The Right to Be Forgotten

Posting arrest reports is a mostly useless and often destructive transparency practice. Why can’t journalism’s gatekeepers get that?

Charges can be filed, dropped and expunged, but the arrest report can live online forever. Thank Google, among others, for making sure this won’t change anytime soon.

By Adam Bulger

Nothing can teach you the cruelty and senselessness of publishing arrest reports like seeing a familiar name appear in one. In my case, that lesson came when police in my hometown arrested a close childhood friend for shoplifting and heroin possession. I knew he’d been using, and suspected he’d sunk into a dark place. Still, the arrest was a shock. That shock turned to nausea when the local media, including the site I helped launch, Patch, ran the arrest report.

I no longer worked for Patch when the arrest happened. The company laid me off months earlier along with hundreds of others. Even if I had still been working there, I wouldn’t have had any influence over its coverage of my friend’s arrest. But I had run plenty of arrest reports during my time at the site, and I felt culpable.

Like so many of the reports I posted, my friend’s was just one data point among many in the bleak tapestry of America’s opioid crisis. His arrest had a sliver of newsworthiness, but only in showing how common such events have become in small towns across the country. As an isolated event, the arrest was without consequence. He had been caught shoplifting and police found a small amount of heroin in his jacket. Not exactly an episode of CSI.

When I first started reporting on arrests, I insisted on complete transparency, putting every detail available in play. That insistence steadily eroded over the decade I spent covering crime as a reporter, first for a scruffy alt-weekly, and later for AOL-owned local news websites. After covering hundreds of arrests, my blooming skepticism about the practice blossomed into contempt.

Arrest reports are not the product of legwork, working the phones or document diving. They appear in inboxes, ready to be copied and pasted. Once posted, there is sometimes a brief flurry of interest. In the case of my friend, his relatives and former classmates emailed it around asking if anyone could believe it. Then the story hangs on the internet in perpetuity.

In the months after my friend’s arrest, he struggled through rehab and recovery. At every turn, the arrest report tripped him up when he needed more than ever to step forward. Knowing the story was there, coiled like a snake in the dark, waiting to strike anyone who searched for him, he doubted his life would ever be good again, or could get any better than it was. So many options seemed closed to him. He wondered if it made more sense to just keep getting high.

“It was humiliating and embarrassing,” he told me recently. “It made me say ‘fuck it, my life is ruined and I might as well act recklessly going forward.’”

He isn’t alone in feeling this way. Other people I interviewed for this story echoed his sense that an arrest report is like an anchor, pulling them into the depths as they struggle just to tread water..

“It hinders me from moving past my past,” Thomas, a recovering addict from New York, told me. “It’s frustrating because I’m doing the right thing. I have time clean. I’m working. But then I still have this black shadow following me.”

After some false starts, my friend started doing the right things. He kept at it, day after day. His case winded through the courts. In time, his charges were dropped and his record was cleared. I reached out to the sites that reported his arrest and asked them to delete the post. Most were cordial, wished me luck, and deleted the post. But not Patch. My institutional affiliation didn’t sway them. They needed a scanned, signed court document. With a window into my friend’s life, I realized how difficult that requirement could be. First, he had to get the correct court document, which would entail exponentially more legwork than the Patch editor who posted the story. Second, my friend lived in a recovery house with limited phone access and no car. The closest scanner was at a library miles away.

One month, two phone call to an attorney, two court visits and one cell phone picture of a notice of disposition later, Patch finally took down the story. Today, my friend is still clean and leads support-group meetings. I don’t even remember five of the hundreds of crime stories I wrote, but every moment I spent helping him that month is clear and present in my mind.

**

I started covering crime to fill a dark-humored crime blotter at a mid-size alt-weekly in Connecticut. I kept covering crime but dropped the jokes when I joined the brightly colored hyperlocal news platform Patch covering affluent exurbs in New Jersey. At the alt-weekly, I drew crime reports from the entire state. At Patch, I covered a single town. Most arrests reports concerned teens and 20-somethings accused of shoplifting, traffic violations or drug possession.

While I could safely scoff at the Darwin Award criminals I covered in my jokey blotter, the small-town crimes were both dull and dangerously relatable. I too had smoked pot. I had also dabbled in shoplifting as a teenager. I just never got caught.

