The Problems of More Accessible Criminal Conviction Information
posted by Daniel Solove
A recent New York Times article by Brad Stone discusses a website called CriminalSearches.com, which allows you to punch in a name of a person and do a search for any criminal records about him or her. From the article:
Want to vet a baby sitter? Need to peek into the background of a prospective employee? Curious about the past of a potential date?
Last month, PeopleFinders, a 20-year-old company based in Sacramento, introduced CriminalSearches.com, a free service to satisfy those common impulses. The site, which is supported by ads, lets people search by name through criminal archives of all 50 states and 3,500 counties in the United States. In the process, it just might upset a sensitive social balance once preserved by the difficulty of obtaining public documents like criminal records.
Academics have a term for the old inaccessibility of records like those for criminal convictions: “practical obscurity.” Once upon a time, people in search of this data had to hire private investigators to navigate byzantine courthouses and rudimentary filing or computer systems, and to deal with often grim-faced legal clerks. In a way, the obstacles to getting criminal information maintained a valuable, ignorance-fueled civil peace. Convicts could start fresh after serving their time without strangers knowing their pasts, and there was little risk that unsophisticated researchers could confuse people with identical names.
Well, not anymore. The information on CriminalSearches.com is available to all comers. “Do you really know who people are?” the site blares in large script at the top of the page.
I’m quoted briefly in the article:
In the past, Congress carefully considered how the public should use criminal records. Amendments to the Fair Credit Reporting Act in 1997 required that employers who hire investigators to obtain criminal records from consumer reporting agencies advise prospective employees of the search in advance, and disregard some types of convictions that are older than seven years.
“I don’t think Congress stuck that in there randomly,” says Daniel J. Solove, a professor of law at the George Washington University Law School and author of “Understanding Privacy.” “Congress made the judgment that after a certain period of time, people shouldn’t be harmed by having convictions stick with them forever and ever.”
Websites such as CriminalSearches.com create a host of problems:
1. They create a problem I call “increased accessibility” in my book, Understanding Privacy (Harvard U. Press, May 2008):
If the information is already available to the public, what is the harm in increasing its accessibility? Increased accessibility does not involve a direct disclosure. Secret information is not revealed. Confidentiality is not breached. Rather, information that is already available to the public is made easier to access. With increased accessibility, a difference in quantity becomes a difference in quality–it heightens the risk of the harms of disclosure.
Increased accessibility to personal information has many benefits. It enhances openness by allowing people to locate information that they are seeking more easily. Ready accessibility of records, for example, can assist in investigating the background of a person whom one is planning to hire. . . .
Increased accessibility, however, creates problems, such as the greater possibility of disclosure. Information can readily be exploited for purposes other than those for which it was originally made publicly accessible. For example, companies are gathering data from public records for commercial and marketing purposes or for profiling and other analysis. Peter Winn notes that increased access to court records will cause harms to participants in the judicial system: “They will lose . . . their interest in privacy — their identities will be subject to potential misuse by thieves, and their children may be exposed to sexual predators.”
2. In a number of circumstances, people can get their convictions expunged. What happens, though, when websites that report this information do not delete conviction information after expungement? We might see the end of people’s ability to get a conviction expunged.
3. Government records are notoriously inaccurate. If a person is wrongly listed in a database, the problems of that error are now amplified.
Unfortunately, given the Supreme Court’s First Amendment jurisprudence, websites such as CriminalSearches.com are difficult to regulate. The Court held in Cox Broadcasting v. Cohn, 420 U.S. 469 (1975) that “[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.” The only way to restrict the use and disclosure of such information is for the government to impose conditions in exchange for the receipt of the information. In LAPD v. United Reporting Publishing Corp., 528 U.S. 32 (1999), the Court upheld a California law that conditioned access of arrestee and victim information on agreeing not to use it for commercial purposes. “This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. The California statute in question merely requires that if respondent wishes to obtain the addresses of arrestees it must qualify under the statute to do so.”