Dec 23, 2021 9:00 AM

Transparency Laws Let Criminal Records Become Commodities

For millions of people, details from an arrest—even a mistaken one—live on after being sold to data brokers. And the state profits.

A collage of images including a delete key and a mug shot.

In April 2018, Adnan (a pseudonym) was wrongfully arrested in Newark, New Jersey, on the basis of an incorrect arrest warrant. A brief period in jail led to the criminal court judge dismissing the incident and moving to have Adnan’s arrest record expunged. A few days later, Adnan began receiving mysterious text messages from several “reputation management” companies that promised to help him get his mug shot removed from the internet. A few days after that, he received an email from a company that specializes in “arrest-related content removal.” Confused, Adnan contacted the local and state police departments to ensure that his expungement order had been received from the courts. It had, but Adnan’s arrest data was already in the hands of data brokers.

Every three seconds, a person is arrested in the United States, mostly for low-level incidents like drug possession or disorderly conduct. After that person is booked, they may or may not be charged with a crime by prosecutors, and even if they are charged, the case can end in a dismissal. This should be the end of the story.

But for millions of people arrested each year, the details of their arrest or criminal charge live on in digital spaces as their record is aggregated and sold to data brokers. Criminal records—which can include electronic criminal court dockets, public jail and prison rosters, and sex offender registries—are enormously useful for the data brokerage industry because they are cheap and replete with detailed personal information, including full names, aliases, birth dates, home addresses, and photographs of arrestees. The brokers then combine this data with consumer data to create profiles used for both advertising and risk prediction.

The details of the arrest—even if the person was not eventually charged—can end up being used for background screening reports in the employment and housing sectors, as internet fodder, or as part of risk prediction models that can determine a person’s credit or insurance eligibility.

A former arrestee also becomes subject to predatory businesses, such as reputation management and mugs hot takedown services or high-interest loans, that target people who have been through the legal system. An arrestee’s home address and photograph are available to a broad set of organizations that buy access to personal data, including private debt collectors, facial recognition software companies, police departments in other jurisdictions, and Immigration and Customs Enforcement.

Criminal records are also extremely valuable to the amorphous “people search” industry, where companies buy, scrape, and aggregate public court records that are then sold in reports for curious consumers searching for background information. These services are commonly advertised in search results for a person’s name, peppering Google with clickbait that tantalizes you to learn more about your new coworker or date.

All this is possible because data brokerage is a virtually unregulated practice in the US. Data brokers and people-search websites operate outside federal regulations such as the Fair Credit Reporting Act and in fact are covered by well-meaning transparency laws. For example, because these people-search websites are aggregators of public records—and not technically furnishing “official” background checks—they are not held to any accuracy or data integrity standards, and it can be nearly impossible for a person to get these reports removed or fixed, even though they’re cemented to their internet search results.

In this way, the private data industry profits directly from the punitive arm of the state and the discretionary decisions made by police and prosecutors.

When the state funnels police and court data into the private sector, it is participating in a form of surveillance capitalism by turning criminal records into data commodities. This is rooted in two uniquely American contexts.

The first is mass incarceration in the United States. One in three Americans have some sort of criminal record, which by extension means there is personal data garnered through arrest and court records for a full third of the US population. Research shows that around 4.5 million mug shots and 14 million digital criminal court records are released at no cost by local governments each year. Not only do we have a mass incarceration problem, but we have a mass data problem—and it’s not borne equally across racial groups.

The data broker’s boasts of having big data on criminal records fail to acknowledge how racially biased these data are. Criminal records are disproportionately assigned to people of color. This happens at every step of justice system processing: Black people are more likely to be arrested by police and experience pretrial detention and are more likely to face serious charges by prosecutors. These racialized patterns continue the punishment and sentencing phases, with Black Americans making up a disproportionate share of the prison population and shouldering longer sentences than white people. When the state sells or shares criminal records with data brokers, these inequalities are cemented across big data systems.

The second factor is American transparency law, which, unlike transparency law in other countries, classifies criminal records as public record and thus allows data companies to benefit. While this allows anyone to access government records, the original intent of these laws was for watchdogging police and courts—not to create a cheap and easy personal data source composed of people caught in the system.

Transparency laws today also tend to release a lot more information about arrestees and detainees than about police, prosecutors, and judges. This emphasis on pushing out arrest records, mug shots, and court documents allows the state to skirt its responsibility to provide good data about things like police misconduct, prosecutorial discretion, judicial decisionmaking, or prison conditions.Transparency law is also leveraged by the state to justify the fees it charges to data brokers and other parties interested in access. These fees are often framed as necessary to cover the administrative cost of maintaining and compiling data into usable formats but has led some critics to point out that the state profits from the sale.

Turning criminal records into data commodities is a harmful exercise of state power. A key difference between consumer data and criminal record data is that of consent. Consumer and public records data often capture affirmative choices we make about how we spend money, buy property, or use the internet. Though we might not be aware that these movements are monitored and cataloged, our use of digital platforms often carries an implicit agreement to be tracked, for better or worse. Criminal records, in contrast, are assigned by the state. There is no opting out.

States need to stop participating in the data brokerage industry. Profit-seeking big-data profiling is not a legitimate use of public records policy. In fact, we could use more transparency in this context: to see exactly how much states profit from the sale of personal information about prisoners and criminal defendants, to know where that money comes from, and to show how data brokers use the court records they’ve obtained.

There’s plenty of potential lines of reform. Government agencies could stop the outright sale of data through internal policy changes or broader regulation, or pare down the sheer amount of personally identifiable information distributed by state platforms, such as the photographs and home addresses of people under legal system supervision. As members of the public, we could demand commensurate detail about criminal justice system operations and staff under similar transparency law rationales. We could also regulate the unregulated people-search industry and call it what it is: harmful and illegal background checks with no attention to reporting accurate and truthful information.

Bigger picture, the commodification of criminal records raises questions about relationships between the private sector and the legal system. Troubling reports recount how private-sector industries profit from building prisons, serving as court-fee debt-collection agencies, and charging money for court-ordered electronic monitoring and rehabilitation programs. We tend to think less about the value of our personal data as it is collected and shared by the government without our consent, and in this context, often even without a criminal conviction. When we lack privacy safeguards around the personal information about people who are arrested or detained, we risk further harm to those who are often already the most vulnerable to surveillance. In a time of calls for reform, we should demand that data brokers stop profiting from policing.