Regulating Harm: Tensions Between Data Privacy and Data Transparency

In an era of massive digital data growth, data storage and dissemination has posed complex new problems for privacy regulations across agencies and institutions on a global scale. Laws about data privacy vary substantially by country, by state, and by industry. In formulating these policies, there exists a fundamental tension between a desire for data privacy and one for data transparency. This tension becomes particularly acute as new digital tools and access technologies have made these records more accessible and connectable than ever before. This tension is borne out in the enactment of law. Three states – California, Colorado, and Virginia – for example, have enacted comprehensive consumer data privacy acts, giving individuals the right to opt out of data collection and/or providing guidelines for what and how businesses can collect and disseminate consumer information. In some contexts and jurisdictions, such as these, data privacy seems to be an uncontroversial imperative. However, in others, the imperative swings the other direction, protecting public data access. An especially salient site of analysis for this debate is criminal records. Criminal records are not just relevant in court, though the issue of data transparency vs. privacy is particularly acute for court derivative records; these records also follow individuals outside of court and create significant obstacles for entry into employment, education, housing, and other elements of social life. Public criminal records can substantially impact an individual’s life well beyond the scope of the criminal proceeding, making a compelling normative case for keeping them private. While criminal records can be individually damaging, a closed system of court data also prevents transparent knowledge of policies and disparities. Private criminal records and court documents can substantially hinder evaluating systemic issues in the courts as a whole, making a compelling case for making criminal record data public. However, once records are public, they are more difficult to control and therefore consequences of public records are the ability of the public to use them for individual decision-making, use them for potentially discriminatory policy making, and to use them for commercial gain. The relationship between equity issues in the courts and data privacy is far from simple. In this article we examine this tension between privacy and transparency and its consequences in several different contexts, taking criminal courts as a case study as an institution where the tension is not unique but heightened. We consider the use of criminal records as elements of a transparent court process; as tests for obtaining employment, education, or housing; and finally, the commercialization of criminal records themselves in a burgeoning terrain of digital companies providing mugshots and criminal records, connecting our criminal case study to other industries. We consider each of these three domains, laying out the universe of data privacy tensions and data transparency arguments to create a nuanced picture of how data privacy regulation interacts with public access. We conclude with recommendations, grounded in knowledge about innovative data techniques and data ethics, designed to help alleviate the tension between data privacy and data transparency