As we live in the New Media Age, the internet has become an omnipotent tool that millions of us use every day for a variety of reasons. The internet changed the way we go about our daily lives, providing a myriad of possibilities to meet people, organize tasks, buy products, and even search for people’s public records with the click of a mouse.

Read More: The Big Business of Big Data

As the information broker industry is rapidly growing, the United States is struggling to catch up and adopt comprehensive data protection laws to regulate it. This prompts a discussion on how to balance online access to public records and personal privacy. Read on to learn more about data protection and freedom of information laws, the data broker industry, and the consequences of easy access to online public records.

What are public records?

Public records are documents that can be openly accessed for inspection by any person. Often, personal information becomes a part of a public record when a person interacts with government agencies on the local, state, or federal level. Public records can include quite a collection of data: birth, marriage, death, arrest, tax, property ownership, driver’s license, occupational licenses, and voter registration information. Most of the time, providing personal information to government agencies is mandatory, leaving individuals no choice but to disclose their addresses, social security numbers (SSNs), and medical or employment histories. For example, if one donates over $200 to a political campaign, he has to provide his name, address, and employment information. All of the provided data automatically becomes a matter of an individual’s public record, and can be accessed through countless information broker websites. Court files are also public records, and all information contained within the files, with few exceptions, can be accessed without legal restrictions as well.

How do you access public records?

Historically, public records could be obtained only in paper form by physically going to the government agency or court house that collected and stored the applicable information. Starting in the mid-1990s, courts and government agencies began to provide online access to their public records directories, and to sell public files to information brokers and data compilers. Now, government or information broker websites can provide easy access with just the click of a mouse. The data broker industry is booming with thousands of companies selling all sorts of public records online.

What are information brokers?

Information brokers are companies that collect all sorts of data, including internet browsing information like consumer survey data and social media profiles, analyze an individual’s information, package it, and sell it to advertising and marketing companies. Some of the information brokers also obtain public records from local, state, and federal government agencies, and re-sell them online, adding appropriate packaging and a more sophisticated design to the reports. Many of these companies provide access to public records on a subscription basis, when a member pays a monthly fee for unlimited access to millions of public records. As there are virtually no laws that directly pertain to the information broker industry, public records can be accessed by anyone, regardless of their purpose and intentions. There are also no licensing requirements, no central registration system of any sort, and no mechanism through which it would be possible to request a copy of a personal public record that has been circulating online. Even though the information broker industry has been operating for decades, its volume and scope is much greater now, with thousands of companies mining and compiling individuals’ public records, ready to reveal our most sensitive personal data to anyone at any time.

Watch the video below to learn more about information brokers.

What are the laws that govern the information broker industry in the U.S?

The information broker industry is governed by various data protection and freedom of information laws. While the United States strongly adheres to freedom of information practices codified in the Freedom of Information Act (FOIA), there is no comprehensive data protection legislation, except for narrowly applicable laws that are subject-specific and limited in scope.

Freedom of Information Laws 

Freedom of information is a fundamental human right recognized in international law and in many national laws around the globe. As of 2012, there were 93 countries that adopted comprehensive freedom of information laws or similar administrative regulations. In the United Sates, the right to access information from the federal government is outlined in the Freedom of Information Act (FOIA), a comprehensive law that provides government accountability and safeguards the freedom to access public records. In addition to this federal legislation, each state has some sort of FOI laws, with different degrees of accessibility and restrictions. As the information broker industry provides services in relation to availability of information contained in public records, it operates within the FOI legal framework.

Data Protection Laws

Data protection laws are centered on safeguarding personal information from unauthorized usage. Worldwide, more than 80 countries have adopted comprehensive laws to uphold the privacy of their citizenry. In 1970s there were only eight countries that had data privacy laws on the books; in 2010 the number skyrocketed to 89. The United States is one of only a few developed countries that doesn’t have a comprehensive law that protects online privacy, but instead relies on sectorial laws that provide limited amounts of regulation and have many loopholes. Most of these laws pertain to personal information held by the federal government, while legislation that regulates personal information in public records systems is essentially limited to the Fair Credit Reporting Act (FCRA).

The Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) is guided by the fair information practices that were developed by the Department for Health, Education, and Welfare in the 1970s. On the whole, FCRA regulates the practices of credit reporting agencies. It promotes agencies’ accountability and safeguards security of personal data. The law requires information to be accurate, purpose specific, and accessible. It also outlines limitations on collection and usage of personal data as pertaining to credit reporting.

California’s Data Privacy Laws

California is one of the few states that protects the personal privacy of its residents as it pertains to online access to public records. In 2003, it enacted the Online Privacy Protection Act (OPPA) that requires websites that collect personal information on California residents to post and comply with the privacy policy of the state. In 2013, California enacted so-called “Don’t Track” legislation (AB 370) that requires certain websites to disclose information on how they collect data and track users. During the same year, the Right to Know Act was introduced in the State Assembly, but it failed to pass due to strong opposition from the trade groups representing the information technology industry. If enacted, it would require data brokers to provide a copy of an individual’s stored information upon request.

Case Study: Instant Checkmate

Instant Checkmate is a California-based people search engine that operates by compiling and selling instant access to criminal background checks. Originally, Instant Checkmate was a small internet startup, but it recently gained popularity due to its appealing packaging and additional features, such as its public criminal records directory, crime wire blog, and reverse phone look up.

Notably in 2014, Instant Checkmate paid $525,000 in a settlement for allegedly violating the Fair Credit Reporting Act. The lawsuit, filed by the Federal Trade Commission (FTC), claimed that the company was operating as a consumer reporting agency, but wasn’t complying with FCRA regulations, including accuracy of provided information and verification of the identity of those who were requesting consumer reports through its website.

Now, the company markets itself as a tool to locate childhood friends and check out online dates. When you enter the website, the first thing you see is a notice that states:

You may not use our service or the information it provides to make decisions about consumer credit, employers, insurance, tenant screening, or any other purposes that would require FCRA compliance.

As the FCRA is limited to regulating credit reporting agencies only, it’s not applicable to the rest of the information broker industry. In order to avoid FCRA regulations many information broker companies simply run a disclaimer stating that they are not a credit reporting agency, and continue to operate outside any legal framework that pertains to  personal privacy. Instant Checkmate is one of many information broker companies that has used this tactic to escape FCRA compliance.

Watch the video below to learn more about Instant Checkmate, how it operates, and how the information obtained through its platform can be used by the third parties.

What are the advantages of online access to public records?

Online access to public records further upholds freedom of information as a fundamental right, and provides certain benefits to consumers and employers.

Benefits for the Citizenry

Access to public records is a mechanism to monitor the government as it allows its citizenry to review official actions and keep government agencies accountable. Online access to public records is an additional and more powerful tool to safeguard liberties and to ensure transparency of governmental practices. In this regard, the internet provides a platform to oversee and track government actions in relation to various matters, including decisions in individual cases.

Benefits for Consumers

Access to public records is an important consumer tool that is widely used in spheres such as employment, child support, retirement, and identity theft prevention, just to name a few. Online access to public records can highly benefit consumers and those who directly interact with government agencies and courts, if public records are accurate and up-to-date.

Benefits for Employers

In addition, access to public records can help employers screen applicants to decrease liability implications in the future. If using appropriate channels of inquiry, online background checks can assist employers in choosing the right candidate for the position.

What are the disadvantages of online access to public records?

Online access to public records increases privacy concerns, especially when the information broker industry lacks government oversight and is poorly regulated.

Discrimination and the Rise of the “Dossier Society”

Due to the fact that everybody can access public records online, individuals’ pasts become a matter of the present, including any transgressions, law violations, or simply embarrassing moments. In turn, it leads to discrimination and disenfranchisement of individuals whose records are not squeaky clean, denying them employment opportunities, normal relationships, and, simply, privacy. Some experts predict that in the future we could become a “dossier society,” meaning a society where everybody has an electronic profile that provides a detailed account of the individual’s life. In this view, a dossier society won’t allow social forgiveness and will force those who have blemishes on their records to work low-paying jobs without any possibilities for professional growth and development.

