 Thank you all for coming. I'm actually very excited today to be here to hear my friend and colleague, Eldar Haber, talk about digital expungement and rehabilitation of the digital age, thinking about the right to be forgotten in a criminal context in places where you don't actually have the right to be forgotten, I suppose. Eldar is an associate professor at the Faculty of Law Haifa University and a faculty associate here at the Berkman Klein Center for Internet and Society. He earned his PhD from Tel Aviv University and completed his postdoc studies as a fellow at the Berkman Klein Center as well. His main research interests consist of various facets of law and technology, including cyber law, intellectual property law with a focus on copyright, privacy, civil rights and liberties, and criminal law. He is the author of the forthcoming book on criminal copyright that will be published by Cambridge University Press. I will turn it over now to Eldar. Thank you very much. So first of all, thank you, Patrick, for that kind introduction. Thank you for the Berkman Klein community for inviting me here and thank you for joining us here physically and live on the internet. So my project actually started when I was a fellow here at the Berkman Center working on the right to be forgotten. Now I'll say this is not a project on the right to be forgotten per se. This is more on criminal rehabilitation like Patrick just said, when you don't have a right to be forgotten and when you cannot legislate a right to be forgotten because of various constitutional barriers, for example. Now this project mainly deals with the problems that criminal law entails for someone who was convicted of a crime and later wants to not simply rejoin society but also to reintegrate into society. So if we look at pre-modern times, for example, we used to have the penalty of outlawry in which people who after a pawn release couldn't really join society. They experienced some sort of a civil death. They didn't really have rights. They couldn't vote. They couldn't own property. Sometimes their lives even were considered so worthless that even murdering them carried impunity. Now in modern societies, we started to acknowledge the importance of rehabilitation as one of the main pillars of criminal law. Rehabilitation serves various purposes such as the reformation of those who were convicted to try to aid them actually reintegrate into society but also to reduce recidivism. Somewhere along the way in the 1970s, we saw an approach in the US which was a tough on crime approach. It was a zero tolerance approach towards criminals. It didn't matter if it was a misdemeanor or felony. There were a lot of different prosecutions and we saw that it led to a mass amount of incarceration rates in the US which is the world leader per population for incarceration rates. Now along the way somewhere in the beginning of the 21st century, we saw a transition, some sort of a transition in approach which acknowledged the importance of rehabilitation in criminal law. It's called a smart on crime approach in which we are trying to differentiate the DOJ for that instance tries to differentiate between different kind of felonies and misdemeanors and would not prosecute entirely everyone all the time. It will not result into a zero tolerance approach. Now this smart on crime approach also led to the formation of reentry courts for example that would aid those who try to rejoin society and actually enable them to reintegrate into society as well. Now the reason that we have rehabilitation along the way are the collateral consequences of criminal law. We can loosely define them as any additional penalties outside of the criminal law realm. So we can do a categorization, a subcategorization of dividing them between state collateral consequences and social collateral consequences. So the state would be anything that is imposed by the state like the right to serve a jury or denying the right to serve on a jury, denying to vote, you might be deported, you could be denied of higher education, any federal housing, you might be restricted from flying, et cetera, et cetera. Also we can see the social collateral consequences which basically come from the stigmatization of criminal law. The stigma that we carry could deprive you from, usually it will be employers that will probably want to hire you. It could be landlords that will not want to rent you an apartment and it could be also institutional like higher education facilities, private ones that might deny you when you have a criminal history record. Basically it means that you will be stigmatized. You will wear a scarlet letter as long as you have had been convicted of a crime. For that reason, a lot of different legislators around the world and policy makers came up with something which is called expungement legislation. This expungement legislation is a process by which criminal history could be layer vacated, sealed, reversed, purged or destroyed by the state. Now this terminology just for the sake of this talk doesn't really matter in the sense of expungement means something a little bit different from sealing a record. But generally we can address it as something which is basically the process which is described here in which enables rehabilitation by the mere fact that you can declare truthfully that you did not have a criminal history record if the state had let you that right to announce that you did not commit a crime. Now this is important for the process of rehabilitation in general. What happened in the kinetic world, the pre-ditital world is that there was some sort of a zoning effect in the sense that yes, criminal history records even after expungement could have been obtained in various ways. I mean, if the media