In September 2004, DeKalb County CEO Vernon Jones denied allegations
he
ordered criminal background checks on political foes, reporters, and
top police
officials. The background checks were conducted between March and
August of
this year. These background checks were requested from the Georgia
Bureau of
Investigation (GBI) online database through a
The background checks were conducted on: Teresa Greene-Johnson, Ron Marshall, Commissioner Elaine Boyer, Eric Stirgus, Ben Smith, Richard Belcher, Gwen Keyes, Commissioner Hank Johnson, Jennifer French-Parker, Saundra Davis, Javoyne Hicks, Deputy Police Chief Ron Dykes, Assistant Police Chief Moses Ector, Superior Court Judge Clarence Seelinger, DeKalb Tax Commissioner Tom Scott, Steen Miles, Margaret Schuelke, Priscilla Moody, Congresswomen Denise Majette and former Congresswomen Cynthia McKinney.
Greene-Johnson and Marshall ran against CEO Jones in the Democratic
primary
in July, and Boyer has been a strong critic of the CEO. Stirgus and
Smith are
reporters for the AJC, Belcher is a
TV anchor for WSB and Parker is a
publisher
of a small
The type of background checks conducted on these individuals, a
driver’s
query, are computerized queries routinely done when a vehicle is
stopped for a
traffic violation. The check searches the status of the driver’s
license,
outstanding warrants, and probation and parole status. In addition, the
search
accesses the Federal Bureau of
Investigation’s (FBI)
O.C.G.A.
§ 35-3-33 outlines the powers and duties of the GBI. The GBI shall
“[p]rovide a uniform crime reporting system for the periodic
collection,
analysis, and reporting of crimes reported to and otherwise processed
by any
and all law enforcement agencies within the state.” O.C.G.A.
§ 35-3-38 criminalizes the unauthorized requests or
disclosures of criminal
history record information. “Any person who knowingly requests,
obtains, or
attempts to obtain criminal history record information under false
pretenses,
or who knowingly communicates or attempts to communicate criminal
history…shall
for each offense, upon conviction thereof, be fined not more than
$5,000, or
imprisoned for not more than two years, or both.” [2]
Depending on the outcome of the GBI investigation concerning the
background
checks in
Another piece to this local controversy involves
the stance
taken by WSB TV, a local
While the DeKalb County Sheriff’s Department pretends that the above mentioned scandal is an isolated event, similar behavior is occurring across the nation. Police departments as well as other agencies are abusing their access to online records and potentially private records. Has it become too easy for government officials to snoop?
For more information concerning federal background checks, see the FBI’s website. You can also find
The
Another area in which background checks are being used is in the selection of jurors. Most people do not realize prosecutors are looking at their criminal histories when deciding whether to keep them on the jury. [8] Should the county include a disclaimer on voter registration forms that state: “By registering as a voter within this jurisdiction, you consent to a criminal background check which may be used in a court of law if you are chosen to serve as a juror?” [9] Even more disturbing is that in some jurisdictions it is not uncommon for investigators to drive by juror’s homes to see where they live and what type of car they drive. [10]
In State v.
Williams, [11]
the
defendant’s attorney claimed he was entitled to the
Another
case that ended with the same result is Salmon
v. Commonwealth of Virginia [12]
in which the authority of prosecutors to conduct background checks
under Va.
Code.
Ann. 19.-2-389(A)(1) was challenged. The statute authorized
criminal background
checks for the purposes of administration of criminal justice. The
court noted
that voir dire is part of the administration of criminal justice and a
juror’s
criminal background can be relevant in regards to whether he can be
unbiased. Like Williams,
the court held the prosecutors could run background
checks on potential jurors under this statute but defense attorney may
not
because he is not an officer or employee of a criminal justice agency.
In Tagala v. State, [13]
the
court noted that Alaska Statute 12.62.030(a) provides that criminal
justice
information can only be used for law enforcement purposes. The defense
asserted
that the use of computer-generated criminal records by a prosecutor
during the
jury selection process is not for law enforcement purposes because it
neither
controls nor prevents crime. The court disagreed and concluded “law
enforcement” includes “activities of criminal prosecution” therefore
the
prosecutor did not violate the statute. However, unlike the previous
cases, the
As state and
federal governments see this abuse of
authority, new statutes and laws are being brought to the table to
address the
issue of “government snooping.” But is it enough to protect us?
