Search engines are the card catalog to the world’s largest library, the Internet. Prior to the Internet, information was largely accessed exclusively through physical objects, such as books, newspapers, magazines, encyclopedias and public records. If you did not possess the desired information, you were out of luck. That all changed with the Internet. Nowadays, obtaining information is a matter of a simple Google search.
The accessibility and permanence of the Internet has had a significant impact on many aspects of our lives. For the most part, easy access to information has been one of the most consequential benefits of the Internet Age. However, to focus only on the benefits of the Internet ignores the Internet’s negative side effects, including the availability of information many individuals would prefer to keep hidden, such as criminal records.
A criminal record can serve as a scarlet letter, forever effecting an individual’s educational, housing and employment opportunities. To mitigate the impact that a criminal record can create, many states have enacted expungements statutes to allow individuals to seal their criminal histories. The goal of an expungement is to provide an individual a clean slate, including the ability to deny that their expunged arrest or conviction ever took place.
With the Internet, an expungement no longer comes with the guarantee of confidentiality. Criminal records that have been sealed can still appear on the Internet, most notably on data aggregation websites or in news articles containing information about a person’s arrest or conviction. In Europe, under the right to be forgotten, individuals can petition search engines to remove links to websites that are “inaccurate, inadequate, irrelevant or excessive.” Enacting a right to be forgotten in America would ensure that when an educational institution, landlord or employer searches an individual’s name, the expunged criminal record cannot be discovered.
That being said, in America, the right to be forgotten is highly controversial, raising First Amendment concerns and fears that such a right could be abused to stifle the freedom of the press. Based upon its controversies, it is unlikely that there will be any right to be forgotten in the United States in the near future. Without government intervention, search engines, however, remain free to set their own policies with regard to removing content. For example, in 2015, Google enacted a policy that allowed victims to remove links to non-consensual pornography, otherwise known as revenge porn.
If webpages containing references to expunged criminal records were delinked, the underlying content would remain on the Internet. However, by delinking the webpages, search engines would remove the ability for the expunged records to be discovered, effectuating the purpose of the expungement. As with the policy with respect to revenge porn, a policy to delink expunged records would be narrowly tailored and would in the public’s interest.