Gathering_ Analysis_ and Sharing of Criminal Justice Information by kzgpwtxtim


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

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Gathering, Analysis, and Sharing of Criminal Justice Information by Justice Agencies: The Need for Principles of
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the unique aspects of gathering,                             supplanting an individual’s control over his
accumulating, analyzing, and sharing                         personal information?3
information in the justice system and the
implications on individual privacy.                          This article describes the concept of
                                                             integrated justice systems, how such
Like the medical records area, use of                        systems allow justice agencies to gather,
personal information in the justice system                   accumulate, and analyze various types of
carries with it the possibility of irreparable               information to create a “virtual picture” of
harm to an individual, and therefore,                        an individual which may be shared by the
requires a high degree of responsibility                     components of the criminal justice system.
from justice agencies. If the concept of                      This article further explains that decision-
privacy focuses on an individual’s                           makers in the criminal justice process may
capability to control information about him                  use these “virtual pictures” to make
or herself,2 the question becomes whether                    judgments about individuals. This article
the technological capabilities of integrated                 then determines whether federal law
criminal justice systems to create an                        provides rules governing the responsible
analysis or “virtual picture” of an individual               use by justice agencies of such
that is contained in and used by the                         information or whether “responsible use”
criminal justice system violates an                          rules should be pursued. Part II of this
individual’s interest in privacy by                          article defines Integrated Justice Systems.
                                                              Part III defines the various types of
2.        See Fried, Privacy, 77 YALE L.J. 475, 482-         information contained in automated justice
83 (1968); Tom Gerety, Redefining Privacy, 12                systems and discusses the differences
HARV. C.R.-C.L. L. REV. 233, 281 (1977). Professor           between criminal history information,
Fried argues that a “person who enjoys privacy is
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             3.        An argument may be made that where a
to explain his point. Id. at 483. One’s house is             state violates an individual’s privacy by disclosing
private because the law allows individuals to                personal information about that individual to the
exclude others from the house, and the “house is             public, the state has deprived the individual of the
constructed - with doors, windows, window shades -           opportunity to define him or herself. See Francis S.
to allow it to be made private.” Id. Professor Fried         Chlapowski, Note, The Constitutional Protection of
also makes a distinction between simple control              Informational Privacy, 71 B.U. L. REV. 133, 154-55
over the quantity of information and control over the        (1991).    This author grounds his argument in
quality of the knowledge. Id. “We may not mind               Professor Fried’s theory that privacy is “control over
that a person knows a general fact about us, and yet         knowledge about oneself.” See id. at 154-55 & 154
feel our privacy invaded if he knows the details.” 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 information
personal identity.” Gerety, supra, at 281. Professor         is used rather than on how the information is
Gerety distinguishes privacy from confidentiality.           obtained. See Gerety, supra note 2, at 283. He
See id. at 282. Private information “excludes all but        further notes two significant vices latent in the very
such information as is necessary to the intimacies of        collection of . . . information: first, there is the
our personal identities.”      Id.     Confidentiality,      possibility, virtually a certainty in many cases, that
however, is created through either “implicit or              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.” Id.             previously accessible, but accessed only rarely.”
                                                             Schauer, supra note 2, at 558.

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

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Gathering, Analysis, and Sharing of Criminal Justice Information by Justice Agencies: The Need for Principles of
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                                                                  Constitutional and common law privacy
Policy, regulation, and law associated with                       issues associated with the automated
gathering, storing, and sharing criminal                          criminal history record have been
justice    information    traditionally has                       reviewed since its inception in the
focused on three specific types of                                early 1970's, but generally have had
information: the criminal history record,                         little impact on restricting the
criminal intelligence information, and                            collecting, storing, and dissemination
juvenile justice information. With the new                        of criminal history data. 7    Rather,
capabilities of technology, supplemental                          criminal history records systems
information is entering the integrated                            operate under a patchwork of federal
justice system with these more traditional                        and state statutes and regulations,
types of information.                                             such as Title 28 Code of Federal
                                                                  Regulations, part 20.8 Privacy issues
    A. Criminal History Information
    Criminal history records contain                         for authorized purposes and to non-criminal justice
    distinct    pieces     of    information                 agencies for purposes such as employment
    generated by the criminal justice                        screening      and       occupational      licensing.).
    process. Generally, a criminal history                   Increasingly, state criminal history records include
    record     will  contain     information                 livescan (electronic) fingerprints in addition to the
                                                             individual’s name and identifying information.
    identifying the individual, information
    about any of the individual’s arrests,                   7.        See id. at 35 (noting that privacy doctrines
    and “disposition data.” 4 Disposition                    of the Federal constitution and common law have
    data commonly includes information                       been applied to the automated criminal history
    about final decisions or actions that                    record systems, but that “constitutional privacy
                                                             principles do not limit dissemination by criminal
    terminate the case, including, police                    justice agencies of information about official acts,
    decisions to drop all charges,                           such as an arrest . . . [and s]overeign immunity, civil
    prosecutor decisions not to prosecute,                   and official immunity and the need to show tangible
    and court acquittals, or convictions and                 harm arising from the alleged misuse of the criminal
    sentences, incarceration, and release.5                  history record pose insurmountable obstacles to
                                                             most common law actions by record subjects.”).
     Automated criminal history records                      See also SEARCH Group, Inc., Technical
    reside in state and federal repositories                 Memorandum No. 12: Criminal Justice Information:
    that can be queried by authorized state                  Perspectives on Liability, 5-20 (1977); Robert R.
    and local agencies for criminal justice                  Belair and Paul L. Woodward, SEARCH Group, Inc.,
                                                             Case Law Digest: Court Decisions on the Handling
    and non-criminal justice purposes. 6
                                                             of Criminal History Records - Summaries and
                                                             Analysis (July 1981).

