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                                        Mr. Paul F. Kendall
                                         General Counsel

                                          Neal J. Swartz
                                         Anne E. Gardner

                               United States Department of Justice
                                    Office of Justice Programs

                                                     We have yet to determine the effects on an
I.      INTRODUCTION                                 individual‟s interest in privacy of “too much”
                                                     information, “easy, instantaneous access” to
Advances in technology are changing the              vast quantities of information, and the
way all of us live and work. In our day-to-          analytical capabilities of today‟s technology.
day lives, we expect and depend on                    It is to be seen whether the increased
expedient, if not immediate, world-wide              access to information and the ability to
communication and access to information              relate disparate pieces of a person‟s
24 hours a day, seven days a week. The               information results in a distorted and
criminal justice community is no exception           inaccurate picture of that person. Although
to the effects of this change. In response to
the growing demands on the justice                   JURIMETRICS J. 383, 399-400 (1994) (noting that
                                                     “[w]hile criminal justice agencies traditionally have
community and its expanding desire and               kept files, automation dramatically changes the
need for information, many states and                nature of such record keeping: there are more
localities are increasing their information          individuals as data subjects; there are more data
gathering, analysis and sharing capabilities         per individual; there is more centralization and
                                                     correlation of diverse data sources; there is access
through developing integrated justice
                                                     to the data by more persons; there is faster access
information systems. Increasingly, these             to the data; and there is more efficient remote
integrated criminal justice systems allow for        access to the data.”)
instantaneous and seamless access to
                                                     Medical records and automobile information are
information within the justice system and
                                                     two areas in which much privacy literature has
with the world at large.                             developed. See generally Sheri A. Albert, Privacy
                                                     and Intelligent Highways: Finding the Right of Way,
The justice system has been gathering,               11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 97
analyzing, and passing information from              (1995); Dorothy J. Glancy, Privacy and Intelligent
                                                     Transportation Technology, 11 SANTA CLARA
one component to another since the “justice          COMPUTER & HIGH TECH. L.J. 151 (1995); Peter H. W.
process” began.        What makes today‟s            van der Goes, Jr., Comment, Opportunity Lost: Why
automated and seamless sharing of this               and How to Improve the HHS-Proposed Legislation
information different from the “file cabinet         Governing Law Enforcement Access to Medical
and telephone” system of yesterday? This             Records, 147 U. PA. L. REV. 1009; Wendy E.
                                                     Parmet, Comment, Public Health Protection and
question may have more to do with how                the Privacy of Medical Records, 16 HARV. C.R.-C.L.
society is reacting to the accelerated access        L. REV. 265 (1981); Caroline M. Westover,
and transfer of all types of information,            Comment, A Survey of Federal Cases Involving the
rather than with the justice system process          Constitutionality of the Driver’s Privacy Protection
itself.1                                             Act, 8 B.U. PUB. INT. L.J. 555 (1999). In 1995, The
                                                     Santa Clara Computer and High Technology Law
                                                     Journal published symposium papers on Privacy
1.       See Steven A. Bercu, Toward Universal       and Intelligent Vehicle Highway Systems. See
Surveillance in an Information Age Economy: Can      generally Albert, supra and Glancy, supra.
We Handle Treasury’s New Police Technology?, 34

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Gathering, Analysis, and Sharing of Criminal Justice Information by Justice Agencies: The Need for Principles of
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we have not resolved these questions, it is                 analysis or “virtual picture” of an individual
critical to begin examining the unique                      that is contained in and used by the criminal
aspects     of gathering, accumulating,                     justice system violates an individual‟s
analyzing, and sharing information in the                   interest in privacy by supplanting an
justice system and the implications on                      individual‟s control over his personal
individual privacy.                                         information?3

Like the medical records area, use of                       This article describes the concept of
personal information in the justice system                  integrated justice systems, how such
carries with it the possibility of irreparable              systems allow justice agencies to gather,
harm to an individual, and therefore,                       accumulate, and analyze various types of
requires a high degree of responsibility from               information to create a “virtual picture” of an
justice agencies. If the concept of privacy                 individual which may be shared by the
focuses on an individual‟s capability to                    components of the criminal justice system.
control information about him or herself, 2                 This article further explains that decision-
the question becomes whether the                            makers in the criminal justice process may
technological capabilities of integrated                    use these “virtual pictures” to make
criminal justice systems to create an                       judgments about individuals. This article
                                                            then determines whether federal law
2.        See Fried, Privacy, 77 YALE L.J. 475, 482-        provides rules governing the responsible
83 (1968); Tom Gerety, Redefining Privacy, 12               use by justice agencies of such information
HARV. C.R.-C.L. L. REV. 233, 281 (1977). Professor          or whether “responsible use” rules should
Fried argues that a “person who enjoys privacy is
                                                            be pursued. Part II of this article defines
able to grant or deny access to others” of
information about him or herself. Fried, supra, at
482. Professor Fried uses the example of a house
to explain his point. Id. at 483. One‟s house is            3.        An argument may be made that where a
private because the law allows individuals to               state violates an individual‟s privacy by disclosing
exclude others from the house, and the “house is            personal information about that individual to the
constructed - with doors, windows, window shades            public, the state has deprived the individual of the
- to allow it to be made private.” Id. Professor Fried      opportunity to define him or herself. See Francis S.
also makes a distinction between simple control             Chlapowski, Note, The Constitutional Protection of
over the quantity of information and control over the       Informational Privacy, 71 B.U. L. REV. 133, 154-55
quality of the knowledge. Id. “We may not mind              (1991).    This author grounds his argument in
that a person knows a general fact about us, and            Professor Fried‟s theory that privacy is “control over
yet feel our privacy invaded if he knows the details.”      knowledge about oneself.” See id. at 154-55 & 154
 Id.                                                        n.147 (1991) (citing Fried, supra note 2, at 483).

Professor Gerety argues that “[p]rivacy is . . . the        Professor Gerety explains that violations of
control over the autonomy of the intimacies of              informational privacy depend on how the
personal identity.” Gerety, supra, at 281. Professor        information is used rather than on how the
Gerety distinguishes privacy from confidentiality.          information is obtained. See Gerety, supra note 2,
See id. at 282. Private information “excludes all but       at 283. He further notes two significant vices latent
such information as is necessary to the intimacies          in the very collection of . . . information: first, there
of our personal identities.” Id. Confidentiality,           is the possibility, virtually a certainty in many cases,
however, is created through either “implicit or             that its life as information will be prolonged beyond
explicit mutual agreement” and does not depend on           necessity or justification; and second, there is the
the type of information. Id.                                possibility that its contents will be divulged without
                                                            our consent or knowledge and so without our
This concept of privacy as an individual‟s capability       corrections.
to control information about him or herself has also
been referred to as “database privacy.” Frederick           Id. at 287.
Schauer, Internet Privacy and the Public-Private
Distinction, 38 JURIMETRICS J 555, 556 (1998).              Professor Schauer argues that new advances in
Professor Schauer defines “database privacy” as             technology, such as the Internet, “would present a
“the purported right of individuals to control the          danger to privacy if the Internet only increased the
distribution and availability of information about          ease and thus the frequency of access to otherwise
themselves that may appear in various                       private information, even if such information was
governmental and nongovernmental databases.”                previously accessible, but accessed only rarely.”
Id.                                                         Schauer, supra note 2, at 558.

