We are pleased to republish this excellent article by Andrea Cipriano, which describes a new study of online non-conviction records, with permission from The Crime Report. The study concludes that law enforcement records may remain freely available online indefinitely, notwithstanding state laws calling for automatic expungement of such records. (For more information on expungement of non-conviction records, see CCRC’s 50-state chart and CCRC’s model law on the subject.)
Online Criminal Records Impose “Digital Punishment’ on Millions of Americans
by Andrea Cipriano February 9, 2021
An analysis of Internet data portals that house personally identifiable information (PII) of people involved in the justice system found that compromising information on millions of Americans has been posted online by criminal justice agencies, even if they have not been convicted of a crime.
“Public records…are less likely to reveal information about the criminal justice system itself, and instead more likely to reveal information about people arrested [for] – but often not convicted of – crimes,” said researchers from Rutgers, Loyola Chicago, and UC-Irvine who conducted the analysis.
The analysis, published in the Law & Social Inquiry Journal, concluded that the amount of data accessible online effectively operates as a “digital punishment.” They noted that old arrest and criminal court data is easily accessible because of local law enforcement and court databases, and individuals named in the data have virtually no ability to wipe it from the records.
The researchers, Sarah Esther Lageson of Rutgers University-Newark School of Criminal Justice, Elizabeth Webster of Loyola University, and Juan R. Sandoval of University of California, Irvine, analyzed 200 government websites operated by law enforcement, criminal courts, corrections, and criminal record repositories across the country.
They found what they called an “impressive” amount of personally identifiable information, ranging from photographs to home addresses and birth dates.
The likelihood that this can lead to “identity theft, stalking, discrimination, and harassment” should persuade legislators and justice authorities to develop greater privacy protections, the researchers said.
Online Forever
The researchers estimated that over the course of 10 years, police departments have released 101 million arrest records onto the Internet, including 45.7 million booking photos. On top of that, state criminal courts will release over 147 million court records, which can all then be “scraped, mined, shared by private websites, and remain online indefinitely.”
Most of this information is sensitive, including not only full names, birthdates and home addresses, but the physical characteristics of arrestees, detainees, and defendants.
It amounts to extended “digital punishment” because it potentially undermines their ability to fully reintegrate into civil society. Potentially compromising information available online can be used to block loans, reject applications for a specialized license, or prevent someone from landing a job or obtaining employment, education, and housing.
Even more troubling: there was no way of verifying the accuracy of the information, the researchers noted.
“Without careful concerns for accuracy and privacy, many legally innocent people will find their data in a variety of private sector endeavors,” they wrote, citing an example where a police department might arrest a person for a serious charge, which prosecutors decline to pursue or judges dismiss due to a lack of evidence.
Moreover, they found that 92 percent of states post some type of pre-conviction record on the Internet, creating due process and presumption-of-innocence problems, where many face being treated as a guilty party despite being innocent.
The researchers found that 32 percent of police departments in their study kept PII online even after a person was released from custody, leaving their information embedded on the Internet forever.
‘Justice by Geography’
Policies governing sealing or expunging records differ across state lines, meaning that where an individual lived or committed an offense could determine whether her privacy was protected.
The authors called this “justice by geography.”
The researchers ranked each state according to its level of privacy protection. On a scale of 0-25, with 25 indicating the most widespread public availability of personal information, Florida ranked as the most open with a score of 21, followed by Illinois and Indiana with 20, and Minnesota and New Jersey with a score of 19.
On the other side of the spectrum, New Hampshire (2.5) and Massachusetts (3) had the lowest rankings, proving to be states that prioritize individual’s privacy, and placed importance on giving individuals with criminal records a “second chance” to turn their lives around.
To put these results in perspective, the researchers include a screenshot from a publicly available personal identifier inmate database detailing inmate’s information from Montana — a state that scored an 11.
Within this Montana’s database, a third-party can identify the year and place of birth, citizenship status, tattoos, hair, eye and skin color, and even which hand is their dominant hand.
Montana, they pointed out, is only the middle ground.
The researchers recommended striking a balance between maintaining public access to state criminal justice operations and ongoing developments and the need for personal privacy.
“A better balance between public punishment and surveillance and personal privacy could more accurately reflect both legislative intent and legitimate public interests,” the authors wrote.
Their recommendations included:
Limiting non-criminal justice-related personal identifiable information (such as addresses and birthdays) from posting on public websites;
Following additional privacy elements and record sealing practices;
Requiring users to register with the government website to access data;
Implementing restrictions for bulk downloads and web scraping; and,
Reconsidering the public release of pre-conviction records.
Criminal justice agencies should be held to the “same standard of openness that have been implemented at the arrestee and defendant levels,” the study said.
“There is often scant information about prison conditions, parole hearings, and prosecutorial charging and bargaining discretion,” the authors continued. “Law enforcement maintains near-total control over other forms of data, such as disciplinary files, police shooting data, or the contents of gang databases.”
The authors said their study was “a first step toward understanding how the criminal legal system distributes not only punishment and stigma but also the ability to maintain digital privacy rights at all.”
Sarah Esther Lageson, Ph.D., is a Sociologist and an Assistant Professor at Rutgers University-Newark School of Criminal Justice.
Elizabeth Webster is an Assistant Professor in the Department of Criminal Justice and Criminology at Loyola University in Chicago.
Juan R. Sandoval is a Doctoral Student in the Department of Criminology, Law and Society in the School of Social Ecology at the University of California, Irvine.