4.       See Use and Management of Criminal                  8.         See SEARCH, Criminal History Record
History Record Information: A Comprehensive                  Information, supra note 4, at 35-36 (describing the
Report, U.S. Department of Justice Bureau of                 federal and state statutes and regulations that apply
Justice Statistics, by SEARCH Group, Inc., at 23             to criminal history records systems); see also, infra
(1993) [hereinafter, SEARCH, Criminal History                Part IV, C (analyzing whether 28 C.F.R. pt. 20
Record Information].                                         provides rules governing the use of criminal justice
                                                             information among criminal justice agencies). For
5.        See id. “Criminal history record” is defined       example, the Federal Bureau of Investigation’s
by Federal regulations as “information collected by          authority to maintain criminal history records resides
criminal justice agencies on individuals consisting of       in 28 U.S.C. § 534 (1994). Similarly, state and local
identifiable descriptions and notation of arrests,           jurisdictions that use funding provided pursuant to
detentions, indictments, information, or other formal        the Omnibus Crime Control and Safe Streets Act of
criminal charges, and any disposition arising                1968, as amended, are governed by the criminal
therefrom, sentencing, correctional supervision, and         history record principles of the Act. See id. at 36.
release.” 28 C.F.R. § 20 (1998).                             These principles require that “collection, storage,
                                                             and dissemination of such information shall take
6.        See id. at 1-2 (explaining that each state         place under procedures reasonably designed to
operates a central criminal history record repository        insure that all such information is kept current
that receives information from justice system                therein; . . . and that information shall only be used
components as a case is processed.                 The       for law enforcement and criminal justice and other
repositories compile the information of an individual        lawful purposes.” 42 U.S.C. § 3789g(b) (1994).
in to a criminal history record, or “rap sheet.” These       State and local jurisdictions receiving federal
rap sheets are available to criminal justice personnel       funding for criminal history record information

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      associated with the criminal history                        arrest. 12    Historically, intelligence
      record continue to be the subject of                        information    “leads”     have      been
      discussion, as public policy and new                        collected and analyzed by law
      technologies move to open access to                         enforcement officers in tracking and
      the criminal history record to a wider                      preventing crime in their jurisdictions.
      audience (e.g., public and private
      automated background checks).9                              In the early 1970's law enforcement
                                                                  agencies began using the capabilities
      B. Criminal Intelligence Information                        of computer systems to store and
      Criminal intelligence information is not                    share intelligence information for multi-
      characterized      by    the     type     of                jurisdictional crime fighting. Notably,
      information collected, but rather by                        the federally supported Regional
      when the information is collected and                       Information         Sharing       System
      how the information is used. The                            (R.I.S.S.) 13 stored and organized
      information is generally the product of                     criminal intelligence information on a
      surveillance of suspected criminals or                      national basis. In response to privacy
      individuals suspected to be involved in                     concerns           associated          with
      criminal enterprises. 10      “Intelligence                 computerization        of     intelligence
      information is a wide-ranging collection                    information, the Department of Justice
      of facts - employment records, bank                         issued a regulation governing the
      statements, tax returns, telephone                          standard for automated collection,
      bills, reports of personal associations -                   storing, and access of intelligence
      which may provide the basis for major                       information     in    federally     funded
      criminal prosecutions.” 11             This                 systems.
      information     is    specific    to    law
      enforcement for use in tracking                        12.       See SEARCH, Criminal History Record
      possible criminal activity prior to                    Information, supra note 4, at 7 (noting the distinction
                                                             between        “intelligence”      information     and
                                                             “investigative” information. Intelligence information
                                                             is “information compiled in an effort to anticipate,
systems are also bound by the requirements of                prevent or monitor possible criminal activity,” where
federal regulation 28 C.F.R. part 20, the purpose of         “investigative” information is “information obtained in
which is “to assure that criminal history record             the course of the investigation of specific alleged
information wherever it appears is collected, stored,        criminal acts.”) For purposes of this article,
and disseminated in a manner to insure the                   intelligence information includes all information
completeness, integrity, accuracy and security of            gathered prior to arrest and prior to establishing
such information and to protect individual privacy.”         specific reasonable suspicion of criminal activity.
28 C.F.R. part 20 (1998). In addition to these               Investigative information includes information
federal     statutes,    states     have     enacted         gathered prior to arrest, but after specific reasonable
comprehensive criminal history record statutes,              suspicion of criminal activity has been established.
many of which provide even more stringent privacy
protections that the federal statutes and regulations.
                                                             13.        See Anti-Drug Abuse Act of 1988, Pub. L.
 See SEARCH, Criminal History Record Information,
                                                             No. 100-690, 102 Stat. 4181, 4340-41, 1988
supra note 4, at 36.
                                                             U.S.C.C.A.N. (102 Stat.) 4340-41. The first major
                                                             federally funded automated criminal intelligence
9.       The U.S. Department of Justice Bureau of            sharing system, the R.I.S.S. system, was
Justice Statistics and The SEARCH Group, Inc. are            established as an LEAA grant program in the early
continuing to analyze privacy issues relating to             1970's.     R.I.S.S. continued to be funded and
criminal history records through the National Task           eventually received a Congressional line-item
Force on Privacy, Technology and Criminal Justice            appropriation in the mid-1970's. The 1988 Act
Information, the most recent meeting of which was            served to give specific authorization for funding to
held on May 11-12, 1999 in Boston, Massachusetts             this and similar criminal intelligence information
(copy of proceedings on file with author).                   systems to track organized crime across
                                                             jurisdictions. See id., see also Office of Justice
10.     See Nicholas de B. Katzenbach and                    Programs, Office of the Comptroller, Regional
Richard W. Tomc, Crime Data Centers: The Use of              Information System Grant History (1975-1997)
Computers in Crime Detection and Prevention, 4               appropriation chart (Apr. 1998) (on file with author).
COLUM. HUM. RTS. L. REV. 49, 54 (1972).
                                                             14.      See 28 C.F.R. pt. 23 (1998). See infra
11.       Id. at 55-56.                                      Part IV, D for a discussion of the impact of this
                                                             regulation on privacy concerns implicated by

