The call for transparency and openness is a very important aspect of American culture that can be seen in the recent cases of Michael Brown and Eric Garner. Both of these situations involved the death of African American men by the hands of police officers, and both have been steeped in controversy and are widely debated nationwide. One of the major differences in these two cases is the way in which the police forces of the respective cities have made information about the cases available to the public. After the death of Eric Garner, a video of the altercation that would lead to Garner’s death was released. In response to the video footage that surfaced, the New York City Police Department was quick to respond, showing that they were making an effort to be open with people. On the other hand, the police in Ferguson did not take this same stance with regards to opening up about information regarding the death of Michael Brown, which led to very different relations with and opinions of the police force in Missouri. It even led to a lawsuit against the county by the ACLU of Missouri for release of the records.[16] As Ferguson police were slow and sporadic with their release of details about the incident, people were confused and didn’t understand what was going on.[17] While holding back on some information for the sake of the investigation of the case may be necessary, Ferguson demonstrates that holding back too much information can easily anger people who feel they need explanations. Being open and forthcoming would have proven a true attempt at transparency and instead the secrecy came off as guilt and hiding. Being more open also provides the ability to help give a complete picture of the incident, allowing you to build context around the event and explain what happened and why.

The Garner and Brown cases also bring up a separate instance where access to records has been deemed more important than privacy and secrecy. Despite the restrictions on access to information pertaining to Grand Jury cases in the U.S., the circumstances of the Brown and Garner cases encouraged judges to release information regardless. In a document pertaining to the publication of limited documents on the Garner case, New York Supreme Court Justice Stephen J. Rooney defends the release of these documents by illustrating the importance of being open in order to gain back the trust in the justice system.[18]

Both of these cases have brought up ideas about the need for the police to be more accountable for their actions. One of the ways in which this has been proposed is with the use of police cameras, the idea behind this being that with increased records comes increased accountability. Jarrett M. Drake argues that this is not necessarily the case, and “instead of this accountability, we want the creation of more documentation, not realizing that this documentation is impotent if policies, procedures, and processes don’t exist to guarantee its utility.”[19] This point is illustrated in the Eric Garner case, where an onlooker managed to get video footage of the arrest that would eventually lead to Garner’s death.[20] Despite this supposedly clear and ‘objective’ evidence, the facts of the case have still been widely debated.

The Right to Remember vs. To Right to Forget

The Garner and Brown incidents demonstrate the importance of transparency through the contemporaneous release of documents. Archivists face the issue of retaining and making accessible documents from the past, and the utilization of those documents, at times, can be in ways other than their original intentions. This balance between access and privacy is still a concern.

“In the same way that restrictions on the admissibility of evidence impede police work, or limits on the use of confidential information hamper banks, enforcing strict ethical guidelines for the administration of access to personal information in government archives will undoubtedly hinder and perhaps render valuable research impossible. Such a consequence is hardly welcome. But any ethical stance constrains someone’s freedom; that does not mean the stance is unreasonable or unjust. In the end, our acceptance of limitations on the pursuit of knowledge in order to promote a greater common interest-respect for human dignity-is what distinguishes us as moral beings.”[21]

This quote from Heather MacNeil illustrates issues regarding the retention of personal, private materials in archives. On one hand, the restriction of such information could prevent valuable research, and on the other hand it could violate one’s right to dignity. The balance between these two issues is complex and difficult to determine, and different approaches to closing or opening records has produced differing results in the past.

An instance that illustrates the benefits of remembering information rather then forgetting can be seen in the case of the East German Stasi records. By opening the records, the German people were able to come to terms with their past, as they were able to come face-to-face with the records being kept on them by the Stasi police.[22] Despite the many who wanted to keep the records closed, fearing that their availability would encourage violence, opening these secret records ended up being constructive, and helped the people to move on. Some of these records exposed truths about certain individuals’ ties with the Stasi, and reputations were injured with the release of the files. Exposing the truth, in this case, was deemed to be more important.

Foote discusses remembering and forgetting with regards to specific locations. He states that “a society’s need to remember is balanced against its desire to forget, to leave the memory behind and put the event out of mind.”[23] In the cases of forgetting, specific places are oftentimes forgotten or destroyed in order to mask the horrible events that took place there. For instance, Foote mentions the bulldozing of Nazi buildings in postwar Germany. While there is a tendency to attempt to forget, the need to remember appears to be stronger in the end. Despite the destruction of Nazi buildings, other sites of World War II atrocities have been memorialized, namely, the sites of concentration camps. While the urge to forget and to move on can be prevalent, there is also a tendency to never truly forget, hence the construction of such memorials. Often, this urge takes place only some time after the fact, giving those involved distance between the atrocity and coming to terms with it. It is in this that one can see the importance of retaining archival documents, even those with sordid pasts. We have a need to keep these documents as evidence, in order to establish truths and accurate histories.[24]

