The Washington PostDemocracy Dies in Darkness

Opinion How criminal background checks lead to discrimination against millions of Americans

(Dominic Lipinski/AP)

Sarah Esther Lageson is a sociologist and assistant professor at Rutgers University-Newark School of Criminal Justice and the author of “Digital Punishment: Privacy, Stigma, and the Harms of Data-Driven Criminal Justice.”

As the criminal justice system comes under scrutiny, our national reckoning should include reining in the outsize influence that police and courts wield in the lives of millions of people outside the formal legal system. In particular, records created by police and prosecutors are routinely accessed in background checks — and regularly used to discriminate against millions. Criminal background checks don’t necessarily provide an accurate portrayal of a person’s life; they show whom police targeted or decided to stop. Using these records to determine a person’s trustworthiness or value as a worker legitimizes police decision-making and entrenches the criminal justice system across unrelated institutions, including public and private workforces, educational systems, and housing.

Last month, Gannett expanded its removal of arrest mugshots from its newspaper websites. Amazon and Microsoft recently restricted police use of their facial recognition technology, and IBM is exiting the business of selling such technology. Now, the personal data industry must admit its role in enhancing and extending control of the criminal justice system.

Transparency laws have been leveraged in the digital age to allow public disclosure of billions of data points about people who have been surveilled, arrested or incarcerated. Personal data companies and consumer reporting agencies profit by selling arrest histories to prospective employers, landlords, lenders and admissions offices. Even if charges are dismissed or the legal record later expunged, digital arrest records often live on in perpetuity as a data point.

Research shows the negative consequences on employment and housing outcomes from even the most minor criminal justice contact. Because there is little to no oversight of data the criminal justice system provides to the private market, background checks are often fraught with errors, mismatched identities and incomplete information. Since 2012, the Equal Employment Opportunity Commission has warned against using arrest data for hiring because of racial disparities in policing, but commission guidance also says that employers may reject applicants based on an arrest without conviction if the “underlying” conduct makes applicants “unfit for the position.” Employers and landlords often don’t know how to make sense of a criminal record’s legal jargon or abbreviations. Some may dismiss applicants if they see any criminal record.

Data-driven approaches exacerbate surveillance and discrimination in a vicious cycle. Across the criminal justice system, historical arrest data about a person is used to justify future arrests, adding more inputs to risk-assessment algorithms and police investigatory databases. Racial disparities in arrest rates are replicated across background-check databases and hiring practices. There are also reputational harms as arrest information is publicly available from sources as varied as official background checks and mugshot extortion sites.

Perhaps the greatest danger to the public good is the relative lack of transparency about police operations even as detailed personal information about arrested individuals is routinely published and sold. The nation has a “data gap" about police activity, with too little known about police misconduct or shootings. As legislation begins to shed light on policing, protections should be considered for those who have been targeted by police in the past and must grapple with their criminal record.

In most states, bulk personal data about arrestees is considered a public record, unchecked for validity before it is released. But there are other options. The 1970 Fair Credit Reporting Act laid out guidelines for data accuracy, privacy and the right to dispute incorrect information in consumer reporting data. What if all public criminal-record data were afforded the privacy and accuracy protections of consumer reports? Or, could human resources professionals be trained to better interpret a criminal record, or to rely more on personal references than automated reports?

In Europe, criminal justice is rooted in a rehabilitative ideal. Record reporting systems look different from U.S. systems, and most European criminal records are not publicly available, with only a limited scope released to qualified employers. This is partly because the right to privacy is more firmly entrenched in European countries and partly because they don’t use their criminal justice system as an arbiter of who belongs in society.

The U.S. criminal justice system should not be used to measure people’s worth. As the country awakens to the improper and arbitrary way black people are stopped by police, society must consider that those police contacts created criminal records that were later used to objectively exclude millions of people from a fair shot at apartments or jobs. The personal data industry should acknowledge its role in expanding the powers of the criminal justice system, and legal reforms are needed to limit private-sector abilities to use and profit from arrests.

When consulting a background check purchased from a sleek company that specializes in personal data, most Americans don’t think about the reach of the criminal justice system. But widespread reliance on a sanitized version of policing, brokered through the private sector, will continue to give police and prosecutors immense power in shaping people’s future — whether they were convicted or wrongfully stopped.

Read more:

Robert Williams: I was wrongfully arrested because of facial recognition. Why are police allowed to use it?

The Post’s View: Our privacy doomsday could come sooner than we think

Radley Balko: There’s overwhelming evidence that the criminal-justice system is racist. Here’s the proof.

The Post’s View: We now have evidence of facial recognition’s harm. Time for lawmakers to act.

The Post’s View: U.S. Customs was right to reverse course on mandatory facial recognition scans