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                                                                   pursuant to state law. 19 In keeping
    C. Juvenile Justice Information                                with     the    traditional    sense    of
    The American juvenile justice system                           rehabilitation, it is estimated that about
    traditionally     has      focused     on                      one half of the referred juvenile cases
    rehabilitation rather than retribution,                        are resolved informally, with the help of
    separating, in many cases, the juvenile                        the family, school and counseling
    offender from the adult criminal justice                       agencies,       rather      than     court
    process. 15      This separate juvenile                        intervention. 20            Where court
    process and rehabilitative philosophy                          intervention is necessary, a unique
    is reflected in how juvenile justice                           juvenile justice record and often a
    information is collected, stored, and                          unique juvenile justice offender
    shared. 16 Historically, juvenile justice                      number is maintained by the juvenile
    records have received a high degree of                         court system. It should be noted that
    confidentiality, limited disclosure, and                       juvenile court records often include
    the possibility of being sealed or                             “legal records,” information similar to
    expunged. 17            Juvenile justice                       adult court records, as well as “social
    information is maintained by law                               records,”     information     about    the
    enforcement, as well as the juvenile                           juvenile’s family, medical or mental
    court system. In the past, a juvenile                          health     history,     and    information
    arrest records were often created at                           gathered by social service agencies.21
    the discretion of the law enforcement                          The traditional notions of sharing
    official, based on his assessment of                           juvenile justice records are under
    the crime, with no fingerprinting or                           review, based upon changes in
    photographing of the juvenile. 18                              juvenile policy, 22        and increased
    Today,      most      law    enforcement                       information technology capabilities. 23
    agencies have a formalized juvenile
    referral process that increasingly
                                                             19.       See id. (noting that photographing and
    includes        photographing        and                 fingerprinting juveniles is governed by state law
    fingerprinting      juvenile    offenders                which often requires specific age limitations and
                                                             levels of offense. In addition, state law governs
                                                             whether such juvenile records are forwarded to state
integrated criminal justice information systems.             repositories.).

15.       See Privacy and Juvenile Justice Records:          20.      See id. at 24.
A Mid-Decade Status Report, Bureau of Justice
Statistics, May 1997, NCJ-161255, p. 6 (describing           21.      See id. at 25, citing U.S. Department of
the American juvenile justice system history and             Justice, Bureau of Justice Statistics, Privacy and
development, namely, the Progressive Movement of             Juvenile Justice Records Report, Criminal Justice
the early 1800's that lead to the “rehabilitative ideal”     Information Policy series, Robert Belair, SEARCH
to reform the offender, rather than punishing the            Group,     Inc.,  pp.36-37    (Washington,      D.C.
offense).                                                    Government Printing Office, 1982) (noting that these
                                                             records often contain broader information and,
16.      See id. at 7 (noting, “[t]he juvenile justice       therefore, are accorded a higher degree of
recordkeeping system at this state closely paralleled        confidentiality).
the predominant philosophy of shielding the child.”).
                                                             22.      See id. at 8,19-22, 28 (noting the
17.       See id at 15-16 (explaining that “sealing          substantial increase in juveniles transferred to adult
and purging” of juvenile records remains a popular           court, as well as legislative and judicial initiatives
way to allow a juvenile who is not a repeat offender         designed to increase juvenile justice information
to enter adulthood with a “clean record.” Sealing            sharing within the justice system and with affiliated
and purging laws are set out by state statute and            agencies). It should be noted that when juveniles
are more likely to apply to juvenile court records           are prosecuted in the adult system, their record
than to information held by law enforcement).                becomes part of the adult criminal justice system
                                                             and subject only to the protections of adult systems
18.       See id. at 23 (noting that “[t]he creation of      records. See id. at 28.
a record customarily depended on variables,
including the severity of the crime, the juvenile’s          23.     See id. at 26-27, citing Howard N. Snyder,
record, the juvenile’s attitude upon arrest, and the         “Thoughts on the Development of and Access to an
police officer’s background and attitude.”).                 Automated Juvenile History System,” in Juvenile
                                                             and Adult Records: One System, One Record?,

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

24.       Reference     to     non-criminal   justice        26.      Commentators have raised this issue in
information assumes that the charges do not directly         various contexts including whether “[r]ecording
related to these types of information, such as fraud,        conduct not directly related to crime such as an
money laundering, conspiracy, etc. For example,              individual’s political association, his credit rating or
past employment information attached to a record             employment history, for instance, could create a
for a murder charge may or may not be relevant to            potential for personal or political repression.”
the case.                                                    Katzenbach, supra, note 10, at 54.