reported in the 60s that you committed a crime, it is highly possible that you can go to that archive even after expungement and try to find that needle in that hay sack of whether or not you ever committed a crime and it was reported by the media. But eventually we saw here what is termed as practical obscurity in the sense that even if it is accessible somehow it was the kinetic world had that zoning effect that you cannot really get that record. Thus expungement worked to some extent and then came the digital age. Now it's not only big data as I show here, it's data. Data is accessible in various ways and it pertains to criminal history records all the time. Now there are two main reasons why it happens. The first of them is a practice which is called data brokers. Data brokers which you are probably familiar with sell information, there are commercial vendors who sell various types of information, some of which are criminal history records. Why? Because there's a market for it. Employers would like, a lot of employers would like to know whether or not the candidate has a criminal history record or not. Along the way somewhere, it's 1998, the federal government regulated it to some extent and I'll talk about it in a few seconds. The second aspect which interests me more in this type of research is the internet in general. So it's not only search engines and I'll talk about the various sources but the internet in general provides mass amount of information, it's easily searchable and because of different practices of data analysis and big data analysis we can easily find out if someone had a criminal history record. So let's go back to the data brokers for understanding why it is important to regulate it. So we saw that data brokers were regulated under the FCRA, the Federal Credit, the Fair Credit Reporting Act. It was added to the FCRA in 1998 out of the perceived need to do something with those criminal history records. So there are a lot of different sections. This is an example, for example, as an example of what does it regulate? So first of all, it defines what a consumer reporting agency is. So you can see it means any person which for monetary fees used or in a cooperative non-profit basis, regulatory engagements, whole or in part in practice of assembling, evaluating, consumer data, credit information or other information which pertains to criminal history records for the purpose of furnishing consumer reports to third parties, et cetera, et cetera. Now this is how it's defined. Then those agencies have some requirements by the FCRA. So for example, they have to adopt reasonable procedures to assure maximum passable accuracy in a manner which is fair and equitable to the consumer in regard to confidentiality, accuracy, relevancy and proper utilization of such information. So you can stop here and say, you know what, that solves a problem because when you have the accuracy requirement, if something was expunged, then you might be able to ask those data brokers to update those records. What happens in practice is that a lot of them don't, especially because they find a way out of being categorized as a consumer reporting agency. It's a very vague definition which you can easily bypass by several different mechanisms which they do. And even if they do, one of the problems here are the sanctions that are really enforced but that's a different matter. On this subject, a lot of scholars, excellent scholars have written how to better regulate the practices of data brokers. But what I'm suggesting here is that the problem is a bit bigger or much, much bigger. So just to finish the requirement of the FCRA, it also places some restrictions on employers. It eventually says that employers must notify job applicants prior to obtaining a criminal history report to obtain their consent and inform them if an adverse action was taken based on the report. Now one of the problems here is oversight. It's really difficult to know what employers are doing and how they're doing it. And the second problem here is the fines that usually are not enforced if employers are doing so. Once again, this is not the main theme of my research. When we're looking at consumer reporting agencies, we know that search engines or any other online intermediaries will not be deemed as consumer reporting agencies after the FCRA. I will leave a question mark on data brokers because as I said, because of the vague definition of what a consumer reporting agency is, it is fairly easy to bypass those requirements. That leads us to the internet. So on the internet, there are various ways that we can find criminal history records. So as you might see here as well, you'll always have a disclaimer of any sort online that will say this cannot be used for employment or tenant screening and this is not. A consumer reporting agency is defined by the FCRA. The fact that it's written doesn't make it true but they write it anyhow. So we have all these instant checkmates which are usually data brokers which just try to lure you in to make you pay money for an actual report. But the real problem is that we have various sources online that could produce results that have criminal history records of individuals even after expungement. So we can think about the legal websites, for example. So legal search databases like LexisNexis, Westlaw and Justia offer you to go access case law and you can read about verdicts, you can read the names because nothing is anonymized. Usually, or most things are not anonymized. And even after expungement, some of them will be accessible through search engines. Some of them will be even free and some of them are available throughout a subscription which is not something which is difficult to obtain. Another practice which is