Digital Expungement

50 Pages Posted: 4 Aug 2018  

Eldar Haber

University of Haifa - Faculty of Law

Date Written: June 16, 2018

Abstract

Digital technology might lead to the extinction of criminal rehabilitation. In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet. The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used. These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement. Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged. Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows. After an introduction, Part II examines rehabilitation and expungement as facets of criminal law. Part III explores the challenges of digital technology to rehabilitation measures. Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age. It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution. Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

Keywords: expungement, sealed records, rehabilitation, criminal rehabilitation, criminal law, the right to be forgotten, right of erasure, mugshots, criminal history records

JEL Classification: K00, K14, K33, K42, K49

Suggested Citation

Haber, Eldar, Digital Expungement (June 16, 2018). Maryland Law Review, Vol. 77, No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3214335

Eldar Haber (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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