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

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enforcement officer, the prosecutor, the                     of criminal activity. The “photograph” of
judge at sentencing, or a probation officer.                 the individual may or may not be accurate,
                                                             but nonetheless has drawn the individual
For example, suppose a law enforcement                       into the scrutiny of the criminal justice
agency were to investigate a suspected                       system. Moreover, if the individual is
illegal enterprise.      The agency, using                   arrested,     the    information    sharing
electronic search capabilities, such as the                  capabilities of integrated justice systems
Internet,     can      collect     information               makes available the same broad array of
concerning the enterprise and its                            personal information and the “virtual
participants.        Because investigative                   picture” to the prosecutor to formulate his
information collected is broader than just                   or her case and perhaps to the probation
the suspected illegal activities of the                      agency and the courts during sentencing.
alleged illegal enterprise, the data
collected would include the types outlined                   While no one should doubt the
above: criminal history information,                         investigative utility to law enforcement of
criminal intelligence information, and                       such technology, there remains the
supplemental information. Thus, the law                      question whether the broad information
enforcement       agency      would     collect              gathering,     analysis,      and    sharing
information concerning both the lawful and                   capabilities of justice information systems
suspect activities of all individuals’                       may violate an individual’s interest in
associated with the enterprises, possibly                    controlling his or her personal information.
including       information        concerning                Such a violation posses the danger that
individuals’ memberships in otherwise                        decision-makers in the criminal justice
unsuspected organizations, individuals’                      process, i.e., a law enforcement officer,
associations with otherwise unsuspected                      the prosecutor, the judge at sentencing, or
individuals,    and      individuals’   family               a probation officer, may make judgments
histories, business and credit records,                      about an individual based on information
travel information, and recreational                         accumulated and analyzed within the
activities, among other things. Information                  integrated justice system without that
thus gathered about individuals, both                        individual’s consent or even knowledge.
suspected defendants and otherwise                           Therefore, the information gathering,
unsuspected        individuals,     may     be               accumulation, analysis, and sharing
accumulated and analyzed within the                          capabilities of new technology today, just
criminal justice system, and shared by                       as in 1890, require us to review the
each criminal justice agency within the                      adequacy of our existing legal protections
system (not just law enforcement                             in the context of the justice system.32
agencies) and with criminal justice
agencies in other jurisdictions.
                                                             V.    RESPONSIBLE                               USE
In this scenario, an individual whose                        PRINCIPLES
personal information has been collected
has no opportunity to control whether or                     As stated earlier, our central focus of
how much of his or her personal                              inquiry is whether advances in technology,
information is available to the justice                      allowing the various components of the
system, because the justice system does                      criminal justice system to gather,
not need to contact the concerned                            accumulate, and analyze criminal justice
individual to gather and accumulate the                      information, and then share and
information from sources accessible over                     disseminate the information among the
electronic media, such as the Internet.
Furthermore, a danger arises in that the                     32.      See Warren and Brandeis, supra note 27,
individual’s “virtual picture” created by the                at 211 (stating “now that modern devices afford
accumulation and analysis of disparate                       abundant opportunities for the perpetration of such
                                                             wrongs without any participation by the injured party,
pieces of data could cause law                               the protection granted by the law must be placed
enforcement officers to form suspicions                      upon a broader foundation.”)
about him or her without any further indicia

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components of the criminal justice system,
raises privacy issues which create a need                    The United States Supreme Court has
for the legal system to articulate principles                discussed privacy in terms of an
of responsible use of this information.                      individual’s interest in “avoiding disclosure
Under American Federal law, there are                        of personal matters,” and in maintaining
many different strands of the concept of                     “independence in making certain kinds 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                    storage, and dissemination of criminal
to be free from unreasonable searches                        history 37      and criminal intelligence
and seizures. 34      Articulated in such a                  information.38 In this part of the article, we
manner, an individual’s interest in privacy                  analyze these privacy principles to
covers that individual’s interest in being                   demonstrate that the privacy rules that
protected from a governmental agency’s                       exist do not cover, or regulate, the
ability to obtain information about that                     information accumulation, analysis, and
individual.35 In this article, however, we do                sharing activities in which components of
not attempt to discuss or evaluate whether                   the criminal justice system may engage
this information is legally obtained. This                   due to the current advances in technology.
article analyzes whether the accumulating,                    Through this analysis and the preceding
analyzing, and sharing of information,                       discussion of the integrated justice
rather than the surveillance activities of                   system, we hope to spark debate
criminal justice agencies, violate an                        concerning the need for principles of
individual’s interest in privacy. This article               responsible use of information in the
assumes, for the sake of argument, that                      criminal justice system.
any information obtained by the criminal
justice system from private individuals has                       A. Whether a Protected Privacy
been obtained legally.                                            Interest Exists
                                                                  In 1977, the Supreme Court in Whalen
                                                                  v. Roe held that a New York statute
33.      Fried, supra note 2, at 482-83.                          requiring doctors to report certain drug
                                                                  prescriptions to the State to be entered
34.       The Fourth Amendment to the United
States Constitution requires that The right of the                into a State controlled and operated
people to be secure in their persons, houses,                     database did not “on its face, pose a
papers, and effects, against unreasonable searches                sufficiently grievous threat” to a
and seizures, shall not be violated, and no Warrants              Constitutionally protected interest in
shall issue, but upon probable cause, supported bu
Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to           36.     See Whalen v. Roe, 429 U.S. 589, 599-
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 it
35.        A federal agency’s information gathering          appears is collected, stored, and disseminated in a
activities are often described as surveillance               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 WM. & MARY BILL RTS. J. 975              individuals.” 28 C.F.R. § 23.1.