fairly unique to the US are mugshot websites. Mugshot websites, and this is an old photograph. I must say that as you'll see, you can unpublish a mugshot which you cannot do anymore. This is from nine or 10 months ago which I'm using deliberately to show you something which happened, the practice which happened and seized for the time being. So we can, I'll talk about that in a second. So first of all, you can see the different disclaimers that we have about, of course, they're not a consumer reporting agency. They publish truthful information even if it's not updated. They are protected by the First Amendment to do so, et cetera, et cetera. What they do is that they publish mugshots, those photographs which are taken during an arrest and they publish the details. So I had anonymized because it would defer to my purpose to publish them and to have them webcasted online but just to get a sense of what's going on there. So this is almost 10, 10 months old. There was a photograph here which I can tell you it was a man who was brutally beaten up. There was a large fight somewhere in New York, in the state of New York and this mugshot basically found its way to the internet very quickly. So I tried to do a Google search three weeks later and you'll have to trust me on this but the fifth and the six results were actually on that incident and we're not talking about expungement yet. We're talking about arrest record. Someone who wasn't even indicted yet, let alone convicted and if we look at the images on top, four out of five were the mugshot. Now there weren't actually just one of them was from the website that I showed you mugshots.com which is an example of one out of hundreds of websites like this. Three other were from other resources which I'll talk about shortly. Now for the unpublishing mugshot part. So this doesn't exist anymore actually because of different legislative, there were different bills pending and the mugshot websites decided to remove them because of unfair practices. It was some sort of an extortion and therefore they removed even the possibility to be forgotten under this but as you might see to be unpublished a year ago would have required you to pay almost $400. The I wrote that I want to be deleted because it was expunge or seal but you can write whatever reason you want. Now I will not discuss the various implications of these extortion practices. There are no longer available through mugshots.com but hopefully they won't be available either but they do raise the question of how to do that, how to actually be deleted. So before we getting into the various different aspects of how to regulate this, another source that we have is the media. So it doesn't have to be the Sunday Times, it doesn't have to be the New York Times, it could be local media usually which will report an arrest of someone or a conviction of someone in the neighborhood and when we had in the kinetic world that possibility of confining that information on the internet it will live on in the US. Finally we have the social media and we have the fact that people talk. So if people talked in the kinetic world it could have affected you to some extent but the fact that the internet remembers everything the fact that we can post it on social media websites and if you browse through those mugshot websites you'll see that you will always have the opportunity to tweet about an arrest or to publish it on Facebook. So they make it rather easy to use social media to make that information live on. So at this point of the project I started to think how can we enable digital expungement? The easy way would be to suggest that the US must adopt a right to be forgotten, right? But to be practical, I'm not suggesting this because it would be deemed unconstitutional as I'll talk in a second. So before trying to understand how the US can enable digital expungement I try to think of the ways that we can enable digital expungement. So if we categorize them we have two main ways. The first way would be an ex-ante approach which would mean making expunge criminal history records initially unavailable. Now there's a problem here there's an inherent problem here because how would you know when a record is expunged initially? You wouldn't, right? So there's a way to handle this little problem as well and I'll discuss it later. The most common approach would be to take an exposed approach making expunge criminal histories inaccessible or unusable once they are expunged. So that would relate to a right to be forgotten. As I said, but before we're going to the law if we take Professor Lorenz-Lasig for modalities approach we can start thinking about how can we regulate it not through the law? So if we'll take a market approach or social norms approach to influence those mugshots for example or expunge criminal history records in general there are a lot of different problems here that will not solve it. Why? Because first of all there's a market failure or some sort or more accurately we have a market for these things. I mean a lot of people do want to know that information whether they are employers, whether they are your neighbors they do want to know who lives in the neighborhood who are they hiring, who are they lending something or renting their house. In the aspect of social norms I mean that would take time. It would take a lot of time and it would still be problematic because of the nature of the market here that we have so many interested parties who wants this information. So even if we deem it unacceptable to publish those mugshots we will still have those mugshot websites operating and people who would want to access them will. Can technology save it? So technology could to some extent aid us here and it goes back to a lot of literature