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October 17, 2006
The Reincarnation of Expunged Criminal Records
The New York Times reports:
In 41 states, people accused or convicted of crimes have the legal right to rewrite history. They can have their criminal records expunged, and in theory that means that all traces of their encounters with the justice system will disappear.But enormous commercial databases are fast undoing the societal bargain of expungement, one that used to give people who had committed minor crimes a clean slate and a fresh start.
Most states seal at least some records of juvenile offenses. Many states also allow adults arrested for or convicted of minor crimes like possessing marijuana, shoplifting or disorderly conduct to ask a judge, sometimes after a certain amount of time has passed without further trouble, to expunge their records. If the judge agrees, the records are destroyed or sealed.
But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.
This is a major problem with commercial database companies that routinely sweep up information from public records. I think that the solution to this problem is for states making their records available to commercial databrokers to require them to promise that they will delete records when they are expunged and will correct records that initially had errors when a correction is later made to the record. This promise can be required as a condition of granting certain kinds of access (so long as the government isn't constitutionally required to provide access to its record systems, it can require those seeking records to accept certain conditions in exchange for access). I explain why this approach is constitutional here. Unless something is done about the problem, people will lose the ability to expunge information from their records or to readily fix errors. Private companies are becoming one of the primary distributors of public records, and when they take on this role, they are often thwarting the existing balance the law establishes between privacy and open records.
Posted by Daniel J. Solove at October 17, 2006 01:14 AM
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Comments
I agree. The problem is nearly hopeless. Google sweeps newspapers and public records. Once it gets in Google, it gets redistributed back downward into private data bases. At that point the information cannot be expunged. In fact, the fact that it may be ordered expunged may become part of the public domain.
Posted by: Michael Lee at October 17, 2006 09:14 AM
What if there were liability for including expunged information in someone's record? I suppose someone could already press some sort of reputational tort theory, though the hard part may be knowing who had what information that caused the reputational harm. But I wonder if it were clearly going to be very expensive for the commercial databases to be wrong if they would go out of their way to make sure they'd be right.
Posted by: Cathy at October 17, 2006 11:49 AM
I would think truth would be an absolute defense here - if the person had, in fact, been convicted of a crime, the fact that the government later expunges it from their records doesn't mean it has to be expunged from private records...and while I agree the government could condition access to records with an expungement, third parties who have it in their records would presumably beyond such agreements. (like reading about it in published police reports etc.)
I am however sympathetic to the plight of the potential expungee - here in MD, it is an ongoing irritant that one must request an expungement of records (with a fee) for instances of Nolle Pros', Not Guilty and Stets. I think expungement s/b automatic in these instances with no records released until the matter is adjudicated.
Posted by: Maryland Conservatarian at October 17, 2006 05:56 PM
This is definitely a problem because even though criminal records can be removed from the justice system, it doesn't affect the private companies that have the record on their own database. the only advice that can be given is if you know for sure that your record has been expunged, and it comes up on an employer search, you can tell them that there has been a mistake and ask them to check with the justice agencies so that they can make changes to their records. But wouldn't it all be great for everyone if there was a way to automatically remove records from these private companies once a record is expunged?
Posted by: JessO at October 26, 2006 05:28 PM