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Integrated Justice Systems. Part III defines                record.      This record of information,
the various types of information contained in               including      the    personal     information,
automated justice systems and discusses                     fingerprints, offense charged, and criminal
the differences between criminal history                    history,    is     “pushed,”    (automatically
information,        criminal       intelligence             electronically transferred) to the next
information, juvenile justice information, and              agency in the justice process. Depending
a new type of information - supplemental                    upon the jurisdiction, this agency will be the
information. Part IV examines whether the                   court, pretrial services, or the prosecutor
capability of an integrated criminal justice                and defender. Each of these agencies in
system to gather, accumulate, analyze, and                  turn adds information to the record and
share information creates privacy issues                    “pushes” it on to the next component
requiring further discussion. Part V reviews                agency. In a completely integrated justice
federal constitutional privacy principles and               system, this “e-record” will be electronically
the privacy principles articulated by federal               available to many component agencies of
regulations governing criminal intelligence                 the    justice     system     including     law
information and criminal history information.               enforcement, prosecutors, and the judge in
 We argue that the outcome of this review                   the courtroom when he or she is
demonstrates that the privacy issues raised                 determining a sentence for the convicted
by integrated justice systems‟ capabilities                 offender.       Additionally, this e-record,
are neither addressed by the current federal                including the case disposition, will be used
constitutional privacy law nor by the various               to update the offender‟s criminal history
federal regulations. This lack of governing                 record, and it will continue on to the
privacy principles, we argue, requires a new                correctional institution, where additional
discussion concerning “What responsible                     information is added during the time the
use of criminal justice information within an               offender serves his or her sentence. Upon
Integrated Justice System should be.”                       release of the offender, critical information
                                                            on terms of release will be “pushed” to the
II.     INTEGRATED JUSTICE SYSTEMS                          probation or parole officers and to law
                                                            enforcement and victims notification
Integrated justice information systems                      systems, where appropriate.
encompass a variety of information sharing
strategies and technologies. In their basic                 This scenario describes only the most basic
form, they allow justice system agencies                    processes of the justice system. In reality,
(law enforcement, courts, prosecution,                      the scenario is much more detailed and
defense, corrections, and probation and                     complex, with information moving forward
parole) to input data once, at the place of                 and backward to various justice system
origin, and seamlessly access and share                     agencies at prescribed times throughout the
data with other justice system agencies as                  process. Increasingly, integrated justice
the data is passed through the justice                      systems allow component agencies to
system.                                                     interface with public electronic sources,
                                                            such as the Internet, and other
For example, when law enforcement arrests                   governmental agencies, such as social
a person, the law enforcement agency                        services, education, and heath and welfare.
enters the arrestee‟s personal information                  Through these interfaces, the justice
(name, address, social security number,                     system can gather information that may
etc.) into its operational “booking” system.                travel through the justice process as well.
Increasingly, law enforcement agencies                      At each information exchange and access
have the capability to capture electronic                   point described above there is an important
fingerprints, or livescan prints, and add                   occurrence: the ability of a human decision-
them to the booking system record as well.                  maker accessing the record to gather and
In addition, the offender‟s prior criminal                  analyze data and make critical judgments
history record (if any) is accessed from the                about the individual whose information is
state repository and added to this offense                  contained in the record.

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                                                                 Constitutional and common law privacy
III.      THE INFORMATION                                        issues associated with the automated
                                                                 criminal history record have been
Policy, regulation, and law associated with                      reviewed since its inception in the early
gathering, storing, and sharing criminal                         1970's, but generally have had little
justice information traditionally has focused                    impact on restricting the collecting,
on three specific types of information: the                      storing, and dissemination of criminal
criminal history record, criminal intelligence                   history data. 7 Rather, criminal history
information, and juvenile justice information.                   records systems operate under a
 With the new capabilities of technology,                        patchwork of federal and state statutes
supplemental information is entering the                         and regulations, such as Title 28 Code
integrated justice system with these more                        of Federal Regulations, part 20. 8
traditional types of information.
                                                            in to a criminal history record, or “rap sheet.” These
       A. Criminal History Information                      rap sheets are available to criminal justice
       Criminal history records contain distinct            personnel for authorized purposes and to non-
       pieces of information generated by the               criminal justice agencies for purposes such as
       criminal justice process. Generally, a               employment        screening       and     occupational
                                                            licensing.).    Increasingly, state criminal history
       criminal history record will contain                 records include livescan (electronic) fingerprints in
       information identifying the individual,              addition to the individual‟s name and identifying
       information about any of the individual‟s            information.
       arrests, and “disposition data.” 4
       Disposition data commonly includes                   7.        See id. at 35 (noting that privacy doctrines
                                                            of the Federal constitution and common law have
       information about final decisions or                 been applied to the automated criminal history
       actions that terminate the case,                     record systems, but that “constitutional privacy
       including, police decisions to drop all              principles do not limit dissemination by criminal
       charges, prosecutor decisions not to                 justice agencies of information about official acts,
                                                            such as an arrest . . . [and s]overeign immunity, civil
       prosecute, and court acquittals, or                  and official immunity and the need to show tangible
       convictions         and       sentences,             harm arising from the alleged misuse of the
       incarceration, and release.5 Automated               criminal history record pose insurmountable
       criminal history records reside in state             obstacles to most common law actions by record
                                                            subjects.”).    See also SEARCH Group, Inc.,
       and federal repositories that can be                 Technical Memorandum No. 12: Criminal Justice
       queried by authorized state and local                Information: Perspectives on Liability, 5-20 (1977);
       agencies for criminal justice and non-               Robert R. Belair and Paul L. Woodward, SEARCH
                                               6            Group, Inc., Case Law Digest: Court Decisions on
       criminal      justice    purposes.
                                                            the Handling of Criminal History Records -
                                                            Summaries and Analysis (July 1981).
4.      See Use and Management of Criminal
History Record Information: A Comprehensive                 8.        See SEARCH, Criminal History Record
Report, U.S. Department of Justice Bureau of                Information, supra note 4, at 35-36 (describing the
Justice Statistics, by SEARCH Group, Inc., at 23            federal and state statutes and regulations that apply
(1993) [hereinafter, SEARCH, Criminal History               to criminal history records systems); see also, infra
Record Information].                                        Part IV, C (analyzing whether 28 C.F.R. pt. 20
                                                            provides rules governing the use of criminal justice
5.        See id. “Criminal history record” is defined      information among criminal justice agencies). For
by Federal regulations as “information collected by         example, the Federal Bureau of Investigation‟s
criminal justice agencies on individuals consisting         authority to maintain criminal history records
of identifiable descriptions and notation of arrests,       resides in 28 U.S.C. § 534 (1994). Similarly, state
detentions, indictments, information, or other formal       and local jurisdictions that use funding provided
criminal charges, and any disposition arising               pursuant to the Omnibus Crime Control and Safe
therefrom, sentencing, correctional supervision, and        Streets Act of 1968, as amended, are governed by
release.” 28 C.F.R. § 20 (1998).                            the criminal history record principles of the Act.
                                                            See id. at 36.        These principles require that
6.       See id. at 1-2 (explaining that each state         “collection, storage, and dissemination of such
operates a central criminal history record repository       information shall take place under procedures
that receives information from justice system               reasonably designed to insure that all such
components as a case is processed.               The        information is kept current therein; . . . and that
repositories compile the information of an individual       information shall only be used for law enforcement

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      Privacy issues associated with the                         specific to law enforcement for use in
      criminal history record continue to be                     tracking possible criminal activity prior
      the subject of discussion, as public                       to arrest. 12 Historically, intelligence
      policy and new technologies move to                        information “leads” have been collected
      open access to the criminal history                        and analyzed by law enforcement
      record to a wider audience (e.g., public                   officers in tracking and preventing crime
      and private automated background                           in their jurisdictions.
                                                                 In the early 1970's law enforcement
      B. Criminal Intelligence Information                       agencies began using the capabilities of
      Criminal intelligence information is not                   computer systems to store and share
      characterized by the type of information                   intelligence information for multi-
      collected, but rather by when the                          jurisdictional crime fighting. Notably,
      information is collected and how the                       the federally supported Regional
      information is used. The information is                    Information Sharing System (R.I.S.S.)13
      generally the product of surveillance of                   stored      and    organized     criminal
      suspected criminals or individuals                         intelligence information on a national
      suspected to be involved in criminal                       basis. In response to privacy concerns
      enterprises. 10 “Intelligence information                  associated with computerization of
      is a wide-ranging collection of facts -                    intelligence information, the Department
      employment records, bank statements,                       of Justice issued a regulation governing
      tax returns, telephone bills, reports of                   the standard for automated collection,
      personal associations - which may                          storing, and access of intelligence
      provide the basis for major criminal
      prosecutions.” 11 This information is

