Digital Expungement

Eldar Haber

Criminal procedures usually carry collateral consequences. Upon rejoining society, individuals with a criminal history often face governmental and social restrictions on housing, employment, and educational opportunities, along with a revocation of other civic rights. Reintegration of individuals with criminal histories into society—in an effort to increase the chances of rehabilitation and reduce recidivism—necessitates granting them a fresh start. Individuals capable of being reformed need their criminal histories to be treated as though they never existed. To achieve such a purpose, many policymakers introduced the concept of expungement: a legal process by which criminal history records are later vacated, reversed, sealed, purged, or destroyed by the state. While jurisdictional variations exist both in terminology and scope, expungement legislation is generally similar in effect: reformed individuals with certain types of criminal histories can file a request to seal or even destroy their criminal records, which in turn, usually remain available only to governmental agencies under limited circumstances.

Prior to the emergence of digital technology, expungement worked rather well. While an expunged criminal history could have lived on through “public memory, newspapers or the activities of private investigators,” its impact was rather limited: if one’s records were expunged, one would have largely been treated by the public as if one never had a record in the first place. However, digital technology changed the nature of expungement. Digital technology enabled the gathering or purchasing of criminal records in bulk from governmental agencies, the assembling of databases of these records, and the reselling of them without differentiating between criminal history records that were expunged and those that were not.