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      “avoiding disclosure of personal                            confidentiality in information, and (2), if
      matters,”      or     in    maintaining                     so, whether the government’s interest
      “independence in making certain kinds                       in the information outweighs the
      of important decisions.”39 The plaintiffs                   individual’s     privacy    interest    to
      in Whalen challenged this New York                          determine whether governmental data
      statute on the grounds that the statute                     collection activities violate one’s right
      invaded a “constitutionally protected                       to informational privacy.44 Courts have
      zone of privacy” because of the                             also framed the discussion of whether
      possibility that information about a                        an individual has a legitimate
      patient’s drug use would become                             expectation of privacy in information as
      publicly known, and thereby some                            whether an individual’s claim that the
      patients would become reluctant to                          government has misused information
      use these drugs “even when their use
      is medically indicated.”40
                                                             44.       See Paul v. Verniero, 170 F.3d 396, 401
                                                             (3d Cir. 1999) (ruling that to determine “whether
      Later the same year, the Supreme                       information is entitled to privacy protection,” a court
      Court held that the Presidential                       must determine whether the individual has a
      Recordings and Materials Preservation                  reasonable expectation of confidentiality in the
      Act did not “unconstitutionally invade”                information) (citing Fraternal Order of Police v. City
                                                             of Philadelphia, 812 F.2d 105, 112-17 (3d Cir.
      former President Nixon’s right to
                                                             1987)); Pryor v. Reno, 171 F.3d 1281, 1288 n.10
      privacy.41 In so holding, however, the                 (11th Cir. 1999) (holding that because information
      Court reasoned that the President’s                    found in motor vehicle records is not the sort of
      interest in the contents of his personal               information to which individuals have a reasonable
      communications must be balanced                        expectation” of privacy, there is no constitutional
                                                             right to privacy in motor vehicle records), petition for
      “against the public interest in                        cert. filed, July 6, 1999 (No. 99-61); Condon v.
      subjecting [these] . . . materials to                  Reno, 155 F.3d 453, 465 (4th Cir. 1998), cert
      archival screening” because the former                 granted, _ U.S. _, 119 S. Ct. 1753 (1999) (ruling
      President had a legitimate expectation                 that because “the information found in motor vehicle
      of     privacy     in   his     personal               records is not the sort of information to which
                          42                                 individuals have a reasonable expectation of
      communications.           Through the                  privacy, . . . there is no constitutional right to privacy
      reasoning in Whalen and Nixon v.                       in the information contained in motor vehicle
      Administrator of General Services, the                 records”);
      Supreme Court articulated a balancing
                                                             The privacy issue in both Condon and Pryor arose
      test for determining whether a privacy
                                                             in the context of challenges to the Driver’s Privacy
      interest is violated where the individual              and Protection Act of 1994 (DPPA), 18 U.S.C. §
      asserting the privacy interest has a                   2721, et seq.       See Westover supra note 1
      reasonable expectation in the privacy                  (analyzing the decision in Condon of the Unites
      or confidentiality of the materials at                 States Court of Appeals for the Fourth Circuit). The
                                                             United States Courts of Appeals for the Fourth and
      issue.43                                               Eleventh Circuits have held that because there is no
                                                             constitutional right to privacy in motor vehicle
      Courts have used this analysis of (1)                  records, the DDPA violates either Congress’
      determining whether an individual has                  authority under section 5 of the Fourteenth
      a legitimate expectation of privacy or of              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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      about that individual comes within a                        information relating to shoplifting
      constitutionally protected zone of                          charges, is not protected by a
      privacy.45                                                  constitutional right to information
      The Supreme Court, in Paul v. Davis,
      reasoned that “zones of privacy” are                        Courts analyzing the Paul, Whalen,
      created by the operation of other                           and Nixon line of cases have held that
      specific constitutional guarantees, and                     there are certain classes of information
      these “zones or privacy” impose limits                      in    which     individuals   have    no
      on governmental authority.46 Activities                     reasonable          expectation        of
      within these “zones of privacy” include                     confidentiality or privacy 53 and other
      “matters      relating      to    marriage,                 classes of information in which an
      procreation,      contraception,      family                individual     has      a    reasonable
      relationships, and child rearing and                        expectation of confidentiality, but in
      education.”47 The Court ruled that the                      which the government’s interest in the
      disclosure       of      an     individual’s                information has outweighed the
      information, i.e., a state official’s                       individual’s privacy interest. 54  With
      disclosure to the public of that                            respect to criminal history records,
      individual’s arrest on a shoplifting                        courts have held that disclosure of an
      charge, is not included in these                            individual’s status as a sexual
      constitutionally protected zones of                         offender, information related to sexual
      privacy. 48 A year later, however, in                       abuse charges, and records containing
      Whalen, the Court announced that                            arrest and conviction information are
      individuals may have an interest in                         not protected by a constitutional right
      avoiding government disclosure of                           to privacy. 55 At least one court has
      personal matters. 49           Thus, Paul,
      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                 (analyzing the Constitutional right to information
      this interest may be outweighed by the                 privacy).
      government’s         interest     in    the
      information,51 and arrest data, at least               53.       See, e.g., Sheetz v. The Morning Call, Inc.,
                                                             946 F.2d 202, 207 (3d Cir. 1991) (holding that
                                                             information contained in a police report concerning a
45.        See Paul v. Davis, 424 U.S. 693, 713              wife’s allegations of spousal abuse were not
(1976) (holding that a state official’s disclosure to        protected by the confidentiality branch of the right to
the public of that individual’s arrest on a shoplifting      privacy).
charge does not come within a Constitutionally
protected “zone of privacy”). The Court also held            54.       See, e.g., United States v. Westinghouse
that this individual’s claim that he was defamed by a        Electric Co., 638 F.2d 570, 576, 580 (3d Cir. 1980)
state official’s disclosure to the public of that            (holding that while an employee’s medical records
individual’s arrest record states neither a claim of a       “which may contain intimate facts of a personal
violation of “‘liberty’ nor ‘property’ guaranteed            nature” are “entitled to privacy protection,” “the
against state deprivation without due process of law.        strong public interest in facilitating the research and
 Id.                                                         investigations of NIOSH justify this minimal intrusion
                                                             into the privacy which surrounds the employee’s
46.       Paul, 424 U.S. at 713.                             medical records”).