and criminal justice and other lawful purposes.” 42         12.       See SEARCH, Criminal History Record
U.S.C. § 3789g(b) (1994).          State and local          Information, supra note 4, at 7 (noting the
jurisdictions receiving federal funding for criminal        distinction between “intelligence” information and
history record information systems are also bound           “investigative” information. Intelligence information
by the requirements of federal regulation 28 C.F.R.         is “information compiled in an effort to anticipate,
part 20, the purpose of which is “to assure that            prevent or monitor possible criminal activity,” where
criminal history record information wherever it             “investigative” information is “information obtained
appears is collected, stored, and disseminated in a         in the course of the investigation of specific alleged
manner to insure the completeness, integrity,               criminal acts.”) For purposes of this article,
accuracy and security of such information and to            intelligence information includes all information
protect individual privacy.”    28 C.F.R. part 20           gathered prior to arrest and prior to establishing
(1998). In addition to these federal statutes, states       specific reasonable suspicion of criminal activity.
have enacted comprehensive criminal history                 Investigative information includes information
record statutes, many of which provide even more            gathered prior to arrest, but after specific
stringent privacy protections that the federal              reasonable suspicion of criminal activity has been
statutes and regulations. See SEARCH, Criminal              established.
History Record Information, supra note 4, at 36.
                                                            13.        See Anti-Drug Abuse Act of 1988, Pub. L.
9.       The U.S. Department of Justice Bureau of           No. 100-690, 102 Stat. 4181, 4340-41, 1988
Justice Statistics and The SEARCH Group, Inc. are           U.S.C.C.A.N. (102 Stat.) 4340-41. The first major
continuing to analyze privacy issues relating to            federally funded automated criminal intelligence
criminal history records through the National Task          sharing system, the R.I.S.S. system, was
Force on Privacy, Technology and Criminal Justice           established as an LEAA grant program in the early
Information, the most recent meeting of which was           1970's.     R.I.S.S. continued to be funded and
held on May 11-12, 1999 in Boston, Massachusetts            eventually received a Congressional line-item
(copy of proceedings on file with author).                  appropriation in the mid-1970's. The 1988 Act
                                                            served to give specific authorization for funding to
10.     See Nicholas de B. Katzenbach and                   this and similar criminal intelligence information
Richard W. Tomc, Crime Data Centers: The Use of             systems to track organized crime across
Computers in Crime Detection and Prevention, 4              jurisdictions. See id., see also Office of Justice
COLUM. HUM. RTS. L. REV. 49, 54 (1972).                     Programs, Office of the Comptroller, Regional
                                                            Information System Grant History (1975-1997)
11.      Id. at 55-56.                                      appropriation chart (Apr. 1998) (on file with author).

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    information        in     federally       funded              most law enforcement agencies have a
    systems.14                                                    formalized juvenile referral process that
                                                                  increasingly includes photographing
    C. Juvenile Justice Information                               and fingerprinting juvenile offenders
    The American juvenile justice system                          pursuant to state law.19 In keeping with
    traditionally     has     focused       on                    the traditional sense of rehabilitation, it
    rehabilitation rather than retribution,                       is estimated that about one half of the
    separating, in many cases, the juvenile                       referred juvenile cases are resolved
    offender from the adult criminal justice                      informally, with the help of the family,
    process. 15      This separate juvenile                       school and counseling agencies, rather
    process and rehabilitative philosophy is                      than court intervention. 20 Where court
    reflected in how juvenile justice                             intervention is necessary, a unique
    information is collected, stored, and                         juvenile justice record and often a
    shared. 16 Historically, juvenile justice                     unique juvenile justice offender number
    records have received a high degree of                        is maintained by the juvenile court
    confidentiality, limited disclosure, and                      system. It should be noted that juvenile
    the possibility of being sealed or                            court records often include “legal
    expunged. 17           Juvenile    justice                    records,” information similar to adult
    information is maintained by law                              court records, as well as “social
    enforcement, as well as the juvenile                          records,”     information    about     the
    court system. In the past, a juvenile                         juvenile‟s family, medical or mental
    arrest records were often created at the                      health history, and information gathered
    discretion of the law enforcement                             by social service agencies. 21 The
    official, based on his assessment of the                      traditional notions of sharing juvenile
    crime, with no fingerprinting or                              justice records are under review, based
    photographing of the juvenile.18 Today,                       upon changes in juvenile policy, 22 and
                                                                  increased       information   technology
14.      See 28 C.F.R. pt. 23 (1998). See infra
Part IV, D for a discussion of the impact of this
regulation on privacy concerns implicated by                19.       See id. (noting that photographing and
integrated criminal justice information systems.            fingerprinting juveniles is governed by state law
                                                            which often requires specific age limitations and
15.       See Privacy and Juvenile Justice                  levels of offense. In addition, state law governs
Records: A Mid-Decade Status Report, Bureau of              whether such juvenile records are forwarded to
Justice Statistics, May 1997, NCJ-161255, p. 6              state repositories.).
(describing the American juvenile justice system
history and development, namely, the Progressive            20.       See id. at 24.
Movement of the early 1800's that lead to the
“rehabilitative ideal” to reform the offender, rather       21.      See id. at 25, citing U.S. Department of
than punishing the offense).                                Justice, Bureau of Justice Statistics, Privacy and
                                                            Juvenile Justice Records Report, Criminal Justice
16.       See id. at 7 (noting, “[t]he juvenile justice     Information Policy series, Robert Belair, SEARCH
recordkeeping system at this state closely                  Group,     Inc.,  pp.36-37    (Washington,    D.C.
paralleled the predominant philosophy of shielding          Government Printing Office, 1982) (noting that
the child.”).                                               these records often contain broader information
                                                            and, therefore, are accorded a higher degree of
17.       See id at 15-16 (explaining that “sealing         confidentiality).
and purging” of juvenile records remains a popular
way to allow a juvenile who is not a repeat offender        22.      See id. at 8,19-22, 28 (noting the
to enter adulthood with a “clean record.” Sealing           substantial increase in juveniles transferred to adult
and purging laws are set out by state statute and           court, as well as legislative and judicial initiatives
are more likely to apply to juvenile court records          designed to increase juvenile justice information
than to information held by law enforcement).               sharing within the justice system and with affiliated
                                                            agencies). It should be noted that when juveniles
18.       See id. at 23 (noting that “[t]he creation of     are prosecuted in the adult system, their record
a record customarily depended on variables,                 becomes part of the adult criminal justice system
including the severity of the crime, the juvenile‟s         and subject only to the protections of adult systems
record, the juvenile‟s attitude upon arrest, and the        records. See id. at 28.
police officer‟s background and attitude.”).

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    capabilities. 23           The   unique                      records, organizational affiliations, and
    confidentiality    and    policy issues                      identification of relatives, friends,
    associated      with    juvenile justice                     employers, and associates makes it
    information sharing, though beyond the                       easy for all types of information to find
    scope of this article, are worthy of                         its way into the criminal justice system
    significant consideration.                                   process. 25        This type of extra
                                                                 information,        or      “supplemental
    D. “Supplemental Information:” A                             information,“     is    neither   criminal
    New Type of Information                                      intelligence information nor a part of the
    The emergence of integrated justice                          criminal history record and may not
    information systems is introducing a                         benefit from traditionally afforded
    new type of shared information. This                         protections. Criminal justice agencies
    information differs from criminal history                    now      may      electronically   gather,
    information, in that may be gathered                         accumulate, analyze, store, and share
    during the justice process, but is not                       supplemental       information    between
    generated by the process itself; differs                     agencies and inter-jurisdictionally.
    from criminal intelligence information, in
    that it may be added to the system of
    records after an offender is arrested or                IV.  THE “PICTURE”: SHOULD WE
    indicted; and differs from juvenile justice             BE CONCERNED?
    information, in that it is part of the adult
    justice system.         For purposes of                 New information gathering and analysis
    discussion, we refer to this information                capabilities raise the question that because
    as “supplemental information.”                          “supplemental information” is available to
                                                            justice agencies with access to criminal
    For example, on its face, the justice                   history and criminal intelligence information,
    information record described in Section                 should these agencies freely accumulate
    II above does not seem to pose a                        and analyze these forms of information in
    privacy threat. The information was                     the criminal justice process, or does the a
    obtained and added in the process of                    criminal justice agency‟s unregulated use of
    arresting, prosecuting, judging, and                    this information violate individual privacy? 26
    incarcerating an offender (criminal
    history information). The information in                25.       See Bercu, supra note 1, at 398
    the record, however, deserves a closer                  (explaining the information gathering capabilities of
    look.    Increasingly justice agencies‟                 the United States Treasury Department‟s FinCEN
    electronic access to non-criminal justice               system, “FinCEN is a tool for the centralization of
    information,24 such as financial records,               information from disparate sources; it matches one
                                                            fact to another . . . . It is not simply a data base of
    tax statements, credit reports, property                stored information awaiting retrieval.          Rather,
                                                            FinCEN‟s data bases – linked via computer
                                                            networks to those at other agencies – represent a
23.     See id. at 26-27, citing Howard N. Snyder,          pool of data to be combed through routinely by
“Thoughts on the Development of and Access to an            vigilant software.”) Although FinCEN is primarily an
Automated Juvenile History System,” in Juvenile             intelligence system, used for tracking suspects
and Adult Records: One System, One Record?,                 prior to arrest, the “pooled” information gathering
Proceedings of a BJS/SEARCH Conference, U.S.                capabilities of the system can be employed to the
Department of Justice, Bureau of Justice Statistics,        entire justice process. Increasingly, state and local
by SEARCH Group, Inc., pp.53-56 (Washington                 law enforcement agencies are implementing
D.C. Government Printing Office, January 1990).             Internet technologies, data warehousing, or
                                                            federated data bases that allow inter-jurisdictional
24.       Reference     to    non-criminal    justice       and inter-agency sharing of “supplemental
information assumes that the charges do not                 information” (vs. intelligence or criminal history
directly related to these types of information, such        information) on a particular subject.
as fraud, money laundering, conspiracy, etc. For
example, past employment information attached to            26.      Commentators have raised this issue in
a record for a murder charge may or may not be              various contexts including whether “[r]ecording
relevant to the case.                                       conduct not directly related to crime such as an
                                                            individual‟s political association, his credit rating or

