Innocent Until Proven Guilty…Unless You Wind Up On the Internet

February 17, 2014

In 2013, California State Senator Ellen Corbett introduced S.B. 501, a bill requiring social networking websites to comply with requests to remove sensitive or identifying information from their websites within 96 hours. This bill is one among many bills introduced in recent years that attempt to secure greater individual privacy rights on the Internet. Yet, while much of the discussion regarding online privacy centers on advertising and the safety of personally identifying information that users might reveal to third-party websites, another significant internet privacy concern has become apparent—one that affects even those individuals who are not internet users.
Around 2011, a new-internet cottage industry began to appear: internet based businesses that scoured and collected public records such as arrest records and mug-shots, posted them online, and then offered “removal” services for a fee, as described by David Segal in his New York Times article. As Wired Magazine explains, the websites are technologically efficient, often employing techniques such as “scraping” to search and download the public county records for old arrest records and to continuously scan for new arrests.  The concept is not as new as the medium.  Starting in the early 2000’s, tabloids with “titles like Cellmates, Jailbirds, Just Busted, Jail House Rocs and The Slammer” could be purchased at convenience stores, particularly in the South.  These sensational papers showcased mug shots to let readers know who had been arrested recently and exactly what they looked like.  However, while the impact of these papers might have been to shame, the impact of their online counterparts is exponentially worse.

Not only can third party use of arrest records and mug shots compromise the privacy of North Carolinians, but also, it can expose countless individuals to the collateral consequences of having a criminal record.

Now, even those who were never even convicted of a crime, but nonetheless were mentioned in an arrest record or had a mug-shot taken are at risk for internet notoriety.  And, unlike the readers of the convenience store papers, the potential audience for these online records ranges from friends and family, to interested future employers.  This phenomenon poses a significant threat to North Carolina policy.  Not only can third party use of arrest records and mug shots compromise the privacy of North Carolinians, but also, it can expose countless individuals to the collateral consequences of having a criminal record.
After being denied public housing because of a record of an arrest that occurred four years prior and did not result in a conviction, Human Rights Watch quoted a forty-year old mother, who stated:
You deserve a chance, no matter what you did. . . . It’s done and over with, it’s in the past. I’m tryin’ to do the right thing; I deserve a chance. Even if I was the worst criminal, I deserve a chance. Everybody deserves a chance.
The unfortunate reality, however, is that an individual’s criminal record can have a lasting detrimental impact on opportunities, regardless of desert.  In addition to the direct consequences of conviction, criminal records result in a myriad of indirect consequences.  These indirect or collateral consequences are separate from the actual criminal sentence, and in some cases, occur regardless of whether an individual is actually convicted of the crime they are charged with. Access to public housing is just one of a number of such sanctions; others include eligibility for welfare benefits, various civic privileges such as voting, and often most damaging, prohibition and limitations in employment.
Arrest records have become so pervasive that recent studies show that as many as one in three American youth will be arrested for a non-traffic offense by the age of 23.  In North Carolina, out of approximately 9.5 million residents, more than 1.5 million have a criminal record and the number of residents with a criminal record increased 30% between 2006 and 2008.  Yet, even though criminal records have become increasingly common, they remain a significant factor in employment decisions. The United States Equal Opportunity Commission (“EEOC”) reports that as many as 92% of employers subject all or some of potential hires to criminal background checks.  As one North Carolina attorney explains, “The vast majority of employers and landlords are running criminal background checks. And they’re not simply denying the guy who committed a violent felony last year. What we see is that they’re denying people with decades-old convictions or, a lot of times, for arrests where individuals were never convicted.”
Given the new digital era, data vendors who are able to download criminal record data from public records seldom update their material to reflect expunctions and can immortalize criminal record information on the Internet.  So what can be done about the mug shot industry and its potential to greatly exacerbate the collateral consequences of arrest?  One possible solution is that North Carolina enact a bill such as H.B. 677, a bill proposed (though never enacted) by a Florida representative that would require “that the operators of websites containing personal information of persons charged with crimes remove a person’s name and personal information within a specified period after notice that the person is acquitted or the charges are dropped or otherwise resolved without conviction” and creating a civil penalty for websites that failed to comply.  An even better solution might be for North Carolina to limit the ways in which websites use public records by imposing a narrower definition of what precisely constitutes a public record that websites can access.  New Jersey, for example, has decided to prohibit the release of mug shots prior to conviction with Assembly Bill 3906.  Hopefully, North Carolina will follow suit and also provide for only discretionary access to arrest records and mug shot photographs, providing North Carolina citizens with much needed privacy protections and guaranteeing a more tolerable existence for individuals that deserve a second chance.  If, however, North Carolina is slow to adopt such regulations, we might expect to see some litigation on the horizon…as already, plaintiffs in Ohio have won a lawsuit against online mugshot sites.  Could North Carolina plaintiffs be next?