Privacy and Criminal History Records

According to the BJS/SEARCH Report of the National Task Force on Privacy, Technology and Criminal Justice Information, the Constitution remains largely neutral on the privacy of criminal history record information (CHRI). The report identifies several landmark Supreme Court decisions over the last three decades that impact CHRI dissemination. They include:

Paul v. Davis (1976), in which the Court found no privacy interest in the dissemination by criminal justice agencies of information about official acts, such as arrests;

Department of Justice v. Reporters Committee for Freedom of the Press (1989), in which the court recognized a statutory privacy interest, under the federal Freedom of Information Act, in automated, comprehensive criminal history records.

Arizona v. Evans (1995), in which the Court found that the "exclusionary rule" does not require suppression of evidence seized during an arrest resulting from an inaccurate computer record (in this case, an outstanding misdemeanor warrant quashed by the court prior to the arrest) when the inaccuracy was caused by the court rather than by police; and

Los Angeles Police Department v. United Reporting Publishing Corp. (1999), in which the Court upheld a California statute that prohibited the use of arrest information "directly or indirectly to sell a product or service to any individual or group of individuals"; and

Herring v. United States (2009), in which the Court ruled that evidence seized in an improper arrest does not always have to be thrown out by the courts, provided the error was the “result of isolated negligence” on the part of the police.

The Task Force also identified a number of technological, cultural, economic and other change drivers that have prompted consideration of new criminal justice record information privacy polices. They include:
  • High public concern about personal privacy threats from both the government and commercial sector;
  • A new and emerging information culture, creating a growing demand for information, including criminal justice information;
  • Revolutionary advances in information, identification and communications technologies;
  • Integration of justice information systems operated by law enforcement, courts, prosecution and corrections, along with initiatives to merge this data with systems maintaining other types of personal information;
  • Emergence of a data-driven, problem solving business model for the criminal justice system;
  • A persistent and ever-increasing demand for CHRI from non-criminal justice users;
  • Commercial compilation and sale of criminal justice information;
  • New government initiatives to provide criminal justice information to broader audiences;
  • Juvenile justice reform and demands for juvenile justice information that would resemble the way adult records and handled; and
  • The automation and regionalization of criminal justice intelligence systems armed with CHRI.

Privacy in America
Many observers trace the roots of the modern legal US concept of privacy to the 1890 Harvard Law Review article "The Right to Privacy", co-authored by Samuel D. Warren and future U.S. Supreme Court Justice Louis D. Brandeis. The article made popular the definition of privacy as "the right to be left alone," although previous U.S. Supreme Court decisions contained variations of the phrase.

Surveys conducted over the last several years show significant concern among Americans about personal privacy. Misuse of personal information was a concern of 90 percent of those responding to a poll conducted by Opinion Research Corp. for BJS and SEARCH in 2000.

Seventy-nine percent of respondents to a 2003 Harris poll said it was extremely important to control who can get personal information.

Eighty-one percent of the respondents to a 2002 poll by the First Amendment Center said privacy rights were "essential."

A right to privacy is not explicitly stated in the U.S. Constitution, although the U.S. Supreme Court has recognized privacy rights in the First, Fourth and Fifth amendments, albeit by narrow definitions in particular cases. The High Court has identified personal autonomy as a "liberty" protected by the 14th amendment's due process clause: again, it is narrowly defined and yet to take hold beyond limited circumstances.

Federal statutes, enforced primarily by the Federal Trade Commission, limit access to personal information. The Electronic Privacy Information Center (EPIC) maintains a list of states that have enacted their own statutory privacy protections. Constitutions in 10 states - Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington - expressly recognize a right to privacy, according to the National Conference of State Legislatures.

Privacy Policy Development Efforts
Recent high-profile events involving the theft or inappropriate disclosure of private and confidential information have prompted many organizations, including justice agencies, to reexamine their privacy polices and update them if necessary, or to create such policies if none existed previously.

To assist justice agencies in this process, the Global Privacy and Information Quality Working Group, one of the working groups formed as part of the Global Justice Information Sharing Initiative, created two documents which provide useful information on basic privacy principles and on the steps necessary to create a comprehensive privacy policy.

Privacy and Information Quality Policy Development for the Justice Decision Maker is a high-level, easy-to-read booklet that makes the case for privacy policy development and which explains some of the basic privacy principles necessary for creating effective policies.

Privacy and Civil Liberties Policy Development Guide and Implementation Templates is a hands-on, in-depth resource that provides sensible step-by-step guidance for creating or revising an agency’s privacy policy. The Guide is geared toward justice practitioners who have been assigned the responsibility of writing or updating their agencies’ privacy policies.