Sarah Lageson is an Assistant Professor at the Rutgers University-Newark and the author of Digital Punishment: Privacy, Stigma, and the Harms of Data Driven Criminal Justice. Elizabeth Webster is an Assistant Professor at Loyola University Chicago. Juan Sandoval is a Doctoral Student at the University of California-Irvine. They are the authors of Digitizing and Disclosing Personal Data: The Proliferation of State Criminal Records on the Internet.
In the United States, an arrest is made every three seconds. Most of those arrests become a data point in the massive collection and dissemination of criminal history data onto the internet every year. Once released online, arrest and jail rosters, mugshots, and criminal court dockets are duplicated across websites and databases, helping to support the $200 billion dollar data broker industry and providing free content for dubious “reputation” websites and mugshot extortion schemes.
While the American public values access to conviction records and running a background check for hiring and housing is a norm, the massive daily data dump of pre-conviction records poses especially troubling consequences for those who are later found to be legally innocent. In the age of big data, we’ve lost the presumption of innocence.
Our recent study analyzes how much personally identifiable information is published to the internet by the government each year. We found that over a decade, 101 million arrest records and 45.7 million mugshots will be posted to the internet, at no cost, by police departments and local jails. Over the same decade, 147 million criminal court records will be posted to the internet by state and local court systems.
Much of this occurs before a person is convicted of a crime. Our study found that 92 percent of states release pre-conviction data. These records often include a variety of personal information, including full names, birthdates, home addresses, and physical characteristics, like height, weight, skin tone, and even tattoos. Once released, this data is mined, scraped, and shared with employers, landlords, and neighbors, leaving a digital footprint nearly impossible to wipe clean.
In Cumberland County, Maine, for example, the full name, age, and home address of arrestees are posted to a “weekly arrest log” on the County Sheriff's website. The Kings County, Washington online jail roster maintains active records for people released from jail a year ago. In Cuyahoga County, Ohio, criminal court records are maintained on the internet decades after a case is closed and include the defendant’s full name and date of birth. In Nebraska, Kansas, North Carolina, Ohio, New Jersey, Michigan, and Oklahoma, a formerly incarcerated person who has completed their sentence must contend with their full name (and often photograph) remaining on the state Department of Corrections website indefinitely. These data trails undermine state-funded efforts to provide “Clean Slates” through criminal record expungement, “Fair Chance” hiring policies, and prison reentry programming.
It’s legal for local governments to post police and court data under public records laws and Constitutional guarantees. Once disclosed to the public, we all have a First Amendment right to use and republish criminal record data, whether to monitor community public safety or to publicly shame people who have been arrested. But for the legally innocent person whose charges are dropped and record expunged, the internet never forgets. There’s too much profit to be made.
The economics of this system are puzzling. Criminal legal data systems are funded by taxpayers and subsidized further through the fines and fees assessed on the (disproportionately poor) people processed through the system. That money goes to for-profit technology companies that market software systems to local governments that allow easy posting of criminal record data onto the internet, providing data for other for-profit technology companies.
Those technology companies capitalize on this cheap data source by mining or buying it at a low cost from the state, merging it with other sources of consumer and public records data, then reselling it as background checks and “people search” websites. Google profits as those sites advertise criminal record clickbait, and Facebook profits when users share and comment on mugshots and local arrests.
Decades of research show that public safety depends on people’s ability to secure quality employment, live in safe and stable housing, and build families. But in spite of these findings, we’ve created a digital surveillance system that ensures millions of people will be marked and stigmatized indefinitely.
This reality defies the limits of criminal punishment set by state legislatures, ordered by judges, and outlined in our Constitution. When local criminal justice agencies release bulk data, we legitimize racial stereotypes, amplify biased policing, and elevate unfounded fears of crime. And yet, amid the impressive volume of data available about the personal lives of the people the police choose to arrest, we still know so little about how police and courts operate. That’s not government watchdogging.
Freedom of Information laws were created to increase governmental transparency. Instead, what we see is a major imbalance between the “transparency” of data releases that facilitate monitoring state action and those that facilitate monitoring individual people. While journalists must often send repeated requests and even litigate for access to information about governmental operations, information about people arrested and detained is widely available even without a FOIA request. Internet privacy violations and community surveillance have become part of contemporary punishment, even for the innocent.
Some police departments and newspapers have begun to change their practices, but millions of records linger online. Google and Facebook should allow users to request their names, addresses, and photographs be removed from search results when their charges have been dropped or their record sealed. We should all navigate to the webpage of our local jail and court, learn about their data practices, and let them know that data dumps about innocent people don’t make us safer. We should hold our local media accountable for the advertising revenue they make from posting galleries of mugshots, which are re-posted across the internet and leveraged against people.
If local criminal justice agencies want to increase public safety, they should limit their data releases to people with convictions, who are currently under supervision or are posing a public safety risk. If local criminal justice agencies want to be accountable to the public, they should release data about police misconduct, plea bargains, and prison conditions.
As America and the world watch the criminal trial of Derek Chauvin, the police officer charged with killing George Floyd last summer, never before have we been more collectively skeptical of the sheer size and power of the American criminal legal system. This skepticism should extend to the utility of daily, local-level surveillance of people who are often wrongfully swept into the justice system and become entangled in harmful big data systems for the rest of their lives.