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New Privacy Rules Imminent, Another Privacy Change Contemplated
New rules providing privacy protection for case files posted online in the
federal district, bankruptcy and appellate courts are scheduled to take effect
December 1, 2007. Some of the rules represent a change in Judicial Conference
Meanwhile, a Judicial Conference committee is studying a related privacy
issue: Whether courts should restrict Internet access to plea agreements in
criminal cases, which may contain information identifying defendants who are
cooperating with law enforcement investigations.
The new rules were proposed by the Judicial Conference in accordance with the
E-Government Act of 2002, which requires that each court make publicly available
online any document filed electronically. The rules require parties to redact
certain personal information from each filing.
The Act required the Supreme Court to prescribe rules “to protect privacy and
security concerns related to electronic filing of documents and the public
availability . . . of documents filed electronically.”
The new privacy rules include Civil Procedure Rule 5.2, Criminal Rule 49.1
and Bankruptcy Rule 9037. Appellate Rule 25 was amended to incorporate the new
privacy directive. The rules can be found at www.uscourts.gov/rules/ congress0407.htm.
The new rules for civil, criminal, and bankruptcy courts require that case
files show only the last four digits of a person’s financial account or Social
Security number; only the year, not date, of someone’s birth; and only the
initials, not name, of persons known to be minors.
This approach is consistent with the 2003 Judicial Conference policy that has
required those redactions to be made by those who submit documents to the
The Conference policy had exempted Social Security cases from public
availability online. Civil Rule 5.2 adds immigration cases. Such cases are
available to the public but cannot be remotely accessed electronically. Civil
Rule 5.2 treats immigration cases in the same fashion, which is a change in
Service did not express a concern,” said Judge Lee Rosenthal (S.D. Tex.), chair
of the Conference Committee on Rules of Practice and Procedure. “During the
rule-making process, which took place a few years later, we had the benefit of
of the Immigration Service, voiced serious concerns about providing public
remote electronic access to immigration cases.”
Immigration cases are similar to Social Security cases in that the cases
usually include extensive administrative records. As Rosenthal noted, “These
records are often full of sensitive, highly personal information. The most
obvious example is medical records. Because of the volume of the records and the
extent to which they are made up of such personal information, it is not
feasible to use redaction to protect privacy. The rules recognize these
practical problems and do not require the parties to redact personal identifier
information in these cases.”
Rosenthal added: “Because these filings will remain unredacted, it seemed
prudent to keep them off the Internet, where they can be easily searched.”
Although Social Security and immigration cases still will be available to the
public at the courthouse, prohibiting online access “balances our long-standing
commitment to keeping our case files public with the need to protect privacy in
the age of computers,” Rosenthal said.
The rule does allow parties and their lawyers online access to Social
Security and immigration cases. “Any other person may have electronic access to
the full record at the courthouse, but may have remote electronic access only to
the docket maintained by the court, and an opinion, order, judgment, or other
disposition of the court, but not any other part of the case file or the
administrative record,” the new rule states.
Under the existing Conference policy, unexecuted search or arrest warrants
and unexecuted summonses, pretrial bail reports, pre-sentence investigation
reports, documents containing identifying information about jurors or potential
jurors, and sealed documents “shall not be included in the public case file.”
The new criminal rule is largely consistent with the policy.
The appellate procedure rule states that an appeal in a case that was
governed by a privacy protection rule in district or bankruptcy court “is
governed by the same rule on appeal.”
The rules recognize the discretion district and bankruptcy judges have to
order additional redaction or the sealing of documents “if necessary to protect
private or sensitive information that is not otherwise protected.”
“No one can predict all the issues that will arise from public remote
electronic access to case filings or how that will impact on litigation in the
long run. The Rules Committee will carefully monitor the rules, to assess how
they operate in practice and whether further changes or additions are
necessary,” Rosenthal said. “We hope that judges will let us know of problems
they encounter, and we welcome suggestions for improvement and refinement.”
Access to Plea Agreements
Conference committee, the Court Administration and Case Management (CACM)
Committee, is contemplating whether it will recommend that the Conference adopt
a policy restricting public Internet access to plea agreements in criminal
The study has its roots in a December 2006 letter the Conference received
from the Justice Department’s Executive Office for U.S. Attorneys, seeking to
exclude all plea agreements from criminal case records available on the
Judiciary’s Public Access to Court Electronic Records (PACER) system.
“We are witnessing the rise of a new cottage industry engaged in republishing
court filings about cooperators on websites such as www.whosarat.com for the clear
purpose of witness intimidation, retaliation, and harassment,” the letter said.
Sealing individual plea agreements and related materials is not a viable
solution, according to the Justice Department. “The very fact that PACER’s
electronic docket reflects the filing of a cooperator’s plea agreement—even if
sealed—threatens to compromise the physical security of cooperating defendants
in criminal cases. This is because for anyone with Internet access, a PACER
account, and a basic familiarity with the criminal docketing system, the
notation of a sealed plea agreement or docket entry in connection with a
particular defendant is often a red flag that the defendant is cooperating with
the government,” the letter said.
Some district courts took action on their own. For example, the Eastern
District of Pennsylvania adopted a protocol in which only docket information,
not content, of all plea and sentencing documents is available on PACER. Public
inspection of the documents is allowed at the district’s courthouses, however.
From early September to late October 2007, the CACM Committee sought public
comment on both the privacy and security implications raised by the Justice
Department and potential policy alternatives.
More than 60 comments—from judges, court employees, lawyers, journalists, and
others—yielded a broad spectrum of advice. Nearly one-third of the comments came
from private citizens.
Chief Judge Michael McCluskey (C.D. Ill.) was among those who supported the
Justice Department proposal.
“Our court has previously adopted a rule to restrict public Internet users or
PACER users from having access to plea agreements or other documents in criminal
cases identifying a person who has cooperated with law enforcement
investigations,” he said. “However, our local rule does not limit public access
to plea agreements and other documents not under seal at the various courthouses
through the Central District of Illinois. These documents are available for
public inspection at the various clerk’s offices.”
Chief Judge Harvey Bartle III (E.D. Pa.) outlined his court’s efforts to date
to prevent witness intimidation, and said his court should be given the
authority “to continue with our protocol, and that we, as well as other courts,
be allowed at this time to experiment.”
Rob Ansley, clerk of court for the District of North Dakota, said his court
recently adopted a policy “we believe will alleviate these concerns.”
In cooperation with the U.S. attorney’s office and the federal public
defender’s office, that district “developed a procedure to file all plea
agreements as public (unsealed) documents, sanitized by the drafter (federal
prosecutors) of any references to cooperation. All pleas are accompanied by a
sealed document—‘plea supplement.’ The sealed plea supplement contains either a
cooperation agreement or a statement that no agreement exists. To the Internet
public, every plea in North Dakota will appear identical,” Ansley said.
Judge John Tunheim (D. Minn.), who chairs the CACM Committee, said it “has
been following the comments closely and will likely consider policy changes at
its December meeting. We expect that any policy changes would also be reviewed
by the Criminal Law Committee before submission to the Judicial Conference in
“I expect the committee will consider all the suggestions made, and make
suggested policy changes that will appropriately balance legitimate security
concerns with the need to allow public access to our court system,” Tunheim
He added: “It is clear that threats to cooperating defendants are real, and
disclosure of cooperation agreements can both affect a defendant’s personal
security and affect a willingness to continue to provide substantial assistance.
At the same time, plea agreements are often the only record of how criminal
cases are resolved. The public surely has an interest in knowing how criminal
cases are resolved.”
A summary of comments received is at http://www.privacy.uscourts.gov/2007comments.htm.