Vol. 39, Number 11 — November 2007

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 policy.

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 courts.

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 Conference policy.

“When the Judicial Conference privacy policy was developed, the Immigration 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 the work on the Conference privacy policy. The Department of Justice, on behalf 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
Another Judicial 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 cases.

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 March.”

“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 said.

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.