Comment by djsumdog | Hacker News Reader

Comment by djsumdog | Hacker News Reader

There is a lot of crossover here and the Right to be Forgotten. The EFF opposed EU right to be forgotten laws because they could often be used in censorship (like in this very matter).

In the US, there are fewer people who expunge criminal records because there are companies that will produced expunged records in background checks so long as they were public at any time. Banning this gets into 1st amendment grounds.

And that's the flip side: labeling theory. In places like Australia, certain crimes do get removed from your record so long as you've stayed out of the system for five years. Even their sex offender registry has limited use (certain jobs, housing restrictions etc.); it's not public like ours. Then again, they don't have freedom of speech (except in Victoria; sorta).

Could we have laws that restrict companies from considering criminal records past x number of years in the US? I'm not sure if that'd be possible in our currently legal system.

In America, you can't really restrict information, once it's published, except in certain limited cases (like when a case involves a minor).

Just as an example:

We have that here (Netherlands). You are under no circumstances allowed to not hire someone because of past failures if the statue if limitation has expired or the sentence has been served. There might be restrictions on what you can do after you have served, but it is not up to the company to judge on this. This is one of the reasons the "right to be forgotten" exists.

You can however request a "VOG" (translation something like: "Confirmation of good behavior") in which a company (or volunteer organisation for instance) asks for very specific cases like "Allowed to work with children" or "Can have access to privileged data like personal data or medical". The request is handled by the government. You get a response like "No comment" if there is no problem or "Not granted" if you fail. This avoids the problem of having people judge your exact misdemeanors/behavior in the past and leaves it out of a private companies hands and allows the right to be forgotten to exist.

You can also request it and let the person reject the request on legal grounds, but this usually gets you into more problems than you would like.

There is one "but". For higher security clearances (like for working for the state department equivalent) they are allowed to look further back and are allowed to view data from further back and do proper background checks forcing specific issues to come to the light of day. But that check is way more complex than a simple "VOG".

What is to stop me from not hiring someone based on his criminal background and just come up with a bogus excuse?

Because frankly I wouldn't ever want to work with somebody who had raped a child.

That's a non-sequitor if Ive seen one.

Sure theres no argument with someone who aims at pre-pubescent children. But those laws have themselves been perverted so that even a single picture between 2 17 year olds is this horrible felony that ends up ruining 2 lives.

So yeah, its time to quit this Scarlet Letter for most "sex crimes" - cause its a gross miscalculation of justice and law.

I don't disagree, and obviously if I was taking the time to interview a candidate, I would also take the two minutes to look at what they were charged for.

I think it's the same thing that prevents you from not hiring someone because of the color of their skin. You open yourself up to being sued. And if you paid an investigation company money in order to get a sealed criminal background on an individual and then don't hit them that's pretty good evidence you were using that as a hiring decision.

I am using 'X' to represent a conviction for a crime. I am using 'X' because I don't want anyone to think that I am condoning or justifying any particular crime.

1. How would someone else know that the person did X?

2. What if that crime had nothing had bearing on the position?

3. What about the concept of a sentence representing the 'complete payment to society'? Denying someone the ability to make a living turns a finite sentence into an indefinite sentence.

For me,

1. If someone was guilty of embezzlement, this would be relevant (positive or negative) if the position involving money handling (cashier, or accounting) - but not relevant if the position was social work.

2. If the person was guilty of stalking, a position that would allow access to customers' PII would be problematic.

I appreciate your idea to remove any particular crime and consider them all, but to me what you did matter (also why). If somebody was guilty of embezzlement because they owed money to drug gangs I wouldn't be afraid to have them handle money (a majority would take embezzlement over murder). Heck I wouldn't have a problem hiring a murder, if the circumstances of the act was special.

But there can be no excuse to rape a five year old.

Your response is exactly why I phrased my response the way I did.

You ignored the part where I said that if a person has served their sentence, this represents the end of the social punishment. If you want to argue for a life long sentence than do so.

In order for someone to function, they need a job. A convicted and released child rapist needs to pay rent. How would you propose housing, clothing this person so they are not homeless in front of your office?

