The Current State of PII Protection in the Criminal Court Records System

By Wholesale Screening Solutions |

The Current State of PII Protection in the Criminal Court Records System

“Inside Wholesale” Q&A with Vince Pascarella, EVP and General Counsel

Maintaining online privacy and protecting personally identifiable information (PII) is a top concern of businesses across industries. In recent years, this national trend toward protecting identity information has led many courts to re-evaluate or change their public access records policies to more strongly protect personal information in court records. Tightening access and redacting PII from public indexes stems from a desire to protect individual privacy and reduce the potential for identity theft.

While the motivation is laudable, the practice of limiting access or removing PII from court records has had unintended negative consequences. Without access to personal identifiers, such as full address, driver’s license number, social security numbers or complete dates of birth, background screening companies find it difficult, if not impossible, to match identifiers in criminal records to job candidates’ identifiers. This exposes workplaces and communities to increased safety, operational, and liability risks.

We spoke with Vince Pascarella, Executive Vice President and General Counsel of Wholesale Screening Solutions, to understand the current state of PII protection efforts.

Q. What are your thoughts on the overall trend of PII redaction?

A. The courts are looking at the issue through the lens of privacy and fairness to the individual. Just because an individual is arrested for a crime or has a traffic offense, for example, doesn’t mean they have voluntarily or knowingly given widespread public access to their personal identity information. In this age of widespread online information and the use of web crawlers, identity thieves and other nefarious actors can use such publicly accessible data to their criminal advantage.

On the one hand, we in the public records research industry appreciate and applaud these efforts by the courts because we also work hard to protect the PII that we access, transport, and store. Unfortunately, while well-meaning, the trend to limit access to court records data has had unintended consequences, particularly due to the way that some courts have implemented these new policies.

In the most extreme example, some courts have attempted to cut off access to public records altogether. In most cases, this is done with a legitimate eye toward protecting PII, however, in others, courts have used the trend as an excuse to avoid the cost, time and inconvenience of responding to public records inquiries. These efforts do little to protect PII because the privacy concerns stem from the mass harvesting of online PII, not the searching of individual records gathered by physically walking into a courthouse.

We’ve also seen courts fully redact PII. Such efforts to remove social security numbers (SSNs) from public access terminals have had mixed success. When the SSN identifier exists in a court record it’s of high value because SSNs are so unique. What we’ve seen is that some courts are also redacting less sensitive PII, such as an individual’s full DOB. The best example of this is the federal court’s PACER system which fully redacts DOBs so you can’t distinguish one John Smith from another without the monumental effort of going through files looking for addresses, corrections identification numbers, etc. and applying logic to it in order to make a match.

These realities present a real challenge in terms of accuracy, cost, and turnaround time for our industry.

Q. How is the industry impacted when courts only partially redact PII?

A. Here, we are seeing partial DOB redactions, for example, removing the month and day but not the year, or alternatively, we’ll see the month and day redacted, but the year remains. In the first scenario, you can determine the age of an individual, but nothing else, so all 48-year-old John Smiths could have that record in their background. In the second scenario all John Smiths born on the same day and month could be saddled with the same records.

One interesting example is the Washington state courts access policies regarding SSNs, financial account numbers, and driver licenses, which states that the responsibility for redacting these personal identifiers “rests solely with counsel and parties.” The policy further states that the “Court or the Clerk will not review each pleading for compliance with this rule,” making the net effect that some records will have full redactions and others will not.

Q. How far has the PII protection trend spread within the court system?

A. The trend has definitely accelerated in the last 5 to 10 years, and it doesn’t seem to be losing any steam.

I can’t easily quantify the percentage of courts that have taken actions to limit PII, but where the trend seems to have taken the most root is within the larger jurisdictions. These courts have more data, are more sophisticated and better funded, and therefore have the data architecture in place to be able to redact PII.

Q. How is Wholesale Screening Solutions responding to these issues?

A. As one of the largest providers of public records, Wholesale Screening and its employees have worked with the PBSA government relations committee to fight this battle on multiple fronts. Because we’re physically located in Virginia and have local access to legislators and lobbyists, we tackled the issue of partial DOB redactions in the Virginia courts on our own. We hired a lobbyist and spent a lot of money, time, energy, and resources over the past two to three years, to work with the state to create a better system that would meet both their needs for privacy yet giving screening companies access to full, accurate data on individuals. The system now lets us do a records search to get a partial DOB, then perform another search through a subscription-based account to access a full DOB. While not ideal, this two step process is far superior to the varied processes, or a lack of processes, that existed prior to our efforts here.

Q. How do you propose solving the problem?

A. We think a better approach to the double search system Virginia put in place, which is inherently inefficient, is to create special access rights for screening companies, via a subscriber agreement, that includes full access to PII that is not available to the general public. With the initial search, the courts can vet the companies they give access to, ensuring they are valid organizations with a legitimate business purpose for access to PII.

This system would provide a better way to track nefarious activity because in the event someone is victimized, the courts could better discern which of the subscription holders had that individual’s data. This methodology would achieve the court’s goal of protecting PII and would eliminate some of the inherent risks and inefficiencies to data access our industry is currently experiencing when verifying criminal records.

Along with the leadership of the PBSA, we continue to push for these types of improvements. The selling point in Virginia was that we were able to get some large employers involved in the conversation around legislation. When you get these big employers in the ears of their local representatives, you can get a lot of things done. Employers in the DC area are struggling to get records out of the Virginia courts, so they’ve had to hire workers in neighboring states. This has brought undue delays, and many employers end up either screening someone out entirely or just throwing their hands in the air and not doing a background check at all because they can’t get an accurate one done.  Neither outcome is good for the employers nor the public at large.

It’s an ongoing effort, but we think in time we and our friends at PBSA will be able to move more courts toward a subscription-based model.

Wholesale Screening Solutions
About Wholesale Screening Solutions
Wholesale Screening Solutions is the go-to source of vital data for employment screening, tenant screening, and risk mitigation service providers nationwide. Combining innovative technology and deep human insight, Wholesale Screening delivers unique value to enable better, more efficient decision making and greater compliance.