47.       Paul, 424 U.S. at 713.                             55.       See Paul v. Verniero, 170 F.3d 396, 403
                                                             (3d Cir. 1999) (holding that because “arrest records
48.       Paul, 424 U.S. at 713.                             and related information are not protected by a right
                                                             to privacy,” disclosure of an individual’s sex offender
49.       Whalen, 429 U.S. at 598-600.                       status is not protected); Cline v. Rogers, 87 F.3d
                                                             176, 179 (6th Cir. 1996) (holding that because
50.       See Whalen, 429 U.S. at 598-600.                   “arrest and conviction are matters of public record,”
                                                             criminal histories are not private personal matters
51.     See Whalen, 429 U.S. at 598-600; Nixon,              entitled to Constitutional protection), cert. denied,
433 U.S. at 457.                                             519 U.S. 1008 (1996); Nilson v. Layton City, 45 F.3d
                                                             369, 372 (10th Cir. 1995) (holding that information

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    even     held   that    there is    no                        can not reasonably expect information
    constitutional    right    to  privacy                        concerning potential crimes reported to
    prohibiting the disclosure of juvenile                        police to remain secret.58 Individuals
    court records to government and social                        also do not have a reasonable
    agencies.56                                                   expectation of confidentiality in motor
                                                                  vehicle records. 59     The Court of
    Even     police    reports    containing                      Appeals for the Fourth and Eleventh
    allegations     of    spousal     abuse                       Circuits concluded that there is no
    communicated to the police by the                             reasonable         expectation        in
    abused wife are not protected by a                            confidentiality because motor vehicle
    right to privacy. 57     The Court of                         records are not “intimate personal
    Appeals for the Third Circuit concluded                       information given to a state official in
    that the allegations of spousal abuse                         confidence.”60
    were not protected because people
                                                                  Where the government, however,
related to sexual abuse charges and a conviction is               gathers “intimate facts of a personal
not Constitutionally protected private information                nature,” such as medical records, the
because “[c]riminal activity is . . . not protected by            information is entitled to privacy
the right to privacy”).
                                                                  protection. 61          Because such
Commentators have argued, however, that “once                     information is entitled to privacy
released from prison, offenders should reasonably                 protection, to determine whether an
expect that they can keep their criminal pasts                    intrusion into an individual’s privacy is
private and begin to rebuild their lives.” Caroline               justified, the individual’s privacy
Louis Lewis, The Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration               interest must be balanced against the
Act: An Unconstitutional Deprivation of the Right to              government’s interest.62 In addition to
Privacy and Substantive Due Process, 31 HARV.
C.R.-C.L. L. REV. 89, 96-97 (1996).
                                                             58.       Sheetz, 946 F.2d at 207. The court was
                                                             careful to distinguish the “police’s interest in the
56.       J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th          privacy of the information [from] . . . the individual’s
Cir. 1981); but see 28 C.F.R. § 20.21(d) (proscribing        interest in the information he or she reports.” Id. at
the “dissemination of juvenile records to non-               207 n.6. The court noted that “the police may have
criminal justice agencies except as provided by “a           an interest in keeping investigative information
statute, court order, rule, or court decision                private,” and “may protect this interest by
specifically authoriz[ing the] dissemination of              appropriate regulation.” Id.
juvenile records” and except as provided by 28
C.F.R. § 20.21(b)(3)-(4)). At issue in J.P. was the          59.      See Pryor v. Reno, 171 F.3d 1281, 1288
compilation and potential for disclosure by                  n.10 (11th Cir. 1999), petition for cert. filed, July 6,
Cuyahoga County, Ohio court probation officers of            1999 (No. 99-61); accord, Condon v. Reno, 155
juvenile information the “probation officer thinks is        F.3d 453, 464-65 (4th Cir. 1998), cert. granted, _
relevant to the disposition of a case before the             U.S. _, 119 S. Ct. 1753 (1999).
court” including, social histories containing
“information form a number of sources, including the         60.       Pryor, 171 F.3d at 1288 n.10. The court
complaining parties, the juveniles themselves, their         ruled that it “acknowledged a constitutional right to
parents, school records, and their past records in           privacy only for intimate personal information given
the juvenile court,” and information about other             to a state official in confidence.” Id.
members of the juvenile’s family. 653 F.2d at 1082.
These social histories are kept on file after the            61.       See United States v. Westinghouse
conclusion of a juvenile’s case and are “available to        Electric. Corp., 638 F.2d 570, 577 (3d Cir. 1980)
55 different government, social and religious                (ruling that “an employee’s medical records, which
agencies that belong to a ‘social services                   may contain intimate facts of a personal nature, are
clearinghouse.’” Id. The court concluded that “[t]he         well within the ambit of materials entitled to privacy
interest asserted . . . in nondisclosure of juvenile         protection”).
court records, like the interest in nondisclosure at
issue in Paul v. Davis, is ‘far afield’ from those           62.       See Plante v. Gonzalez, 575 F.2d 1119,
privacy rights that are ‘fundamental’ or implicit in the     1134 (5th Cir. 1978) (ruling that a balancing