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As noted above, information has always
been shared in the justice system, but this                 Today‟s computer technology is raising
question must be asked because of the                       many of the same questions as
capabilities of new technology and the                      photographic technology 100 years ago. 30
possible privacy implications of these new                  Automated, integrated information systems
technological capabilities.                                 enable computers to compile, analyze, and
                                                            relate pieces of personal information from
Changes in technology have historically                     disparate sources. Each of these sources
provided the impetus for the evolution of the               may legally hold the disparate pieces of
American concept of information privacy                     information, but now technology enables
and privacy law. In the past 100 years,                     each source to share the information
technological innovation has enabled us to                  without the subject‟s consent or even his
see farther and hear better, capture and                    knowledge.      The technology not only
preserve images of people, places, and                      enables the components of the justice
events, and communicate instantaneously.                    system to share information, 31 but also
Many technologies once thought to violate                   enables components of the justice system
one‟s “right to privacy” are common fixtures                to accumulate and analyze distinct pieces of
of modern society which many of us would                    information or data about individuals,
not choose to live without, i.e., the                       including criminal history information,
telephone, the camera, and television.                      criminal intelligence information, and
                                                            supplemental        information.         The
One of the most noted articles expounding a                 accumulation and analysis of this data
person‟s right to privacy, or the “right to be              creates a description and likeness of an
let alone,” was written in 1890 by Samuel                   individual. This electronic description and
Warren and Louis Brandeis. 27 In this                       likeness is a “virtual picture” which can be
article, the authors explore to what extent a               shared instantaneously with all the
new technology, the camera, threatened a
person‟s right to preserve his thoughts,                    implied and the making of copies, “without
sentiments, and personal information – “the                 authority, is abusing the power confidentially placed
right to one‟s personality.” 28 The authors                 in his hands merely for the purpose of supplying the
                                                            customer”). The authors are concerned, however,
are especially concerned that the capability
                                                            that technology has surpassed traditional legal
of technology to allow the reproduction of                  protections, explaining that the “latest advances in
images or sounds without the participation                  photographic art have rendered it possible to take
or consent of the individual and the power                  pictures surreptitiously, the doctrines of contract
of the person capturing the image to                        and of trust are inadequate to support the required
                                                            protection . . . .” Id. at 211.
reproduce and distribute it to society at
large would result in privacy violations that               30.       See Jerry Kang, Information Privacy in
surpass traditional legal protections.29                    Cyberspace Transactions, 50 STAN. L. REV. 1193,
                                                            1196-1200 (1998) (explaining that through
                                                            transacting business on the internet, data is
employment history, for instance, could create a            generated, and that data may be aggregated to
potential for personal or political repression.”            produce profiles of the people associated with the
Katzenbach, supra, note 10, at 54.                          data). Professor Kang notes that “[a]ll these data
                                                            generated in cyberspace are detailed, computer-
27.     See Samuel D. Warren and Louis D.                   processable, indexed to the individual, and
Brandeis, The Right to Privacy, 4 HARV. L. REV. 193         permanent.” Id. at 1199. “Moreover, the data
(1890). For a re-examination of the Warren and              collected . . . can be aggregated to produce telling
Brandeis article, see Irwin R. Kramer, The Birth of         profiles of who we are, as revealed by what we do
Privacy Law: A Century Since Warren and                     and say.        The very technology that makes
Brandeis, 39 CATH. U. L. REV. 703 (1990).                   cyberspace possible also makes detailed,
                                                            cumulative, invisible observations of ourselves
28.     See Warren and Brandeis, supra note 27,             possible.” Id.
at 207.
                                                            31.      See supra Part II (explaining the
29.    See id. at 206, 209 n.1 (explaining that             information sharing capabilities of integrated justice
when a person sits for a photograph, a contract             systems).
between the photographer and the subject is

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components of the criminal justice system,                  enforcement officers to form suspicions
and is available to decision-makers in the                  about him or her without any further indicia
criminal justice process, i.e., a law                       of criminal activity. The “photograph” of the
enforcement officer, the prosecutor, the                    individual may or may not be accurate, but
judge at sentencing, or a probation officer.                nonetheless has drawn the individual into
                                                            the scrutiny of the criminal justice system.
For example, suppose a law enforcement                      Moreover, if the individual is arrested, the
agency were to investigate a suspected                      information      sharing    capabilities    of
illegal enterprise.     The agency, using                   integrated justice systems makes available
electronic search capabilities, such as the                 the same broad array of personal
Internet, can collect information concerning                information and the “virtual picture” to the
the enterprise and its participants. Because                prosecutor to formulate his or her case and
investigative information collected is                      perhaps to the probation agency and the
broader than just the suspected illegal                     courts during sentencing.
activities of the alleged illegal enterprise,
the data collected would include the types                  While no one should doubt the investigative
outlined above: criminal history information,               utility to law enforcement of such
criminal intelligence information, and                      technology, there remains the question
supplemental information. Thus, the law                     whether the broad information gathering,
enforcement        agency     would     collect             analysis, and sharing capabilities of justice
information concerning both the lawful and                  information systems may violate an
suspect activities of all individuals‟                      individual‟s interest in controlling his or her
associated with the enterprises, possibly                   personal information.      Such a violation
including        information       concerning               posses the danger that decision-makers in
individuals‟ memberships in otherwise                       the criminal justice process, i.e., a law
unsuspected organizations, individuals‟                     enforcement officer, the prosecutor, the
associations with otherwise unsuspected                     judge at sentencing, or a probation officer,
individuals, and individuals‟ family histories,             may make judgments about an individual
business and credit records, travel                         based on information accumulated and
information, and recreational activities,                   analyzed within the integrated justice
among other things.          Information thus               system without that individual‟s consent or
gathered about individuals, both suspected                  even knowledge. Therefore, the information
defendants and otherwise unsuspected                        gathering, accumulation, analysis, and
individuals, may be accumulated and                         sharing capabilities of new technology
analyzed within the criminal justice system,                today, just as in 1890, require us to review
and shared by each criminal justice agency                  the adequacy of our existing legal
within the system (not just law enforcement                 protections in the context of the justice
agencies) and with criminal justice agencies                system.32
in other jurisdictions.

