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Will the Electronic Age Make Expungement Extinct?

Back in the days of paper files, people in the 41 states that provide a procedure for expungement of certain criminal records could effectively wipe away a checkered past so that no one  would ever discover it. But as Adam Liptak of the New York Times reports in Expunged Criminal Records Live to Tell Tales (10/17/06), expungement may soon become a casualty of the electronic age. Liptak writes:

[E]normous commercial databases are fast undoing the societal bargain of expungement, one that used to give people who had committed minor crimes a clean slate and a fresh start[...]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.

Daniel Solove at Concurring Opinions offers one solution:

I think that the solution to this problem is for states making their records available to commercial databrokers to require them to promise that they will delete records when they are expunged and will correct records that initially had errors when a correction is later made to the record. This promise can be required as a condition of granting certain kinds of access (so long as the government isn't constitutionally required to provide access to its record systems, it can require those seeking records to accept certain conditions in exchange for access). I explain why this approach is constitutional here. Unless something is done about the problem, people will lose the ability to expunge information from their records or to readily fix errors. Private companies are becoming one of the primary distributors of public records, and when they take on this role, they are often thwarting the existing balance the law establishes between privacy and open records.

I agree with Solove that there's nothing wrong with making private companies subject to conditions on distribution. These companies generate enormous amounts of revenue from harvesting the information available from court files, and with those benefits come responsibilities, including ensuring that rights or privileges that our government confers, such as the right to privacy or the ability to seek expungement, are not compromised by carelessness.

Posted by Carolyn Elefant on October 18, 2006 at 04:24 PM | Permalink | Comments (3)

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