Name searches are not possible via the web site, and indeed are not necessary to ensure the policy objective that property is being assessed fairly. The process of analyzing the public policy purposes of certain government records being public and others not is long overdue. Now that courts and government agencies are grappling with the decision to post their records online is an ideal time to engage in this analysis.
Why are Medicare records confidential? Why are tax documents not available to the public? Why are other types of government records considered public? Which records need to be public in order to promote such policy objectives as government accountability? Which records should not be released to anyone without the individual's consent? For certain types of records, can public access be limited to just the key elements of the records in order for the public policy objective of government accountability to be achieved?
These questions must be answered in order to make rational decisions about posting public records containing personal information on the Internet. Restrictions on access. Courts and other government agencies can restrict or control access to records in order to protect particularly sensitive personal information. He cites numerous cases and provides an extensive analysis of the applicability of the Constitution to make his arguments, a full discussion of which is beyond the scope of this presentation.
In Solove's words:. Thus, personal information is regulated by a bewildering assortment of state statutory protections which vary widely from state to state. This chaotic state of affairs is troublesome in an Information Age where information so fluidly passes throughout the country and is being made more widely available by the Internet and through private companies.
The privacy protection that currently exists for public records is largely designed for a world of paper records and has been slow to adapt to an age where information can be downloaded from the Internet at the click of a mouse. Public records contribute to this privacy problem because they enable the creation of a dossier of personal information about individuals. The problem is that, often without the individual's knowledge or consent, the information is then used for a host of different purposes. Of course, we must rethink what information belongs in public records.
But we must also regulate the uses of our digital biographies. Government is not doing enough to protect against the uses of the information that it routinely pumps into the public domain. Solove goes on to analyze several prominent court cases and to offer arguments as to why government agencies can restrict or control access in order to protect personal privacy:. Public record information is part of this largesse, and the most recently decided unconstitutional condition cases suggest that the government can impost certain conditions on how this information is used before it makes it available to the public.
By making access conditional on accepting certain responsibilities when using data - such as using it for specific purposes, not disclosing it to others, and so on - certain functions of transparency can be preserved at the same time privacy is protected. Anonymizing and aggregating data. To flesh out the previous point, in certain situations access to court and government agency records can be accomplished by providing them in aggregate form with personal identifying information left out, or by enabling full access under special confidentiality agreements with the court or agency.
The result would be to anonymize the information that is ultimately made available to the public via news stories or academic treatises.
Investigative reporters or academic researchers might want to analyze trends in certain types of court cases, for example, divorces. They should have the ability to apply to the court for full access to these files, but should be required to enter into a confidentiality agreement with the court to not publish personal identifying information and not to share that information with others.
Other requests for broad-based access might be fulfilled by the court or government agency by providing aggregate data with personally identifying information removed. Rules of court see point 3 above must include provisions enabling access to multiple files for research and investigative purposes, while at the same time protecting the privacy of those individuals named in the records. The preceding recommendations pertain primarily to court and government agency records.
We must also examine those professions that use public records information, namely information brokers and private investigators.
Power to the Peoples: Record Store Rises from the Ashes
Regulating the information broker industry. The information broker industry must be regulated.
At present, information brokers purchase public records from local, state, and federal government agencies and repackage them for sale to subscribers. They add data files from commercial data sources such as credit reports and consumer survey data. Virtually anyone can obtain access to these files, although many information brokers claim they limit access to professions such as private investigators, attorneys, law enforcement, media, debt collectors, landlords, and employment background checkers. However, the effectiveness of such self-regulation is limited at best.
Briefly, such principles include: openness, access to data, correction data quality , purpose specification, collection limitation, use limitation, security, and accountability. Individuals must be able to find out when information about them is accessed and for what purpose. They must be able to get access to those data compilations in order to determine if they are accurate. And they must be able to take legal action when personal data is obtained and disclosed for illegitimate purposes.
other people records
With the information broker industry largely unregulated, individuals have little opportunity to know how data about them is used by others, with the limited exception of investigative consumer reports background checks , discussed in the next point. Closing loopholes in the background check law. The loopholes in the background check laws at the federal and state levels must be closed.