While I found these arrest reports disquieting, I couldn’t stop posting them. I rationalized that it served the public good to know what crimes occur in what neighborhoods. They were also easy content. Police emailed them to me. I could post them from bed. And crime stories got clicks. They padded my post count.

But if couldn’t stop running arrest reports, I could at least redact them. I deleted the names of teens and raised my age limit to 25, then 30, figuring that was old enough to know better. I stopped naming people charged with drug or paraphernalia possession. I didn’t have an endgame, but I figured if the cops asked, I’d say it was company policy. If my company asked, I’d say it was police policy. No one asked, so I never said anything.

A year or two after Patch launched, people started asking us to remove old arrest stories, saying that the charges had been dropped. I always took them down. Patch hadn’t set an official policy, and with hundreds of Patch sites churning out three or more stories each day, I guessed that nobody would notice if an old crime post disappeared. No one ever did.

While I deleted old arrest reports and redacted new ones from the field, a debate about arrest reports began brewing at Patch HQ. Eventually, after years of internal discussions, Patch enacted a strict burden of proof requirement for taking down old arrest stories and established a dedicated email account, arrestreports@patch.com. Anyone who wanted a Patch arrest stories removed had to email the story, their name, and a signed court document proving the charges had been dropped.

**

The debate over arrest reports wasn’t unique to Patch. Journalists have spent more than a decade discussing transparency in online arrest reports. And they’ve gotten it wrong almost every step of the way.

The news industry’s euphemism for taking down stories, “unpublishing,” broadcasts the contempt for the practice; it’s like carpenters calling something they don’t like “unhammering.” The 2009 Associated Press Media Editors report, “The Long Tail of News: To Publish or Unpublish,” remains the most robust examination of how journalism should approach arrest reports. The report grasps the problem well enough, and notes that a significant number of unpublishing requests are related to misdemeanor charges, which “present the most vexing dilemmas of the balance between the public’s right to know and the potential harm to an individual by the ongoing publication online and easy accessibility of such information.” And yet, the APME concludes that news makers are “in the publishing business and generally should not unpublish.”

Unpublishing rubs against the grains of self-serious journalism professionals. In 2014, Daily Mail Online publisher Martin Clarke called unpublishing” the equivalent of going into libraries and burning books you don’t like.” That year, the ombudsman of military newspaper Stars and Stripes responded to requests to take down old articles to help people with “job-hunting, bank loans, security clearances or just plain embarrassment.” He concluded that ‘unpublishing’ is no longer unthinkable, but it’s mostly unacceptable” and that the military paper would update stories when necessary. In 2017, the Globe and Mail’s public editor Sylvia Stead declared that the Canadian paper was “not in the unpublishing business,” and tut-tutted people who wanted “embarrassing” and “unflattering” material taken down, saying they misunderstand how digital publishing works.

These noble sentiments about journalism would be great advice for a 1970s New York Times editor facing a brigadier general demanding the retraction of a Seymour Hersh investigation. But for modern digital journalists, the holier-than-thou attitude is divorced from reality. Their diction makes their disconnection plain. The people in arrest reports aren’t worried about “embarrassment” or being portrayed in “unflattering” ways that might play poorly down at the country club. They’re worried that years-old drug charges will cost them jobs and housing.

Some outlets understand this, and have updated policies accordingly. Gatehouse Publishing, for example, “sunsets” arrest reports by pulling them from the web a set amount of time after publication. At least one Patch editorial leader supported this approach during my time at the site.

“Personally, I think any stories about misdemeanor charges should be pulled after six months,” said Steve Johnson, a former Patch Senior Regional Editor. “We let folks who have filed for bankruptcy wipe the slate clean after seven years, so there is that precedent.”

Sunsetting online arrest stories never became standard industry practice. But a sunsetting mechanism does exist, at least for the wealthy. Companies like Reputation Management bury negative search results for high powered executives and business owners. A growing number of defamation and libel attorneys, like the firm Minc, LLC, charge high fees to scrub their clients’ internet reputations. Connecticut attorney Ken Krayeske charges north of $1,000 to write attorney’s letters about arrest reports to local news sites, an amount that is out of reach of many people in online police blotters. (Full disclosure: Krayeske is a friend.)

“If you’re an average person and don’t have money and don’t know what’s out there, you’re going to have a lot of trouble,” Krayeske said. “Most people don’t have the wherewithal to get legal counsel or to write the right kind of letter.”

