7 ms·

There is a lot of crossover here and the Right to be Forgotten. The EFF opposed EU right to be forgotten laws because they could often be used in censorship (li

There is a lot of crossover here and the Right to be Forgotten. The EFF opposed EU right to be forgotten laws because they could often be used in censorship (like in this very matter). In the US, there are fewer people who expunge criminal records because there are companies that will produced expunged records in background checks so long as they were public at any time. Banning this gets into 1st amendment grounds. And that's the flip side: labeling theory. In places like Australia, certain crimes do get removed from your record so long as you've stayed out of the system for five years. Even their sex offender registry has limited use (certain jobs, housing restrictions etc.); it's not public like ours. Then again, they don't have freedom of speech (except in Victoria; sorta). Could we have laws that restrict companies from considering criminal records past x number of years in the US? I'm not sure if that'd be possible in our currently legal system. In America, you can't really restrict information, once it's published, except in certain limited cases (like when a case involves a minor).

omeid2 8y ago
> they don't have freedom of speech I think the issue of freedom of speech is much more nuanced than that. For example, even in places with "absolute freedom of speech", which I suspect is what you're implying, there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth.
- dgellow 8y ago
  > There is also laws around hate speech and so forth. Not in the US (as far as I understand). See the Wikipedia article: https://en.wikipedia.org/wiki/Hate_speech_in_the_United_States https://en.wikipedia.org/wiki/Hate_speech_in_the_United_Stat... > In June 2017, the Supreme Court affirmed in a unanimous decision on Matal v. Tam that the disparagement clause of the Lanham Act violates the First Amendment's free speech clause. The issue was about government prohibiting the registration of trademarks that are "racially disparaging". Justice Samuel Alito writes: > “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate". United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).”
  - confounded 8y ago
    There are still limits in the US. You have to promise that you’ve never been a member of a communist party on entry. It wouldn’t be wise to talk about bombs near an airport, or tweet about killing the president when he’s visiting your city. People who say controversial things, write controversial articles, or make controversial films tend to get detained and questioned at the border a lot, get harassed, and get their devices confiscated. Absolute freedom of speech doesn’t really exist anywhere. The US is probably one of the most liberal countries on earth when it comes to policing it, but it’s not like anyone can say anything.
    - kryogen1c 8y ago
      > People who say controversial things, write controversial articles, or make controversial films tend to get detained and questioned at the border a lot, get harassed, and get their devices confiscated. Since when? How would that even work? The president orders the NSA to generate a list of disagreeable film makers and journalists and passes it to the TSA and customs? Do you have any evidence for that claim at all? > It wouldn’t be wise to talk about bombs near an airport, or tweet about killing the president when he’s visiting your city. Those are not free speech issues. It is not illegal to talk about bombs at an airport or to threaten the president. Just because you shouldn't does mean you're not free - freedom from consequences isn't the same as freedom of action. Restricted speech is exceedingly rare and, to my knowledge, only applies to public safety (falsely yelling fire in a theatre) and inciting violence (rallying everyone to get weapons and go shoot cops)
      - santaragolabs 8y ago
        No-one said anything about the president or the NSA being involved. There are tons of ways this can work. And it actually happens. Just once you're flagged and are inside The Machine you get detained upon entry whilst they confiscate your devices, try to see where you've been etc. Lookup the wikipedia page of Laura Poitras who for years lived in Berlin due to USA government surveillance. And this started way before her involvement with Snowden as a filmmaker.
      - 8y ago
- PinkMilkshake 8y ago
  I think what your parent meant was Australia doesn't have any explicit freedom of speech protection laws, unlike the US and some other countries. Which is true. "The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals." - https://www.humanrights.gov.au/freedom-information-opinion-and-expression https://www.humanrights.gov.au/freedom-information-opinion-a...
  - omeid2 8y ago
    I understand, my point is that freedom of speech is complicated and not so black and white.
    - chii 8y ago
      Yep. A lot of people assume freedom of speech means they are allowed to say anything they want in a public forum, and nobody are allowed to stop them. But in actuality, freedom of speech means you are free from being censored by the gov't, but only the gov't. A private forum (such as a site, or newspaper) can freely censor anyone's speech if they choose to use their forum/platform/print.
- bryanrasmussen 8y ago
  do defamation laws forbid you from defaming someone, and force the removal of all defamatory material from the public record? Or do they fine you if you defame them and enjoin you to publically state you were wrong?
- dsfyu404ed 8y ago
