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Fall 2007 Request for Comment

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Fall 2007 Request for Comment on Privacy and Security Implications of Public Access to Certain Electronic Criminal Case File Documents

The comment period has closed. See Comments Received.

The federal Judiciary is seeking comment on the privacy and security implications related to electronic public access to certain documents in criminal case files. The Court Administration and Case Management Committee of the Judicial Conference of the United States is studying these issues in order to develop policy guidance to the federal courts.

Specifically, the Committee is interested in comments on a proposal to restrict public Internet access to plea agreements in criminal cases, which may contain information identifying defendants who are cooperating with law enforcement investigations.

This request for public comment addressed two related issues:

  1. the privacy and security implications of public Internet access to plea agreements filed in federal court cases; and
  2. potential policy alternatives

Electronic Public Access to Federal Court Case Files

Historically, most documents filed in federal courts are considered to be public information. Over the last decade, the federal courts have established an electronic case files system that allows public access to court case files through the Internet. This transition from paper case files to electronic files has transformed the way that case file documents are used by attorneys, litigants, courts, and the public. In the past, attorneys and parties were required to file case documents at the courthouse. Likewise, the public was required to go to the courthouse where a paper case file was maintained to review the file or obtain a copy of a document from that court file. Now, electronic case files allow anyone with an account with the Judiciary's Public Access to Court Electronic Records (PACER) system to view, print, or download these documents via the Internet.

PACER is a web-based system that provides access to both the dockets (a list of all the documents in the case) and actual case file documents. Individuals who seek a particular document or case file can open a PACER account and obtain a login and password. Those who register a valid credit card number will receive their account login and password in minutes. Immediately after establishing an account, an individual can access case files over the Internet. As established by Congress, public access through PACER involves a fee. Currently, the fee is $.08 per page of a case file document or report that is viewed, downloaded, or printed. There is a fee cap of $2.40 for all documents (excluding transcripts of court proceedings) that exceed 30 pages in length. Additionally, no fee is owed by a PACER account holder until charges of $10 are accrued in a calendar year. Electronic case files are also available for review, free of charge, at public computer terminals at courthouses. Printouts from the public access terminals cost $.10 per page.

Privacy and Security Implications of Electronic Criminal Case Files

Electronic case files bring significant benefits to the courts, litigants, attorneys, and the public. There are also, however, personal privacy and security implications of unlimited Internet access to court case files, especially criminal case files. Many federal court case files contain personal and sensitive information that litigants and third parties may be compelled by law to disclose for adjudicatory purposes.

The Judiciary has a long tradition – rooted in both constitutional and common law principles – of open access to public court records. Accordingly, all case file documents, unless sealed or otherwise subject to restricted access by statute or federal rule, have traditionally been available for public inspection and copying. The Supreme Court has recognized, however, that access rights are not absolute, and that technology may affect the balance between access rights and privacy and security interests. See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) and United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).

In September 2003, the Judicial Conference adopted a privacy policy for criminal case files that included providing the same level of public access to electronic case files as it has provided to paper case files. It did so, in part, based on the results of a pilot project completed earlier that year. The pilot project allowed public Internet access to criminal case files in ten district courts and one court of appeals for two years. A report on the pilot project by the Federal Judicial Center found that there were no significant reports of misuse of criminal case documents, nor were there any reports of harm stemming from the availability of these documents via public Internet access. Nonetheless, individual courts may have chosen a more restrictive approach to public Internet access to these documents.

Both the 2003 policy and pending Federal Rules of Procedure regarding privacy in court filings prescribed by the Supreme Court in April 20071 require that certain limited information be redacted or truncated in filings with the court, including: Social Security and financial account numbers, dates of birth, names of minor children, and, in criminal cases, home addresses. In addition, the pending Federal Rules allow courts to seal documents or limit public Internet access to documents on a case-by-case basis, if good cause is shown. See Pending Fed. R. Crim. P. 49.1(e).

Request to Limit Access to Certain Documents in Federal Court Criminal Case Files

The Department of Justice has asked the Judicial Conference to restrict public Internet access to a specific type of document: plea agreements in criminal cases, which may disclose the fact that the defendant in the case is cooperating or has cooperated with law enforcement investigations. The ease with which the public is able to both retrieve federal court case information from electronic case files and redistribute it electronically through the Internet has raised concerns about whether the Judiciary's policy of allowing access to all unsealed plea agreements provides a sufficient measure of safety for those defendants cooperating with law enforcement. Certain private parties or organizations have compiled lists setting forth names, locations, and descriptions of alleged cooperating witnesses and have posted them on the Internet. Some have expressed concern that wide dissemination of this information may facilitate or encourage retaliation and/or witness intimidation.

The Judiciary is requesting comment on its policy of providing public Internet access to all non-sealed plea agreements in electronic criminal case files. This policy has been in effect since November 2004, but only came into play in any particular local court level when that court adopted an electronic case files system, typically at some point between 2005 - 2007. To assist it in considering the issue, the Judiciary welcomes comments on this policy, including, but not limited to, the question of whether the policy should be changed to prohibit public Internet access to plea agreements or other documents in the criminal case files that identify a person cooperating with law enforcement. These plea agreements and documents would still be available for public inspection at the courthouse. Additionally, the Judiciary seeks comments on how it could otherwise meet the need to balance access issues against competing concerns such as privacy and personal security.

1 Absent action by Congress to reject, modify, or defer them, the rules will go into effect on December 1, 2007.