ARCHIVED: Comments Regarding Policies Under Consideration to Address Privacy and Security Concerns Related to the Electronic Availability of Court Case Files

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Comments to the Judicial Conference of the United States
Committee on Court Administration and Case Management,
Subcommittee on Privacy and Electronic Access to Court Files
Submitted by the American Association of Law Libraries
January 26, 2001

The American Association of Law Libraries is pleased to have this opportunity to respond to the Federal Register notice for comments of November 8, 2000 regarding privacy and public access to electronic case files. We commend the Judicial Conference for seeking broad public comments on the privacy and security implications of providing public access to court case files through the Internet. We are pleased additionally that the notice articulates the complexity of these issues and proposes a variety of alternatives specific to civil, criminal, bankruptcy and appellate case files. We believe that the public input resulting from this open process of policy making and the proposal of various options for consideration by all stakeholders will assist the Judicial Conference in their deliberations towards determining a proper and equitable balance between electronic public access to case files and privacy concerns.

Founded in 1906, the American Association of Law Libraries (AALL) is a non-profit professional organization with over 5000 members nationwide that exists to promote and enhance the value of law libraries to the public, the legal community, and the world; to foster the profession of law librarianship; and to provide leadership and advocacy in the field of legal information and information policy.

AALL recognizes that the availability of legal information to all people is a necessary requirement for a just and democratic society. Accessible government information is not only an essential principle of our democratic society but also a valuable public good created at taxpayer expense. It is the obligation of entities in all three branches of government, including the federal courts, to ensure that government and legal information is permanently available to the public at no or low cost, in an easily accessible and professionally maintained environment regardless of format. Hand in hand with the judiciary's responsibility to provide public access to court information are the equally important citizen needs for the public oversight of justice, the accountability of the courts and the public's trust and confidence in the judicial system.

Concurrent with AALL's strong commitment to the public's right to access government information is our equally strong belief that public access through the Internet must be tempered by privacy rights concerning personal information held in government files and private sector databases. We support strong federal and state privacy laws that insulate sensitive personal information from a world of interconnected databases. We support the goal of the Judicial Conference to determine the proper balance between the responsibility of the federal courts to provide broad, equitable public access to information and case files and to protect citizens from harm that may result from broad public access to personal data identifiers, such as Social Security numbers, that may be contained in these records.

Need to Improve Public Access to Court Information and Case Files

AALL has long been committed to improving the public's access to government and legal information from all three branches of government, and particularly from the courts. Historically the federal courts have been slower to embrace new technologies to improve public access than Congress and executive agencies. For that reason AALL is very proud that several law libraries located strategically throughout the country initiated a model project in 1994 to make permanently available through the Internet, at no cost to users, the slip opinions of all federal appellate courts.

Since that pilot project began, use of the Internet to provide access to government and legal information has grown exponentially. It is encouraging that over the course of the past several years, more and more federal courts have developed and maintained publicly accessible web sites that are becoming increasingly comprehensive. We are pleased to note that many courts are committed to providing Internet access to valuable information at no cost to users. Another indication of the courts' increasing use of the Internet to provide access to information is the relatively new official U.S. Supreme Court web site that was unveiled last spring. We applaud the progress the Supreme Court has made since then to enhance the site with additional important content.

The growing trend of Internet use by the public and the legal profession demonstrates the need for the federal courts to move forward expeditiously towards a more electronic environment for remote users. We are pleased to note the addition of important content to court web sites, including case files, available through the Internet. However, we strongly urge the Judicial Conference to set a common standard across all federal courts to ensure that final decisions, not just the slip opinions, are posted on the Internet for broad public access.

Challenges of Electronic Public Access

While we commend the progress of the courts to provide more information through the Internet, including posting case file documents, we are confidant that the Judicial Conference recognizes the important responsibility to ensure the authenticity and integrity of all electronic court information, in addition to the recognition of privacy concerns. Electronic access through the Internet is a powerful capability to capture and broadly make available to the public massive amounts of personal information about individuals. We share the Judicial Conference's concerns that enhanced electronic access to case files may provide individuals and commercial entities the opportunity to disclose and exploit personal information. We believe that individuals must be aware of and be able to control how their personal information is disseminated and used. We see potential harm to individuals when: 1) commercial entities collect and aggregate a variety of publicly available personal information into personal profiles that are sold for profit; and 2) publicly available personal information leads to criminal activity, such as identity theft or stalking.

Of equal concern to protecting the privacy of individuals from these abuses, however, is determining a proper and just balance. The courts should not overreach and use privacy as a scare tactic to seal records that should be available to the public or to the press for legitimate purposes. We do not believe that the courts should abridge First Amendment rights to public court records even though there are complex privacy considerations. Certainly the media, citizen groups, the general public, employers seeking information for background checks or investigators use information derived from court records for legitimate purposes.

Misuse of Personal Information Causes Harm

There are many types of sensitive personal identifiers that, on there own, pose great risks to the loss of privacy; when aggregated, the risk of personal harm likely is increased. Unfettered public access through the Internet of an individual's Social Security number, date of birth, medical records, ethnic or racial identification, credit card numbers or other financial information can lead to a loss of privacy, to identity theft or other crimes, such as stalking.