In this scenario, an individual whose                       V.       RESPONSIBLE USE PRINCIPLES
personal information has been collected has
no opportunity to control whether or how                    As stated earlier, our central focus of inquiry
much of his or her personal information is                  is whether advances in technology, allowing
available to the justice system, because the                the various components of the criminal
justice system does not need to contact the                 justice system to gather, accumulate, and
concerned individual to gather and
accumulate the information from sources
accessible over electronic media, such as                   32.      See Warren and Brandeis, supra note 27,
                                                            at 211 (stating “now that modern devices afford
the Internet. Furthermore, a danger arises                  abundant opportunities for the perpetration of such
in that the individual‟s “virtual picture”                  wrongs without any participation by the injured
created by the accumulation and analysis of                 party, the protection granted by the law must be
disparate pieces of data could cause law                    placed upon a broader foundation.”)

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analyze criminal justice information, and                   by the criminal justice system from private
then share and disseminate the information                  individuals has been obtained legally.
among the components of the criminal
justice system, raises privacy issues which                 The United States Supreme Court has
create a need for the legal system to                       discussed privacy in terms of an
articulate principles of responsible use of                 individual‟s interest in “avoiding disclosure
this information. Under American Federal                    of personal matters,” and in maintaining
law, there are many different strands of the                “independence in making certain kinds of
concept of privacy, and commentators have                   important decisions.” 36 Additionally, the
described privacy as “control over                          United States Department of Justice has
knowledge about oneself.”33                                 promulgated      two federal regulations
                                                            articulating standards for the collection,
The concept of privacy includes the right to                storage, and dissemination of criminal
be free from unreasonable searches and                      history 37 and         criminal    intelligence
seizures. 34 Articulated in such a manner,                              38
                                                            information. In this part of the article, we
an individual‟s interest in privacy covers                  analyze these privacy principles to
that individual‟s interest in being protected               demonstrate that the privacy rules that exist
from a governmental agency‟s ability to                     do not cover, or regulate, the information
obtain information about that individual.35 In              accumulation, analysis, and sharing
this article, however, we do not attempt to                 activities in which components of the
discuss or evaluate whether this information                criminal justice system may engage due to
is legally obtained. This article analyzes                  the current advances in technology.
whether the accumulating, analyzing, and                    Through this analysis and the preceding
sharing of information, rather than the                     discussion of the integrated justice system,
surveillance activities of criminal justice                 we hope to spark debate concerning the
agencies, violate an individual‟s interest in               need for principles of responsible use of
privacy. This article assumes, for the sake                 information in the criminal justice system.
of argument, that any information obtained
                                                                 A. Whether a Protected Privacy
                                                                 Interest Exists
33.      Fried, supra note 2, at 482-83.
                                                                 In 1977, the Supreme Court in Whalen
34.      The Fourth Amendment to the United                      v. Roe held that a New York statute
States Constitution requires that The right of the               requiring doctors to report certain drug
people to be secure in their persons, houses,                    prescriptions to the State to be entered
papers, and effects, against unreasonable                        into a State controlled and operated
searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause,                database did not “on its face, pose a
supported bu Oath or affirmation, and particularly
describing the place to be searched, and the                36.     See Whalen v. Roe, 429 U.S. 589, 599-
persons or things to be seized.                             600 (1977).

U.S. CONST. amend. IV.                                      37.       28 C.F.R. pt. 20 (1998). 28 C.F.R. pt. 20
                                                            assures “that criminal history information wherever
35.       A federal agency‟s information gathering          it appears is collected, stored, and disseminated in
activities are often described as surveillance              a manner to insure the completeness, integrity, and
activities, and the constitutional privacy concerns of      accuracy and security of such information and to
such activities have received extensive treatment in        protect individual privacy.” 28 C.F.R. § 20.1.
the literature. See generally Albert W. Alschuler,
Interpersonal Privacy and the Fourth Amendment, 4
N. ILL. U. L. REV. 1 (1983); Bercu, supra note 1;           38.      28 C.F.R. pt. 23 (1998). This part assures
Robert Garcia, “Garbage In, Gospel Out”: Criminal           “that all criminal intelligence systems operating
Discovery,      Computer      Reliability,  and    the      through support under the Omnibus Crime Control
Constitution, UCLA L. REV. 1043 (1991); Thomas B.           and safe Streets Act of 1968, 42 U.S.C. § 3711, et
Kearns, Note, Technology and the Right to Privacy:          seq., as amended, . . . are utilized in conformance
the Convergence of Surveillance and Information             with the privacy and constitutional rights of
Privacy Concerns, 7 W M. & MARY BILL RTS. J. 975            individuals.” 28 C.F.R. § 23.1.

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      sufficiently grievous threat” to a                         Courts have used this analysis of (1)
      Constitutionally protected interest in                     determining whether an individual has a
      “avoiding    disclosure of personal                        legitimate expectation of privacy or of
      matters,”      or     in    maintaining                    confidentiality in information, and (2), if
      “independence in making certain kinds                      so, whether the government‟s interest in
      of important decisions.”39 The plaintiffs                  the      information     outweighs     the
      in Whalen challenged this New York                         individual‟s privacy interest to determine
      statute on the grounds that the statute                    whether governmental data collection
      invaded a “constitutionally protected                      activities violate one‟s right to
      zone of privacy” because of the                            informational privacy. 44 Courts have
      possibility that information about a                       also framed the discussion of whether
      patient‟s drug use would become
      publicly known, and thereby some
      patients would become reluctant to use                44.       See Paul v. Verniero, 170 F.3d 396, 401
      these drugs “even when their use is                   (3d Cir. 1999) (ruling that to determine “whether
                                                            information is entitled to privacy protection,” a court
      medically indicated.”40                               must determine whether the individual has a
                                                            reasonable expectation of confidentiality in the
      Later the same year, the Supreme Court                information) (citing Fraternal Order of Police v. City
      held that the Presidential Recordings                 of Philadelphia, 812 F.2d 105, 112-17 (3d Cir.
                                                            1987)); Pryor v. Reno, 171 F.3d 1281, 1288 n.10
      and Materials Preservation Act did not                (11th Cir. 1999) (holding that because information
      “unconstitutionally      invade”      former          found in motor vehicle records is not the sort of
      President Nixon‟s right to privacy. 41 In             information to which individuals have a reasonable
      so holding, however, the Court                        expectation” of privacy, there is no constitutional
                                                            right to privacy in motor vehicle records), petition
      reasoned that the President‟s interest in             for cert. filed, July 6, 1999 (No. 99-61); Condon v.
      the    contents       of    his   personal            Reno, 155 F.3d 453, 465 (4th Cir. 1998), cert
      communications must be balanced                       granted, _ U.S. _, 119 S. Ct. 1753 (1999) (ruling
      “against the public interest in subjecting            that because “the information found in motor
      [these] . . . materials to archival                   vehicle records is not the sort of information to
                                                            which individuals have a reasonable expectation of
      screening”      because       the     former          privacy, . . . there is no constitutional right to privacy
      President had a legitimate expectation                in the information contained in motor vehicle
      of     privacy      in     his    personal            records”);
      communications. 42           Through the
                                                            The privacy issue in both Condon and Pryor arose
      reasoning in Whalen and Nixon v.                      in the context of challenges to the Driver‟s Privacy
      Administrator of General Services, the                and Protection Act of 1994 (DPPA), 18 U.S.C. §
      Supreme Court articulated a balancing                 2721, et seq.       See Westover supra note 1
      test for determining whether a privacy                (analyzing the decision in Condon of the Unites
                                                            States Court of Appeals for the Fourth Circuit). The
      interest is violated where the individual             United States Courts of Appeals for the Fourth and
      asserting the privacy interest has a                  Eleventh Circuits have held that because there is
      reasonable expectation in the privacy or              no constitutional right to privacy in motor vehicle
      confidentiality of the materials at issue.43          records, the DDPA violates either Congress‟
                                                            authority under section 5 of the Fourteenth
                                                            Amendment to the United States Constitution or the
                                                            Tenth Amendment. See Condon, 155 F.3d at 465;
                                                            Pryor, 171 F.3d at 1288.
39.       Whalen, 429 U.S. at 599-600.
                                                            Of course the issue of whether the Constitution
                                                            protects individuals from infringement by a state or
40.       Whalen, 429 U.S. at 599-600.                      by the federal government is distinct from whether
                                                            the Constitution provides “protection of an
41.     Nixon v. Administrator of Gen. Serv., 433           individual‟s information privacy from invasion from
U.S. 425, 457, 465 (1977).                                  the private sector.” Kang, supra note 30, at 1230 &
                                                            1230 n. 156-157 (reasoning that because of the
42.       Nixon, 433 U.S. at 457.                           state action doctrine, the Constitution does not
                                                            protect private sector invasions of privacy, and
43.      See Nixon, 433 U.S. at 457; Whalen, 429            noting that “it is unclear to what extent the
U.S. at 599-600.                                            Constitution actually protects information privacy”).