  >there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth. You can't be criminally prosecuted for hate speech (unless the prosecutor stretches other laws to cover your "hate speech") or most instances of defamation (except in certain cases on a state by state basis[1]). You can be sued but that's a civil matter. [1] https://en.wikipedia.org/wiki/Defamation#Criminal_defamation_3 https://en.wikipedia.org/wiki/Defamation#Criminal_defamation...
sschueller 8y ago
I think it is abhorrent that data of expunged criminal records are kept by private firms. Why can't this be made illegal if yelling "fire" in a theater is?
- onetimemanytime 8y ago
  should be illegal for anyone to seek such info for prospective employers, renters etc. Free speech? OK, but the company cannot seek it or else...
- chrisseaton 8y ago
  I can’t see how you can prevent someone making a truthful record of history. What are you going to do? Hold a gun to people’s heads and tell them to forget that things have happened?
  - vidarh 8y ago
    In a whole lot of countries this information is not readily publicly available in the first place, and privately publishing it means someone has violated the terms under which they were given access. E.g. in the UK, to even be able to do a check to see if someone is barred from certain types of work, you are required to abide by a long list of terms which goes much further than merely not republishing the data. To request a less comprehensive check requires you to have a compelling need (a specific set of roles). The basic checks can only requested by the person they're about. Violating the terms comes at the risk of no longer being able to do records check (among other consequences), which may force you to close down your business in the worst case. Nothing prevents you from making a truthful record of history if you have the data, but lots of things act to prevent most attempts to publish them.
    - vonmoltke 8y ago
      That's fine, but this thread is specifically talking about the US, where all court records are public documents unless specifically sealed by a judge, with justification that can be challenged in court. Now, publishing expunged records in the US is morally dubious. I don't know the case law in this area, though, so I don't know where it stands on legal grounds.
eli 8y ago
> Could we have laws that restrict companies from considering criminal records past x number of years in the US? I'm not sure if that'd be possible in our currently legal system. Yes, these laws exist in many places in the US often under the name "ban the box" Here in DC, it is illegal for me to obtain an applicant's criminal record until after I've made an offer and I cannot withdraw an offer simply because the applicant has a record. I think SF and NYC have some version of this as well.
- chii 8y ago
  > I cannot withdraw an offer simply because the applicant has a record. how is this proven? If you fired an employee after a "while", may be siting business reasons, how does the employee prove that you checked the criminal record, and then that information is what led to the termination?
  - organsnyder 8y ago
    At that point, you've spent a fair amount of money onboarding the employee, and they'd likely be eligible to file for unemployment benefits. Even if there are no further repercussions under the "ban the box" regulations, it still tips the scale—at least a bit—toward reducing the friction for those with criminal records to obtain employment.
  - hobs 8y ago
    They dont. Employees are continually screwed over by employers, and even so most people work in Employment At Will states - so its even harder to prove it was anything.
  - eli 8y ago
    You prove it in court just like any other employment discrimination case. The law doesn't need to catch 100% of lawbreakers to work effectively.
  - pm24601 8y ago
    It prevents computer-based application filtering.
consp 8y ago
Just as an example: We have that here (Netherlands). You are under no circumstances allowed to not hire someone because of past failures if the statue if limitation has expired or the sentence has been served. There might be restrictions on what you can do after you have served, but it is not up to the company to judge on this. This is one of the reasons the "right to be forgotten" exists. You can however request a "VOG" (translation something like: "Confirmation of good behavior") in which a company (or volunteer organisation for instance) asks for very specific cases like "Allowed to work with children" or "Can have access to privileged data like personal data or medical". The request is handled by the government. You get a response like "No comment" if there is no problem or "Not granted" if you fail. This avoids the problem of having people judge your exact misdemeanors/behavior in the past and leaves it out of a private companies hands and allows the right to be forgotten to exist. You can also request it and let the person reject the request on legal grounds, but this usually gets you into more problems than you would like. There is one "but". For higher security clearances (like for working for the state department equivalent) they are allowed to look further back and are allowed to view data from further back and do proper background checks forcing specific issues to come to the light of day. But that check is way more complex than a simple "VOG".
- tomjen3 8y ago
  What is to stop me from not hiring someone based on his criminal background and just come up with a bogus excuse? Because frankly I wouldn't ever want to work with somebody who had raped a child.
  - crankylinuxuser 8y ago
    That's a non-sequitor if Ive seen one. Sure theres no argument with someone who aims at pre-pubescent children. But those laws have themselves been perverted so that even a single picture between 2 17 year olds is this horrible felony that ends up ruining 2 lives. So yeah, its time to quit this Scarlet Letter for most "sex crimes" - cause its a gross miscalculation of justice and law.
    - 8y ago