concept of ordered liberty’” Id. at 1090.                    standard is appropriate to determine whether the
                                                             State of Florida’s requirement that state senators
57.     Sheetz v. The Morning Call, Inc., 946 F.2d           publicly disclose their personal finances violated
202, 207 (3d Cir. 1991).                                     their interest in privacy); Westinghouse Electric.
                                                             Corp., 638 F.2d at 578; American Fed’n of Gov’t

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    medical records, the Courts of Appeals                        has also used a balancing standard to
    for the Second and Fifth Circuits have                        determine whether disclosure of a sex
    used this balancing standard to                               offender’s “home address” under New
    determine whether laws requiring                              Jersey’s sex offender registration
    public officials to disclose personal                         statute violated a constitutionally
    financial records violated the privacy                        protected privacy interest. 64 In all of
    protections of the Constitution.63 The                        these instances, however, the courts
    Court of Appeals for the Third Circuit                        ruled that the individual’s privacy
                                                                  interest was outweighed by the
                                                                  government’s interest in gathering the
Employees v. Department of Housing and Urban
Dev., 118 F.3d 786, 793 (D.C. Cir. 1997) (ruling that             information.     Even where courts
where the government collects information from                    concluded that information was entitled
prospective employees through security clearance                  to privacy protection, the cases were
forms, and the information is not disseminated                    decided in favor of the government and
publicly, the individual’s “interest in protecting the
privacy of the information sought by the government
                                                                  against the privacy interests of the
is significantly less important” than if the information          individual.
would be publicly disseminated).
                                                                  Therefore,        the      constitutionally
In Plante, the Court of Appeals for the Fifth Circuit             protected privacy interest does not
held that Florida’s law requiring public disclosure of
state senators’ personal finances does not violate                cover most arrest and conviction data
the Constitution’s protection of privacy because the              and most other types of publicly
“public interest supporting public disclosure”                    available information.          With the
outweighs these elected official’s interest in financial          exception of financial information and
privacy. Plante, 575 F.2d at 1136. The court
                                                                  medical records, courts have yet to
reasoned that Florida law advances four important
state concerns: “the public’s ‘right to know’ an                  address       whether       “supplemental
officials’s interests, deterrence of corruption and               information” is entitled to privacy
conflicting interests, creation of public confidence in           protection. Even in the narrow set of
Florida’s officials, and assistance in detection and              circumstances in which a constitutional
prosecuting officials who have violated the law.” Id.
at 1134-35. These concerns, the court concluded,
                                                                  privacy interest exists, however, that
outweigh the Florida senators’ interest in financial              interest may be outweighed by the
privacy. Id. at 1135-36.                                          government’s        interest    in     the
                                                                  information.        Thus, the federal
The Court of Appeals for the Third Circuit in                     constitutional right to informational
Westinghouse Electric Corp. identified seven factors
to be considered in determining whether an intrusion              privacy does not cover the criminal
into an individual’s privacy is justified: (1) “the type          justice     system’s      capability    to
of record requested;” (2) what information the record             accumulate, analyze, and share
contains or might contain; (3) “the potential for harm            criminal justice information. Criminal
in any subsequent nonconsensual disclosure;” (4)
                                                                  justice agencies may use the
“the injury from disclosure to the relationship in
which the record was generated;” (5) “the degree of               integrated      justice    systems       to
safeguards to prevent unauthorized disclosure;” (6)               accumulate, analyze, and share
“the degree of need for access;” and (7) “whether                 information to create a “virtual picture”
there is an express statutory mandate, articulated                of an individual and to share that
public policy, or other recognized public interest
militating toward access.” 638 F.2d at 578.
                                                                  “virtual picture” with other components
                                                                  of the criminal justice system with
63.       See Barry v. City of New York, 712 F.2d                 minimal concerns of violating an
1554, 1559-61 (2d Cir. 1983) (holding that a                      individual’s constitutional right to
provision of New York City’s financial disclosure law             informational privacy.
permitting public inspection of annual financial
reports required of certain city employees did not
violate the confidentiality strand of the right to
privacy).; Plante, 575 F.2d at 1134; but see United          64.        See Paul v. Verniero, 170 F.3d 396, 404
States v. Miller, 425 U.S. 435, 442 (1976) (holding          (3d Cir. 1999) (holding that the New Jersey’s
that an individual does not have a “legitimate               interest in the public “knowing where prior sex
expectation of privacy” in the contents of either            offenders live so that susceptible individuals can be
checks and deposit slips or the microfilm copies of          appropriately cautioned,” was compelling enough to
these checks and deposit slips held by a bank).              justify the intrusion).