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      an    individual   has a legitimate                        government‟s      interest  in     the
      expectation of privacy in information as                   information, and arrest data, at least
      whether an individual‟s claim that the                     information relating to shoplifting
      government has misused information                         charges, is not protected by a
      about that individual comes within a                       constitutional right to information
      constitutionally protected zone of                         privacy.52
                                                                 Courts analyzing the Paul, Whalen, and
      The Supreme Court, in Paul v. Davis,                       Nixon line of cases have held that there
      reasoned that “zones of privacy” are                       are certain classes of information in
      created by the operation of other                          which individuals have no reasonable
      specific constitutional guarantees, and                    expectation of confidentiality or privacy53
      these “zones or privacy” impose limits                     and other classes of information in
      on governmental authority. 46 Activities                   which an individual has a reasonable
      within these “zones of privacy” include                    expectation of confidentiality, but in
      “matters      relating     to    marriage,                 which the government‟s interest in the
      procreation,      contraception,    family                 information     has    outweighed       the
      relationships, and child rearing and                       individual‟s privacy interest. 54 With
      education.” 47 The Court ruled that the                    respect to criminal history records,
      disclosure of an individual‟s information,                 courts have held that disclosure of an
      i.e., a state official‟s disclosure to the                 individual‟s status as a sexual offender,
      public of that individual‟s arrest on a                    information related to sexual abuse
      shoplifting charge, is not included in                     charges, and records containing arrest
      these constitutionally protected zones of                  and conviction information are not
      privacy. 48 A year later, however, in                      protected by a constitutional right to
      Whalen, the Court announced that                           privacy.55 At least one court has even
      individuals may have an interest in
      avoiding government disclosure of                     51.     See Whalen, 429 U.S. at 598-600; Nixon,
      personal matters. 49          Thus, Paul,             433 U.S. at 457.
      Whalen, and Nixon indicate that while
                                                            52.       See Paul, 424 U.S. at 713; Whalen, 429
      individuals may have a constitutionally
                                                            U.S. at 598-600; Nixon, 433 U.S. at 457; see also,
      protected privacy interest in avoiding                Chlapowski, Note, supra note 3, at 145-50
      disclosure of personal information,50 this            (analyzing the Constitutional right to information
      interest may be outweighed by the                     privacy).

                                                            53.       See, e.g., Sheetz v. The Morning Call, Inc.,
45.       See Paul v. Davis, 424 U.S. 693, 713              946 F.2d 202, 207 (3d Cir. 1991) (holding that
(1976) (holding that a state official‟s disclosure to       information contained in a police report concerning
the public of that individual‟s arrest on a shoplifting     a wife‟s allegations of spousal abuse were not
charge does not come within a Constitutionally              protected by the confidentiality branch of the right to
protected “zone of privacy”). The Court also held           privacy).
that this individual‟s claim that he was defamed by
a state official‟s disclosure to the public of that         54.      See, e.g., United States v. Westinghouse
individual‟s arrest record states neither a claim of a      Electric Co., 638 F.2d 570, 576, 580 (3d Cir. 1980)
violation of “„liberty‟ nor „property‟ guaranteed           (holding that while an employee‟s medical records
against state deprivation without due process of            “which may contain intimate facts of a personal
law. Id.                                                    nature” are “entitled to privacy protection,” “the
                                                            strong public interest in facilitating the research and
46.      Paul, 424 U.S. at 713.                             investigations of NIOSH justify this minimal
                                                            intrusion into the privacy which surrounds the
                                                            employee‟s medical records”).
47.      Paul, 424 U.S. at 713.
                                                            55.       See Paul v. Verniero, 170 F.3d 396, 403
48.      Paul, 424 U.S. at 713.
                                                            (3d Cir. 1999) (holding that because “arrest records
                                                            and related information are not protected by a right
49.      Whalen, 429 U.S. at 598-600.
                                                            to privacy,” disclosure of an individual‟s sex
                                                            offender status is not protected); Cline v. Rogers,
50.      See Whalen, 429 U.S. at 598-600.                   87 F.3d 176, 179 (6th Cir. 1996) (holding that

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    held that there is no constitutional right                   the Third Circuit concluded that the
    to privacy prohibiting the disclosure of                     allegations of spousal abuse were not
    juvenile court records to government                         protected because people can not
    and social agencies.56                                       reasonably         expect    information
                                                                 concerning potential crimes reported to
    Even      police    reports    containing                    police to remain secret. 58 Individuals
    allegations      of    spousal     abuse                     also do not have a reasonable
    communicated to the police by the                            expectation of confidentiality in motor
    abused wife are not protected by a right                     vehicle records.59 The Court of Appeals
    to privacy.57 The Court of Appeals for                       for the Fourth and Eleventh Circuits
                                                                 concluded that there is no reasonable
because “arrest and conviction are matters of public             expectation in confidentiality because
record,” criminal histories are not private personal             motor vehicle records are not “intimate
matters entitled to Constitutional protection), cert.
denied, 519 U.S. 1008 (1996); Nilson v. Layton City,
                                                                 personal information given to a state
45 F.3d 369, 372 (10th Cir. 1995) (holding that                  official in confidence.”60
information related to sexual abuse charges and a
conviction is not Constitutionally protected private             Where the government, however,
information because “[c]riminal activity is . . . not
                                                                 gathers “intimate facts of a personal
protected by the right to privacy”).
                                                                 nature,” such as medical records, the
Commentators have argued, however, that “once                    information is entitled to privacy
released from prison, offenders should reasonably                protection.61 Because such information
expect that they can keep their criminal pasts
                                                                 is entitled to privacy protection, to
private and begin to rebuild their lives.” Caroline
Louis Lewis, The Jacob Wetterling Crimes Against                 determine whether an intrusion into an
Children and Sexually Violent Offender Registration              individual‟s privacy is justified, the
Act: An Unconstitutional Deprivation of the Right to             individual‟s privacy interest must be
Privacy and Substantive Due Process, 31 HARV.                    balanced against the government‟s
C.R.-C.L. L. REV. 89, 96-97 (1996).
                                                                 interest. 62   In addition to medical

56.       J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th
Cir. 1981); but see 28 C.F.R. § 20.21(d)                    58.       Sheetz, 946 F.2d at 207. The court was
(proscribing the “dissemination of juvenile records         careful to distinguish the “police‟s interest in the
to non-criminal justice agencies except as provided         privacy of the information [from] . . . the individual‟s
by “a statute, court order, rule, or court decision         interest in the information he or she reports.” Id. at
specifically authoriz[ing the] dissemination of             207 n.6. The court noted that “the police may have
juvenile records” and except as provided by 28              an interest in keeping investigative information
C.F.R. § 20.21(b)(3)-(4)). At issue in J.P. was the         private,” and “may protect this interest by
compilation and potential for disclosure by                 appropriate regulation.” Id.
Cuyahoga County, Ohio court probation officers of
juvenile information the “probation officer thinks is       59.      See Pryor v. Reno, 171 F.3d 1281, 1288
relevant to the disposition of a case before the            n.10 (11th Cir. 1999), petition for cert. filed, July 6,
court” including, social histories containing               1999 (No. 99-61); accord, Condon v. Reno, 155
“information form a number of sources, including            F.3d 453, 464-65 (4th Cir. 1998), cert. granted, _
the complaining parties, the juveniles themselves,          U.S. _, 119 S. Ct. 1753 (1999).
their parents, school records, and their past records
in the juvenile court,” and information about other         60.       Pryor, 171 F.3d at 1288 n.10. The court
members of the juvenile‟s family. 653 F.2d at 1082.         ruled that it “acknowledged a constitutional right to
 These social histories are kept on file after the          privacy only for intimate personal information given
conclusion of a juvenile‟s case and are “available to       to a state official in confidence.” Id.
55 different government, social and religious
agencies that belong to a „social services                  61.       See United States v. Westinghouse
clearinghouse.‟” Id. The court concluded that “[t]he        Electric. Corp., 638 F.2d 570, 577 (3d Cir. 1980)
interest asserted . . . in nondisclosure of juvenile        (ruling that “an employee‟s medical records, which
court records, like the interest in nondisclosure at        may contain intimate facts of a personal nature, are
issue in Paul v. Davis, is „far afield‟ from those          well within the ambit of materials entitled to privacy
privacy rights that are „fundamental‟ or implicit in        protection”).
the concept of ordered liberty‟” Id. at 1090.
                                                            62.     See Plante v. Gonzalez, 575 F.2d 1119,
57.     Sheetz v. The Morning Call, Inc., 946 F.2d          1134 (5th Cir. 1978) (ruling that a balancing
202, 207 (3d Cir. 1991).                                    standard is appropriate to determine whether the

