“Misguided in principle and unworkable in practice”: It is time to discard the Reporters Committee doctrine of practical obscurity (and its evil twin, the right to be forgotten)

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Abstract

In the twenty-five years since the Supreme Court of the United States first recognized the doctrine of “practical obscurity” in United States Department of Justice v. Reporters Committee for Freedom of the Press, judges, legislators and policymakers have invoked it to justify limiting access to all kinds of digitized government records containing personally identifiable information. The idea that individuals have a privacy interest in publicly available records that trumps the rights of access was flawed from the beginning and makes even less sense today. The advent of the Internet, search engines and Big Data means that information is more widely available from a variety of sources than ever before. Attempts to create a Right to be Forgotten to force search engines to remove links to so-called “irrelevant” but accurate information are both wrong-headed and futile. As one federal judge wrote, practical obscurity is “an anachronism.” This essay argues that it is past time to retire it.

Original languageEnglish (US)
Pages (from-to)91-115
Number of pages25
JournalCommunication Law and Policy
Volume20
Issue number2
DOIs
StatePublished - Apr 3 2015

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abstract = "In the twenty-five years since the Supreme Court of the United States first recognized the doctrine of “practical obscurity” in United States Department of Justice v. Reporters Committee for Freedom of the Press, judges, legislators and policymakers have invoked it to justify limiting access to all kinds of digitized government records containing personally identifiable information. The idea that individuals have a privacy interest in publicly available records that trumps the rights of access was flawed from the beginning and makes even less sense today. The advent of the Internet, search engines and Big Data means that information is more widely available from a variety of sources than ever before. Attempts to create a Right to be Forgotten to force search engines to remove links to so-called “irrelevant” but accurate information are both wrong-headed and futile. As one federal judge wrote, practical obscurity is “an anachronism.” This essay argues that it is past time to retire it.",
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