Nearly half of black males and almost 40 percent of white males in the U.S. are arrested by age 23, which can hurt their ability to find work, go to school and participate fully in their communities.
An arrest by itself, without an accompanying conviction, cannot be used to deny employment.
Legally, no, but it's getting common for employers to Google-background-investigate potential hires, and arrest notices can come up in such searches, which employers may or may not put unofficial weight on. Though you might be better off in a big city. In smaller towns, this kind of administrative stuff ends up published: local papers, or even the sheriff's office directly, often put out an arrest blotter with the names/ages/circumstances of everyone arrested in the past day or week, and those end up indexed forever (I gather this kind of situation, where a non-public figure gets minor but potentially harmful facts about themselves prominently indexed Forever, was one of the things the EU's "right to be forgotten" business is worried about).
I'll get right on that as soon as I take over the world.
You assume I'm happy about the arrest rates, I'm not. However, I don't have any real ability to change them besides not voting for "tough on crime" politicians. I already do that for all the good it does.
It possible that the ballot box is no longer the biggest tool in your kit. Stick your neck out, support a local cause that is affected by this perverse phenomenon if you can. Myself, I have been arrested multiple times and have convictions relating to environmental protest (terrorism?). Do not underestimate the empowerment that comes from taking the leap of faith to back up your convictions with acts of resistance.
The "right to be forgotten" is just a societal mechanism for enforcing forgiveness, since we lack any other way to enforce or even particularly suggest forgiveness as a society [1]. Humans are not wired for the proper amounts of forgiveness in a digital world. (One can debate how correctly wired they are under other circumstances, but I feel pretty confident that our thresholds aren't even close to right for a digital world where nothing ever decays naturally and everything is right at your fingertips.)
[1]: Before correcting that, do think about whether it is an option to society, and I am specifically referring to the US. Various religions do some work here, but we do not as a society wish to use that mechanism.
I think the problem is ultimately self-correcting as judgmental people start losing out on opportunities. When Facebook first came out, most of the older generation put out dire warnings about losing jobs because of that drunken party pic you put up. That happens, but now if you start disqualifying every candidate who ever put something embarrassing up on the Internet, you won't have a very large applicant pool. Cue "talent shortage" and "hiring is hard!" blog posts. Meanwhile, the person who got drunk and dirty 5 years ago is now a very talented digital marketer and has gotten a job with your competitor.
Historically, we've seen more tolerant and open societies win out economically over more closed and judgmental ones. Countries that allow women into the workforce do a lot better than ones where work is a man's province, because they have twice as many potential workers. Countries that place people into jobs based on talents and interests do better than those that have rigid caste systems or exams, because they can adapt more flexibly to changing skill requirements. The mechanism is just like the one above: if you deny someone a job for an arbitrary, irrelevant reason, he'll just go find someone less arbitrary (or arbitrary in different ways) and work for her.
I agree that in the long term we must consider second-order effects; I'm not sure we can call them yet. I can also build a plausible case for the idea that as we all live in a global village, we will all find ourselves adopting village-like privacy policies, in particular including making it so you're always playing a persona in public.
Further second-order effects become interesting, too... for instance, this could be a long-term threat to the entire social network scene. If it simply becomes a place to play a persona, and correspondingly a place to consume other people's personas, rather than connect with people on a human level, it also becomes something much less compelling than it currently is.
I think we also have to consider that job applications aren't absolute, they're relative in many ways. If having drunken orgy pictures up on my Facebook isn't a disqualifying event for a job, I still have to consider that I'm going up against someone who doesn't, and that the other prospect may thus be more attractive (because, let's be honest, there is real information about personality in those pictures however much we may wish it was otherwise). So next time I apply, I purge my pictures and now I'm the guy with the squeaky clean social media presence, which pushes everybody that much further in that direction.
Openness and non-judgmental is fun to say, but hiring is fundamentally, irreducibly judgmental. A judgment is what it is. That has an effect on the process.