Krayeske views the online permanence of arrest reports as a violation of people’s right to be forgotten, a legal concept mandating that “irrelevant” and outdated data should be erased on request. The right to be forgotten has been adopted by the European Union but is generally scoffed at in America.

“Europe is way ahead of us,” Krayeske said.

**

The right to be forgotten has powerful enemies, chiefly Google. The data-hungry tech giant has fielded hundreds of thousands of takedown requests and fought the law in several high profile court cases, most recently in a case that determined the EU’s law on the matter doesn’t extend to the United States.

Partly because of these efforts, Americans have little legal recourse for taking down arrest reports, even when the arrest itself is struck down. Imagine you had an arrest erased in Connecticut, where the statutes not only clear your criminal record, but permit you to deny the arrest ever occurred, even under oath. It is as if the arrest never happened. But that doesn’t stop a Google search for your name from returning an old arrest report. Google is fighting hard to keep the laws governing article removal out of step with digital reality.

“Back in the day, you’d have to go into the dusty old archives to see it, and there would be no impression for the reader that it is current,” says Ryan O’Neill, a Connecticut attorney who in 2015 argued unsuccessfully in favor of an erasure statute granting people the right to remove their online arrest reports.

In that case, Lorraine Martin v. Hearst Corporation, O’Neill argued that today, when people find an old arrest story on their smartphone, tablet or computer, they have reason to conclude that the story is current, even when it concerns charges that were later dropped. “The story has current advertisement all around it,” he said. “Even though the events occurred in 2014, you’re not seeing ads for the iPhone 6. You’re seeing ads for the iPhone 10. You can put a dateline on it all you want but, you still are indicating it’s a current article.”

The Second Circuit judges disagreed, demonstrating a toxic misunderstanding of digital media. In their decision, they wrote that “reasonable readers understand that some people who are arrested are guilty and that others are not. Reasonable readers also know that in some cases individuals who are arrested will eventually have charges against them dropped. Reporting Martin’s arrest without an update may not be as complete a story as Martin would like, but it implies nothing false about her.”

This is incredibly naive. Most of the people reading crime blotters and arrest reports are not thinking them through at anywhere near the level assumed by these judges. Some are gossips and busybodies more interested in their neighbors’ dirty laundry than the justice system. Others are severe law-and-order types, for whom the concept of someone getting arrested and later being proven innocent is foreign.

The opinions of these people matter. They sit on co-op boards and manage apartment complexes. They judge job and loan applicants. When they Google a name and find an arrest report, they won’t be reasonable about it. They’ll quickly move on to the next candidate on the list, feeling like they dodged a bullet.

**

If journalists insist on transparency in arrest reports, we also need to be transparent about our industry. First, we have to be transparent about our dwindling resources. The truth is we simply don’t have the manpower to follow arrests through to their court conclusions. Pledging to update stories and failing to do so would violate the public’s trust and ruin the publication’s credibility. Sunsetting a story is an acceptable solution, but you need to have reporters and editors dedicated to ensuring the sunset occurs.

The best answer to the problem is the one I stumbled on: withholding names from reports about misdemeanors.

Keeping the name in the story doesn’t serve the public good. The reader gets the same value out of hearing that Adam Bulger of Verona, NJ, was arrested for shoplifting or drug possession as they would hearing that a 43-year-old man was arrested. These are not sex crimes.

Keeping names doesn’t help traffic. Maybe a small trickle of clicks will come in from people searching for Adam Bulger as I apply for jobs. But it’s negligible. People care about crimes that happened yesterday, not last year. The page impression rate is too low to affect advertising revenue.

Keeping names doesn’t make money. Arrest stories get short-term clicks but advertisers generally don’t like them. Businesses don’t want to be associated with a sad little drug arrest. In local media, it’s far better for the brand to have a banner on the story about the high school’s field hockey team.

There is one way news sites can monetize old arrest stories: extortion. Exploitative sites like Mugshots.com run a grimy little scam by collecting arrest reports, then charging hundreds of dollars to take them down. Extortion is the only name for this racket. But reputable news sites that leave up old arrest reports have the same effect. There is only one material difference: the news sites are making a fraction of the money.

Adam Bulger is editor in chief at BTRToday.com and a writer at Fatherly.com. Find him on Twitter @adamrbulger

Production Details
V. 1.0.1
Last edited: April 17, 2019
Author: Adam Bulger
Editor: Alexander Zaitchik
Artwork: The JFK Archive, Dallas