Criminal Data Function Creep

Automated, data-driven decision-making can create unfair outcomes and lead to discrimination. This Article considers a relatively ubiquitous part of modern life that is increasingly automated: the criminal background check. This Article, with contributions at the intersection of law and technology, antidiscrimination and consumer protection law, and sociological theory, makes the central claim that criminal record data is characterized by function creep—the unintended use of data for another purpose—which leads to a specific set of harms. This Article makes three central contributions. First, it offers an empirical assessment of contemporary, data-driven background screening using data based on in-depth interviews and systematic analyses of 104 New Jersey residents’ criminal records from both public and private sectors. Specifically, people in the study face three crucial data issues: 1) incorrect data, 2) misleading data, and 3) unknowable data. Second, the Article establishes the mechanisms of discriminatory harms as rooted in function creep, bridging scholarship in law, policy, and social science. Finally, the Article outlines how existing regulatory approaches fail those who are harmed and exacerbate the discriminatory and punishment-related harms of the criminal legal system. Overall, the Article establishes the fundamental problems that emerge when information created for processing cases through the criminal legal system is used to create background reports and predictive risk scores for profit. The rise of algorithmic data matching and automated decision-making further conceals the source data, making it increasingly difficult for people to gain access to, understand, or challenge their background check. This led many respondents in the study to withdraw from challenging these problems altogether. At the same time, both the agencies that have created criminal record data and the companies that commercialize it evade accountability. The Article concludes by suggesting specific areas of federal and state-level reform but cautions that such a focus overlooks the fundamental problem of using poor quality and often misleading criminal legal system data to assess people’s suitability for a job, an apartment, or full participation in society.