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Online Records Impose Digital Punishment for Millions

Researchers Sarah Esther Lageson (Rutgers University), Elizabeth Webster (Loyola University), and Juan R. Sandoval (U.C. Irvine) analyzed 200 government websites operated by law enforcement, criminal courts, corrections, and criminal records repositories across the country to discern the impact such records have on the lives of millions of Americans affected by the U.S. criminal justice system.

They estimate that police departments have released 101 million arrest records, including 45.7 million booking photos, over the past 10 years alone. State criminal courts have released 147 million records, which can be “scraped, mined, shared by private websites, and remain online indefinitely.”

This data includes an arrestee’s name and the crime(s) for which they were arrested but often also includes personal information such as birthdays, home addresses, and physical characteristics.

The researchers also concluded that different states restrict some of this data, leading to widely varying outcomes. Ranking states on a scale between 0 and 25, with 25 indicating the most widespread public availability of personal information, researchers describe what they refer to as “justice by geography.”

Florida is the most “open” state with a score of 21, followed by Illinois and Indiana with 20, and Minnesota and New Jersey at 19. States like New Hampshire (2.5) and Massachusetts (3) prioritize an individual’s privacy instead, reflecting a legislative priority on giving persons with criminal records an opportunity to reintegrate into society.

Disturbing is the amount of information available in even middle-ranked states. In Montana (score of 11), a third-party can obtain an arrestee’s place and date of birth, citizenship status, tattoos, hair, eye, and skin color, and hand dominance.

The researchers noted this “impressive” amount of information can lead to “identity theft, stalking, discrimination, and harassment.” And this information rarely has any expiration date, making it difficult for arrestees to ever shake the burden of their interaction with police. For the rest of their lives, these people may be blocked from obtaining loans, denied specialized licenses and certifications, or simply excluded from employment, education, and housing opportunities.

This digital punishment is extended to people who were never convicted of a crime. Police may arrest someone on a serious charge, only to have prosecutors decline to pursue charges or have judges dismiss the charge for a lack of evidence. All but four states post pre-conviction records on the internet, which leads many people to be treated as guilty simply because they had an interaction with police. Even those who have been convicted deserve to be able to move on with their lives after having completed their sentences, and recidivism data reflect the need for community reintegration.

Millions of people in the U.S. have had an interaction with justice systems, and open records are even more burdensome when you consider the likelihood and persistence of errors in reporting this data. This is further magnified when you account for private companies that scrape and replicate these errors and have less accountability than public agencies do.

Researchers made several recommendations to better “reflect both legislative intent and legitimate public interests,” including: limiting personally identifiable information (such as addresses and birthdays) from being posted online; following additional records-sealing practices; restricting bulk downloads and web-scraping while requiring users to register before accessing data; and reconsidering public release of pre-conviction records.

The researchers summarized the study as “a first step toward understanding how the criminal legal system distributes not only punishment and stigma but also the ability to maintain any privacy rights at all.” 


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