omeid2 8y ago

> they don't have freedom of speech I think the issue of freedom of speech is much more nuanced than that. For example, even in places with "absolute freedom of speech", which I suspect is what you're implying, there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth.

dgellow 8y ago
> There is also laws around hate speech and so forth. Not in the US (as far as I understand). See the Wikipedia article: https://en.wikipedia.org/wiki/Hate_speech_in_the_United_States https://en.wikipedia.org/wiki/Hate_speech_in_the_United_Stat... > In June 2017, the Supreme Court affirmed in a unanimous decision on Matal v. Tam that the disparagement clause of the Lanham Act violates the First Amendment's free speech clause. The issue was about government prohibiting the registration of trademarks that are "racially disparaging". Justice Samuel Alito writes: > “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate". United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).”
- confounded 8y ago
  There are still limits in the US. You have to promise that you’ve never been a member of a communist party on entry. It wouldn’t be wise to talk about bombs near an airport, or tweet about killing the president when he’s visiting your city. People who say controversial things, write controversial articles, or make controversial films tend to get detained and questioned at the border a lot, get harassed, and get their devices confiscated. Absolute freedom of speech doesn’t really exist anywhere. The US is probably one of the most liberal countries on earth when it comes to policing it, but it’s not like anyone can say anything.
  - kryogen1c 8y ago
    > People who say controversial things, write controversial articles, or make controversial films tend to get detained and questioned at the border a lot, get harassed, and get their devices confiscated. Since when? How would that even work? The president orders the NSA to generate a list of disagreeable film makers and journalists and passes it to the TSA and customs? Do you have any evidence for that claim at all? > It wouldn’t be wise to talk about bombs near an airport, or tweet about killing the president when he’s visiting your city. Those are not free speech issues. It is not illegal to talk about bombs at an airport or to threaten the president. Just because you shouldn't does mean you're not free - freedom from consequences isn't the same as freedom of action. Restricted speech is exceedingly rare and, to my knowledge, only applies to public safety (falsely yelling fire in a theatre) and inciting violence (rallying everyone to get weapons and go shoot cops)
    - santaragolabs 8y ago
      No-one said anything about the president or the NSA being involved. There are tons of ways this can work. And it actually happens. Just once you're flagged and are inside The Machine you get detained upon entry whilst they confiscate your devices, try to see where you've been etc. Lookup the wikipedia page of Laura Poitras who for years lived in Berlin due to USA government surveillance. And this started way before her involvement with Snowden as a filmmaker.
    - 8y ago
PinkMilkshake 8y ago
I think what your parent meant was Australia doesn't have any explicit freedom of speech protection laws, unlike the US and some other countries. Which is true. "The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals." - https://www.humanrights.gov.au/freedom-information-opinion-and-expression https://www.humanrights.gov.au/freedom-information-opinion-a...
- omeid2 8y ago
  I understand, my point is that freedom of speech is complicated and not so black and white.
  - chii 8y ago
    Yep. A lot of people assume freedom of speech means they are allowed to say anything they want in a public forum, and nobody are allowed to stop them. But in actuality, freedom of speech means you are free from being censored by the gov't, but only the gov't. A private forum (such as a site, or newspaper) can freely censor anyone's speech if they choose to use their forum/platform/print.
bryanrasmussen 8y ago
do defamation laws forbid you from defaming someone, and force the removal of all defamatory material from the public record? Or do they fine you if you defame them and enjoin you to publically state you were wrong?
dsfyu404ed 8y ago
>there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth. You can't be criminally prosecuted for hate speech (unless the prosecutor stretches other laws to cover your "hate speech") or most instances of defamation (except in certain cases on a state by state basis[1]). You can be sued but that's a civil matter. [1] https://en.wikipedia.org/wiki/Defamation#Criminal_defamation_3 https://en.wikipedia.org/wiki/Defamation#Criminal_defamation...

