The data-broker threat: proposing federal legislation to protect post-expungement privacy.

• Author: Wayne, Logan Danielle

1. INTRODUCTION

   Imagine if you will the following hypothetical: An eighteen-year-old who recently graduated from high school is arrested in California for possession of marijuana. Under California state law, possession of not more than 28.5 grams of marijuana is classified as an infraction and carries a maximum punishment of a $100 fine. (1) The young man pleads guilty and timely pays all fines and court fees. Two years later, in accordance with state law, the court destroys any records pertaining to the young man's arrest and conviction. (2) However, in the interim a company called DataBrokerX purchased electronic records from the jurisdiction that was holding the young man's file, including records of the young man's arrest and guilty plea. Once DataBrokerX purchases the records, it stores the information in its private database. (3) Several years later, the young man graduates from college and, without having any other run-ins with the law, applies for his first job. The employer runs a background check through DataBrokerX and the young man is not selected for the position because the conviction appears on that consumer report. The employer would never know that the conviction was vacated because DataBrokerX obtained the young man's records before the state granted the expungement. (4) Also, the young man may never find out why he was denied employment because employers are not required to tell potential employees why they were denied a job. (5) Finally, even if the young man is informed that it was due to his criminal conviction, this is of little consolation as he has already suffered by losing the job opportunity. This is precisely the type of injury that expungements are designed to prevent. (6) But, despite the court's expungement of this young man's record to prevent further lost opportunities, the young man must go through steps to remove the information from DataBrokerX's archives. (7) Once he has done this, there is still no guarantee that DataBrokerX is the only company with the information.

   It is a reasonable argument that a young man in this position deserves a second chance. However, even barring debate about whether or not the young man deserved to have his conviction expunged, one can recognize that once the young man has been granted an expungement, he is entitled by law to the benefits of that expungement. It is a fundamental principle of our legal system that the law must be upheld. This Comment will argue that, once an expungement is granted, it is wrong for a non-governmental source to release information about the conviction, because that action undermines the purpose of expungement laws.

   Expungement is a special form of relief that allows individuals, like the young man in the hypothetical, to "restore him[self] to his former status in society" (8) by essentially erasing his criminal history and granting him a clean slate. This allows individuals with expunged records to legally refrain from disclosing information about their expunged conviction to potential employers or landlords. (9) When the expungement is granted, an expungement order is served on a government recordkeeping agency; this order generally requires the destruction or prohibits the release of any records pertaining to the expunged arrest or conviction. (10) However, because trials are public and criminal information is also a matter of public record, it is currently not illegal for non-government sources (e.g., data brokers) to obtain criminal records. (11) Furthermore, expungement orders do not apply to non-government sources. (12) This may be because when expungement laws were first passed, the government was the only source for obtaining criminal records, (13) or perhaps because legislators did not predict the growth of the data-broker industry. Either way, data brokers are currently free to distribute information from expunged records without any repercussions.

   Having identified a pertinent example of how technology has outpaced regulation, this Comment proposes that a massive and largely unregulated private data-broker industry poses a significant threat to post-expungement privacy at potentially great cost to individuals with expunged records. (14) Data brokers are not required to update their records, and as a result, expunged convictions are being released to the public through these private companies. (15)

   Currently the onus of enforcing postconviction privacy rights is on individuals with expunged records. (16) This Comment will propose that, because of the digitization of data sharing and the increased prevalence of the data-broker industry, individual enforcement is ineffective if not helpless to protect the rights of individuals with expunged records. Ultimately, this Comment will argue that if such violations of post expungement privacy continue unregulated, they have the potential to render the legal remedy of expungement moot in the real world. (17) Therefore, because of the potential magnitude of this problem, an ex ante remedy in the form of federal legislation is the only way to protect post-expungement privacy rights and expungement law itself. As such, this Comment proposes goals for a federal statutory scheme. (18)

   This Comment will proceed in four major parts. Part II discusses the underlying purpose for and importance of providing relief through expungement. (19) Of particular importance is that expungement allows individuals to obtain employment and housing, unhampered by their status as ex-offenders. Part III proceeds by discussing the evolution of the data-broker industry and how criminal records have become readily available through largely unregulated, private, non-government sources. Part III argues that the unregulated release of information by data brokers is posing a serious threat to the important role that expungement plays. Part IV discusses why a federal regulatory scheme is the best way to protect post expungement privacy rights. Finally, this Comment concludes with Part V, outlining the legislative aims in creating such a statute.

2. THE IMPORTANCE OF EXPUNGEMENT AS A LEGAL REMEDY

   Offering relief to individuals with expunged records after information from the expunged records has been released is about as effective as offering an umbrella after the rain. This is because once a data broker releases the criminal record, the purpose of expungement is significantly undermined. Before delving into violations of post-expungement privacy, this Comment will explore the rights expungement bestows upon a person and the source of those rights are derived. This Part begins with a brief history and overview of expungement, then focuses on the importance of expungement as a form of legal relief and the purpose that it serves in society, and concludes with a discussion about the right to post-expungement privacy and how the protection of information pertaining to expunged convictions is vital to the survival of expungement as a legal remedy.

   1. HISTORY AND OVERVIEW

      As of 2008, forty-five states and the District of Columbia have some form of expungement legislation. (20) While the remedy has been given many different names--"sealing," (21) "erasure," (22) "deferred judgment," (23) "setting aside," (24) "vacated" (25)--the general aim behind each individual state law is remarkably similar across jurisdictions. The goal is to eliminate at least some of the collateral consequences associated with criminal convictions and to facilitate reintegration into society for certain individuals by essentially granting them a clean slate. (26)

      Expungement is not granted lightly. (27) Especially in the circumstances to which this Comment is limited, expungement is granted only to those who deserve it most. (28) In sum, this Comment focuses only on misdemeanor convictions and reports of arrests that do not result in conviction--those instances of expungement where it can be assumed that the benefits gained by granting expungement outweigh any potential harms to society and public safety. (29)

   2. THE IMPORTANCE OF EXPUNGEMENT

      The most basic explanation for expungement is that we, as a society, recognize that some people deserve a second chance. (30) Or, at the very least, our society has recognized that certain offenders do not deserve 'criminal' status once they have paid their debts to society. (31) As such, the fundamental goal of expungement is to provide relief from the stigma associated with criminal status. (32) Our society makes a litany of assumptions about a person upon learning that they have a criminal record: it is assumed that they are somehow less credible (33) and less trustworthy. (34) Further, important employment and housing decisions can be based solely on ex-offender status. (35)

      The conundrum herein is further complicated when knowledge of a criminal conviction is obtained through the use of data brokers. First and foremost, data brokers maintain proprietary databases and most are not required to update their records. (36) This Comment proposes that because of this lack of regulation in updating their records, expunged convictions are stored and released from these proprietary databases as if they had never been expunged. (37) Another problem with information from data brokers is that, in creating consumer reports, data brokers often omit information and reword or misinterpret language from the original court documents. (38) The resulting report might therefore contain a record of an arrest but no record of the disposition--a serious problem if the charges were subsequently dropped, for example. (39) Or a report might mention the same offense twice, when in reality, the individual was only convicted of the offense a single time. (40)

      The problem arises because assumptions are made about a person with a criminal record, and once those assumptions are made they cannot be undone. In other words, the social stigmatization of the criminal status is so severe that subsequently learning...