Who's Protecting Criminal Justice Records?


Edward Snowden's disclosure of details about the classified PRISM surveillance operated by the National Security Agency (NSA) to The Guardian and the Washington Post has riveted the news media and corporate technology giants in the United States.

But the incendiary coverage is a sharp contrast with the more muted response of the general public. A majority of Americans—56 percent—find the NSA's frequent phone call record collection “acceptable.”

The contrast between public and professional sentiment on issues related to privacy and safety is not really surprising. It reflects the gap in tolerance between the media and tech organizations for which privacy is a constant concern, and typical Americans who may feel it's a small price to pay for increased security.

It's not clear whether security risks have declined or been thwarted to the extent that such a pervasive surveillance program is warranted. But the public perception of increased security can differ from actual data, which remains overwhelmingly classified.

Still, the widespread public acceptance of limits to privacy raises some troubling questions for the criminal justice system, beyond the leak scandal alone.

In the past two decades, as Internet access boomed, and the sharing of information across broadband and wireless channels escalated, the quantity of information once considered private that became “share-able data” increased as well.

Furthermore, records and other information that were in principle open, but in reality inaccessible to the public due to the effort involved in physically locating records and then browsing for the desired resource—sometimes through hundreds or thousands of files—became practicable to acquire online with a few simple clicks.

Numerous online services allow visitors to access data from computers and smartphones, instead of having to drive to a county courthouse.

Criminal background records are a crucial piece in this landscape of shifting accessibility.

Once limited to the firebrand journalist digging up data for a nightly news segment on local crime, crime records on individuals are now widely available on the Web.

Laws entrenching the public's right to access this information legally protect criminal records service providers. Yet considering that access is now just keyboard or touchscreen taps away, the sheer number of people who can acquire these records is exponentially larger than it was a few years ago, when pulling records actually meant pulling paper.

By one perspective, the legal acquisition of these records enables the public to learn useful information about potential threats to safety, personal or otherwise.

However, the prospect that growing numbers of people will take advantage of this opportunity raises new privacy concerns.

Just as sunshine laws enshrine the public's right to unclassified government information and records that can affect their lives or pocketbooks, the availability of some court records online allows members of the public to become informed about individuals who may pose a threat to them or their families.

Going back ten years, before September 11, 2001, the leading background check sites available to the public today didn't even exist.

Intelius was one of the first to launch back in 2003, while Been Verified followed in 2007. People Smart and Instant Checkmate followed in the 2010s. (I have been a writer for Checkmate since 2013).

These four sites each rank within the top 2,000 websites in the U.S. today.

Now that vast numbers of people are utilizing these services, questions that were once overlooked have now surged to the top of the agenda – particularly related to where the line should be drawn between privacy and the public's right to know.

Some services decide to illustrate immediately the terms of use for their product, in order to prevent privacy-breaching abuses and unlawful actions.

Instant Checkmate, which sees the highest U.S. traffic of the four sites, provides a notice screen that must be accepted by the visitor upon entering the site. It highlights restrictions on the service before the service can be used, including bans on using available information for employment screens and tenant screens, consumer credit reviews, and insurance decisions.

Others don't display Fair Credit Report Act compliance issues directly, leaving users to find them listed on internal FCRA pages, the way People Smart does.

Other questions arise. Should persons who have been convicted of minor violations or who committed crimes decades ago remain subject to the same standards of open-ness as more serious, recent offenders?

Does indiscriminate access place an insurmountable burden on individuals with criminal backgrounds, however remote or minor, in their day-to-day lives—given that their records are accessible to neighbors, colleagues, and family members?

Should past offenders remain vulnerable to public scrutiny even after they've served their time or paid their fines?

There are options in place for those whose records can be searched and found. Several of these criminal records services do have a series of safeguards : such as opt-out capabilities allowing an individual to remove himself from further listings.

But since the data searches are public records and can be accessed by any individual or service, opt-outs are at the discretion of the individual doing the search, or the service provider.

Likewise, government databases don't offer opt-outs, but one can get certain records expunged depending on local laws.

As a writer for one of the publicly available services, I'm keenly aware of the differences between service providers, and how both governmental regulations and independent, company-down decisions affect offerings to consumers of this information.

What our service offers to the public is data. As a writer, my job is to help users disseminate that data in a meaningful way. That means presenting our privacy protections and opt-outs clearly, and relaying through articles and other posts any data that is most pertinent and relevant to a particular group of users.

Raw data is cryptic and can be interpreted by unfamiliar users in a multitude of ways.

But it is up to every Internet user to decide how he or she utilizes these services.

The contrast between different concepts of privacy and the right to access information has not yet attracted the sustained attention of policy makers and legislators.

The NSA case is different, because unlike the public records providers who must follow privacy laws and regulations applicable to the public at large, the NSA records are open to the eyes of a select few—and it's apparent because of Snowden's leak that those few don't always keep records they access private.

One consideration relates to the extent that privacy protection is given to individuals who have committed crimes.

The other concerns the privacy of an individual's movements and activities—her phone and email locations, her employment and personal history —regardless of whether the crime has been committed.

Both deal with the competing interests of privacy, crime, and security.

The only difference is how the targets and the markers are perceived, and who has the most to lose from being on the wrong side of that equation.

Brett Robert is a writer for Instant Checkmate, an online criminal records service provider and a top-500 site in the U.S. by overall traffic. His views are his own and do not represent his employer. He welcomes comments from readers.

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