Internet and Electronic Case Filing Raise Privacy Concerns

The following article is based on remarks by Chief Judge D. Brock Hornby (D. Me.), chair of the Judicial Conference Committee on Court Administration and Case Management, to the Conference for Chief District Judges.

There's no doubt the Internet makes some tasks easier. Its easier to comparison shop, browse for information, and, incidentally, find out everything you'd ever want to know about nearly anyone, from what they paid for their new house to how their divorces are proceeding. In the long run, privacy and the Internet may prove to be mutually exclusive terms. But in the meantime, what are the privacy issues for the federal Judiciary, as more and more courts institute case management/electronic case filing (CM/ECF) and bring the ease of Internet access to court records?

"The privacy question is not one that will confront us some time in the distant future—it is here now and must be addressed," said the chair of the Judicial Conference Committee on Court Administration and Case Management (CACM), Chief Judge D. Brock Hornby (D. Me.). Hornby also would argue that "privacy" is too narrow a term, since other interests may be in conflict with unlimited electronic access. A few of the more obvious are law enforcement; physical security of cooperating defendants or victims; trade secrets of companies in commercial litigation; and keeping jurors free of access to the contents of pleadings during trial and deliberation.

These and other privacy issues may not be immediately apparent when considering CM/ECF. However, the goal of CM/ECF is to provide remote access through the Internet to all court dockets and pleadings. In the CM/ECF courts, pleadings generally are available on the Internet as soon as they are filed. Remote access to court files also is available in the 70 or so courts that are imaging pleadings. There is currently no fee for access and anyone can view the information in the electronic file. On the positive side CM/ECF saves lawyers' time, saves litigants' money, and saves the court from having to respond to numerous requests for information from court files, both at the court and by phone—and not just from parties and their lawyers, but also from the news media, and from business interests who collect court data.

"We have a long tradition of public access to case files in the federal courts with constitutional overtones," Hornby said.

Public access is a statutory requirement in bankruptcy courts. But, as the Supreme Court noted in the case of United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), paper files in court record rooms previously have enjoyed a "practical obscurity."

"This `practical obscurity' ends," said Hornby, "when the court records become easily accessible and searchable electronically from remote locations—anywhere in the world and at any time of the day or night. This end of `practical obscurity' for court records raises a number of policy issues that have been referred by the Judicial Conference to the Committee on Court Administration and Case Management."

One policy issue is created by the very nature of the Internet. Recently, a data reseller who subscribes to Public Access to Court Electronic Records (PACER) learned that a case it had downloaded was later sealed by the court. The paper file was no longer available to the public at the courthouse, but the electronic file was still on the Internet. "This particular data reseller agreed to remove the case documents from its website when it received notification of the later sealing of the case," said Hornby. "But there may well be others who will not be so willing to cooperate—plus, the information may already be circulating on the web."

The full implementation of the PACER Internet fee may present a partial solution to the privacy issue, because Internet users seeking access to court files will then have to register with the PACER center and pay a fee for usage. This may discourage the casual Internet surfer, but the issue of limiting access to data remains because commercial interests such as data resellers and the media may register to use PACER to download information and then make case file documents available to anyone on their web sites.

CACM's Privacy and Public Access Subcommittee, with its liaisons from the Criminal Law, Civil and Criminal Rules, Bankruptcy and Automation Committees, is reviewing the policies of the electronic case file prototype courts, as well as of a number of the courts that employ imaging technology. It has heard presentations from privacy experts, academics, government agencies, and attorneys. The subcommittee already has identified privacy and access concerns that exist across the board, from criminal and civil cases to bankruptcy and administrative cases. Medical records, financial and personal information, plea agreements that might reveal who is cooperating in a case, trade secrets and proprietary information—all may be accessible.

For example, in the U.S. District Court for the Eastern District of New York, a district that currently uses electronic filing, the Social Security Administration requested and was granted a standing protective order prohibiting the electronic filing of administrative hearing transcripts and litigants' briefs due to concerns about identity theft and claimants' privacy interests. The Social Security Administration also supports legislation prohibiting the ready availability of Social Security numbers via electronic access.

The subcommittee also has identified several policy issues. Among them, whether there should be different policies for electronic access than for paper access; should specified categories (e.g., criminal) be excluded from electronic access; should there be a waiting period before electronically filed information generally is accessible; and what to do about jurors surfing the web in the evenings during trial and deliberations and reviewing the pleadings in the case they are deciding?

According to Hornby, the subcommittee plans to address these and other questions, possibly in a public forum. "This is a complex issue," he said. "There are strong arguments on all sides, the technology is ever changing, and public sentiment is not yet well-defined."