sschueller 8y ago

I think it is abhorrent that data of expunged criminal records are kept by private firms. Why can't this be made illegal if yelling "fire" in a theater is?

onetimemanytime 8y ago
should be illegal for anyone to seek such info for prospective employers, renters etc. Free speech? OK, but the company cannot seek it or else...
chrisseaton 8y ago
I can’t see how you can prevent someone making a truthful record of history. What are you going to do? Hold a gun to people’s heads and tell them to forget that things have happened?
- vidarh 8y ago
  In a whole lot of countries this information is not readily publicly available in the first place, and privately publishing it means someone has violated the terms under which they were given access. E.g. in the UK, to even be able to do a check to see if someone is barred from certain types of work, you are required to abide by a long list of terms which goes much further than merely not republishing the data. To request a less comprehensive check requires you to have a compelling need (a specific set of roles). The basic checks can only requested by the person they're about. Violating the terms comes at the risk of no longer being able to do records check (among other consequences), which may force you to close down your business in the worst case. Nothing prevents you from making a truthful record of history if you have the data, but lots of things act to prevent most attempts to publish them.
  - vonmoltke 8y ago
    That's fine, but this thread is specifically talking about the US, where all court records are public documents unless specifically sealed by a judge, with justification that can be challenged in court. Now, publishing expunged records in the US is morally dubious. I don't know the case law in this area, though, so I don't know where it stands on legal grounds.

eli 8y ago

> Could we have laws that restrict companies from considering criminal records past x number of years in the US? I'm not sure if that'd be possible in our currently legal system. Yes, these laws exist in many places in the US often under the name "ban the box" Here in DC, it is illegal for me to obtain an applicant's criminal record until after I've made an offer and I cannot withdraw an offer simply because the applicant has a record. I think SF and NYC have some version of this as well.

chii 8y ago
> I cannot withdraw an offer simply because the applicant has a record. how is this proven? If you fired an employee after a "while", may be siting business reasons, how does the employee prove that you checked the criminal record, and then that information is what led to the termination?
- organsnyder 8y ago
  At that point, you've spent a fair amount of money onboarding the employee, and they'd likely be eligible to file for unemployment benefits. Even if there are no further repercussions under the "ban the box" regulations, it still tips the scale—at least a bit—toward reducing the friction for those with criminal records to obtain employment.
- hobs 8y ago
  They dont. Employees are continually screwed over by employers, and even so most people work in Employment At Will states - so its even harder to prove it was anything.
- eli 8y ago
  You prove it in court just like any other employment discrimination case. The law doesn't need to catch 100% of lawbreakers to work effectively.
- pm24601 8y ago
  It prevents computer-based application filtering.

consp 8y ago

Just as an example: We have that here (Netherlands). You are under no circumstances allowed to not hire someone because of past failures if the statue if limitation has expired or the sentence has been served. There might be restrictions on what you can do after you have served, but it is not up to the company to judge on this. This is one of the reasons the "right to be forgotten" exists. You can however request a "VOG" (translation something like: "Confirmation of good behavior") in which a company (or volunteer organisation for instance) asks for very specific cases like "Allowed to work with children" or "Can have access to privileged data like personal data or medical". The request is handled by the government. You get a response like "No comment" if there is no problem or "Not granted" if you fail. This avoids the problem of having people judge your exact misdemeanors/behavior in the past and leaves it out of a private companies hands and allows the right to be forgotten to exist. You can also request it and let the person reject the request on legal grounds, but this usually gets you into more problems than you would like. There is one "but". For higher security clearances (like for working for the state department equivalent) they are allowed to look further back and are allowed to view data from further back and do proper background checks forcing specific issues to come to the light of day. But that check is way more complex than a simple "VOG".

tomjen3 8y ago
What is to stop me from not hiring someone based on his criminal background and just come up with a bogus excuse? Because frankly I wouldn't ever want to work with somebody who had raped a child.
- crankylinuxuser 8y ago
  That's a non-sequitor if Ive seen one. Sure theres no argument with someone who aims at pre-pubescent children. But those laws have themselves been perverted so that even a single picture between 2 17 year olds is this horrible felony that ends up ruining 2 lives. So yeah, its time to quit this Scarlet Letter for most "sex crimes" - cause its a gross miscalculation of justice and law.
  - 8y ago