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

                                                                                                   Page 15 of 18
Gathering, Analysis, and Sharing of Criminal Justice Information by Justice Agencies: The Need for Principles of
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      a manner to insure the completeness,                         sharing of criminal history information
      integrity, accuracy and security of such                     among criminal justice agencies.80
      information and to protect individual
      privacy.” 72 These regulations require                       Thus, 28 C.F.R. pt. 20 does not cover
      states to submit to the OJP a plan for                       the accumulation, analysis, and
      operational procedures of criminal                           sharing of criminal justice information
      history record information systems. 73                       among criminal justice agencies. This
      The regulations describe requirements                        regulation, therefore, does not protect
      to assure (1) that criminal history                          individual privacy from the criminal
      record information is complete and                           justice system’s ability to create a
      accurate; 74 (2) that dissemination of                       “virtual picture” of him or her, and to
      “nonconviction data” is limited to only                      share that picture among the
      those authorized recipients of the                           components of the criminal justice
      data;75 (3) that criminal history record                     system.
      information       disseminated         to
      “noncriminal justice agencies” shall be
      used only for the purposes for which                   VI.  AN OPENING                  FOR      A     NEW
      the information was disseminated;76 (4)                DISCUSSION
      that states conduct annual audits to
      insure      compliance      with     the               Under Federal Constitutional privacy
      regulations; 77     (5) that security                  principles, while some protection exists,
      standards are established by each                      this protection does not cover the
      state; 78 and (6) that, for purposes of                accumulation, analysis, and sharing of
      accuracy        and       completeness,                criminal justice information within an
      individuals retain certain rights of                   integrated justice system. 81 The federal
      access and review of criminal history                  regulations governing criminal intelligence
      information. 79       None of these                    systems and criminal history information
      regulations, however, prohibit the                     regulate a narrow scope of issues that
                                                             similarly does not cover this “virtual picture
72.       28 C.F.R. § 20.1. The OJP has a duty               making” capability of the integrated justice
under section 812(b) of the Omnibus Crime Control
and Safe Streets Act of 1968, as amended, to
“assure that the security and privacy of all [criminal
history] information is adequately provided for and          80.       The “general policies on use and
that information shall only be used for law                  dissemination” does not prohibit the sharing or
enforcement and criminal justice and other lawful            dissemination of criminal history information among
purposes.” 42 U.S.C. § 3789g(b). This provision is           criminal justice agencies.       See 28 C.F.R. §
“administrative in nature” and imposes an                    20.21(C).       Rather, the section limits the
“obligation” on the OJP “to assure that the                  dissemination to noncriminal justice agencies to the
information is used only for the purpose for which it        purpose     for    which    the    information  was
was collected.” Polchowski v. Gorris, 714 F.2d 749,          disseminated. See id. Moreover, the dissemination
751 (7th Cir. 1983) (holding that a private action           of “nonconviction data” is limited to “[c]riminal
may not be maintained under 42 U.S.C. § 1983 for             justice agencies for purposes of the administration
alleged violations of section 3789g(b)).                     of criminal justice and criminal justice agency
                                                             employment.” Id. § 20.21(b)(1). The regulations
73.      28 C.F.R. § 20.21.                                  define “criminal justice agency” as

74.      28 C.F.R. § 20.21(a).                               (1)      Courts;

75.      28 C.F.R. § 20.21(b)                                (2)      A governmental agency . . . which
                                                             performs the administration of criminal
                                                             justice pursuant to a statute or executive
76.      28 C.F.R. § 20.21(c).
                                                             order, and which allocates a substantial
                                                             part of its annual budget to the
77.      28 C.F.R. § 20.21(e).                               administration of criminal justice. 28 C.F.R.
                                                             § 20.3(c).
78.      28 C.F.R. § 20.21(f).
                                                             81.       See supra part V., A. (discussing whether a
79.      28 C.F.R. § 20.21(g)                                constitutional privacy interest exists).

                                                                                                    Page 16 of 18
Gathering, Analysis, and Sharing of Criminal Justice Information by Justice Agencies: The Need for Principles of
Responsible Use

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

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