‘The Public Is Getting Bad Data’
By Mukund Rathi
Second of three parts. (First part here.)
While criminal defendants are entitled to the presumption of innocence before trials, many state governments disclose their records digitally — undermining a key constitutional protection.
This is one of many concerns raised in a January study by Elizabeth Webster, assistant professor at Loyola University Chicago; Sarah Lageson, assistant professor at the Rutgers University School of Criminal Justice, and Juan Sandoval, doctoral student at the University of California Irvine.
In this second interview, the authors told Digital Privacy News that although criminal-record disclosures benefit data brokers and other special interests, they also contribute to a “reverse sunshine effect.”
This interview was edited for length and clarity.
How do the background check industry, victims’ rights groups and other special interests fit into your findings?
Lageson: Criminal justice agencies must respond to community demands, the victims’ rights movement and the public’s right to know — and modernize their record-keeping and integrate data across the state and across platforms.
Criminological research shows that people’s ability to find a job, safe housing, stable employment — and the ability to start a family — are important for public safety.
But data brokers pay money to courts for bulk data — and many state agencies contract with and pay technology companies to set up these systems.
“Our taxes and fees and fines on people processed through the system pay to gather and organize criminal record data. Then, the data is given away for free.”
Sarah Lageson, Rutgers University.
This leads to the “reverse sunshine effect”: Our taxes and fees and fines on people processed through the system pay to gather and organize criminal record data.
Then, the data is given away for free, including to the data-broker industry.
How do search engines like Google fit into this?
Lageson: Some of these government websites aren’t indexed by Google. We know firsthand that they are not the easiest navigate.
But when third parties scrape these websites, they use search engine optimization, so that people’s names are indexed into Google. That means the criminal record and click bait often shows up first in the search results for a name.
Many of the people that I’ve interviewed in my other work know that the government’s going to disclose their records, at least in the short term, but they do wish they had some control over their Google search results.
How should transparency laws be changed to address the reverse sunshine effect?
Lageson: We already offer privacy protections to many other people in the justice system: juveniles, victims and grand-jury targets. So, we could also protect pre-conviction data. Federal marshals can decline mugshot requests.
Technologically, we could prevent bulk scraping or downloading of arrests or criminal charges or require becoming an authorized user or paying a nominal fee to access a single record.
This would be like the practical obscurity from spending time and energy going to the courthouse.
Have these reforms been tested?
Lageson: Law enforcement and the courts are governed by constitutional provisions of access to the courts and public-records laws, but there has been some movement to protect mugshots and criminal-charge records.
Pennsylvania has started to rethink the types of data that fit under its criminal records law. States considering these laws should have agencies talking to one another about data disclosures in a harmonious fashion.
What is the public’s right to know? Isn’t it important?
Lageson: The public has a right to access complete and accurate information about the people who are in the criminal justice system, so they can assess risk when it comes to employment and housing decisions.
Our study does not point to getting rid of background checks altogether. But the public is getting bad data right now: it’s piecemeal, disorganized and outdated.
This careless dissemination supports the idea that crime is everywhere and everyone might be a criminal.
“We are supposed to be innocent until proven guilty, but there may still be a surplus of information online to judge the individuals going through the process.”
Juan Sandoval, University of California Irvine.
No states provide rap sheets, which organize criminal records and show convictions, for free. This actually undercuts the public’s right to know.
Webster: When we did the research, there were all these disclaimers on the websites saying, “We can’t guarantee that anything on here is true.”
What about other parts of the criminal legal system?
Lageson: We also lack solid information on the criminal justice agencies themselves.
We don’t know anything about police misconduct, prison conditions in the time of a global pandemic, and judicial and prosecutorial discretion (plea bargains are done behind closed doors).
And, of course, all of that is structured in racism and inequality.
How do these disclosures impact defendants’ rights?
Sandoval: There is a question here about where the presumption of innocence trails off, if the vast majority of information being released is often inaccurate pre-conviction data.
We are supposed to be innocent until proven guilty, but there may still be a surplus of information online to judge the individuals going through the process.
The study mentions “practical obscurity” of paper records. What is that and how are today’s digital records different?
Lageson: Practical obscurity is a judge-created concept from a 1989 Supreme Court case (U.S. Department of Justice v. Reporters Committee) about rap sheets.
Reporters argued rap sheets are a public record. They said: “I can go to the courthouse and police department and get the same information, so why can’t I also get the version compiled by the state?”
The Supreme Court had to decide whether there was a privacy interest in rap sheets — because, yes, the individual pieces of information were public records.
“When we did the research, there were all these disclaimers on the websites saying, ‘We can’t guarantee that anything on here is true.’”
Elizabeth Webster, Loyola University Chicago.
The court said practical obscurity is the privacy interest in something that’s hard to compile.
The court talks about the transition from the paper world to the digital world very explicitly and describes a worst-case scenario, where you can pull up computerized information about people’s entire criminal record.
And, of course, we’ve arrived at that moment.
Next Monday: A “clean slate” online, the First Amendment and “collateral consequences.”
Mukund Rathi is a California writer.
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