In
In an attempt
to restrict government entities from
unauthorized use, the statute states that a governmental agency must
comply
with certain restrictions when collecting personally identifiable
information.
These steps include identifying the governmental website operator, how
he or
she may be contacted, a summary of how the information collected is
going to be
used, and the procedures a user may follow to access personally
identifiable
information.
The
Washington Legislature has also acted by passing RCW
§ 50.13.060: Access to records or Information by Governmental
Agencies. [17]
This statute permits government entities access to private and
confidential
records only if they are needed by the agency only for official
purposes.
However, the statute does allow for a number of exceptions; for
example,
"In cases of emergency the governmental agency requesting access shall
not
be required to formally comply with the provisions of subsection (1).” [18]
The statute also states that it does not apply to governmental agencies
where
“the procedures would frustrate the investigation of possible
violations of
criminal laws.” [19]
This statute
appears to focus more on privacy and
confidentiality of unemployment records.
RCW
§ 50.13.060 protects citizens’ privacy by allowing for
disclosure of
information only if: the requesting agency submits a written
application for
the data, the information is required only for an official purpose, an
official
of the unemployment compensation agency verifies the need for the
information,
and the individual or business has been served with a copy of the
request for
records by the requesting agency. [20]
The statute
also imposes a civil penalty of five thousand
dollars for the misuse or unauthorized release of records. The
Washington
Statute provides for strong protection of the confidentiality of
private
records which citizens and businesses may have on file in an
unemployment
office. While there seem to be a number of bureaucratic obstacles
(application,
verification, and service of notice) to overcome, perhaps this is what
is
necessary to provide adequate protection to citizens and businesses
unless
there is an emergency criminal investigation. Further, the bureaucracy
slows
the process of retrieving information that should be challenging to
access
without proper justification.
GOVERNMENT INTERNET INFORMATION
PRIVACY ACT
The Montana
Information Technology Act was enacted to
“improve the quality of life of
Montana
Code § 2-17-552 sets forth requirements for the
collection of personally identifiable information. The statute
restricts a
government web site operator from accessing personally identifiable
information
unless the operator is identified by name, provides contact information
and
clearly states policies of information practices, including security
measures. [23]
Further, this
statute, contrary to other states, clearly
provides restrictions regarding third party information sharing. The
web site
operator must provide notice to a user of all purposes for the website,
a
description of what third parties may access the information, and a
method for
acquiring affirmation from a user prior to the collection of
information. [24]
L.E.I.N. POLICY COUNCIL ACT OF
1974
MCL
§ 28.211 – 28.214 was enacted in order to create a law
enforcement network policy and to govern the rules and regulations
governing
the use of the law enforcement information network. [25]
The state database contains addresses, criminal records, license plate
numbers,
and driving records. The only information necessary to access an
individual’s
personal information is a name or license plate number. The statute
does
proscribe methods for dealing with violators. For a first offense, the
violator
is guilty of a misdemeanor, punishable by imprisonment for not more
than ninety
days and a $500.00 fine. For a second offender, the punishment
increases to
imprisonment for not more than four years and a fine of $2000.00. [26]
While the
statute seems to appropriately punish violators,
there are some obvious flaws. The LIEN database is now available in
police
cars; this easy access leads to abuse, as stated by Lt. Mike Morenko of
the
Michigan State Police Richmond Post. [27]
In order to prevent abuse there seems to be a strict method adhered to
as
described by Lt. Morenko in his interview: “’Someone with a huge stack
of
paperwork will walk into a department and randomly ask why certain
information
was accessed,’ he said. ‘If the answer isn’t good enough…a person could
be
subject to a hefty fine…’” [28]
Does this mean that officers are subject to these fines only if they
provide
bad answers? Sounds like a wonderful enforcement method.
Although it
appears that states are attempting to solve the
problem of unauthorized access by government officials, if one scopes
the daily
news, it is evident that the problem is not being resolved. Local
governments
need to keep a closer eye on their police departments - government
agencies
notorious for illegally performing criminal background checks and
abusing their
access to private records. While most people would favor tighter
controls
regarding access to their private information, few realize that
personal
information is so readily and easily available.
In
The police
officers in Purcellville were utilizing the
Virginia Criminal Information Network (which cannot be accessed by lay
people),
a computer system operated through the State Police of Virginia, which
grants
access to criminal records. As this example shows, unauthorized
background
checks are not just happening in large, corrupt cities with notoriously
corrupt
police departments. The Purcellville Police Department consists of only
7
policemen, including the two mentioned above. The two-square mile town
only has
2,500 residents.