An egregious recent case of identity theft is described in the written testimony of Michelle Brown for the July 12, 2000 hearing on "Identity Theft: How to Protect and Restore Your Good Name" before the Senate Committee on the Judiciary's Subcommittee on Technology, Terrorism and Government Information (http://www.privacyrights.org/victim8.htm). While not directly attributed to the loss of personal information contained in court records, it is nonetheless an illustrative example of the personal harm caused by the growing number of identity theft cases.

The perpetrator stole Ms. Brown's personal identifiers from the property management office of the victim's landlord, and then used this information to obtain over $50,000 in goods and services, to rent properties, to get a duplicate driver's license and to engage in federal criminal activities. When the perpetrator was arrested in Texas for smuggling 3,000 pounds of marijuana, the arrest was recorded in the victim's name. Even after the identity theft was revealed to the criminal justice system, the perpetrator was still booked as an inmate under the victim's name and continued to use the victim's name on her prison correspondence. At one point, the victim was even detained at the Los Angeles Airport (LAX) by U.S. Customs officials because the DEA had posted a lookout for her in the system.

Press releases issued by the U.S. Department of Justice (DOJ) include a myriad of other examples of identity theft:

http://www.usdoj.gov/usao/cac/pr/061.htm � A woman falsely used another's SSN to get thousands of dollars in credit, and then declared bankruptcy in the victim's name.

http://www.usdoj.gov/usao/cac/pr/pr2000/016.htm � A man stole private bank account information about an insurance company's policyholders and used that information to deposit three-quarters of a million dollars in counterfeit checks.

http://www.usdoj.gov/usao/fls/TERKESHALANE.html �A woman obtained a fraudulent driver's license in the name of the victim and then used the license to withdraw over $13,000 from the victim's bank account.

These are not unique examples of the crisis in identity theft caused by the misuse of personal information found in public records or commercial databases. In a letter to the DOJ dated September 22, 2000, staff of the Federal Trade Commission's Bureau of Consumer Protection noted that the FTC's free hotline for reporting identity theft incidents averaged over 1,000 calls per week during the months of July and August 2000 (http://www.ftc.gov/be/v000013.htm).

Stalking is another serious crime that may occur when a potential victim's personal information is easily available through public records. The classic example is the 1989 murder of actress Rebecca Schaeffer, whose stalker found her unlisted address through California motor vehicle records. Her murder led to enactment of the 1994 Driver's Privacy Protection Act, upheld by the Supreme Court last year. Another stalking incident that has received considerable attention, and spawned failed federal legislation, is the murder of Amy Boyer, whose stalker obtained personal information about her from a company called Docusearch. Details about how the Docusearch service operates and the type of personal information it sells are included in the statement of Robert Douglas during the September 13, 2000 hearing on "Identity Theft and Related Financial Privacy Issues" before the House Committee on Banking and Financial Services (http://www.house.gov/banking/91300dou.htm).

Striking A Proper Balance Between Access and Privacy

Before commenting specifically on the various options proposed in the Federal Register notice, AALL has reached several conclusions:

First, we believe that there is a need for national uniformity across the federal court system and that the sealing of records on a case-by-case basis is not the optimum solution. It would be far preferable for the Judicial Conference to institute uniform practices for district courts rather than relying on the conscientiousness of counsel or pro se litigants to make sure that sensitive information is protected, or upon the discretion of judges to protect privacy interests.

Second, the content of electronic court files should be identical, whether they are publicly accessible at the courthouse or through the Internet. As noted earlier, case files may contain sensitive information such as Social Security numbers, medical information, financial records or other personal identifiers. In addition, while public access to electronic records may appear on the surface to pose a greater threat to privacy, if sensitive personal information is contained in a print record that is publicly available at a courthouse, it is likely to find its way into aggregated databases of personal profiles. Therefore the specific types of personal identifiers and other sensitive data that may cause an individual harm should not be made part of the public record in any format.

Third, we urge the Judicial Conference to consider a hybrid solution among the various options that have been proposed, with special consideration as to who the user is and what use would be made of the personal information. We note in Los Angeles Police Department v. United States Reporting Publishing Corp. (528 U.S. 32) the Supreme Court found no defect in limiting access to public records based on state law requiring users to show "the request is made for a scholarly, journalistic, political, or governmental purpose or . . . for investigation purposes." To protect privacy, the California law in question requires users to declare that no address information obtained from records would be used to sell a product or service.

Similarly, we see the possibility for a hybrid solution wherein certain types of personal identifiers � such as Social Security numbers, medical records or financial information � would be isolated into a private file to which there would be separate levels of access depending on the requestor's relation to the court and his or her purpose. For example, we believe the court and certain key participants in the judicial process might be granted unlimited access to certain files, while access by other persons would be restricted. Such private files could be password protected to allow remote access by legitimate users.

