Tuesday, October 17, 2006

Expungement and the Expectation of Privacy

The NY Times has a fascinating story about expungement, which in theory is used at sentencing to give people, often youths who committed minor crimes, a clean slate so as not to mark them for life, recognizing the prospect of rehabilitation. In the electronic age, things are apparently changing according to the Times reporter, Adam Liptak:

But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

Mike has made a point of discussing Technocorrections lately, and his references usually refer to restraints on liberty within the context of our public institutions, etc. This issue is not altogether different.

In this case, as the article notes, the restraints are private sector-based, and some might think it unintended, careless and inadvertent, although the uses of the data are not. After all, the digitized records of arrests and convictions could/should be corrected in the private databases by removing the record once the conditions for expungement are met. Naturally, it appears that the vigor in getting the record in the first place exceeds the vigor in updating/expunging the record.

This raises lots of interesting issues including what is/should be freely available. Will expungement cease to be a bargaining chip in plea negotiations? How about the entire issue of restricted access to criminal history records, already substantially eroded for sex offenders?

Back to the issue of expungement. Let’s leave the last word to Margaret Colgate Love, always a thoughtful observer. “It does reveal,” Ms. Love said, “how perilous it is to build a public policy on a lie.”

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