I'm just musing... I'm serious about my first paragraph, I think it's too early to call the second-order effects.
However, if someone finds themselves unable to get a job in their local area [e.g. Small Town USA where you might only have 1 employer of a given type in some cases] and is forced to move to find a more tolerant employer...that is a burden we shouldn't reasonably expect people to suffer due to a cautious police officer who wanted to play it safe and arrest someone.
I don't see it as a gray zone at all. There is a public record for a reason, as well as libel/slander laws in the U.S. The search engines and the Internet just think those don't matter. They are wrong, and the courts will continue to tweak the verbiage and hand down rulings until they adhere to them.
- If a local paper published the home address of a woman who was a private citizen in their paper, every single day, and her crazy ex-husband used that information to locate her and kill her, the newspaper would be liable. But the Internet does that all of the time and claims that it's free speech.
- If a person is convicted of a crime, does 10 years in prison, and serves their debt to society, that's still public record. An employer can find it even without doing a Google search, although that's what people are claiming is a 'grey area'. Is it 'fair' that the person's name immediately turns up their arrest record as the #1 result? Well, 'fair' and having done 10 years in prison don't really add up.
Here's the thing - in the U.S., people are up in arms over the 'right to be forgotten' and claiming it violates free speech. But that's not really true. Today, if there is inaccurate information about you - like, say, Google links to a website that says you were busted smoking crack in a nearby schoolyard, but it is completely untrue - you can go after the offending site and they will have to remove it under U.S. laws, and that means Google's links will evaporate. But this isn't the case in the E.U., where this law was passed.
> If a person is convicted of a crime, does 10 years in prison, and serves their debt to society, that's still public record. An employer can find it even without doing a Google search, although that's what people are claiming is a 'grey area'
The big difference between now and the pre-Google days was that there were some checks and balances on the public record. Yes, I could find out that someone had been arrested, convicted, served their time, and was released...but it took some effort. I had to actually go down to where the records were kept, and actually go through filing cabinets or microfiche to find the relevant record.
For some kinds of public records, I could write to a government office, and they would send back copies of the relevant records, so I at least did not have to actually go to the record office, but this was slower and would often have fees.
This also presumes I know who has the relevant record. I could potentially have to go on a record fishing expedition in every state the person might have spent time in. There were firms that would do these searches for me, but they did not do it for free.
In this environment, we had balance. The public record was public, but an employer or a nosy neighbor was not going to go to the trouble of finding your records unless they had a really good reason. For most jobs, it was not worth it for the employer to bother.
Furthermore, records could be sealed or expunged, and that actually worked. Now, there are widespread copies of everything, so once something is out there, it stays out there.
Actually, most employers pre-Internet would get background checks from a single service for $8-$30. I knew a guy who started a company offering just this and always had plenty of business. Still does.
The 'right to be forgotten' has more to do with the fact that in the past there was a barrier to entry to gain access to this information. Let's say that (e.g.) you were arrested at a peaceful protest in your teenage years. The Internet makes it easy to gain access to this information with minimal effort and/or cost. In 'the old days,' someone could find this information about you (public record and all), but they would have to be very motivated to look into it.
It's the same thing with the move from manned helicopters => unmanned drones for local law enforcement. Unmanned drones significantly lower the upper bound on what local law enforcement can do with air surveillance. Society didn't care too much about reining in local law enforcement on these issues in the past because it was too costly (to law enforcement) to be a problem to society at large.
Those are legitimate concerns. How about the cases when a politician said something racist/bigoted 10 years ago. He wants them expunged now because his views are different. How do you differentiate political convenience from legitimate change in views?
Also to clarify the two points you've mentioned
Google does not generate the data. The data has to be public somewhere. If google is not doing the indexing, some other search engine is doing it. Even if the search engines did not exist, a motivated stalker will still find the public address.
> Is it 'fair' that the person's name immediately turns up their arrest record as the #1 result? Well, 'fair' and having done 10 years in prison don't really add up.
