Texas Judges Continue To Turn Expungement Orders Into 'Right To Be Forgotten' Requests

from the careful:-that's-the-Constitution-you're-screwing-with dept

It appears the state of Texas is offering a limited "right to be forgotten" in county courts. A few years back, the state appeals court had to get involved and remind the county no such right exists in the Texas, much less the rest of the states Texas seems to be embarrassed to be associated with. At the center of the case was an expungement order for an attorney accused of forging other attorneys' signatures on court filings.

While his case may have been expunged, expungement only covers the official record. This would remove info from government databases. Texas law also provides for the removal of info from certain sites reliant on public records (mugshot sites, background check services), but the law does not go so far as to demand news sites and search engines purge themselves of articles related to now-expunged criminal acts.

A lower court decided to drag Google into this, demanding it de-index anything covering the expunged crime. Google did not comply and the state appeals court reversed the lower court's order, finding it not so much a violation of the First Amendment (which it is), but that it skirted due process by not allowing Google and the sites being de-indexed to argue against the removal order in court.

Eugene Volokh has again tracked down a similar -- and similarly wrong -- order from a Texas county court.

Until a week ago, Houston's ABC-13 TV station, KTRK, had the following story on its web site (I quote the July 13, 2017 version, which had been updated from its original 2016 story):

An Alief ISD teacher is no longer in the classroom after he was arrested on allegations of domestic violence.

Damon Barone is charged with assault-family violence. According to a statement from Alief ISD, Barone was a teacher at Mahanay Elementary School but has not been on campus since April 4. He's currently on administrative leave and the district says "he will not return at any point."

Alief ISD officials say the incident did not happen on school property or at a school event.

The charges have since been dropped, but Barone remains no longer employed with the school district.

About a week ago, that story disappeared from the site. And that disappearance seems to be linked to a Houston court's June 26 expunction order (signed by Judge Michael Landrum), which purports to cover KTRK.

The order [PDF] is hosted at the Lumen database. This lives on, but KTRK's story does not. KTRK was under no legal obligation to remove the story. State law does not require the deletion of news stories following an expungement order. To put things generously, the judge in this case appears to have misinterpreted the law. KTRK has complied with an order it didn't need to and now has played its small part in erecting a Texas-based "right to be forgotten." Google most likely did not de-index the site in response to this request, but with KTRK deleting its coverage, the de-indexing will occur anyway.

As Volokh points out, this isn't the way the law reads and it certainly isn't the way the law is supposed to work. It could be the judge didn't read the list of potential targets closely and allowed Barone to nuke KTRK's story along with the sealing/removal of criminal records. Whatever the case is, those seeking to abuse a system to erase their criminal history will be encouraged by Texas courts and their inability to restrain expungement requests to government agencies and databases.

What I do know, assuming the order is authentic, is that a Houston court order purports to institute a "right to be forgotten" as to this particular news story. And this is at least the second such case in the last two years: The first case that I know of is the even more troubling Derek Collier Thorworth matter, where an expungement order seemed to require the media to remove a story about a county constable who had pleaded guilty to abusing a prisoner, and where the constable demanded that a TV station indeed do so, based on the order. [...] Some might think that's a sound approach, but it's not authorized by Texas law and not consistent with the First Amendment.

This won't be abused nearly as much as the fake libel lawsuit scam being perpetrated in courts around the country. And it won't scale like regular old DMCA abuse that tends to backfire on those attempting to use Google takedown requests to clean up their vanity searches. But it will let people with expungement orders believe they can eliminate content from the internet at large. And if judges aren't careful, they'll sign off on orders letting them do exactly that.

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  • icon
    DannyB (profile), 24 Jul 2018 @ 11:10am

    Bu, bu, but . . .

    Wouldn't it be okay if Expungement Orders had, and then exercised their right to be forgotten?

    Oh, wait.


    reply to this | link to this | view in chronology ]

  • icon
    James Burkhardt (profile), 24 Jul 2018 @ 11:11am

    I am sympathetic to the way internet news articles can defeat the intent of expungement orders - to clear background checks of information that can prevent a person from exercising his core rights and serves little benefit to the standards of justice. In this case, the arrest might bar employment in his field. And the news articles might have the same effect.

