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A. Michael Froomkin, Towards Identity Bankruptcy, (unpbl. MSS 2017).

As computer-mediated communications displace voice and phone, not to mention pen and paper, what were formerly ephemera (such as messages now in emails rather than postcards) and formerly limited in circulation (e.g. old photos) have the potential of lingering forever and being accessible to anyone with an internet connection and the ability to type or say “”. Social media has encouraged explosive growth in both self-surveillance and surveillance of one’s friends and geographically coterminous strangers. The prevalence of CCTV and other public sensors only adds to the data collected about all of us. Given the persistence and searchablilty of all this data, employers, financial institutions, and other economic actors have turned to the Internet to seek information about potential employees and clients. This is of course only part of a larger trend in which everyone from social acquaintances to possible romantic partners increasingly looks to the Internet to find out what was formerly private and inaccessible information. Consequently enormous quantities of both false data and true but unfairly prejudicial data become indelibly associated with a person’s electronic and legal identities.

Many aspects of this trend towards universal transparency could be said to be beneficial. But some clearly are harmful. In response to those, we should create a system of “Identity Bankruptcy” by which people could ensure that certain classes of online personal information could not be used to discriminate against them in employment, housing, access to credit, and other similar market relationships. This essay does not purport to provide a fully worked out account of all the details of how this might work. Rather, the goal here is to provide at most a preliminary sketch of its outlines.

The basic idea behind Identity Bankruptcy is to mitigate some of the harms of the Internet’s permanence by providing a formal judicial or administrative procedure, inspired by existing personal bankruptcy law, that would allow some persons upon good cause shown to make a fresh start as to their electronic identity on social media, the internet more generally. Identity Bankruptcy is not primarily addressed to the issue of the persistence and visibility of old court and other official records, although it could easily be expanded to cover those records if there was public demand for that extension.

A declaration of Identity Bankruptcy would forbid employers, lenders, landlords, and other market participants from making decisions based in any part on the matters covered by the declaration. Persons who successfully apply for a declaration of ID Bankruptcy would have a chance to make a fresh start in one part of their lives. By banning certain commercial uses of the information–much as we currently ban discrimination based on the fact of age, disability, race, religion, genetic information, or national origin—Identity Bankruptcy would allow persons to partly disentangle their ongoing legal and personal identity from many (but not all) electronic records of their past.

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Cite as: A. Michael Froomkin, Title Size and Italics Test, JOTWELL (January 5, 2017) (reviewing A. Michael Froomkin, Towards Identity Bankruptcy, (unpbl. MSS 2017)),