that had been written including myself on the right to be forgotten and how technology can aid in anonymization and in various aspects of granting civilians the reputation management tools to try to deemphasize things. As technology and market combined for example Google is an example of someone who acknowledged the problem of mugshot websites and what they did attempted to do at least a year ago is try to deemphasize, they didn't de-list or delink anything, they tried to deemphasize the appearance of mugshot websites on search results. As you see before that my search was after Google tried to do that it was fairly accessible still. However we can see that technology can aid to some extent but probably it will need the assistance of regulation or legislation. So we need the law but how can we use the law in a country in which there's such a big emphasis on free speech. So naturally it would go to a right to delist, update, expunge criminal records. So just as a background we all know the famous right to be forgotten which started from 95 but it was interpreted under the Google Spain case, the famous case which interpreted article six of directive 95. We're not gonna talk about the problems of the right to be forgotten here that would be for a different talk and then later the year from now we'll have the GDPR which will come into force and we'll grant a more structured I would say right to erasure which is basically a right to be forgotten as well and it will aid those individuals also with expunge criminal records probably. Now if I would have suggested something which is not a right to be forgotten but a more narrowly tailored right to only delist information or delete even information which pertains to those who their records was expunged I would suggest something like this. We'll have an individual he served time he or she can serve time and upon release let's say five years later their record was expunged. Now they will get a certificate which is acknowledged around the world a certificate of good conduct for example it could be digital, it could be physical that they would no longer have a criminal history record. Now with this certificate they could easily approach whoever is interested like data brokers or any online intermediate and ask them legally to either update information or delist or even delete that information. Will that be constitutional? No it won't because it would still impede upon free speech it will not pass the very difficult strict scrutiny of the First Amendment because it's a form of a content based restriction meaning that eventually it has to be narrowly tailored to serve a state purpose of the highest order. To that extent case law when referred to rehabilitation for example usually notes that rehabilitation is not a state interest of the highest order but even if it does pass that it has to be narrowly tailored in the sense that it shouldn't be over broad or under inclusive or over inclusive and it will not pass this very highly difficult and almost impossible test. So my proposition would be try to look at public and private records a little bit different. When we go back to the EU and a lot of different jurisdiction around the world the notion of what should be public is a bit different than the US. I mean in the US we know that court records should be open to the public. Now I try to contest that a little bit. The reasoning behind that are usually public safety, transparency and theories of punishment. So if we think about the public safety argument the public safety argument would be we need to protect the public out of those who are think about it arrested and later on someone who was convicted of a crime. Now when we try to balance that with rehabilitation for someone who was convicted of a crime the public safety argument is a bit problematic. It's even more problematic when you think about someone who was arrested. Why should we warn the public on anyone who has been simply merely arrested shouldn't the state at this point argue whether or decide whether he or she is dangerous enough that we need to use the other models of criminal punishments like incapacitation. We need to remove them from society. He needs, he will not be released with bail or without. That's part of the public safety argument which doesn't necessarily prevail about the openness of court records. The second prong is transparency. So, and I do agree with this transparency argument to some extent. I mean the transparency argument says that we need to try and see what happens in those state agencies which is important to see what happens in police departments who is arrested for what reason. Court proceedings are important to be transparent to some extent that we might be able to get oversight. This oversight is by those states by the fourth and the fifth estates that could see what's going on. But for transparency we don't really need the names of the defendants. We don't need the names for those who are arrested. We only need to know what's going on in that proceeding. I mean using anonymization, something which is very common in many jurisdictions for names even after conviction is something which is common and still could accomplish transparency in that sense. Last but not least we have theories of punishment. So theories of punishment in this sense would argue that under the deterrence theory it is important to publish the names because it would deter more people of committing crimes because they see that those people were arrested. So first of all we can use anonymization and still deter people. Second of all I'm not sure that the deterrence theory applies here and the deterrence theory in general has a lot of criticism on when it works. I'm not saying it doesn't work always but in criminal