Panel Stirs Privacy Debate Over Online Court Records.
Author/s: Brian Krebs
A hearing on the privacy and security implications of a plan to grant
the allow public Internet access to all US court documents became a
virtual court battle today. Journalists, lawyers and investigators all
fought charges that the new system would only encourage illegitimate
uses of detailed personal information.
The panel at today's hearing, made up of eight judges from several
subcommittees of the Judicial Conference - the policymaking body of the
Judicial Branch - kept witnesses on their toes, interrupting opening
statements and peppering speakers with tough questions.
The panel's most frequent question was whether documents, which
already are publicly available at the local courthouse, pose a greater
privacy and security threats to litigants when published online.
Most witnesses today said documents found at the local courthouse
should be made available online. There was far less agreement, however,
on the extent of information that ought to be included in online
records.
Chris Hoofnagle, staff counsel for the Electronic Privacy Information
Center (EPIC), said Social Security numbers and any other "personal
information" that could facilitate identity theft or financial
fraud should be erased from online records, a suggestion supported by
the majority of witnesses.
But US District Court Judge James Robertson asked how the court
should define "personal" information when the documents to be
made available include bankruptcy files, criminal records, and divorce
proceedings, as well as medical and health conditions. These often are
in play during Social Security eligibility appeals, he noted.
Several groups, including EPIC, the American Association of Law
Libraries, Trial Lawyers for Public Justice, and the Electronic Frontier
Foundation said they would favor some sort of "hybrid" system.
It could allow for the removal of Social Security numbers and bank
account information from online documents, while preserving public
access to the entire physical record at the local courthouse, they said.
Brian McGuinness, a private investigator representing the National
Council of Investigation and Security Services, noted that Social
Security numbers are the primary identifiers connecting individuals to a
wide range of crimes across state boundaries. Removing them from the
public record, he said, would take away one of the primary tools used by
investigators and law enforcement.
McGuinness also warned that information brokers and criminals might
employ automated search tools to cull sensitive information from the
online files for use in any number of fraudulent schemes.
"You're going to need to have top-level programmers working on
this to be able to deter hackers and trolling software from mining this
information," McGuinness said.
McGuinness added that with the exception of judicial opinions and
final judgments, all other documents should be restricted to lawyers,
investigators and law enforcement.
Lucy Dalglish, executive director of the Reporters Committee for
Freedom of the Press, said while she was willing to concede that
including Social Security numbers in online records was "a losing
political battle," all other information - even in criminal records
- should remain in the online files.
Committee Chair Judge John W. Lungstrum, D-Kan., noted the court
records first began to move to electronic format in civil cases, where
records tend to be more voluminous than in criminal cases. Moreover, he
said, criminal cases often contain information that can implicate
potential "snitches," or others who might suffer retribution.
Dalglish said in such cases the court should use its discretion to
issue a protective order or otherwise seal the sensitive documents,
noting that the "trade off" in the American justice system is
that "often the greater harm is produced by secrecy than by
openness."
Many federal appeals, district and bankruptcy courts already place
case documents online using their own versions of a prototype of the
system, known as the Public Access to Court Electronic Records or
"PACER" system. However, users searching for a case must log
onto the PACER site for the court in which those documents were filed.
In addition, most documents currently available through PACER are
limited court dockets, rather than the full record of court proceedings.
By 2005, the Administrative Office of the Courts will have completed
work on an integrated PACER system, which will, for a nominal fee, allow
users to search virtually all court documents from a single site. So
far, only eight of the 201 US federal, district and appellate courts
have converted to an all-digital, publicly accessible court document
database.
Jonathan Meyer, deputy assistant attorney general of the Justice
Department's office of policy and development, referenced a recent study
by the DoJ, the Treasury Department and the Office of Management and
Budget (OMB), which found substantial privacy concerns in public
bankruptcy filings.
Meyer urged, as an interim solution, that the Judicial Conference
limit public access to electronic court files containing decisions and
judgments. In the long term, he suggested a separate commission be
created to study the issue further.
Lungstrum and other judges on the panel were clearly miffed by that.
"While I sympathize with what Mr. Meyer said about an ongoing
need for study . the truth is a lot of this stuff isn't a matter that
needs study, it needs analysis and decision," Lungstrum told
Newsbytes following the hearing.
"In the end," he said, "we simply need to move
forward, because the world doesn't wait for us. There's going to be
electronic case filing whether we come up with a policy recommendation
or not."
Lungstrum said the subcommittee will make its recommendation to the
Judicial Conference by September.
In the meantime, however, lawmakers on Capitol Hill could trump any
decision by the conference through any one of a half-dozen bills
currently in play that would restrict use of Social Security numbers and
other "sensitive" and "personal" information in
public records.
George Wallace, an attorney representing the American Financial
Services Corp., told members of the subcommittee that he was altogether
uncomfortable with the judiciary's role in the decision, given the
traditional "checks and balances" placed on the judiciary
branch over the public's right to access court records.
"I'm very concerned about the Judicial Conference taking a
position on this issue, and there's a certain lack of fairness about
adjudicating on this," Wallace said.
"While Congress often makes sausage rather than clear rules -
and we may laugh at the accommodations they do make - they are very
concerned about this issue," he said. "Even if you do not act,
Congress is likely to do so, and that is the more appropriate way to
resolve this issue."
Reported by Newsbytes, http://www.newsbytes.com
16:15 CST
(20010316/WIRES ONLINE, LEGAL, BUSINESS/PRIVACYISS/PHOTO)
COPYRIGHT 2001 Newsbytes News Network
in association with The Gale Group and LookSmart. COPYRIGHT 2001 Gale
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