Making an Ethical Decision

MacNeil differentiates between access to personal information for research and the right to privacy. She defines these two issues as being about social privilege versus human rights. In the end, privilege must give in to rights, unless the benefit of the research is greater than the damage to one individual.[25] Determining what constitutes beneficial research, and how to measure those benefits against the damage to an individual in not an easy task. With privacy law comes the need to balance the accountability and transparency of those claiming invasion of privacy. In some cases, such as the Catsouras case, one could argue for the removal of records, as their presence on the Internet clearly violates the human rights of Nikki, and also of her family. Not all instances of the need for privacy are so obvious, and the need for transparency is not always as obvious as it is in the Garner and Brown cases. For example, arrest records are publicly accessible. If you are an employer hiring someone, you may need to know if they have a criminal background. However, arrests do not automatically imply guilt, and having such records available to the public in an easily accessible way, such as the Internet, can at times injure someone’s reputation and can also hinder people from moving on with their lives years after they’ve made mistakes.

Many of the issues with privacy that are brought up today deal with old documents that resurface when places such as newspapers begin to digitize their collections. The increased access to information via the Internet makes it easier for information to spread, and the way in which documents are connected make it more difficult for them to be removed. Archivists must be aware of the privacy issues that may arise, but they should also be an obligation to keep records that could be of importance in the future. Finding a balance between privacy and accountability is a very delicate situation, especially in a country that values free speech above all else.

Archivists have established guidelines for the appraisal of personal information, and for determining whether the need for privacy outweighs the need for access to such records. These guidelines can help to determine when information should be posted online, and when it would be best to exert a greater control over the documents and restrict their access. Eric Ketelaar lays out certain criteria for appraising documents that contain personal information. Citing work from Cook and MacNeil, he argues that the same criteria for appraising personal material can be used to determine if documents containing personal information should be accessible.[26] First, he references Cook’s appraisal method, which involves taking into account the program, agency, and citizen. This approach looks at why the personal information has been provided, what sort of agency has acquired the materials, and how much of the citizen’s personal beliefs are being illustrated in the records. Ketelaar also references the Kelman test, which states that one should do unto others as you would have them do to you.[27]

Heather MacNeil also mentions Kelman when she discusses a rights-based analysis of private records for use in research.[28] In this, one must consider how a reasonable person would react to the use of their information in the research that is to be performed. It seeks to humanize the people in the records in order to help the researcher make a decision about whether or not it is moral to use personal information in research. MacNeil also urges researchers to take into account any harm that access to records could cause: “Invasion of privacy generally, and violation of confidentiality specifically, may be viewed as injuries of a special type as well as conditions that leave people vulnerable to the possibility of harm.”[29] While MacNeil’s statement may refer mostly to the individual whose personal information is being researched, an example of where this idea of taking into consideration instances where private records have the potential to harm is with the case of Nikki Catsouras. Seeing the photos, or even knowing about their prevalence online can certainly be seen as inflicting great harm on the Catsouras family, not to mention unsuspecting Internet researchers who happen to search for Catsouras.

The Catsouras’ face the unfortunate issue of these photos having already been released. For records that are already available on the Internet, and that could be reasonably believed to impose on one’s right to privacy, there is little hope of fully erasing the documents. There are ways, however, that the spread of these records could be restrained, should one chose to implement them. With the enactment of a takedown policy, similar to the one that websites use to remove pornography and other graphic content, and much in the same way that Google is handling the requests from E.U. Right to Forgotten, some of these documents could be removed. People could be made to argue their cases as the why the information should be removed, and could be reviewed on a case-by-case basis.

This still presents many issues, as the removal of this information would be like what one Los Angeles Times reporter describes as playing “Whac-A-Mole with individual sites.”[30] Thus, it is important to think of other ways to acknowledge privacy concerns while still retaining access to documents. Another solution can be seen in the recent Costeja case, where Google was made to remove the links to the records in their search engine. With so much information available online, it is difficult to access any of it without the help of a search engine. Thus, the removal of links within search engines can restrict access to documents.

As Foote states: “archivists have never come to terms with the concept of the cultural effacement of memory. They have long recognized the necessity of selective retention, but have done so to avoid squandering limited archival resources on redundant or relatively unimportant records.”[31] The idea of removing records is against an archivists’ mission. In lieu of erasing documents, it could be beneficial to provide a way in which people can talk back to records that contain their own personal information. By building up the context, one could still acknowledge that the document exists, but perhaps also give reasoning for why it is out of date, or no longer accurate. As Yakel suggests, certain Web 2.0 features such as annotation, can be used to change or add to the archival description,[32] which could also be used in order to integrate information from the subject of the record. In this way, inaccurate personal information could be amended, and out-of-date information could be updated. Ideally, the implementation of this would also involve archives linking between multiple collections. For example, arrest records could be linked to corresponding acquittal records, which would demonstrate the innocence of the person. This would also serve to bring in other voices to the “official” archival record that do not always get heard, by integrating community archives.