Economic Crimes

Most public records, including divorce decrees, child custody cases, and bankruptcy filings, contain sensitive information such as SSNs, financial account numbers, and dates of birth. Allowing online access to those records increases the risk of economic crimes, particularly identity theft. Online access to public records exacerbates the problem of financial fraud as it’s relatively easy to obtain personal information on the web as there are hundreds of websites that provide detailed records for a small fee. Identity theft has devastating consequences for victims as they cannot obtain credit, home loans, employment, or rent apartments.

Data in the Courtroom

Details of court cases, including the personal information of plaintiffs, defendants, and witnesses, becomes a part of the court record, and, therefore, public records. Not only can revealing personal data discourage plaintiffs from proceeding with cases, but can undermine the safety of those who are involved in the proceedings, including witnesses who testify against one of the parties. In addition, defendants often use personal medical or sexual history to promulgate damaging allegations against plaintiffs in medical bill payment or sexual harassment cases. Online access to public records facilitates the process of obtaining court files, making it relatively easy to mine personal data that can be used to alter court proceedings.

Inaccurate Information

Many times allegations that are made during court proceedings turn out to be false, particularly in disputes between business partners, former lovers, or neighbors. As a result, inaccurate information becomes a matter of an individual’s pubic record. As public records can be widely accessed online, inaccuracies in connecting information to specific individuals also frequently occur. In addition, some information brokers’ files can be outdated, creating additional errors in background reports. Mismatches and inaccuracies in personal data reports can link individuals to crimes they didn’t commit, deny them opportunities for employment, and destroy their reputations. In 2002, a New York resident was awarded $450,000 in damages as his profile contained a false criminal conviction.

Personal Safety

As many information broker companies claim that their services can ensure personal safety by revealing criminal histories of online dates, neighbors, and other acquaintances, online background checks can also do exactly the opposite and jeopardize safety for some people. As personal information of witnesses and victims is a matter of a public record, if their identities and addresses are revealed, they can be targeted by criminals for retribution, stalked, or even re-victimized by their domestic partner.

Targeting Consumers

Information broker companies are clearly making money from compiling and selling public records online. Not only do they amass information from different government websites, but re-package and sort it, creating a brand new product in order to earn additional profit. Information from online public records is extensively used by commercial profilers for marketing and advertising purposes. Business owners also often use information from online public records to target specific groups, including those with credit or bankruptcy problems, for advertising.

Watch the video below to learn more about information brokers and how they are mining, compiling, and selling personal data to third parties.

Conclusion

Without a doubt, citizens of any democratic society should have a right to access public records in order to hold their government accountable and keep its practices transparent. At the same time, personal information of individuals should be protected, and, for that reason, the information broker industry should be regulated to make sure that unauthorized users don’t have access to sensitive and often private matters. As this technology progresses, these questions will all need to be considered.

 Resources

Primary

California Legislative Information: AB-1291 Privacy: Right to Know Act of 2013

California Constitution: Article 1 Declaration of Rights

California Legislative Information: AB-370 Consumers: Internet Privacy

U.S. Department of Justice: The Freedom of Information Act

Additional

Social Science Research Network: Global Data Privacy Laws: 89 Countries, and Accelerating

Privacy Rights Clearinghouse: Public Records on the Internet: The Privacy Dilemma

Electronic Privacy Information Center: Privacy and Public Records

Top Ten Reviews: Instant Checkmate

Yahoo Finance: Free Public Criminal Records Directory Offered on Instant Checkmate Website

New Media Institute: What is New Media?

International Association for Social Science Information Services and Technology: Data Protection and Privacy in the United States and Europe

FreedomInfo: 93 Countries Have FOI Regimes, Most Tallies Agree

CNN Money: Data Brokers Settle Charges Over Background Checks

Crime Wire: An In-Depth Look at Instant Checkmate

Crime Wire: What Kind of Background Check Does Instant Checkmate Perform?

National Consumer Law Center: Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses

Valeriya Metla

Valeriya Metla is a young professional, passionate about international relations, immigration issues, and social and criminal justice. She holds two Bachelor Degrees in regional studies and international criminal justice. Contact Valeriya at staff@LawStreetMedia.com.

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