If it is not fair, the data should not be public. It is the law enforcement's fault to make such information public.
There is another argument that can be made here as well. What if the person who went to Jail was a significant person ? Should he have the right to ask a historian to ignore his past crimes when a biography is being written ?
I originally said this was a grey area because there will be cases where this is a good reason and there will be cases when this is a terrible idea. However asking the search engines to ignore public data is most definitely treating the symptoms instead of looking at the broader problem.
If you said something in a public forum, you can't have it expunged. You can address previous remarks, you can state a thousand times that you were wrong, but it cannot and should not be expunged.
I don't see why someone's arrest record should be hidden unless they were exonerated or there were specific circumstances for doing so.
We're not asking search engines to ignore public data. The EU is telling search engines to ignore incorrect/defamatory data because the EU doesn't have the protection laws that the U.S. has.
> I don't see why someone's arrest record should be hidden unless they were exonerated or there were specific circumstances for doing so.
The problem you aren't getting is that for the poor and anyone who can't afford a lawyer...this doesn't happen. The exceptions are notable nationwide media coverage types.
I am not sure what you are referring to. I was talking about the laws in relation to the original comment, which was related to whether the 'right to be forgotten' was a good law or a bad law.
I never said anything remotely related to whether it was administered correctly or not, or how effective it was in any way.
Do you have any sort of citation or reference to back up your claim that a newspaper would be liable for a murder due to printing an address in the US? Wouldn't everyone be liable for everything if "someone used a fact you published to commit a crime" was the standard?
In the US, libel and slander laws can't be used to prevent people from saying things which they can prove to be true or factual.
The most famous case is probably Neal Horsley, who was found liable (though only civilly) for publishing the home addresses of abortion doctors, some of whom were later harmed. He was sued for contributing to the attacks and lost. These were correct addresses and it was true that they were abortion doctors, but a court nonetheless considered their publication to constitute an implied threat of harm to the doctors in question. There are some less dramatic cases involving the "public disclosure of private facts" tort, against which truth is not a defense (though an address would not usually be considered a private fact).
In the traditional (pre-automation) era intent played a large role. This worked out okay in most cases, because harmful things (like Horsley's site) tended to only show up as a result of malevolent intent. Sites with lists of abortion doctors' home addresses didn't just show up innocently, so if nobody had malevolent intent, they wouldn't show up. Now if algorithms are just throwing up lots of things, there is probably not malevolent intent on the part of the algorithms, but the same harms can result. So different legal systems are trying to figure out what to do about it.
Getting nailed in civil court is a completely different animal than criminal charges. You can even get nailed in civil courts for things that criminal courts found you not guilty of (see: OJ Simpson).
You didn't actually limit what you said to that topic. You said there should be a "right to be forgotten," and when someone wondered what it should apply to, answered "Anything that might make someone unemployable that didn't result in a conviction or other defeat in court" (emphasis mine). The fact that someone never showers falls under that heading. At no point have you said anything to suggest you were only talking about arrests, and the EU law does not limit itself that way. Did you instead mean for it to apply only to arrests and nothing else?
> Ya, stuff like that is why we need a right to be forgotten in the US. People tend to see an arrest and leap to conclusions.
I say this as a person who has never been arrested. :/
> Anything that might make someone unemployable that didn't result in a conviction or other defeat in court.
> The topic is arrests.
The fact you never shower is not going to get you arrested.
I guess to me the pattern was obvious but I accept it wasn't obvious to you. Yes, the topic is related to arrests & court cases.
OK, just so I'm clear, which is it: Is the topic limited to arrests and court cases or is it just related to arrests and court cases? You seem to object to my comment on the former grounds ("the topic is arrests"), but you have not been restricting your statements to those topics. I find this a bit frustrating, because you keep making broad statements, but object to commentary that is equally broad.
It is possible to get local papers kicked out of Google search results for things like arrests that did not lead to a conviction [which honestly is a 90% solution]. 90% solutions are good enough.