Dealing with personal information in archives, and especially digital records, can present a difficult moral and ethical dilemma for archivists. Attempting to balance the right of privacy with the need for accountability is never an easy decision to make, and implications of erasing or destroying information can lead to the loss of valuable cultural information. However, mishandling of such information has higher stakes now that information is so easily copied and shared. Archivists can seek help in making such decisions, by asking the three questions posed by Heather MacNeil.[33] First, one can look at defining privacy and understanding the different cultural forces that have worked to shape ideas of privacy. Secondly, archivists must be familiar with the laws in place that protect the right to privacy. Finally, the most difficult question involves balancing the right to privacy with the need for accountability.

As archivists are meant to determine what records should be kept for the future, the need to analyze these issues and make such decisions are integral to the duties of an archivist, and can mean retaining sensitive or private information. Even without all of the issues that digital records present, this can be a daunting task. Any information on the Internet is essentially uncontrollable, and perhaps trying to fight to remove documents will eventually become less important than ensuring that context is built up around them.

Works Cited

[1] MacNeil, Heather. Without Consent: The Ethics of Disclosing Personal Information in Public Archives. Scarecrow, 1992, 10.

[2] Whitman, James Q., “The Two Western Cultures of Privacy: Dignity versus Liberty” (2004).Faculty Scholarship Series. Paper 649.

[3] “Factsheet on the “Right to Be Forgotten” Ruling (C-131/12).” European Commission. Accessed December 13, 2014.

[4] “Factsheet.”

[5] Toobin, Jeffrey. “Google and the Right to Be Forgotten.” The New Yorker, September 22, 2014.

[6] “Factsheet”

[7] Whitman, 1161.

[8] “Roe v. Wade | Casebriefs.” Accessed December 13, 2014.

[9] Kennedy. Lawrence v. Texas (Opinion of the Court), 539 U.S. 558 (U.S. Supreme Court 2003).

[10] “California’s New ‘Online Eraser’ Law Should Be Erased.” Forbes. Accessed December 11, 2014.

[11] Rocha, Veronica. “‘Revenge Porn’ Conviction Is a First under California Law.” Los Angeles Times, December 4, 2014.

[12] “Reddit Gives Mixed Messages After Pulling Leaked Celebrity Photos.” Forbes. Accessed December 15, 2014.

[13] Harris, Verne and Christopher Merrett. “Toward a Culture of Transparency: Public Rights of Access to Official Records in South Africa,” in Archives and Justice: A South African Perspective, V. Harris, ed. (Chicago: Society of American Archivists, 2007), pp. 269-288.

[14] Toobin, Jeffrey. “Google and the Right to Be Forgotten.” The New Yorker, September 22, 2014.

[15] Whitman, 1196.

[16] Ohlheiser, Abby. “ACLU of Missouri Files Suit against St. Louis County for Records Related to Michael Brown’s Death.” The Washington Post, August 14, 2014.

[17] Rose, Joel. “In New York And Ferguson, Two Deaths, Two Different Responses.” Accessed December 12, 2014.

[18] Peralta, Eyder. “Grand Jury In Garner Case Heard From 50 Witnesses, Saw 4 Videos.” Accessed December 15, 2014.

[19] “In Defense of Cops Without Cameras.” Medium. Accessed December 15, 2014.

[20] Sanburn, Josh. “Behind the Video of Eric Garner’s Deadly Confrontation With New York Police.” Time, July 22, 2014.

[21] MacNeil, Heather. “Defining the Limits of Freedom of Inquiry: The Ethics of Disclosing Personal Information Held in Government Archives.” Archivaria 1, no. 32 (January 1, 1991), 143-144

[22] Danielson, Elena. “Privacy Rights and the Rights of Political Victims: Implications of the German Experience.” American Archivist 67, no. 2 (September 1, 2004): 179.

[23] Foote, Kenneth. “To Remember and Forget: Archives, Memory, and Culture,” American Archivist 53 no.3 (Summer 1990): 385.

[24] Danielson, 193.

[25] MacNeil, Heather. “Defining the Limits of Freedom of Inquiry,” 141-142.

[26] Ketelaar, Eric. “The Right to Know, the Right to Forget? Personal Information in Public Archives,” Archives and Manuscripts 23 (1995): 13-14.

[27] Ketelaar, “The Right to Know,” 13.

[28] MacNeil, Heather. “Defining the Limits of Freedom of Inquiry,” 141-142.

[29] MacNeil “Defining the Limits of Freedom of Inquiry,” 140

[30] Lazarus, David. “Is Internet Privacy a Lost Cause?” Los Angeles Times, September 3, 2014.

[31] Foote, Kenneth. “To Remember and Forget: Archives, Memory, and Culture,”

[32] Yakel, Elizabeth. ”Who Represents the Past: Archives, Records and the Social Web,” in Controlling the Past: Documenting Society and Institutions, T. Cook, ed. (Chicago: Society of American Archivists, 2011), p.266.

[33] MacNeil, Heather. Without Consent: The Ethics of Disclosing Personal Information in Public Archives. Scarecrow, 1992, 10.