As mentioned at FAQ 11, private background reporting agencies can continue to report arrest and court information even after records relating to those events have been expunged. One excellent article that discussed this situation in depth appeared in The Salt Lake Tribune on June 25, 2011.
While there is no perfect solution, partial solutions exist. The first partial solution is one that usually occurs automatically with the passage of time. This is a solution that is mandated by the federal Fair Credit Reporting Act. That Act requires that consumer reporting agencies follow reasonable procedures to assure maximum possible accuracy. By definition, “consumer reporting agencies” include companies that provide consumer reports for a fee. “Consumer reports” include reports that are furnished for the purpose of evaluating suitability for employment, credit, or insurance.
If you need immediate clearance of expunged records, emergency procedures are available. You can formally tell consumer reporting agencies that your record was expunged. Reputable companies will remove arrest and conviction information upon receipt of such notification. Companies that refuse to do so expose themselves to a civil lawsuit, and criminal penalties.
The Fair Credit Reporting Act provides an additional important protection for job seekers. Consumer reporting agencies that compile and report public record information for employment purposes are required to do one of two things. The Agencies must either notify the consumer when it reports adverse information, including the name and address of the recipient; or it must maintain strict procedures designed to insure that the adverse information is still contained in a current public record. This protection applies whenever matters of public record are likely to adversely affect a consumer's ability to obtain employment. The Act imposes considerable civil liability upon violators of its requirements. Liability is imposed when the violation is willful, and even when it is just negligent.
We also discussed sites that exist for the purpose of extorting money from persons with criminal records, even after those records were expunged. Persons having expunged records that are still carried by these sites have several options. They can pay the extortion. They can notify the sites that the information was expunged and ask for record removal. They may also be able to apply pressure using third parties. They can sue the publishers of those sites under various legal theories. Or they can ignore it.
All of these options carry disadvantages. Paying the extortion rewards those creatures, and encourages them to accelerate their efforts. It also increases the likelihood that more such sites will emerge from the woodwork and demand their pound of flesh. Notifying the sites of the expungement is likely to be an exercise in frustration. Possibly more effective, however, would be to notify the internet registrars from which these sites ply their wares. These internet servers are often legitimate businesses with explicit prohibitions against the tactics of their clients. Identification of these registrars, and contact information for them, is often readily available.
Another option is to notify the major credit card companies like Master Card and Visa of these abuses, and ask them to close out the extortionists' accounts. If the credit card companies comply, it may still be a solution that lasts only as long as it takes the abusive enterprise to open a new business under a different name and start over again.
Lawsuits against the publishers are possible. The cost, however, may put this option out of reach. Finally, it may be possible to sign a criminal complaint against such scum. A couple of sections of the New Jersey Criminal Code may apply to activities of this nature. The first is N.J.S. 2C:13-5a(7). That is a provision in New Jersey's criminal coercion statute. That section specifies:
|A person is guilty of criminal coercion if, with purpose unlawfully to restrict another's freedom of action to engage or refrain from engaging in conduct, he threatens to...[p]erform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.|
Perhaps even more on point is New Jersey's prohibition against theft by extortion. Theft by extortion is defined in N.J.S. 2C:20-5. That section specifies that a person is guilty of theft by extortion if he purposely and unlawfully obtains property of another by extortion. The section then goes on to list seven actions that constitute extortion. Relevant to internet posting of mugshots with offer to remove for payment are subsections “c” and ”g”. Subsection “c”specifies that a person extorts if he purposely threatens to “expose or publicize...any asserted fact,whether true or false, tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute[.]” Subsection ”g” specifies that extortion occurs when a person threatens to “[i]nflict any other harm which would not substantially benefit the actor but which is calculated to materially harm another person.”
Expungements Lawyers in New Jersey™ can discuss these options at greater length with persons who are affected.
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