That also sounds 90% good enough to make the media useless. A politician doesn't like an article about his corrupt behavior? Well, he wasn't convicted for anything in the article, so away it goes!
If you aren't able to get the person in a court of law and win, you shouldn't be able to prejudice their ability to make a living.
EU excludes public figures [I'm not sure exactly how its written].
It isn't like people are magically going to forget nationwide media coverage of someone like Nixon and his "I am not a crook speech". We still remember it decades later. I think I'd rather err on the side of protecting the poor and weakest members of society that probably can't get someone to take a libel case on their behalf for $$ than punish every guilty person "who got away with it".
For every Nixon, there are dozens if not hundreds of people with arrest records published on the internet that never went to trial.
This example doesn't need a right to be forgotten, it needs a right to not be noted in the first place.
For arrests w/o conviction, the person has done nothing that would justify a violation of his privacy - what right or excuse could there be to allow the police to publish their names or other personally identifiable info in the first place? Especially for minors (as for the curfew issues)?
You need to keep the private info private, that's it.
I think the problem here is the 1st amendment trumps your right to privacy in the US when it comes to matters of public record. I'm not sure I want that to change because people do have a right to know if a legal issue is in process, they just don't have the right to be prejudiced if you are found innocent/released without a guilty verdict.
The first amendment allows local newspapers to publish info that they got from the police public record.
It certainly doesn't prevent a law that forbids police to disclose names of arrested minors, and keep their names out of the public record unless they're proven guilty.
Right to be forgotten is completely unsuitable for the purpose.
First, it only requires removal of the information from some search engines. Smaller search engines which have not been notified by the concerned person can continue to index and serve the information. Foreign search engines may also continue to provide the information. Most importantly, the original sources of the information on the internet can continue to publish it. All this means that a properly done background check will find them anyway.
Second, it places the responsibility for the correct decision as to what should remain public and what should be censored on a few private companies. This is heavy burden for the companies and misplacement of responsibility since the companies are not independent the way the judiciary is supposed to be.
Thus, the law failed to protect the intended group while placing heavy burden on companies and misplacing legal responsibility in private companies.
While not as important as having a job, etc, it could possibly affect overseas travel. Someone couldn't travel with us from the UK to our wedding in the US as we learnt that anyone who's been arrested for any reason can't travel under the visa waiver program (they can apply for a visa though but that takes time, money, and an interview). And as far as I understand it, US VWP treaties operate on similar principles in both directions.
> We recommend that anyone who have ever been arrested and/or convicted of an offense apply for a visa. In cases where the arrest resulted in a conviction, the individual may be permanently ineligible to receive a visa and in order to travel, a waiver of the permanent ineligibility is required. The Rehabilitation of Offenders Act does not apply to United States visa law. Therefore, even travelers with a spent conviction are required to declare the arrest and/or conviction and apply for a visa.
Imagine you've just spent £X00 on a ticket. Would you gamble that (and the cost of flying back if denied entry), and your future chance of entry to the US, on getting through US border controls?
Sounds like he read the question asked when you go here: https://esta.cbp.dhs.gov/esta/ and apply for the visa waiver. And he didn't feel like forking out for plane flights just to be turned back at the border.
"B) Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?"
On the other hand, if you have ever been arrested, even if not accused of anything, and you want to apply for citizenship or a green card in the US, then the burden is placed on you to get proof that you have never been accused of anything [1]. If you fail to provide such evidence (as can happen if you were arrested outside of the US and the police in that country aren't interested in cooperating), then the default presumption is one of guilt rather than innocence.
Edit: And in case it wasn't clear, failure to obtain a green card in the US can make it more difficult to find employment, as not all companies are eager to navigate immigration procedures on the behalf of their employees.
And when I delivered pizza, my manager wasn't allowed to make me work unpaid overtime. But this is America, and something being "not allowed" doesn't mean it isn't happening all the time. The people affected by this most generally cannot afford legal action to defend themselves against this. Or worse, they're unaware that it's illegal to do this.
