Crime Data, the Internet, and Free Speech: An Evolving Legal Consciousness

• Date: 01 March 2017
• Published date: 01 March 2017
• DOI: http://doi.org/10.1111/lasr.12253

Crime Data, the Internet, and Free Speech: An

Evolving Legal Consciousness

Sarah Esther Lageson

Digitization and open access to governmental data have made criminal justice

information incredibly easy to access and disseminate. This study asks how

law should govern access to criminal histories on the Internet. Drawing upon

interviews with crime website publishers and subjects who have appeared on

websites, I use legal consciousness theory to show how social actors interpret,

construct, and invoke law in a nascent and unregulated area. The analysis

reveals how both parties construct legality in the absence of positive legal

restrictions: Website publishers use legal justifications, while those appealing

to have their online record cleared resort to personal pleas, as opposed to

legal remedy.Ultimately, I show how current data practices reinforce structur-

al inequalities already present in criminal justice institutions in a profoundly

public manner, leaving website subjects with little recourse and an inescapable

digital trail.

The digitization of governmental data and the dissemination

of these data online have made criminal justice information easier

to access than ever before. What used to require an in-person

request at an administrative arm of a local criminal justice agency

is now immediately available online. Once a person is arrested or

charged with a crime, a digital trail begins as various agencies

document each interaction an individual has with the criminal

justice system. These data are publicly available, and are increas-

ingly reposted on various venues, such as on websites, crime

watch blogs, Facebook pages, mug shot databases, and the like.

Criminal complaints, booking photos, and jailhouse rosters are

simply a mouse-click away. For the website “subject,” a simple

Google search for their name yields a digital trail that might

reveal low-level convictions from long ago, arrests that never led

to charges, or offenses that were legally sealed or expunged.

The emergence of these websites introduces a host of previ-

ously unanswered questions. Are these websites legal? Do we

have a right to publicly post any and all criminal justice data?

Please direct all correspondence to Sarah E. Lageson, Rutgers University-Newark

School of Criminal Justice, Center for Law and Justice #547, 123 Washington Street,

Newark NJ 07102; e-mail: sarah.lageson@rutgers.edu.

Law & Society Review, Volume 51, Number 1 (2017)

V

C2017 Law and Society Association. All rights reserved.

8

What recourse exists for those who appear on these websites?

This study uses the lens of legal consciousness theory to examine

these questions by asking how social actors interpret, construct,

and invoke ambiguous law in a nascent and unregulated area. To

understand divergent views on these questions, this study draws

upon two unique sets of qualitative data to ask: how should the

law govern access to criminal histories on the Internet? For the

first set of data, I analyze in-depth interviews with crime website

publishers and content analyses of 100 crime reporting websites;

and for the second, I use interview data with those whose records

have appeared on crime websites. The analysis follows in three

parts: I first show how distinct views of the criminal justice system

shape respondent’s views on access to records; second I analyze

recommendations for what law should do from each group; and

third, I ask each group if and how they invoke law.

These two groups hold distinct views. The first set of inter-

viewees, the “publishers” (composed of those who produce crime

reporting websites) believe in the social good of producing this

information for public consumption. Conversely, the “subjects”

(those who have appeared on websites) are wary of their digital

criminal record, describing the deleterious effects of this extrale-

gal sanction that is widely available to anyone with access to the

Internet. The analysis reveals how both parties construct legality

in the absence of positive legal restrictions. In these divergent

constructions of law, website publishers use legal justifications,

while those appealing to have their online record cleared resort

to personal pleas, as opposed to legal remedy. In recognizing the

development of legal consciousness around privacy and emerging

technologies, this study begins an important discussion on access

to criminal histories by highlighting the experiences of those who

will be impacted on both sides of the debate. I conclude by argu-

ing that the unfettered public distribution of criminal justice data

reinforces structural inequalities already present in criminal jus-

tice institutions, reifying relationships of power and patterns of

punishment – of which understanding of law plays a key role.

Background

Public Access to Criminal Justice Data

Individual-level crime data falls under the umbrella of public

government data, though these data are managed under local

jurisdictions to varying degrees of accuracy and completeness

(Jacobs 2015). As the online marketplace for these data has

increased, many public agencies contract with private vendors to

outsource their recordkeeping (Hochberg 2014). Once made

Lageson 9

public, these data are scraped and reposted to innumerable other

sites, including those run by independent website publishers, like

those examined in this study. In other words, digitization has

made accessing criminal justice data easier than ever (Jacobs

2015). Legal guidance, thus far has focused mostly on paper

records and on the process of first obtaining governmental data,

and then reporting and publishing those data.

Obtaining and Publishing Crime Data

There are two primary modes to legally publish individual-

level crime data on websites. First, one can obtain crime informa-

tion through a Freedom of Information Act Request. Second, one

can republish records already made public. Digitization has radical-

ly changed both of these practices. A “criminal record revolution”

(Watstein 2009) has occurred in recent years, due largely in part to

the adoption of new technologies by criminal justice administra-

tors. This allows regular citizens easy, online access to criminal his-

tories that previously required visiting a courthouse or filing

extensive paperwork. As a result, proliferations of online mediums

have emerged, instantly disseminating mug shots, jailhouse rosters,

and court documents. This widespread release of individual-level

criminal histories has proceeded unchecked by federal or state gov-

ernments, even amidst growing evidence of the dissemination of

erroneous records or dismissed charges (Logan and Ferguson

2016; National Consumer Law Center 2012; Conley et al 2012;

U.S. Bureau of Justice Statistics 2005),

Laws governing data were originally created to ensure the

public’s right to know if institutions are doing their job well.

State-level open access laws govern local control of criminal jus-

tice data (such as mug shots), and are often developed under the

framework of the Freedom of Information Act, or FOIA (Report-

ers Committee 2008). FOIA was enacted in 1966 as the first

American law to guarantee all citizens the right to access informa-

tion from their government. Embedded in the legislation is a ten-

sion between competing interests to increase government

transparency while maintaining an individual’s privacy (Shephard

2014). There are two exceptions to this general rule of disclo-

sure: Exceptions 6 and 7(C), which relate to individuals’ right to

privacy. These exceptions establish that if disclosure of informa-

tion by a government agency would cause an unwarranted inva-

sion of personal privacy, the agency need not release that

information (see, for instance, Bobet 2014: 640; Shephard 2014).

Exemption 6 applies to personnel and medical files, and 7(C)

refers to information compiled for law enforcement agencies.

When challenged, courts use a balancing test to determine if the

10 An Evolving Legal Consciousness