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    records, the Courts of Appeals for the                       the Third Circuit has also used a
    Second and Fifth Circuits have used                          balancing standard to determine
    this balancing standard to determine                         whether disclosure of a sex offender‟s
    whether laws requiring public officials to                   “home address” under New Jersey‟s sex
    disclose personal financial records                          offender registration statute violated a
    violated the privacy protections of the                      constitutionally     protected     privacy
    Constitution.63 The Court of Appeals for                     interest. 64 In all of these instances,
                                                                 however, the courts ruled that the
State of Florida‟s requirement that state senators               individual‟s    privacy    interest was
publicly disclose their personal finances violated               outweighed by the government‟s
their interest in privacy); Westinghouse Electric.               interest in gathering the information.
Corp., 638 F.2d at 578; American Fed‟n of Gov‟t
Employees v. Department of Housing and Urban                     Even where courts concluded that
Dev., 118 F.3d 786, 793 (D.C. Cir. 1997) (ruling that            information was entitled to privacy
where the government collects information from                   protection, the cases were decided in
prospective employees through security clearance                 favor of the government and against the
forms, and the information is not disseminated
publicly, the individual‟s “interest in protecting the
                                                                 privacy interests of the individual.
privacy of the information sought by the government
is significantly less important” than if the                     Therefore, the constitutionally protected
information would be publicly disseminated).                     privacy interest does not cover most
In Plante, the Court of Appeals for the Fifth Circuit
                                                                 arrest and conviction data and most
held that Florida‟s law requiring public disclosure of           other types of publicly available
state senators‟ personal finances does not violate               information.    With the exception of
the Constitution‟s protection of privacy because the             financial information and medical
“public interest supporting public disclosure”
                                                                 records, courts have yet to address
outweighs these elected official‟s interest in
financial privacy. Plante, 575 F.2d at 1136. The                 whether “supplemental information” is
court reasoned that Florida law advances four                    entitled to privacy protection. Even in
important state concerns: “the public‟s „right to                the narrow set of circumstances in
know‟ an officials‟s interests, deterrence of                    which a constitutional privacy interest
corruption and conflicting interests, creation of
public confidence in Florida‟s officials, and                    exists, however, that interest may be
assistance in detection and prosecuting officials                outweighed by the government‟s
who have violated the law.” Id. at 1134-35. These                interest in the information. Thus, the
concerns, the court concluded, outweigh the Florida              federal     constitutional    right     to
senators‟ interest in financial privacy. Id. at 1135-
                                                                 informational privacy does not cover the
                                                                 criminal justice system‟s capability to
The Court of Appeals for the Third Circuit in                    accumulate, analyze, and share criminal
Westinghouse Electric Corp. identified seven                     justice information.     Criminal justice
factors to be considered in determining whether an
intrusion into an individual‟s privacy is justified: (1)
                                                                 agencies may use the integrated justice
“the type of record requested;” (2) what information             systems to accumulate, analyze, and
the record contains or might contain; (3) “the                   share information to create a “virtual
potential    for    harm     in    any    subsequent             picture” of an individual and to share
nonconsensual disclosure;” (4) “the injury from
                                                                 that “virtual picture” with other
disclosure to the relationship in which the record
was generated;” (5) “the degree of safeguards to                 components of the criminal justice
prevent unauthorized disclosure;” (6) “the degree of
need for access;” and (7) “whether there is an
express statutory mandate, articulated public policy,       that an individual does not have a “legitimate
or other recognized public interest militating toward       expectation of privacy” in the contents of either
access.” 638 F.2d at 578.                                   checks and deposit slips or the microfilm copies of
                                                            these checks and deposit slips held by a bank).
63.       See Barry v. City of New York, 712 F.2d
1554, 1559-61 (2d Cir. 1983) (holding that a                64.        See Paul v. Verniero, 170 F.3d 396, 404
provision of New York City‟s financial disclosure           (3d Cir. 1999) (holding that the New Jersey‟s
law permitting public inspection of annual financial        interest in the public “knowing where prior sex
reports required of certain city employees did not          offenders live so that susceptible individuals can be
violate the confidentiality strand of the right to          appropriately cautioned,” was compelling enough to
privacy).; Plante, 575 F.2d at 1134; but see United         justify the intrusion).
States v. Miller, 425 U.S. 435, 442 (1976) (holding

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      system with minimal concerns of                             has been evaluated to determine that it
      violating an individual‟s constitutional                    (i) is relevant to the identification of and
      right to informational privacy.                             the criminal activity engaged in by an
                                                                  individual who or organization which is
      B. Criminal Intelligence Systems                            suspected of involvement in criminal
      The United States Department of                             activity, and (ii) meets criminal
      Justice, Office of Justice Programs                         intelligence       system        submission
      (OJP) promulgated a regulation “to                          criteria.70
      assure that all criminal intelligence
      systems operating through support                           Thus, only that data which falls within
      under the Omnibus Crime Control and                         the definition of “criminal intelligence
      Safe Streets Act of 1968,65 as amended,                     information” is subject to regulation by
      . . . are utilized in conformance with the                  28 C.F.R. pt. 23. Information or data
      privacy and constitutional rights of                        which does not fall within this definition
      individuals.”66 An agency operating an                      may be collected and maintained by law
      intelligence system covered by these                        enforcement agencies in non-criminal
      regulations may “collect and maintain                       intelligence databases without regard to
      criminal intelligence information” about                    this regulation. Moreover, the regulation
      an individual or about the “political,                      applies only to those criminal
      religious or social views, associations,                    intelligence systems operating with
      or activities” of individuals, groups, or                   federal financial assistance provided by
      organizations        only   if  there    is                 the OJP.71 The regulation, by its terms
      “reasonable        suspicion”   that   the                  then, does not apply to those systems
      individual, group, or organization is                       not funded by OJP and its component
      “involved in criminal conduct or                            organizations.
      activity.”67 The information collected or
      maintained about an individual must                         While 28 C.F.R. pt. 23 regulates
      also be “relevant” to the criminal                          criminal intelligence information if that
      conduct or activity. 68        Information                  information is held by an organization
      collected or maintained concerning                          receiving federal financial assistance
      groups or organizations must be                             from the OJP for its criminal intelligence
      “directly related to the criminal conduct                   system, the regulation does not provide
      or activity.”69                                             rules for the sharing, accumulation, and
                                                                  analysis     among       criminal    justice
      The regulation, however, narrowly                           agencies of other types of criminal
      defines the terms “criminal intelligence                    justice information or of any information
      information” to include only data which                     if the agency does not receive
                                                                  assistance from OJP for a criminal
                                                                  intelligence system.         As with the
65.       42 U.S.C. §§ 3711-3797.
                                                                  constitutional right to informational
66.      28 C.F.R. § 23.1. The Office of Justice                  privacy, this regulation does not cover
Programs (OJP) is authorized to promulgate policy                 the ability of criminal justice agencies to
standards to assure that criminal intelligence                    accumulate,       analyze, and        share
systems funded by the Omnibus Crime Control and
Safe Streets Act “are not utilized in violation of the
                                                                  information to create a “virtual picture” of
privacy and constitutional rights of individuals.” 42             an individual and to share this “picture”
U.S.C. § 3789g(c). OJP may levy a $10,000 fine                    with other components of the criminal
against persons violating regulations issued                      justice system.
pursuant to this provision. Id. § 3789g(d).

67.       28 C.F.R. § 23.20(a)-(b).

