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Connecticut has a law that allows people accused of crimes to expunge the official record if a case is dismissed. Most states have some version of expungement laws, or erasure laws as they are sometimes called. They are intended to let those whose cases have been dropped or overturned get on with their lives, unencumbered by the taint of arrest. Thus under the Connecticut law any person whose record is erased “shall be deemed to have never been arrested” and “may swear so under oath.”
Lorraine Martin, a nurse in Greenwich, was arrested in 2010 with her two grown sons when police raided her home and found a small stash of marijuana, scales and plastic bags. The case against her was tossed out when she agreed to take some drug classes, and the official record was automatically purged. It was, the law seemed to assure her, as if it had never happened.
But Martin found that when she applied for jobs that should have been well within her reach, she got the cold shoulder. She Googled herself and discovered what any vigilant employer would have seen: stories still sitting in online news archives with headlines like “Mother and sons charged with drug offenses.”
“It’s essentially a scarlet letter,” her lawyer, Mark Sherman, told me. “She’s become unemployable in spite of the fact that she has no criminal arrest record.”
So Martin filed a class action against local news outlets, claiming that they had defamed her and everyone in a similar situation. Defamation is the publication of information that is both damaging and false. The arrest story was obviously true when it was first published. But Connecticut’s erasure law has already established that truth can be fungible. Martin, her suit says, was “deemed never to have been arrested.” And therefore the news story had metamorphosed into a falsehood.
There are passages in the court briefs that make you think the lawyers were possessed by the ghost of Lewis Carroll. They debate the difference between “historical fact” and “legal fact.” They dispute whether something that was true when it happened can become not just private but actually untrue, so untrue you can swear an oath that it never happened and, in the eyes of the law, you’ll be telling the truth. Several pages and copious footnotes are devoted to considering what the meaning of “publish” is. Martin’s lawyers insist that every time a search engine delivers the old story to a new reader, it amounts to republishing, and constitutes a new libel. The defending news companies say that is ridiculous.
The plaintiff’s brief concedes that the suit is “novel,” and most lawyers I talked to predicted the case would probably be dismissed. It seems to collide head on with the First Amendment. The closest thing I could find to a similar case, in New Jersey’s Supreme Court, was thrown out with a ruling that suggested the plaintiff’s logic was “Orwellian.”
But the dilemma underlying this case is real, and not so simple. The Connecticut case is just one manifestation of an anxious backlash against the invasive power of the Internet, a world of Big Data and ever more powerful search engines, in which it seems almost everything is permanently recorded and accessible to almost anyone — potential employers, landlords, dates, predators. In Europe, where press freedoms are less sacred and the right to privacy is more ensconced, the idea has taken hold that individuals have a “right to be forgotten,” and those who want their online particulars expunged tend to have the government on their side. In Germany or Spain, Lorraine Martin might have a winning case.
I sense that the idea is gaining traction here. Erasure laws seem to be proliferating. States feel greater pressure to put public records offline. (After a New York newspaper published names and addresses of local handgun permit-holders, the Legislature in Albany sharply limited access to that information.) Google’s latest transparency report shows a sharp rise in requests from governments and courts to take down potentially damaging material. Editors tell me they are increasingly beset by readers who once cooperated with a reporter on a sensitive subject — nudism, anorexia, bullying — and years later find that old story a recurring source of distress. (It’s called “source remorse.”)
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