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Privacy Overview Robert R. Belair Oldaker, Biden & Belair rrb@obblaw

2006 Symposium on Justice and Public Safety Information Sharing Workshop: Assessing and Protecting Privacy in the Information Age March 12, 2006. Privacy Overview Robert R. Belair Oldaker, Biden & Belair rrb@obblaw.com. The Privacy Environment and its Impact on Criminal Justice Information.

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Privacy Overview Robert R. Belair Oldaker, Biden & Belair rrb@obblaw

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  1. 2006 Symposium on Justice and Public Safety Information SharingWorkshop: Assessing and Protecting Privacy in the Information AgeMarch 12, 2006 Privacy Overview Robert R. Belair Oldaker, Biden & Belair rrb@obblaw.com

  2. The Privacy Environment and its Impact on Criminal Justice Information • Premise: Criminal justice law and policy is changing and will continue to change over the next generation in comprehensive and fundamental ways • The legal distinctions between CHRI held by the FBI; by repositories; by courts; and by commercial vendors will erode • Universal privacy rules which are appropriate for negative databases and which take into account the sensitivity of the CHRI; its age; the prospective uses of the data will develop

  3. The Privacy Environment and its Impact on Criminal Justice Information • Accurate and relatively recent conviction data will be available to the public instantly and conveniently (for a price) • Automated decisioning tools – your “CHRI score” will emerge • Biometric based identification databases, including fingerprints and DNA, will continue to grow • Gateway systems which can build profiles combining CHRI with other data attributes on a one-off basis for public safety and risk management uses will grow

  4. Key Factors • The information culture • Everyone expects to know everything about everybody all the time • “Given a choice between privacy and accountability, all of us can be relied upon to choose privacy for ourselves and accountability for everyone else” • Almost 50% of the public favors complete access to conviction records

  5. Key Factors • The privacy culture • Well over 90% of the public is concerned about privacy • ID theft fears • Security fears • Only 12% favor a completely open CHRI system

  6. Key Factors • The distrust culture • 82% distrust Congress • 79% distrust the White House • 64% distrust the Supreme Court • 52% distrust the military • Only 30% distrust criminal justice agencies • 79% rate the criminal justice system as effective • Only 12% of Americans say law enforcement has violated their privacy

  7. Key Factors • Technology changes • The Internet, the Internet, the Internet • Automation of court records • Integrated systems • Live scan: Majority of Americans comfortable with fingerprinting • Data mining • Improvements in name-based checking methodologies: NICS

  8. Key Factors • Business model changes • Mushrooming non-criminal justice demand • Homeland security • Employment background checking • Licensing • Tenant screening • Vulnerable populations • The delivery of name-based CHRI checks that are fast, cheap and reliable

  9. Key Factors • Business model changes: The commoditizing of the criminal history record • Commercial vendors • Criminal justice vendors • New federal and state statutes require, or at least authorize, CHRI access

  10. Key Factors • The erosion of confidence in the rehabilitation model • Recidivism • Segmentation of offender types • Juvenile records • Violent juvenile offenders • Gang activity • School-based crimes • Needs of users, including the military

  11. Opportunities and Challenges • Building universal rules: Making law enforcement, courts and commercial vendors subject to common rules based on: • Recognizing the special needs of adverse information databases; • Recognizing the need, when practicable, to enhance fair information practice rights; • Recognizing the relevance of the sensitivity of different types of CHRI; age; and intended uses

  12. Opportunities and Challenges • Sorting out the role of the media • Using recidivism and other research data more effectively in guiding privacy policy • Preserving the ability to forget and promoting reentry in an information age • Sorting out the role of the Internet in delivering CHRI – faster, cheaper, more reliable CHRI

  13. Opportunities and Challenges • Finding meaningful and appropriate distinctions between juvenile and adult records • Sorting out the boundary between personal information relevant for homeland security and anti-terrorism and personal information relevant for public safety and criminal justice • Finding ways to meaningfully share CHRI on an international basis

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