The Los
Angeles Police Department has always been known for
scandal and scheme. But with the technology services now available, new
heights
have been reached. In the summer of 2004, it was discovered that Police
Sergeant Mark Arneson was giving information to a Hollywood Private
Investigator,
Anthony Pellicano. By checking Arneson’s logs, the police department
was able
to show a connection between Arneson’s background checks and the people
Pellicano was investigating. [31]
Good thing the problem was taken care of: Arneson was placed on
inactive duty,
assigned to his home, and allowed to collect pay!! [32]
Cases in
When a
government official runs a background check on an individual for an
impermissible purpose, one might
consider the application of the Fourth
Amendment. The Fourth Amendment
provides that “[t]he right of the
People to be
secure in their persons, houses, papers and effects, against
unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.” Government officials must have probable
cause to conduct a search. [34]
The problem in
applying the Fourth Amendment to the type of conduct addressed above is
that
conducting a background check is not likely to meet the definition of a
“search.” The United States Supreme
Court has held that in order for a search to occur, a person must have a
reasonable
expectation of privacy. [35] The type of
information sought through a background check is likely non-private
information. Driving records, criminal
records, and other similar information are public records. [36] Therefore, no individual can have a reasonable expectation of privacy in
such records. If there is no reasonable
expectation of privacy, the background checks cannot be considered a
“search.” If there is no search within the
meaning of the Fourth Amendment, probable cause is not required. [37]
Congress
enacted 42
U.S.C. § 1983 to provide a federal remedy for constitutional
violations
committed by state actors. [38]
Section 1983 provides:
Every person who,
under color of
any statute, ordinance, regulation, custom, or usage, of any State or
Territory
or the District of Columbia, subjects, or causes to be subjected, any
citizen
of the United States or other person within the jurisdiction thereof to
the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at
law, suit in equity, or other proper proceeding for redress, except
that in any
action brought against a judicial officer for an act or omission taken
in such
officer’s judicial capacity, injunctive relief shall not be granted
unless a
declaratory decree was violated or declaratory relief was unavailable. [39]
Section
1983 provides a remedy when a state actor’s conduct is fairly
attributable to
the state and violates
an individual’s rights under the Constitution or laws. [40]
Likewise, when a federal officer violates the constitutional rights of
an
individual, the Supreme Court has held that the individual has a remedy
directly under the Constitution. [41]
This
is called a Bivens action. Therefore,
when either a state official or federal official violates an
individual’s
constitutional rights, they can bring a §1983 action or a Bivens
action
to recover money damages.
The first
element to prove in a §1983 case is that the
action taken was “under color of” law. This analysis involves
determining
whether a party’s actions may be fairly attributed to the state. Two of
the
factors that assist courts in making this determination are: (1)
whether a
right or privilege created by the state caused the deprivation of an
individual's constitutional rights and (2) whether the party charged
with the
deprivation can be fairly called a "state
actor." [42] For state
employees
and officials, the second prong of the test is almost always met. The
first
prong of the test may be more difficult to prove. For example, if an
official’s
status is irrelevant to the constitutional deprivation, a court may
find that
the deprivation was not caused by the exercise of a right created by
the state.
However, if an individual can show that a state employee or official
used the
accoutrements of his office to commit the violation, the first prong
will
usually be met. Since the focus of this forum is official use of the
Internet
to investigate for improper purposes, we will not discuss the use of
§1983
against nominally private parties. It should be noted, however, that
nominally
private parties are presumed to be private actors, not state actors. A
nominally private party’s actions may be attributed to the state if
their
actions meet one of several tests, such as the "Nexus" test or the symbiotic
relationship test. [43]
The second
element in every §1983 action is proving a
violation of the Constitution or of federal laws. Section 1983 protects
against
14th amendment violations; violations of the 1st,
4th,
6th, and 8th amendments are protected by §
1983 because
the Supreme Court has found that the 14th amendment
incorporates
these provisions to the states. In the context of this forum, 1st
and 14th amendment claims are likely to be the most
frequent.
Additionally, an individual
may enforce federal statutes under §1983. [44]
When a statute does not create enforceable
rights, or where
Congress has foreclosed enforcement of a
statute under §1983 in the statute itself, the federal
statute may not be enforced under §1983. [45]
A final
important point regarding §1983 involves immunity.
