Pubdate: Wed, 03 Jan 2001
Source: Austin American-Statesman (TX)
Copyright: 2001 Austin American-Statesman
Contact:  P. O. Box 670 Austin, Texas  78767
Fax: 512-445-3679
Website: http://www.austin360.com/statesman/editions/today/
Author: Andrea Ball

DELETE KEY SOUGHT FOR OLD ARREST FILES ON WEB

That DWI charge, that robbery arrest, that jaywalking incident -- all can be
erased.

Each year, thousands of people have criminal charges removed from their
records, providing a court-approved fresh start to their lives. All
documents are destroyed so nobody -- not a boss, a college dean or a
suspicious father-in-law -- has to know.

At least, that's how it's supposed to work.

But with Internet companies that compile personal information, many arrest
records survive on the Web. In response, a Texas legislator has introduced a
bill forcing such companies to remove these ``expunged'' records from their
databases.

``If we can put people in the pokey and take some of their money away, maybe
that will stop them from keeping those records on their sites,'' said Rep.
Tony Goolsby, R-Dallas.

But taming the Internet is no easy feat. There are free speech questions,
fairness issues and jurisdictional hurdles -- not to mention the logistics
of pinpointing exactly where in cyberspace your criminal records are
lurking.

Then there's the challenge of breaking new ground. Lawyer Robert Ellis
Smith, publisher of the Privacy Journal newsletter, says Texas could be the
first state to pass such legislation.

While others foresee First Amendment and jurisdictional problems with the
bill, Smith approves of the concept.

``I think it would be very difficult to enforce, but it's a different
approach. It certainly has a common sense approach that I like,'' said
Smith, a board member of a public-interest research group called the
Electronic Privacy Information Center.

Expunctions are the law's second-chance system.

In Texas, felony and misdemeanor charges that have been dismissed can
legally be removed from criminal records. Individuals who have been
acquitted at trial can also clean the slate.

All it takes is a petition to the court, a judge's approval and $185, plus
$8.80 for every agency that must be contacted about destroying records. Then
every government or law-enforcement agency with a copy of the expunged
record must be notified to destroy it. All traces of the arrest are gone.
People can legally deny they were ever arrested for the expunged offense.

More than 565 expunction cases were filed this year in Travis County, while
71 were requested in Williamson County. The vast majority were approved by a
judge.

But there's a glitch. Texas' expunction law only applies to government
agencies. With the emergence of Internet companies that compile public
records, concealing expunged arrests gets harder.

``Once it leaves our office, there's no way we can control it,'' said Amalia
Rodriguez-Mendoza, Travis County district clerk. ``We don't know how many
times it's been duplicated. All the burden falls to the individual to find
out who has their record."

And that's not easy, said Austin lawyer Kenneth Houp, who files numerous
expunction requests each year.

``There's such a proliferation of these sites, it's hard to keep up with who
has what,'' he said.

Some private companies voluntarily remove the records once notified, Austin
lawyer David Sheppard said. Others have been less receptive. Several lawyers
claim they have unsuccessfully tried to get expunged information off
PublicData.com, a public records company based on the Caribbean island of
Anguilla.

``We've had situations where we've sent them letters demanding that they
comply with the expunction order and delete the records, and our letters
have gone unanswered,'' Sheppard said.

Attempts to contact PublicData.com were not successful.

This isn't the first time PublicData has gone head to head with the
Legislature. The private company moved from Texas to the Caribbean in 1997,
avoiding a new law making it illegal to disseminate details contained in
driver's license and vehicle registration databases.

Now Goolsby wants to force the expunction issue. His bill, which will be
considered by the Legislature next year, would require private companies to
remove expunged records. Violators could be slapped with a Class B
misdemeanor, punishable by up to six months in jail and a $2,000 fine.

The law would be enforced by local law enforcement agencies, such as the
Travis County sheriff's office or the Austin Police Department.

``This forces them to remove those records,'' Goolsby said. ``If they don't,
it creates a problem for people who apply for licenses, jobs or to go to
college. They think they have a clean record, and all of a sudden, this
thing pops up."

But the proposed bill could pose free speech problems, Austin lawyer David
Donaldson said. The courts have ruled that government can restrict speech
only under extraordinary circumstances -- you can't yell ``Fire!'' in a
crowded building if there is no fire and you can't threaten the president.

While publishing expunged records can cause problems, Donaldson said,
limiting free speech to protect the privacy of a few people would weaken the
First Amendment and ultimately erode civil liberties for everybody.

``When weighed against those interests, the First Amendment wins,'' he said.

Goolsby's office said the bill would not harm free speech, but merely
require it to be accurate. When an arrest is expunged, it is no longer
correct to say that person has a criminal record, said Sheppard, the Austin
lawyer.

``When that information becomes inaccurate, they need to correct it,'' he
said.

Goolsby's bill does not target newspapers or any news-gathering agency. His
legislative aides say the proposed bill is aimed at companies such as
PublicData.com. And that causes another potential problem, Donaldson said.

``If they don't target newspapers and just want these other people, then you
have an equal protection problem because then you're just targeting people
who are doing something you don't like,'' he said.

There are no easy answers, Sheppard said. Balancing personal privacy and
individual liberties is always difficult. Learning to tackle the troubles
associated with new technology will take some time.

``I don't know what the real-world solutions are to these problems,'' he
said. ``I don't think anyone does. We're in a new and different age. Five or
10 years ago, this all seemed simple. It's not so simple anymore.''

Another issue is jurisdiction. Can a Texas law be applied to companies that
operate out of state or even out of the country?

Yes, Goolsby's office said. If a company gets its information from Texas
agencies and does business in Texas, it can be held accountable to Texas
law.

Chris Hoofnagle, a lawyer with the Electronic Privacy Information Center,
isn't so sure.

``I don't think Texas could reach beyond its borders to enforce this law,''
he said. ``Then again, this is a complicated issue. It's about the
jurisdiction of the Internet."

Goolsby should consider another option, said Smith of the Privacy Journal.
Instead of pushing a criminal statute, the Legislature could pass a law
allowing people to sue companies that do not remove expunged records, he
said.

Such a law would avoid adding duties to already overwhelmed law enforcement
agencies and prosecutors. And most companies would rather cooperate than
spend thousands of dollars in legal bills.

``A criminal sanction is like a nuclear bomb -- it's only going to be used
under the most extreme circumstances. Companies know that,'' Smith said.
``The best way to scare a company is to let them know they can be sued for
lots of money."
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