law there's a lot of different criticism about deterrence as one of the main theories of punishment and generally it shouldn't be part of the justification to keep those court records open. The second theory of punishment here is retribution which would argue that this is part of the sentence. Getting your name published in shame. This public shame is important as a form of retribution but arresting someone shouldn't be a form of retribution because of the presumptions of innocent. If we don't know we are still don't know what this guy or this girl had done we cannot punish them yet. Even when we think about retribution and that goes back to the theories of collateral consequences there are different debates about whether someone has served his time and we know that phrase when you finished your jail time that's supposed to be it. So some people argued that we should still have a lot of different punishments outside of jail. I'm not part of these people who argue this and the collateral consequences here are so intrusive in the sense that you are experiencing some form of a civil death. That's why retribution to that extent doesn't work. What I'm suggesting mainly is and I'm still saying if you cannot have a right to be forgotten and not a narrowly tailored one I would suggest doing a graduated approach of some sort and the terminology can change to how we perceive what should be public records and what shouldn't be. That graduated approach will start with something which I'm not dealing with it's not expungement it's arrest records. My suggestion is that first of all non-conviction criminal history records should remain private. I mean before an indictment we shouldn't publish the names of someone who's just been arrested let alone the photographs and mug shots because of the presumption of innocence. But if we move towards to expungement we have to differentiate between offenses that are eligible for expungement and those that are not. So just to clarify all states in the US have some sort of an expungement or sealing procedures, statutes. They differ and I'm not gonna go into the small details but mostly when we talk about misdemeanors they will fall under expungement some felonies will as well especially if they're nonviolent crimes. So if we take an ex-ante approach differentiate between those offenses and we will anonymize the names upon conviction even courts, the reentry courts should examine whether those individuals are eligible for reform, for rehabilitation, for expungement if they're not, if you murdered someone you will be published even prior to that because that's not eligible for expungement but if you might be then I would leave that anonymized because those arguments of public safety if the state thinks that you have that ability to be reformed don't apply here. We can make some exceptions and it's important to make some exceptions I mean we know different statutes that pertain to different forms of activities which might be regulated more. So I will give an example if an employer is even required by law because it works with a vulnerable population for example to check the criminal history records of a candidate then the state will have its database it already does which they could apply simply as if this individual has had a criminal history record if it was expunged or not and then they will get a response directly from an up-dated database. And there are other exceptions which we can discuss later. So mainly my research, this project and it's the first part of three parts projects deals with the intersection between criminal and technology something which I always valued and liked researching. In the essence, this type of what I try to do here in this article which will be published in Maryland Law Review what I try to do here is try to develop a theoretical framework of digital expungement to understand the rationales behind them going back to rehabilitation in general there are many excellent scholars which have built upon and had written about this especially in recent years but one of the theoretical frameworks which has to be developed to my view is the internet, not those data brokers simply but all those search engines and intermediaries which makes this information so accessible and things will be more and more difficult in the future. Now I'll just briefly tell you the second part of the project which I haven't started yet it's depending on a grant which I applied to because it evolves around empirical work which I need to have some assistance with. What I want to do is if you can remember the slide that I show you about the Google and the search that I made to try to see how much an individual with a record this is not an expunge record but a record is actually accessible for Google so what I tend to do is I gathered roughly 2,000 names of individuals with expunge criminal history records and don't ask me how I obtained them and it's legal but I will not reveal it here but I wanted to take those individuals and really map out what's going on over the internet. What I want to do is try to see how many of their results will still appear in Google for example other search engines as well. Let's say the top 10 results the top five results, top three results and those images like Google images that they appear and there are very different analytic tools which I will use there statistically to understand where is the problem arising from. So for example if we're talking about mugshot websites if 95% of this information arises from mugshot websites then we might not need a right to be forgotten we just need to find a way to regulate those mugshot websites but from preliminary results that I got that isn't the case I mean mugshot websites are accountable for more than 50% of the