You don't need to afford legal action to make a FLSA claim; the point about people being unaware of the legal mechanisms available to them (or even the illegality of it) is I think much stronger.
If I was working hourly, I'd pray they make me work unpaid overtime, because when I was ready to hop jobs I'd walk into court with a fat 2x back wages (1x + liquidated damages) [1]. If they retaliate, it's up to 3x back wages.
"However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question."
True. If you are truly innocent of the crime, you should have a good case to get the arrest record expunged (e.g. arrested for a case of mistaken identity and the charges are dropped). If there is enough evidence that you can't file a motion to dismiss, and the case goes to trial, then I suppose you have some explaining to do. The employer might be justified in denying employment if you engage in behavior that results in arrest (e.g. you are a known gang member arrested in a sweep, and later released or you were caught joyriding and the owner decides not to press charges). In this case, the arrest is not the reason for denying employment, your behavior is.
> An arrest by itself, without an accompanying conviction, cannot be used to deny employment.
Your own linked source does not say that -- it says that an exclusion based on an arrest record alone is not considered "job related and consistent with business necessity", and so will not be an adequate defense against a discrimination claim if disparate impact on a protected axis (e.g., race) is established. It does not, however, indicate that deny employment on that ground is per se prohibited.
Further, it does clearly state that the employer may use the fact of an arrest, even without conviction, as a trigger for exploration of the "conduct underlying the arrest", and may use that as a basis for denying employment or other adverse job actions even without an arrest -- providing, unhelpfully, nearly the most extreme possible example of an arrest without conviction as an illustration (an elementary school principal arrested but not convicted of sexually abusing minors where an internal investigation triggered by the arrest found some evidence supporting the accusations but still no conviction occurred), which certainly indicates why an arrest without a conviction may be sufficient to demonstrate that the decision is reasonably job related, but does little to illustrate where the boundary is.
How many people that were "kettled" during the G20 protests, despite not actually participating in the protests, nor ever being charged with anything, now have a police record?
If it goes to court, in most jurisdictions the disposition of the case will be available in a standard background check. For example, if you were charged with resisting arrest and found not guilty, it would still show up but also show "not guilty". Good luck explaining that to an employer, even if you did nothing wrong (and the courts confirmed it).
A "not guilty" verdict means that there was enough evidence to go to trial, but not enough to convince a jury beyond a reasonable doubt. It's far from a confirmation that you did nothing wrong.
I've never had that experience, but I've been turned down on a couple of home rental applications when past arrests have turned up when running a background check. I'd assume the type of business that cared enough to run background checks would certainly catch any arrest on someone's record.
Given that they're often published in newspapers, you can often find that information in a few seconds on Google. I think it's dreadful that police forces do perp walks and publish mugshots of arresstees who may not even end up getting charged.
All sorts of other things show up. I'm named in an eviction lawsuit from the 1990s, which might make someone think I was a deadbeat who didn't pay rent. As it happened the house I was renting a room in was sold and the new owner wanted everyone to leave so he could move in, but nuances like that aren't obvious from the summary records at the court.
I have never been convicted of a crime, but I do have felony arrests on my record that have prevented me from getting an apartment, and hindered me from getting into a university.
An arrest by itself, without an accompanying conviction, can be used to deny non-US citizens entry to the US. UK citizens who've been arrested need to apply for a visa and can't use the visa waiver / esta system.
I know a few people with felony arrests (charges dropped) who had the records expunged pretty easily. It was a simple form filed with the court, and the record was clean for later background checks. It's a hassle, sure, but it makes the rest of your life much easier.
In some places it may be easy as filling out a form. In other locations (Arizona for instance), there is no such thing as expungement. The best one can hope for is a little note next to the record saying judgement has been set aside.
That just means it won't be cited as a reason by an interviewer or in a HR letter. But your name and face ina mugshot gallery are definitely not going to improve your prospects.
An arrest by itself, without an accompanying conviction, cannot be used to deny employment.
1. http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#I