Fourth, the Freedom of Information Act (FOIA) and the Privacy Act that govern the public disclosure of executive branch records may provide instructional models for the Judiciary. We believe that the Judicial Conference may wish to investigate the possibility of legislative provisions similar to FOIA and the Privacy Act that would permit the disclosure of electronic court files for certain legitimate purposes while guaranteeing that sensitive personal information contained in them would be redacted.

Proposed Options for Civil, Criminal, Bankruptcy and Appellate Case Files

Civil Case Files

AALL does not support Option 1, the case-by-case sealing of specific documents, for the reasons noted above. We believe that national uniformity is a desired standard.

We support Option 2 to the extent that it would make available the identical "public file," whether accessed on-site or remotely through the Internet. Common guidelines would have to be developed to determine the contents of the "public file" and/or the types of sensitive personal information that would need to be redacted from the records. This option would likely be very burdensome for the courts, however.

Option 3, suggests different levels of access that would permit electronic remote access by legitimate users�the judges, court staff, parties and counsel�but properly restrict certain sensitive case file information from broad electronic access by the general public. We disagree, though, with the concept of this option to make the complete electronic file available on-site for public review. As noted earlier, sensitive information available on-site in these electronic files will easily work their way into aggregated databases, thus the potential for harm to personal privacy would still exist. We believe that such sensitive information as Social Security numbers, date of birth, medical or financial information, or employment or tax records, should not be available to the general public in any format.

Option 4 regards the possibility of amending the Federal Rules for Civil Procedure. It is our understanding that it would likely take two to three years for a recommendation by the Judicial Conference for any amendment to the Federal Rules for Civil Procedure to be approved. The urgent need for a more timely resolution to the important issue at hand would seem to exclude this option from your c consideration.

Criminal Case Files

It is clear that public access to criminal files may threaten the client's right to privacy. We support Option 2, which provides limited electronic public access to "public file" documents while restricting access to potentially harmful information to the parties, counsel, certain court employees and the judge. As with civil case files, we believe that the content should be the same, whether the documents are available on-site or remotely through the Internet or other electronic means.

Bankruptcy Case Files

Broad public electronic access to bankruptcy case files involves the greatest threat to the misuse of personal identifying information. Bankruptcy case files include a wide scope of personal financial and other sensitive information that, we believe, should not be part of the public record in any format. The high risk of identity theft to commit fraud or other unlawful activities from unfettered public access to information common to bankruptcy case files�such as Social Security numbers, bank account and credit card information, etc...�outweighs the public's right to access this information.

The Office of Management and Budget, the Department of Justice and the Department of the Treasury recently released a Study of Financial Privacy and Bankruptcy (January 2001). This Study proposes recommendations on how a better balance can be struck between public access to bankruptcy case files and privacy protection. We agree with its major findings, including that the general public should not have access to highly sensitive information that poses substantial privacy risks and that access by interested parties to non-public sensitive data be subject to re-use and re-disclose limitations (p. iv). The Study, mirroring our own comments, further distinguishes between three basic models: restricting access based upon the content of the information, the identity of the recipient of the information, or the recipient's intended use of the information.

We agree with many of the Study's recommendations and would like to point out two that are especially pertinent: 1) that when parties in interest have access to a wide range of non-public information, they should generally be prohibited from reusing or re-disclosing the information for purposes unrelated to administering the bankruptcy case; and 2) that detailed information that appears in a bankruptcy filing should be available to researchers in a way that does not identify the individuals.

Of the options proposed for bankruptcy case files, we prefer Option 4 that would require the segregation of certain personal information from a "public file" by collecting it on separate forms that would be accessible only to the courts, the U.S. trustee, and the parties.

Appellate Case Files

AALL supports Option 2 which applies the same access rules to appellate courts that apply at the trial court level but allows a challenge by the appellate court to any restriction.

Conclusion

AALL strongly supports the progress that the federal courts are making to provide broad public access to their records, including electronic case files. Indeed, it is the affirmative obligation of the Judiciary to ensure both current and permanent public access to these records at no or low cost. It is quite clear that electronic public access to government and legal information is a growing trend and that the American public expects to locate and to gain access remotely through the Internet to more court information than is generally available today. However, increased broad public access to court records through the Internet, including case files, poses a potential threat to individuals by making sensitive personal information easily available in ways that result in a loss of privacy and potential harm. We commend the Judicial Conference for its concern for the protection of privacy as it seeks to improve access to court records.

Thank you very much for the opportunity to comment on various policies under your consideration to address the need for balance between the electronic availability of court case files and personal privacy and security concerns. AALL President Robert L. Oakley, Director of the Law Library and Professor of Law, Georgetown University Law Center, would be very interested in participating in any subsequent public hearing held by the Judicial Conference regarding these complex issues.

Submitted by:

Mary Alice Baish
Acting Washington Affairs Representative
American Association of Law Libraries
Edward B. Williams Law Library
111 G Street, NW
Washington, DC 20001-1417
PH: 202.662.9200
FAX: 202.662.9202
baish@law.georgetown.edu