68.       28 C.F.R. § 23.20(a).                             70.       28 C.F.R. § 23.3(b)(3).

69.       28 C.F.R. § 23.20(b).                             71.       28 C.F.R. § 23.3(a).

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      C. Criminal          History       Record                   rights of access and review of criminal
      Information Systems                                         history information. 79 None of these
      OJP also promulgated regulations to                         regulations, however, prohibit the
      “assure that criminal history record                        sharing of criminal history information
      information wherever it appears is                          among criminal justice agencies.80
      collected, stored, and disseminated in a
      manner to insure the completeness,                          Thus, 28 C.F.R. pt. 20 does not cover
      integrity, accuracy and security of such                    the accumulation, analysis, and sharing
      information and to protect individual                       of criminal justice information among
      privacy.” 72 These regulations require                      criminal justice agencies.         This
      states to submit to the OJP a plan for                      regulation, therefore, does not protect
      operational procedures of criminal                          individual privacy from the criminal
      history record information systems. 73                      justice system‟s ability to create a
      The regulations describe requirements                       “virtual picture” of him or her, and to
      to assure (1) that criminal history record                  share     that    picture  among    the
      information is complete and accurate;74                     components of the criminal justice
      (2) that dissemination of “nonconviction                    system.
      data” is limited to only those authorized
      recipients of the data;75 (3) that criminal
      history record information disseminated               VI.  AN OPENING                 FOR     A     NEW
      to “noncriminal justice agencies” shall               DISCUSSION
      be used only for the purposes for which
      the information was disseminated;76 (4)               Under Federal Constitutional privacy
      that states conduct annual audits to                  principles, while some protection exists, this
      insure       compliance       with      the           protection does not cover the accumulation,
      regulations;77 (5) that security standards            analysis, and sharing of criminal justice
      are established by each state;78 and (6)              information within an integrated justice
      that, for purposes of accuracy and                    system. 81        The federal regulations
      completeness, individuals retain certain

                                                            79.      28 C.F.R. § 20.21(g)
72.       28 C.F.R. § 20.1. The OJP has a duty
under section 812(b) of the Omnibus Crime Control
and Safe Streets Act of 1968, as amended, to                80.       The “general policies on use and
“assure that the security and privacy of all [criminal      dissemination” does not prohibit the sharing or
history] information is adequately provided for and         dissemination of criminal history information among
that information shall only be used for law                 criminal justice agencies.        See 28 C.F.R. §
enforcement and criminal justice and other lawful           20.21(C).       Rather, the section limits the
purposes.” 42 U.S.C. § 3789g(b). This provision is          dissemination to noncriminal justice agencies to
“administrative in nature” and imposes an                   the purpose for which the information was
“obligation” on the OJP “to assure that the                 disseminated.        See id.          Moreover, the
information is used only for the purpose for which it       dissemination of “nonconviction data” is limited to
was collected.” Polchowski v. Gorris, 714 F.2d              “[c]riminal justice agencies for purposes of the
749, 751 (7th Cir. 1983) (holding that a private            administration of criminal justice and criminal
action may not be maintained under 42 U.S.C. §              justice agency employment.” Id. § 20.21(b)(1). The
1983 for alleged violations of section 3789g(b)).           regulations define “criminal justice agency” as

73.       28 C.F.R. § 20.21.                                (1)      Courts;

                                                            (2)      A governmental agency . . . which
74.       28 C.F.R. § 20.21(a).
                                                            performs the administration of criminal
                                                            justice pursuant to a statute or executive
75.       28 C.F.R. § 20.21(b)                              order, and which allocates a substantial
                                                            part of its annual budget to the
76.       28 C.F.R. § 20.21(c).                             administration of criminal justice. 28
                                                            C.F.R. § 20.3(c).
77.       28 C.F.R. § 20.21(e).
                                                            81.      See supra part V., A. (discussing whether
78.       28 C.F.R. § 20.21(f).                             a constitutional privacy interest exists).

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Gathering, Analysis, and Sharing of Criminal Justice Information by Justice Agencies: The Need for Principles of
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governing criminal intelligence systems and                 to accumulate, analyze, and share data to
criminal history information regulate a                     create a “virtual picture” may cause
narrow scope of issues that similarly does                  decision-makers in the justice process, e.g.,
not cover this “virtual picture making”                     law enforcement officers, prosecutors,
capability of the integrated justice system.82              judges, and probation officers, to raise
Thus, criminal justice agencies are largely                 suspicions       about      individuals    or
unfettered in their ability to accumulate,                  organizations that would not be raised were
analyze, and share information within the                   it not for the new technological capabilities
integrated justice system and to create and                 of the justice system.        While such a
share with other criminal justice agencies                  capability has obvious benefits for law
“virtual pictures” of individuals that may or               enforcement and for other branches of the
may not be completely accurate.                             criminal justice system, a discussion must
                                                            begin to articulate principles of responsible
Most people would not object to law                         use of this information.
enforcement and the criminal justice system
using technology to conduct appropriate
investigations to remediate criminal activity.
Most, however, would express reservation                    as other positions in public and private practice.
concerning whether law enforcement                          Mr. Kendall received his Bachelor of Arts from
                                                            Columbia College of Columbia University, his
should have the unfettered ability to gather,               Masters in Business Administration from the
accumulate, analyze, and share intimate                     University of Maryland, and his Juris Doctor from
personal information concerning individuals                 The Catholic University of America, Columbus
not otherwise suspected of criminal activity.               School of Law. Publications include Legislation: A
                                                            New Design for Justice Integration, 30 MCGEORGE
This new capability of the criminal justice
                                                            L. REV. 9 (1998).
agencies to use integrated justice systems
to create and share with other justice                      Neal J. Swartz is an Attorney-Advisor for the Office
agencies “virtual pictures” of individuals                  of Justice Programs (OJP). Mr. Swartz practices in
may offend notions of privacy as control                    the areas of Administrative Law, Grant and
                                                            Appropriations Law, and Employment and Labor
over information about oneself because the                  Law; and Mr. Swartz participates on the OJP
new technological capability supplants                      Intelligence Systems Policy Review Board and the
individuals‟ control of their personal                      Department of Justice Privacy Task Force,
information.83 The ability of these systems                 Subcommittee on Information Collection and
                                                            Analysis. Mr. Swartz received his Bachelor of Arts
                                                            in Economics and Philosophy from the University of
82.      See supra Part V., B-C. (analyzing federal         Notre Dame and his Juris Doctor, cum laude, from
regulation of criminal intelligence information and         the Catholic University of America, Columbus
criminal history information).                              School of Law, where Mr. Swartz was an Editorial
                                                            Assistant of the Catholic University Law Review.
83.     See generally Fried, supra note 2; Gerety,
supra note 2.                                               Anne E. Gardner, Attorney-Advisor for the Office of
                                                            Justice Programs (OJP), is the co-chair of the
AUTHORS                                                     Office of Justice Programs' Integrated Information
                                                            Sharing Working Group, Intelligence Systems
Paul F. Kendall, General Counsel for the Office of          Policy Review Board, and Privacy Task Force. Ms.
Justice Programs (OJP), is the Executive Chairman           Gardner also supports OJP‟s participation in the
of OJP‟s Information Technology Executive Council,          Vice    President‟s   Global    Criminal    Justice
as well as Chairman of the Executive Council‟s              Information Network Advisory Committee, the
Inter-governmental Information Sharing Working              National Performance Review/DOJ Crime Mapping
Group, the Intelligence Systems Policy Review               Task Force, and the Department of Justice Privacy
Board, and the Privacy Task Force. Mr. Kendall is           and Security Task Force. Ms. Gardner received her
leading a variety of efforts in developing state and        Bachelor of Science from the University of
local coordinated information technology programs,          Wisconsin at Madison and her Juris Doctor, cum
and is leading the Intelligence Systems Policy              laude, from The Catholic University of America,
Review Board‟s examination of legal and public              Columbus School of Law. Publications include
policy issues associated with information sharing.          Legislation: A New Design for Justice Integration,
Prior to his arrival at the Office of Justice Programs,     30 MCGEORGE L. REV. 9 (1998).
Mr. Kendall held positions of Senior Counsel at the
Federal Mine Safety Board, and Assistant General
Counsel of the Legal Services Corporation, as well

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