results maybe but we still see a lot of social media websites for example that are just designed for this so if you'll quickly browse through any social media website like Facebook and you'll start searching for groups with mugshot and then I do not want to give ideas to anyone but it's just simply that you'll find so many of these in smaller communities that have the ability to report that something happened in your neighborhood in your city, in your town and even across the state. Is it media? Media would be much more difficult to regulate to some extent could be possible even in the US but it would be highly, highly difficult and if it's those websites that offer legal service legal case law services or like LexisNexis then we might take a different approach. Generally my view here is that criminal history records should not be eternal. I mean if we're trying, if we acknowledge if we don't acknowledge rehabilitation that's another thing but if we acknowledge and state legislator have acknowledged the importance of expungement legislation the mere fact that technology enables us to bypass expungement legislation shouldn't exist and we should try to resolve this in a matter in which we'll be consistent with our core values in society, constitutional barriers even but still we should try to eliminate the fact that people have an eternal criminal record. Thanks. We'll do a quick Q and A from the audience. Sure. I'll start here. I'll come to you with the mic. I always assumed that extortion was the business model for mugshots.com if they no longer offer their own version of expungement then what keeps them going? Okay, so first of all traffic probably. I mean if they have traffic and I don't know we have to examine how much traffic they have how much they get from advertising. If you've seen before and you can go to mugshots.com you'll see that they advertise a lot of these different background checks, data brokers. So I think there's a linkage there in which they make money other ways. Now it would be interesting to your question to see how much money they actually made out of those. I mean I don't know how many people were willing to pay those $400 and more just to get their mugshot removed. Great. Other questions from the crowd here? Yeah? So at the highest level how would you balance off the public's interest in seeing how the highest level of expungement, the pardon powers that belong to the executive are properly publicized. We have an interest in seeing who the president pardons at the end of his term, how many of them are related to campaign donors, how many of them are perhaps serious criminals, et cetera. Yeah so this is a very good question. I mean that's part of the conundrum or the problem that the right to be forgotten has. I mean how can you understand, how can you determine who is a public figure for that sense to know whether or not to remove information. So there are various mechanisms in which for example Google users right now under guidelines, bless you, under guidelines that were published in the EU they're not perfect. What you would usually do is under the exceptions that I mentioned before, you would try to see if he's a public figure that could be an exception. You would de-anonymize for example those results and then you can always reverse it back and anonymize it. If needed it would be a bit problematic without the right to delete information but it would be some sort of adjustment. Other questions? I had a thought also as you were walking through some of this and it ties into your question as well which is how equally distributed will this privacy be in a system that isn't ex ante, right? If you have a system where there's some process involved how accessible will that process be? Will it only be available to people who have the resources to prosecute their kind of, their case to whoever mugshots.com or whoever it is, right? Well I'm trying to, I mean the process itself would be, we can have various types of oversight mechanisms over processes like this even if we're going for an ex ante approach. But generally what I mean in the ex ante approach would be just, it would be the anonymization basically of case law. Not the ex ante approach, I mean on the other side, yeah the ex post. Well I'm not, well the ex post approach we see those problems under the right, we've forgotten. I mean there are some oversight mechanisms, it's a problem I've written about it specifically. I wrote a paper which is called The Privatrization of the Judiciary and the problems in which we see giving that private entity the power actually and the prerogative to decide what's going on. It's a huge problem. What I am suggesting for example to solve this problem would be we need to have oversight mechanisms in which we'll have some sort of agencies which should examine what happens under those decisions. The problem however, it would be that Google for example faces a lot of decisions on the right to be forgotten and it would be really difficult to get proper oversight. So another suggestion would be try to look at this problem of the right to be forgotten as a polluter space principle which we are acknowledged from environmental law. I mean let's say that Googles of the world pollute with the information, inaccurate information, expunge records information. We should not let them be a courthouse for deciding what should or should not be online. What we should or might do is just impose the economic restrictions, make them pay for the pollution by paying the state which we'll could hire with that money, those officials, judges, retired judges maybe who could form a consortium that will really examine whether or not to remove. So that would be I would say the best solution in which we can do it. It is really