Not all child rapists are the same. If an eighteen-year-old has consensual sex with a seventeen-year-old, technically they have "raped a child". And yes, over zealous prosecutors do prosecute cases like this. There are people on the offender registry convicted of distributing child pornography because they sent someone a nude selfie when they were a teenager.

Not according to any reasonable interpretation of raped a child. You aren't the only one who assumed I would use the braindead US legal definition, so sorry for for not being clearer.

But if somebody rapes a five year old I don't want to work with them, don't want to be near them, etc. There are crimes that are impossible to rehabilitate from.

But for that you would need to read the actual case, you couldn't just look at the label "convicted for child rape"

Exactly. Most employers hear that you're on the registry and stop their inquiries at that point. The registry tars everyone on it with the same brush.

I'm not saying you would fail to make the distinction. But many people do, and many essentially innocent people suffer, and IMHO society as a whole, suffer as a result.

> they don't have freedom of speech

I think the issue of freedom of speech is much more nuanced than that.

For example, even in places with "absolute freedom of speech", which I suspect is what you're implying, there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth.

> There is also laws around hate speech and so forth.

Not in the US (as far as I understand). See the Wikipedia article: https://en.wikipedia.org/wiki/Hate_speech_in_the_United_Stat...

> In June 2017, the Supreme Court affirmed in a unanimous decision on Matal v. Tam that the disparagement clause of the Lanham Act violates the First Amendment's free speech clause. The issue was about government prohibiting the registration of trademarks that are "racially disparaging". Justice Samuel Alito writes:

> “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate". United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).”

There are still limits in the US. You have to promise that you’ve never been a member of a communist party on entry. It wouldn’t be wise to talk about bombs near an airport, or tweet about killing the president when he’s visiting your city. People who say controversial things, write controversial articles, or make controversial films tend to get detained and questioned at the border a lot, get harassed, and get their devices confiscated.

Absolute freedom of speech doesn’t really exist anywhere. The US is probably one of the most liberal countries on earth when it comes to policing it, but it’s not like anyone can say anything.

> People who say controversial things, write controversial articles, or make controversial films tend to get detained and questioned at the border a lot, get harassed, and get their devices confiscated.

Since when? How would that even work? The president orders the NSA to generate a list of disagreeable film makers and journalists and passes it to the TSA and customs? Do you have any evidence for that claim at all?

> It wouldn’t be wise to talk about bombs near an airport, or tweet about killing the president when he’s visiting your city.

Those are not free speech issues. It is not illegal to talk about bombs at an airport or to threaten the president. Just because you shouldn't does mean you're not free - freedom from consequences isn't the same as freedom of action. Restricted speech is exceedingly rare and, to my knowledge, only applies to public safety (falsely yelling fire in a theatre) and inciting violence (rallying everyone to get weapons and go shoot cops)

No-one said anything about the president or the NSA being involved. There are tons of ways this can work. And it actually happens.

Just once you're flagged and are inside The Machine you get detained upon entry whilst they confiscate your devices, try to see where you've been etc. Lookup the wikipedia page of Laura Poitras who for years lived in Berlin due to USA government surveillance. And this started way before her involvement with Snowden as a filmmaker.

  How would that even work?

This works through a mechanism called a "terror watch list"

For example, imagine you're a Youtuber and you make a serious, fair film about the Israel-Palestine conflict. You successfully get access to senior people on both sides.

Except Hamas is a terrorist organisation, and to get that access you've visited online forums about the organisation, contacted people in the US associated with it, and flown to a terrorism hotspot to meet with terrorist leaders. That pattern is pretty similar to someone who had been radicalised and wanted to fight abroad!

So you're put on a terror watch list, and at the border you're subject to extra searches, with the random delays that entails.

I feel that a citizen should be able to appeal being on the terror watch list (or any watch list for that matter).

>It is not illegal...to threaten the president

That may not be entirely true [1], although the same video makes the point that US courts have apparently ruled you _can_ incite another to harm them.

[1] https://www.youtube.com/watch?v=D5bEwcJ8eCI

> Since when? How would that even work? The president orders the NSA to generate a list of disagreeable film makers and journalists and passes it to the TSA and customs? Do you have any evidence for that claim at all?

