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Monday, December 12, 2016

The Privacy of Criminal Records

Criminal records in the United States are more widely accessible than anywhere else in the world. Congress allows various industries, organizations and businesses access to the criminal histories of job applicants, employees, and volunteers. Inmate locators allow members of the public to find the location, crime of conviction, custody status and sentencing terms of detainees. Anyone can also look up in online registries the name, address, photograph and offense history of sex offenders and, in some states, those convicted of violent crimes. The public and media have daily access to arrest blotters, docket sheets and court case indexes. A few states even make publicly available documents within court records, like pre-sentence reports, that can contain mental and physical health information, and intimate personal and family history.

All this accessibility enables entrepreneurial secondary aggregation and distribution of criminal history information. Private information vendors market and sell lucrative criminal background check services, populating their databases with information downloaded from publicly-accessible sources and purchased from state and local governments. Particularly troubling are those companies that collect publicly available information about arrestees and offenders, including names and photographs, post them to their website, and then offer to remove the embarrassing information for a fee (it's not all that far from blackmail).

Are criminal records public information infused with public interest to which others should (or even must) have access, or are they personal information entitled to privacy protection?

In the U.S., the unequivocal answer is that they are public information. There are several different and contestable reasons why we've come to that answer, and inextricable links to other areas of law (such as tort law) that seem to drive access and disclosure, which I will cover in future posts. For now, I want to acknowledge that the answer need not be that criminal records must be exceptionally public.

Indeed, in Europe (as a general rule), it's nearly the complete opposite. Individual criminal history records created and held by police are not available to non-police agencies, much less the media and general public. Nor may European employers and landlords obtain criminal history information from the courts or national conviction registers. Indeed, the Spanish Supreme Court held that the country’s National Conviction Register violated an individual’s right to privacy by disclosing his criminal record to the Election Commission.In protecting criminal record information from disclosure to the Election Commission, the Spanish Supreme Court reasoned that a criminal conviction is “personal information” and the constitutional right to privacy “guarantees anonymity, a right not to be known, so that the community is not aware of who we are or what we do.” Another case prevented the posting on a website of the names of civil servants who had previously been found guilty of torture.

For Americans steeped in sex offender registries and background checks, concealing criminal records from anyone, much less torture convictions of government employees from election officials seems unfathomable. And conceiving of criminal records as personal information, to which the community cannot become aware, seems like a world truly an ocean away. In the days ahead, I hope to explore when and where the U.S. could, and arguably, should reconceive the public nature of criminal records.  

Posted by Kevin Lapp on December 12, 2016 at 12:17 AM in Criminal Law | Permalink

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