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Online Criminal Records & Legal Consciousness Theory

Sarah Esther Lageson
School of Criminal Justice, Rutgers University-Newark

The internet has dramatically changed the way the public consumes information about the criminal justice system. At the same time, the justice system and information technology are both operating at unforeseen levels of activity. It’s as simple as a Google search to unveil someone’s mug shot or court records from the privacy of your smartphone. This explosion of digital crime data invokes new questions: who is responsible for the accuracy of these data? What rights do website subjects have? In other words, what should law do?

This hazy legal framework creates fertile ground for both website publishers and website subjects to develop their own set of legal consciousness around criminal justice data. Law and Society research has long demonstrated how in the absence of laws, or in the context of confusing or unclear laws, social actors construct legal meanings to help guide their behavior. In a period of rapid technological change, this is especially prevalent. My LSR article, Crime Data, the Internet, and Free Speech: An Evolving Legal Consciousness,” describes these processes as they relate to the release of criminal history information on the Internet.  I explore how crime website publishers, as well as people who have appeared on websites, interpret, construct, and invoke law in a nascent and unregulated area.

My analysis reveals how both parties construct legality in the absence of actual written law. However, this plays out differently for these distinct groups. The first set of interviewees, the “publishers” (composed of those who produce crime reporting websites) believe in the social good of producing this information for public consumption. On the other hand, the “subjects” (those who have appeared on websites) are wary of their digital criminal record, and describe the negative effects of this extralegal sanction that is widely available to anyone with access to the Internet.

Beyond beliefs about law, the two groups also invoke law in different ways. For instance, to justify their online posting of criminal records, website publishers tend use legal language and invoke their First Amendment rights. In contrast, those who appear on the websites are more likely to use personal pleas, working to appeal to the emotions of publishers as they ask for their arrest records and booking photos to be taken off websites.

The relative powerlessness of the people who appear on the websites is clear. They cannot use civil law, existing legislation, nor personal pleas to control the release of their criminal histories – even for non-conviction records or arrests that didn’t lead to charges.

These practices reinforce structural inequalities already present in the criminal justice system in a profoundly public manner. In the end, any and all brushes with the justice system remain Google-able indefinitely, resulting in inescapable digital trails. 

 
Example of a website publisher using legalese to justify posting an arrest photo. 

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