    I would however question if it needed to be taken to this level. I would question if the editor might have been sympathetic to either updating the story/headline to reflect that the charges were dropped and the arrest removed, or only redacting his name, with a note that, having been cleared of charges the paper is respecting his privacy interest. Going with a more respectful, balanced tone than 'burn it down'.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Jul 2018 @ 11:19am


      For sensitive jobs, like teaching, shouldn't the background checks be to official sources, where the outcome of the charges is also available. Using newspapers, or the Internet for background checks is being lazy, and risking finding false infomation.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 24 Jul 2018 @ 11:32am

        Re: Re:

        True, but as we know, googling prospective employees is a common modern practice to help avoid any number of issues. Background checks don't highlight recent racist twitter posts, for instance.

        reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 24 Jul 2018 @ 12:09pm

        Re: Re:

        And it may be, in the end, that how the expungement appears in a government background check, is more flattering than the record of an arrest. Or the article might be seen as a liability when an outrage mob might condemn him without the full information.

        reply to this | link to this | view in chronology ]

    • identicon
      John Smith, 24 Jul 2018 @ 4:41pm


      Anyone who thinks Google is part of a "background check" should be sterilized, as should any children they already have, to prevent the DNA from further polluting the gene pool.

      Those who believe fake news and who fund con artists by falling for scams should also be eugenized.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Jul 2018 @ 7:52pm

        Re: Re:

        Those who believe fake news and who fund con artists by falling for scams should also be eugenized.

        Like yourself, SESTA fanboy?

        reply to this | link to this | view in chronology ]

      • identicon
        Wendy Cockcroft, 27 Jul 2018 @ 7:20am

        Re: Re:

        Misanthropic, much? As it is, I support the right to be forgotten idea when it comes to making inaccurate information disappear from the internet. Given that one's reputation can be wrecked if we're falsely accused of something and that the negatives tend to get more column inches than the retractions, it's entirely reasonable.

        Google is routinely used for checking people out. One's social media usage does indeed count as part of the check; you don't want a rabid racist on the payroll, after all.

        Fake news is often presented by "respectable" outlets (I'm looking at you, Daily Mail. Psycho ex-girlfriend dentist, indeed!") and scammers often appeal to one's generosity (I've been caught out by one) so back off, take a chill pill, and remember you are human too.

        reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 24 Jul 2018 @ 12:58pm

    Everything's bigger in Texas

    even the stupidity of the courts!

    reply to this | link to this | view in chronology ]

  • identicon
    TRX, 24 Jul 2018 @ 1:09pm

    > KTRK was under no legal obligation to remove the story.

    While jackbooted thugs with warrants are often the default, it's entirely possible some minor clerk at the courthouse simply called KTRK and asked nicely.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 24 Jul 2018 @ 1:19pm

    Meet Barbara Streisand...

    Hereby guaranteeing that news of his non-offense is spread far and wide. But yes, a new article not backed up by further details (like whether it's even the same person, or a relative or stranger with same name... whether charges were dropped, whether it was a vindictive ex-spouse, etc.) is not the useful basis for background check. Official records are.

    We may not (yet) be a Big Brother state, but we're certainly an Annoying Little Brothers state thanks to a million websites.

    reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 24 Jul 2018 @ 4:44pm

    Googlers don't understand that a world is quickly being built far out of the reach of their snooping.

    The privacy threat on the internet is so bad now that even having friends who use search engines and social media is too much of a threat. You are free to invade others' privacy, and others are free to shut out of their lives anyone so intrusive.

    those who are being shut out don't even realize it and wind up in an echo chamber with others who place Big Internet over the rights over those it destroys.

    In other words, if you Google people, someone might decide not to save your life if you're in a jam.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jul 2018 @ 5:25am

    It doesn't matter if you're guilty or not.

    Simply being arrested can ruin your life. Many employers will not hire anyone who's ever been arrested and will fire those who are. And many landlords will not rent to anyone who's ever been arrested.

    reply to this | link to this | view in chronology ]

  • icon
    Alief Parent (profile), 25 Jul 2018 @ 6:54am

    Trust But Verify

    Damon Barone vs. Alief Independent School District
    Harris County Court
    Type of case: Discrimination
    Case Number: 2017-25766

    Trust but verify.

    The problem with stories such as this internet blog is that it leaves room for innocent people to continue being guilty in the eyes of those who are misguided and easily influenced.

    If the charges against the accused were dismissed in one court proceeding, then expunged in a separate court proceeding, and Channel 13 News elected to remove the story it appears as though the justice system has made an effort to correct itself.

    Research the entire story and the surrounding situations that lead to the retaliation and discriminatory post provided to the news by Alief ISD.

    reply to this | link to this | view in chronology ]

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