enforceable but it could also have proper oversight. I see, I see. Yes. Let me get you the microphone. Probably because I'm just unknowing about what's going on. Is there, I know there is a right to be, there's a law that's a right to be forgotten in Europe. There's a regulation, yes. Part of certain countries, maybe all Europe. But does not to my knowledge exist here. It couldn't exist here. Right, so I'm not, so there's no movement to create that here. That's, I guess that's my first question. No, so that's, there's nothing. Well, I mean there are people who could argue that the US should have a right to be forgotten but when you look at the constitution, the First Amendment and the interpretation of the Supreme Court on how free speech should be, could be regulated, you understand that there's no real feasible way to have a right to be forgotten. So could you explain how the European right to be forgotten is relevant to how it's related to the US right to have your, if your record is expunged, how that's related to the digital expungement? So what I would say is that it's not because only on the theoretical level we can try to understand the right to be forgotten and try to understand how it could be implemented in the US. Well, it can't. And that's why this ex-post approach is not feasible and we have to go to other ex-ante measures. Those ex-ante measures are not a right to be forgotten or simply a way to initially make public records non-public. So if the public records are not public initially from the arrest and after conviction as well, we won't need a right to be forgotten for expunged criminal history records because they will never, in quotation marks, never will be published. They might be published to some extent. I mean, you cannot forbid someone just think about the Sixth Amendment, for example. If we need courts to be open to the public, you have a right for a public trial. So we cannot simply say to the media, never attend trials. So media might be able to publish, but that's anecdotal. I mean, you'll have some cases which will be reported online and that won't help entirely. But it will still substantially reduce the amount of information of people with criminal history records, even if it was expunged, as long as we make that information not public initially and in that point in which you committed, either committed a crime like murder, which is not entitled for expungement or that time has elapsed and you weren't reformed, the state has declared that you have no possibility of expungement, then we might publish his or her name in that sense. Thank you for this. Is it an impressively challenging problem? And you started out with talking about the effects that the lack of expungement has on people, such as discrimination. Is it more feasible perhaps just to target that discrimination that you're not allowed to discriminate against people with a criminal history, bearing in mind that it would likely still have the same challenges that we have with any discrimination legislation of enforcement. Or is this a more straightforward way, do you think, to deal with the issues that are brought up? Okay, so excellent question. I would say that the problem with discrimination here is enforcement and oversight, basically. So we saw that the FCRF, for example, does a lot of anti-discrimination against employers that they will not look into the criminal history records of candidates, but how can we really enforce that? I mean, even with the high fines, and we saw a lot of these different employers or landlords will just see this as cost of doing business, for example. So they will just weigh and see, is it costly enough for me to get a $2,000, $100,000 or a million dollar fine, even for screening a huge company with a lot of candidates. Now that's even employers that it's easier to see. Landlords will be really hard to enforce whether or not they discriminate upon a Google search which no one knows if they made or not, or it's not that no one knows, a lot of people do, but the important people here that will try to enforce this anti-discrimination laws will probably, it'll be a bit difficult for them to achieve. So how many people have already checked Mugdragoutts.com today? Just right here at this lunch, right? We gotta make sure. It is interesting, there's this idea that if these groups are popping up on Facebook and other places that perhaps we're trying to legislate away social norms, right? Like we're trying to change social norms through legislation rather than addressing the real issue which is the discrimination angle. Yeah, for sure. I was interested to see some of the websites disclaiming FCRA applicability on their home pages. Has there been any pushback from their ability to do that? There are some challenges. I mean, mugdragoutts.com for example have various types of case law pending right now against various types of things they are doing there including the one that they just removed. I would say that it would be difficult for them to be challenged under the FCRA requirements because in fact how the FCRA is right now written, they're not consumer reporting agencies. I do agree with them. I mean, data brokers has a different problem here but those websites are not. They do have a lot of different, sorry, problems which are challenged right now in courts and we'll have to wait and see other results of that case law. So I said the main, I mean, the main challenges right now are the unpublished mugshots because there are extortion practices. Some people do claim that under defamation law for example that they publish something which is untruthful information but then mugshots website says that it is truthful. I mean, maybe it's outdated, it was 20 years ago but we are allowed by the constitution