When a plaintiff brings a §1983 action against a party in their
individual
capacity, the government employee or official will usually have a
qualified
immunity defense. Government employees are entitled to qualified
immunity when
they perform discretionary functions unless the conduct
violates clearly
established constitutional or statutory rights of which a
reasonable person
would have known. [46]
When a
plaintiff brings a §1983 action against a government
employee or official in their official capacity, they are seeking to
hold a
government body liable. The §1983 action must allege that the
deprivation
occurred as a result of a formal official policy,
official custom, attribution through government policy makers, failure
to
train, or failure to screen/hiring decision. [47]
Municipalities
are suable persons
under §1983, and are not
entitled to qualified or absolute immunity. [48]
The Supreme Court has held, however, that the 11th
amendment restricts the
power of a court to hear any case brought
by any
citizen against a state. [49]
Therefore, states are absolutely immune from §1983 liability.
Additionally, legislators
are absolutely immune from §1983 liability while acting
within the sphere of their legitimate legislative activity. [50]
Furthermore, judges
are absolutely immune from
§1983 liability for all judicial acts within the sphere of their
judicial
jurisdiction. [51]
The case of Eaton
v. Meneley illustrates the hurdles of a §1983 action. [52]
Meneley was a sheriff in
The court
first discussed qualified immunity and the
Since the
plaintiffs were engaged in political debate, the
court found that Meneley’s actions did not sufficiently “chill” their
speech.
“[I]t is substantial enough that not all insults in public debate
become
actionable under the Constitution.” [57]
Even after Meneley conducted the criminal background check, the
plaintiffs
voiced their opinion regarding the petition. In fact, they went to the
media
and spoke about the progression of the petition and Meneley’s use of
the
Interstate Identification Index. Therefore, there was no violation of
the
plaintiffs’ constitutional rights, and no basis for a §1983
action.
[1] See Bill
Torpy, DeKalb’s Database Checks Rise, Atlanta J. Const., Sept. 23,
2004, at B1;
Bill
Torpy, DeKalb Background Checks Targeted Top Police Officials, Atlanta
J.
Const., Sept. 20, 2004, at A1; Bill
Torpy, DeKalb Police Check TV Anchor Investigation: GBI Looks into
Possiblity
of Unauthorized Background Searches, Atlanta J. Const., Sept. 16, 2004,
at C1;
Bill
Torpy, DeKalb CEO Denies Ordering Background Checks of Foes, Reporters,
Atlanta
J. Const., Sept. 7, 2004, at B1
[5] http://www.copwatch.org/databaseabuse.html;
http://www.copwatch.org/sheehanmichigandatabase.html.
[7] Police officers do not
seem to like
it very much when the information game is turned around on them. A
website was
started by two individuals in
[8] Williams v.
State, 564 S.E.2d 759
(2002), 255 Ga.App. 177; Salmon
v.
[9] Natalie Green, Forum
Post,
[10] David Weinstein, Protecting a Juror’s Right to Privacy:
Constitutional Constraints and Policy Options, 70 Temp. L. Rev. 1 (1997);
Martin v.
[13] 812 P.2d 604 (Alaska Ct.
App. 1991).
[14]
[27] Gainey, Nicole, In-car
laptops offer
police online help, Times Herald (
[28]
[30] To view
the full article, see 1998 WL 11589637; see also 1998 WL 11591441
[31] Editorial,
Protect, Serve and Snoop, L.A. Times, June 5, 2003 (see 2003 WL
2410202 for
the full article).
[32] Richard
Winton and Andrew Blankstein, Officer allegedly snooped in database…to
aid
private investigator, L. A. Times, June 4, 2003 (see 2003 WL
2415562 for
the full article).
[33] Wendy
Thermos, Celebrity Files now part of Celebrity Probe, L. A. Times, June
23,
2003 (see 2003 WL 2414960 for full article).
[34]
[35] Katz
v.
[36] See Phillips
v. Bailey, 337 F.Supp.2d 804.
[43] See Rendell-Baker
v. Kohn, 457 U.S. 830 (1982); Burton
v. Wilmington Parking Authority, 365 U.S. 715 (1961).
[47] Monell
v. Dept. of Social Services, 436 U.S. 658 (1978) ; Pembaur
v. Cincinnati, 475 U.S. 469 (1986); Canton
v. Harris, 489 U.S. 378 (1989); Bryan
County v. Brown, 520 U.S. 397 (1998).
[48] Monell,
436