Federal Law on Data Privacy, data privacy policies, criminal records, meaningful remedies: Pardons, Expungement, Record Sealing
Data Privacy and Digital Records
Civilization is the progress toward a society of privacy. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men. --Ayn Rand
In 1968 the Federal Data Privacy Act passed into law and was subsequently amended following the debacle of Watergate. Over the course of the ensuing decade State Legislatures provided additional legislation governing data privacy. A wide range of further Federal privacy legislation has continued to be added to Federal Statue over the course of the ensuing decades right up to the present date, including the following;
Federal Legislation (United States)
On Data-Mining and Privacy (United States, Canada, Britain, Australia):
Data mining is the intelligent search for new knowledge in existing masses of data. This article reviews what data mining technology can do and asks and answers the question, ‘Is data mining a violation of privacy that ought to be limited by law?’—tort law in the case of an individual actor and Fourth Amendment jurisprudence in the case of a state actor.Since data mining is a new technology and the existing data that are mined are presumed to be properly acquired, the answer would appear to be ‘No.’ However, we educe from three hypothetical cases of what might be called pre-technological data mining that our intuitions tell us that data mining is indeed a violation of privacy. We then review the case law—which does not agree with our intuitions—and briefly discuss alternative, technological means of protecting privacy in the face of advanced data mining techniques.
Official U.S. Government policy calls for the research, development, and implementation of advanced information technologies for aggregating and analyzing data, including data mining, in the effort to protect domestic security. Civil libertarians and libertarians alike have decried and opposed these efforts as an unprecedented invasion of privacy and a threat to our freedoms. This Article examines these technologies in the context of domestic security. The purpose of this Article is not to critique or endorse any particular proposed use of these technologies but, rather, to inform the debate by elucidating the intersection of technology potential and development with legitimate privacy concerns. This Article argues that security with privacy can be achieved by employing value-sensitive technology development strategies that take privacy concerns into account during development, in particular, by building in rule-based processing, selective revelation, and strong credential and audit features. This Article does not argue that these technical features alone can eliminate privacy concerns but, rather, that these features can enable familiar, existing privacy protecting oversight and control mechanisms, procedures and doctrines (or their analogues)
There is widespread interest in obtaining access to criminal history record information from reliable sources for the purpose of screening an individual’s suitability for employment, licensing, or placement in positions of trust. The interest comes from private and public employers, as well as non-profit organizations that place employees and volunteers to work with vulnerable populations such as children, the elderly, and disabled persons. The interest is based on a desire or perceived need to evaluate the risk of hiring or placing someone with a criminal record in particular positions and is intended to protect employees, customers, vulnerable persons, and business assets. Employers and organizations are subject to potential liability under negligent hiring doctrines if they fail to exercise due diligence in determining whether an applicant has a criminal history that is relevant to the responsibilities of a job and determining whether placement of the individual in the position would create an unreasonable risk to other employees or the public. In addition to addressing this litigation risk, employers want to assess the risks to their assets and reputations posed by placing persons with criminal histories in certain positions. To meet these business needs, employers can and frequently do ask applicants whether they have a criminal history. Such employers and organizations want access to criminal history records to determine whether applicants are answering the question about their criminal history truthfully and completely. They believe that having access to good sources of criminal history information is the only way the interest in performing due diligence to protect employees, assets, and the public can be served. Public employers’ need for the information often goes beyond considering job suitability and includes security clearance determinations. There also has been a growing use of criminal history screening in certain sectors of the economy related to counterterrorism efforts.
Background and purpose: This report presents the findings of a telephone survey conducted in February and March 2000 among a national probability sample of 1,030 adults 18 years of age and older, living in private households in the continental United States. SEARCH, acting with Dr. Alan Westin, a well-respected expert on issues of privacy and the use of personal information, commissioned Opinion Research Corporation International (ORC International) to conduct this research. The primary purpose of the study is to assess public attitudes toward the availability and use of individuals’ criminal history records outside of the criminal justice system.
The Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) establishes, for the first time, a set of national standards for the protection of certain health information. The U.S. Department of Health and Human Services (“HHS”) issued the Privacy Rule to implement the requirement of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). 1 The Privacy Rule standards address the use and disclosure of individuals’ health information—called “protected health information” by organizations subject to the Privacy Rule — called “covered entities,” as well as standards for individuals' privacy rights to understand and control how their health information is used. Within HHS, the Office for Civil Rights (“OCR”) has responsibility for implementing and enforcing the Privacy Rule with respect to voluntary compliance activities and civil money penalties.
There is substantial public (that is, adult) support for making certain types of criminal justice records available outside the criminal justice system when there is a perceived rationale of public benefit and/or safety. Support declines noticeably when the goal is purely private. In general, American adults tend to favor making individual conviction records available to employers, governmental licensing agencies, and other entities. They are far more reluctant, however, to support access to arrest-only (or arrest) without conviction) records.
Abstract: The Department of Homeland Security (DHS) is working with the Department of Defense to pilot the Automated Continuing Evaluation System (ACES). ACES conducts automated records checks to identify new issues of security concern for DHS personnel and contractors requiring a security clearance. During the ACES pilot, DHS will assess the feasibility of using ACES for initial and continuing evaluation of DHS security clearance holders. This Privacy Impact Assessment (PIA) is for the DHS implementation of the ACES Pilot.
This Compendium is the latest in a series of nine U.S. Department of Justice publications that reference and analyze state laws and regulations relating to privacy and security of criminal history record information.1 These compendia include: (1) compilations of state laws and administrative regulations, and (2) analyses of findings and trends reflected in that body of law and policy documents. The purpose of these compendia is to assist legislators, planners, administrators, legal analysts and other interested individuals in reviewing state statutes and regulations governing the maintenance and use of criminal records and in analyzing national trends in this important area. Comparing and contrasting the various approaches reflected in the many state laws and regulations cited in these documents should assist planners and administrators to develop effective and fair policies for their jurisdictions. By facilitating such comparisons and by furthering research in this area, the compendia are intended to promote the evolution of enlightened privacy and information policy.