Do we really have access to digital information?

Is the ease of researching personal information records online by the public facing a backlash? Courts, legislatures and regulatory agencies are grappling with (or just reacting to) challenges to transparent government that threaten public access to police calls for service, online court records and the Death Master Index (SSDI) — all historically public records. Legislatures are floating proposals to restrict employers consideration of criminal history records in assessing job candidates.

The extensive digitization of government records has enabled greater aggregation and cross-referencing of personal information in public record databases and eased access to electronically stored government documents – upending the “practical obscurity” that paper-only records provided. Academic papers are examining the tension between demands for open government and the expectation of privacy. Government officials and politicians are paying attention to the authors’ proposals. Read “Assessing public information in the digital age” for a short summary of some of the issues and for links to those studies.

The conundrum for employers vetting potential hires within the restrictions of the law and the expectation of privacy is addressed in “Negligent Hiring and the Information Age: How State Legislatures Can Save Employers From Inevitable Liability”. As the review of a potential hire’s Internet activity has become more pervasive, the legal liability of “googling,” or not, creates due diligence conflicts that may have to be addressed by state legislatures.

A recent social science study, The Digital Scarlet Letter: The Effect of Online Criminal Records on Crime concludes that access to criminal histories on the Internet has contributed to increased recidivism. This supports the widespread movement to expunge criminal histories and restrict employers’ use of them in evaluating job candidates. Not only court records are expunged but private database aggregators remove records when they are notified of expungement orders.

And the Equal Employment Opportunity Commission Guidance on Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 asserts that employers should consider criminal offenses only as they pertain to the specific job.

As court indexes have become available in an electronic form and migrated to the Internet, the terms of access have faced more scrutiny. A recent decision by the Executive Director of the San Luis Obispo Superior Court to remove the public access computer terminal to the criminal index signals that the ease of electronic delivery of public records may be curtailed. In other instances, search fees make extensive online searching cost prohibitive, as in the $10 per-name charge applied by the Alabama statewide court, plus an additional $10 for each docket.

More is possible but that doesn’t mean it’s certain.

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