Arrestee Data Under Fire as Supreme Court Hears Privacy Case

In yet another swipe at privacy issues, the U.S. Supreme Court heard oral arguments this week concerning a case that could withhold the release of arrest information for commercial purposes in California and other states.

The case involves United Reporting Publishing Corp., Sacramento, CA, which sells lists of names, addresses and criminal charges of recently arrested individuals in certain parts of California – guilty or otherwise – to clients who use the information for marketing purposes. Its client list includes attorneys, insurance companies, drug and alcohol counselors, religious counselors and driving schools. UR gets the data from the Los Angeles Police Department, which keeps the records.

In 1997, the LAPD sued the publisher because the state’s law was amended to prohibit the release of the addresses for commercial purposes, even though they can be released to journalists, academics, private investigators and other individuals. In its argument, the LAPD said access to the addresses could create “unreliable criminal history information banks,” and prohibiting sale of the data would prevent the “direct intrusion into the private lives and homes of arrestees and victims.”

Withholding the information, UR argued, violates the First Amendment, which the district court agreed with in its ruling. The U.S. Court of Appeals for the 9th Circuit also upheld the decision last year, saying it was not rational for a statute to allow the names and addresses to be published in “any newspaper article or magazine in the country so long as the information is not used for commercial purposes. Having one’s name, crime and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney, substance abuse counselor or driving school eager to help one overcome his present difficulties.”

The Direct Marketing Association has submitted an amicus brief to the Supreme Court urging it to affirm the appeals court’s decision.

“Discriminating against commercial free speech would be a constitutional depravation of rights,” said Robert L. Sherman, general counsel for the DMA. “If a newspaper reporter can have access to an arrestee’s personal information, “it does little to protect privacy,” he said.

Insiders aren’t sure why the Supreme Court decided to hear this particular case but think the justices either want to push the First Amendment further in protecting commercial speech or turn it into a state’s right case. DMers are against the latter because “then the states could decide who gets or who doesn’t get public data,” Sherman said.

The case, which won’t be decided for a few weeks, could have serious ramifications.

“The most dangerous precedent I see here is when you allow the government to take what has been public information and to choose who gets it, and whether they like the speech that’s included – that sets an incredibly dangerous precedent,” said Guylyn Cummins, a San Diego attorney representing UR.

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