One of the urban legends of childhood is that individuals get a clean slate when they turn 18. Of course, like many urban legends, it’s not entirely false. Policies linked to a clean slate include a separate juvenile court that offers enhanced confidentiality, including sealed 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. I cataloged all the many ways that law enforcement and the criminal justice system database delinquency here (discussing policies like juvenile sex offender registration, gang databases, DNA collection from juveniles, and schools as informants for law enforcement). Moreover, because nearly everyone carries 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.
Some think there’s no need for such a law, or that it is pointless. It is true that most websites already have a delete button. At the same time, it can be quite difficult to delete content from the internet once it is posted there by someone. 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.
I think it most definitely is. As I said above, it’s both an old idea to offer youth a fresh start as they enter adulthood, unburdened by the mistakes of their youth, and a pressing issue today. In fact, the Court of Justice of the European Union issued a ruling in 2014 that, under certain conditions, provides individuals with a right to have search engines like Google 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 for a number of reasons. But as the Supreme Court has made abundantly clear in recent criminal cases, children are different, and the law must account for their differences. There is nothing about cases like Roper and Graham and Miller that necessarily limit them to criminal law and procedure. The long familiar and important notion that we should regulate the lives of young people more protectively than we regulate the lives of adults supports the notion that youth have a stronger claim to the right to be forgotten than adults. But it’s more than the historical commitment to greater (but not absolute) confidentiality for youthful mistakes. 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).
I look forward to seeing whether laws similar to California’s Eraser Button are passed in other jurisdictions, and whether courts will be receptive to granting individuals the right to have search engines like Google remove links to information about their adolescent selves.