Actually yes. Just look at the McCarthy era witch hunts against 'communists' in Hollywood. The FBI and CIA were involved in drawing up the watch lists.

This should not be downvoted, this is a part of shared American history, and there are terror watch lists and no fly lists to this day.

> It is not illegal to [...] threaten the president

It's generally illegal to threaten anyone: https://en.wikipedia.org/wiki/Assault#United_States

> "Since when? How would that even work? The president orders the NSA to generate a list of disagreeable film makers and journalists and passes it to the TSA and customs? Do you have any evidence for that claim at all?"

"We’ve learned about this fishing expedition through documents we obtained in a Freedom of Information (FOIA) lawsuit filed on Poitras’s behalf to find out why she was constantly being stopped by federal agents during her travels. Border agents detained Poitras at airports over 50 times from 2006 to 2012. The detentions began after she directed and released documentary films about post-9/11 life in Iraq and Yemen that challenged the U.S. government’s narrative about the war on terror."

https://www.eff.org/deeplinks/2017/11/government-documents-s...

I just read that article in full, and it doesn't claim the same things you claim it does.

Whatever your opinion of the government abusing surveillance power, Poitras wasn't detained because the government didn't like what she was saying, she was detained because the government suspected that she had foreknowledge of an attack that took place in Iraq where a U.S. soldier was killed and kept silent about the attack so that she could film it.

Now that belief was unjustified, ended up being wrong and in my opinion an absolute abuse of power by the government, but it is not a matter related to freedom of speech or censorship.

You are taking that situation and exploiting it to push an unrelated narrative, and I think that's disingenuous.

> Just because you shouldn't does mean you're not free - freedom from consequences isn't the same as freedom of action.

That exactly defines why you are not free to do it. - let's reword that sentence and test again -

"Just because you shouldn't murder someone doesnt mean you are not free, freedom from consequences isn't the same as freedom of action."

> Since when? How would that even work? The president orders the NSA to generate a list of disagreeable film makers and journalists and passes it to the TSA and customs? Do you have any evidence for that claim at all?

https://www.theguardian.com/film/2015/jul/14/citizenfour-dir...

"Citizenfour director Laura Poitras sues US over 'Kafkaesque harassment'

Film-maker whose documentary about Edward Snowden won an Oscar says she has been held for hours at a time by airport officials, told she was on a no-fly list and threatened with handcuffs for taking notes"

My comment was specifically about hate speech. I never argued that absolute freedom of speech was a thing or that anyone can say anything.

>There are still limits in the US

This is true, but your examples are pretty bad.

https://en.wikipedia.org/wiki/Freedom_of_speech_in_the_Unite...

Yeah but it hasn’t over turned: https://en.m.wikipedia.org/wiki/Beauharnais_v._Illinois

As usual, it depends on how you measure

It’s a hodge podge in the US

This all says nothing about the tacit control given to corps to control the work we undertake, thus controlling conversations we are allowed 40+ hours of week (the bulk of our waking life).

Or how Citizens United is enabling purchasing and pushing speech of a certain kind which we can see modifies people.

“Who controls the past controls the future.”

“The best books tell you what you know already.”

“War is peace.”

American is living those quotes and has been for decades.

I don't get why this was killed.

I think what your parent meant was Australia doesn't have any explicit freedom of speech protection laws, unlike the US and some other countries. Which is true.

"The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals." - https://www.humanrights.gov.au/freedom-information-opinion-a...

I understand, my point is that freedom of speech is complicated and not so black and white.

Yep. A lot of people assume freedom of speech means they are allowed to say anything they want in a public forum, and nobody are allowed to stop them. But in actuality, freedom of speech means you are free from being censored by the gov't, but only the gov't. A private forum (such as a site, or newspaper) can freely censor anyone's speech if they choose to use their forum/platform/print.

do defamation laws forbid you from defaming someone, and force the removal of all defamatory material from the public record? Or do they fine you if you defame them and enjoin you to publically state you were wrong?

>there is defamation laws that forbids certain kind of speech. There is also laws around hate speech and so forth.

