The unlikely duo of Sens. Rand Paul (R-KY) and Cory Booker (D-NJ) recently announced the REDEEM Act, a bill intended to facilitate the sealing of adult criminal records. According to the proposed piece of legislation, those convicted of nonviolent crimes can petition to have their criminal records sealed. The legislation would have significant impact for those who have committed nonviolent crimes.
Under the status quo, nonviolent criminals face an uphill battle in the fierce competition for jobs. With the stain of a criminal record, individuals are often rejected for jobs even before they have an opportunity to explain the basis for their conviction. The situation creates a perverse scenario whereby individuals who have served their sentences and reformed themselves are being punished well after their actual punishment has been served. Too often this leads reformed criminals to revert back to illegal ways merely in an effort to support themselves and their families.
The REDEEM Act is a well-intentioned piece of legislation. However, its effectiveness would be limited by the realities of the 21st century. For example, even if an individual’s record is sealed, it could still remain on a website and could become prominent in a Google search for that person.
Europe has recently addressed this scenario with its adoption of a right to be forgotten; individuals can now petition Google and other search engines to have information, such as outdated or concealed police records, removed from search results.
Thus far, given concerns over violating free speech protection, there has not been any proposed legislation to apply a right to be forgotten within the U.S. However, as any law student knows, the Constitutional right to free speech is not unlimited. For example, screaming fire in a crowded theater is not allowed, and a person does not have a right to make threats or possess child pornography. The Internet should not be immune to regulation and some balance between the First Amendment, and common-sense privacy protections should be sought.
Ultimately, if Congress did create a limited right to be forgotten in order to effectively seal criminal records, pursuant to the REDEEM Act, the courts should uphold such a regulation. Courts examine content-based restrictions on free speech through the strict scrutiny test.
Under strict scrutiny, the government has to establish that the proposed legislation is justified by a compelling governmental interest, that the law is narrowly tailored and that the law is the least restrictive way to achieve the desired result. In this case, the government has a compelling interest in ensuring that its legislation can be realized so that nonviolent criminals can seal their criminal records and therefore become active participants in the labor force.
Second, the law would be narrowly tailored and only impact individuals who have qualified to have their records sealed under the REDEEM Act.
Finally, creating a limited right to be forgotten would be the least restrictive alternative, since without addressing the Internet issue, the REDEEM Act would not achieve the desired result of actually sealing nonviolent criminals’ records.
In addressing the sealing of nonviolent criminals’ records, the Internet cannot be ignored. Therefore, if Congress wants to legislate on this important issue, the Internet must be part of any conversation. To put it simply, it's time that a limited right to be forgotten be granted to Americans so that the common sense goal of allowing Americans to achieve a better future can be realized.