to say that you were arrested 20 years ago. Doesn't matter if you're expander or not. So a lot of the challenges are whether or not this defamation, I'm sorry and a lot of people say that they couldn't get a job because of mugshots.com and those mugshot websites, et cetera, et cetera. So they're trying to persuade the courts to rule in their favor. It will be a challenging one. I mean, it's hard here because of the First Amendment to grant them that right. And the source of information that the sites like mugshots and- So they gather it from various police departments and courts and what data brokers are doing actually is getting bulk information from the state. I mean, that's why it's not updated. They get bulk amount of information. They have, they don't update it because they just don't, well, there's a market for that inaccurate or unupdated information and therefore that's just the way they work. I mean, it's a big data practice in which all the police departments, you can also go to online to some of the police departments and see just mugshots, arrest records that they publish. They are less accessible than mugshots.com, but you can do it. Is part of this maybe a data quality problem then at the state side that they are releasing information that they shouldn't have been releasing in the first place? Well, it might have been, but if you look at, I mean, the main justification here would be that everything should be public from the second of an arrest. So there could be a solution here and say, okay, everything should be public, but should we retract a little bit and say, let's go back to the time where people had to go to the courthouse to actually take the file. So data brokers used to work with those runners, there were personnel who upon an inquiry of an employer, for example, they would go to court and ask the police department to ask whether this specific individual has had a criminal history record. So we can retract and we can impose maybe through technology, maybe through other legal measures, we can impose them with restrictions on how to disseminate information. I mean, the state will do it to itself, but the problem is that it's also a market. I mean, they do get paid, the state also get paid a little bit on the information that they hand out to data brokers and to the public as well. So there's a trade over here which could work a little bit, not sure it will. So an argument against open data in government, that's great. Just a joke. So interesting, if I'm, say, one of these people and I find my mugshot and it shouldn't have been there on mugshots.com, please don't search. And I find that in addition to any maybe cause of action I have against mugshots.com, do I also have a potential cause of action against the state for releasing the data in the first place? That's a very good question. I mean, it depends what the state did. I mean, how the information was disseminated, but when we know how the information is disseminated, you might have a claim against the state. It depends a lot of, well, it depends on state law usually and how defamation law works in that particular state, for example, because that would be, I think, the main cause of action. It could be tort law to some extent, but I think, yeah, I think you might have an action. Just an action. Interesting. Any other questions from the crowd before we wrap up here? Yeah, great. We'll let you have the final word. Well, we'll have, final question. The weekly newspaper in my little city of Somerville and probably everywhere in the, lots of places in the country, they published the weekly police log. The weekly police log is, A, was arrested for shoplifting at such and such address on such and such date and they may or may not, usually they don't have mugshots included, but occasionally they do, but this is just a routine list that gets disseminated to the media, probably by most police departments throughout the country and that stuff gets archived, it gets searchable, it becomes searchable and it has nothing to do with the extortion industry. We were talking about, but it's out there. What do you, what, would you say basically the police should not, should not create these logs, should not release them? Yes, so first of all, my answer would be yes. I think that's the essence of what I'm suggesting in terms of not everything should be public. I mean, arrest records, which is not even what I'm doing. I'm dealing with expungement. I'm dealing with after conviction. Arrest records should not be public. I mean, if you just, if we look around the world and see other jurisdictions, arrest records are usually not public, open to the public in Israel, for example. Even if you were arrested, no one is entitled by yourself and the state to go to a police department and ask whether you have a criminal history record. What you would do is if an employer, and there's a lot of different regulation that you must apply to, if you want to know, and it's a very, for example, important job working with the government, you would have to get some certificate for good conduct. You will personally go to the police department and ask for that, and then you can show your employer, I really do not have. But if we go back to your question, I would say that, yes, public records are important, but we need to differentiate between what is really important in public records, what should be public. Arrest records, from my point of view, from my point of view, doesn't mean anything about an individual. The fact that you were arrested for shoplifting didn't mean that you are a shoplifter. It doesn't mean that. It just means that you are arrested. That's why we have a legal system. What a way to end it. Thank you very much, Eldar. This was fascinating. Thank you.