You can't be criminally prosecuted for hate speech (unless the prosecutor stretches other laws to cover your "hate speech") or most instances of defamation (except in certain cases on a state by state basis[1]). You can be sued but that's a civil matter.

[1] https://en.wikipedia.org/wiki/Defamation#Criminal_defamation...

> Could we have laws that restrict companies from considering criminal records past x number of years in the US? I'm not sure if that'd be possible in our currently legal system.

Yes, these laws exist in many places in the US often under the name "ban the box"

Here in DC, it is illegal for me to obtain an applicant's criminal record until after I've made an offer and I cannot withdraw an offer simply because the applicant has a record.

I think SF and NYC have some version of this as well.

> I cannot withdraw an offer simply because the applicant has a record.

how is this proven? If you fired an employee after a "while", may be siting business reasons, how does the employee prove that you checked the criminal record, and then that information is what led to the termination?

At that point, you've spent a fair amount of money onboarding the employee, and they'd likely be eligible to file for unemployment benefits. Even if there are no further repercussions under the "ban the box" regulations, it still tips the scale—at least a bit—toward reducing the friction for those with criminal records to obtain employment.

They dont. Employees are continually screwed over by employers, and even so most people work in Employment At Will states - so its even harder to prove it was anything.

You prove it in court just like any other employment discrimination case. The law doesn't need to catch 100% of lawbreakers to work effectively.

It prevents computer-based application filtering.

I think it is abhorrent that data of expunged criminal records are kept by private firms. Why can't this be made illegal if yelling "fire" in a theater is?

should be illegal for anyone to seek such info for prospective employers, renters etc. Free speech? OK, but the company cannot seek it or else...

I can’t see how you can prevent someone making a truthful record of history. What are you going to do? Hold a gun to people’s heads and tell them to forget that things have happened?

In a whole lot of countries this information is not readily publicly available in the first place, and privately publishing it means someone has violated the terms under which they were given access.

E.g. in the UK, to even be able to do a check to see if someone is barred from certain types of work, you are required to abide by a long list of terms which goes much further than merely not republishing the data. To request a less comprehensive check requires you to have a compelling need (a specific set of roles). The basic checks can only requested by the person they're about.

Violating the terms comes at the risk of no longer being able to do records check (among other consequences), which may force you to close down your business in the worst case.

Nothing prevents you from making a truthful record of history if you have the data, but lots of things act to prevent most attempts to publish them.

That's fine, but this thread is specifically talking about the US, where all court records are public documents unless specifically sealed by a judge, with justification that can be challenged in court.

Now, publishing expunged records in the US is morally dubious. I don't know the case law in this area, though, so I don't know where it stands on legal grounds.

Do you believe it should be legal for companies to have terms that prevent you from working at a competing company in a similar industry. It is illegal to share much of the information you learn there as well. The big difference is that you aren't meticulously saving every piece of information for easy access at your new company and that you know you're breaking the law if you did share that information. Simply make it illegal to use the data after a certain amount of time and the problem will fix itself.

It's archival of public information. If this is a concern, then maybe that information shouldn't be made public in the first place.

Falsely yelling fire in a theater. Plus that was only a rhetorical point used to justify a ban on pacifically protesting the draft, by emotionally appealing to recent (at the time) tragedies.

Can't tell if your question is rhetorical or not, but: Falsely yelling "fire" in a crowded theatre is different because it (1) is actually false, (2) leads to an immediate and unambiguous risk of life, and (3) is not potentially of political importance.

The first is the most important in the US for free-speech issues. For instance, "it's true" is considered an absolute defense in cases of slander/libel, no matter how mean spirited or damaging.

Side note - "yelling fire in a crowded theater" is not persay illegal, and was actually used in a free speech trial against a man who wrote anti-draft pamphlets.

> Why can't this be made illegal if yelling "fire" in a theater is?

Yelling “fire” in a theater is not illegal. It was asserted to be the kind of thing the government might permissible prohibit in dicta (which are not themselves authoritative) illustrating the decision rule, without any citation to supporting precedent, in a later-overturned case in which the court allowed what is now recognized as an imperssible restriction on core political speech.

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