This law requires employers to obtain consent from the subjects of background checks. If an adverse hiring decision is made, the individual must be given a copy of the report.
At present, the federal law only pertains to employers who hire third party investigators to conduct background checks. It does not apply if the employer conducts the background check itself. An increasing number of employers are doing their own investigations due to the availability of low-cost information broker data bases on the web.
The law must be broadened to encompass employers who conduct their own searches. The California Legislature amended its background check law, effective , to require employers who conduct their own investigations to abide by the same disclosure requirements as third part investigators.
See California Civil Code The law must also close the "adverse decision" loophole. An employer might claim to have decided to not hire an individual because of a superior job pool, not because of negative information found in the background check. In such cases, the applicant does not need to be given a copy of the report and may never know that erroneous information, for example, may have been the real cause of the rejection.
Employees and job applicants must be given the opportunity to obtain copies of their background checks in all instances, not just those where adverse decisions have been made. Of course, there must be an exception for investigations conducted when there is suspicion of criminal wrongdoing.
Other people's records
To read more about the problem of background checks and wrongful criminal records, see my speech presented. Requiring more accountability of the private investigator industry. The private investigator profession, a major user of public records information, must be regulated in those states where there are no oversight agencies.
Further, existing regulations must be tightened and made uniform nationwide, perhaps by federal law. Private investigators must be held to strong standards regarding their access to and use of sensitive personal information. They should be held accountable when they misuse personal information. Teaching and practicing tolerance. This is my "tolerance" recommendation, and is perhaps in the realm of the "impossible dream. We must transform how our society judges individuals - not an easy task.
As I discussed earlier, we appear to be forgetting the older social value of "societal forgiveness. After all, one person's "black mark" is another's life lesson learned the hard way. How to accomplish such a societal transformation is hard to envision, especially at a time when we are increasingly a "get-even," litigious society. For starters, schools and colleges must teach about tolerance and responsible information-handling practices in business and ethics classes.
And employers must be willing to look beyond many of the so-called negative items found in background checks in their hiring decisions. I realize that the latter is especially difficult for companies to do given the likelihood of facing negligent hiring lawsuits if bad decisions are made. The "go slow" approach. Finally, courts and government agencies must take a "go slow" approach to posting public records on the Internet. For example, as discussed earlier, the full texts of court records should not be posted online until flexible and effective redaction technology is available, and until court systems have adopted rules that support sealing the most sensitive information.
Government agencies must examine the public policy objectives they are attempting to accomplish by making records available on the Internet - the prime one being government accountability. If there are ways to limit the amount of personal information provided online without undermining the public policy objectives of providing access, then such approaches should be considered.
I began this presentation by listing several negative consequences to individuals and to society when public records containing personally identifiable information are widely available on the Internet. I strongly believe that unless courts, government agencies and industry groups explore and adopt many of the recommendations presented here, there will be serious harm to many individuals and to society. That is why the "go slow" approach is the best way to proceed at this time - so that technologies, policies and societal institutions can be allowed to evolve at the appropriate rate to protect privacy while at the same time as promoting the benefits of electronic access.
This presentation is a work in progress. I welcome your suggestions on ways to reduce the harmful effects of public records being published on the Internet, while at the same time upholding the public policy purpose of government accountability. I am grateful to the following individuals for reviewing this paper and offering suggestions. The final conclusions are my own. The first thing you can do is to freeze your credit. Property tax assessor files.
Typical records contain name of owner, description of property, and the assessed value for taxation purposes. Some systems even provide blueprints of the property. Motor vehicle records - registration, licensing, and driver history information varies by state. Registered voter files restricted in some states. Professional and business licenses. Court files: Case indexes Tax liens and judgments Bankruptcy files Criminal arrest and conviction records, and warrants Civil court recordings.
These are commonly available in divorce decrees, child custody cases, and bankruptcy filings. But when account numbers, personal identifiers, and dates of birth are accessible on the Internet, they could be used to commit financial fraud. The crime of identity theft is at epidemic proportions today, fueled in part by easy access to SSNs.