McGuinness & Associates, Inc.

There is an old joke that the difference between God and a Federal Judge is that God knows he’s not a Federal Judge. But Brian McGuinness, also an NCISS Legislative Committee member, was not deterred when appearing before a panel of seven such judges and an attorney, assembled from all parts of the country. Brian, who is president of McGuinness & Associates of Miami, and a past president of the Florida Association of Licensed Investigators, carried our message to the Subcommittee on Privacy and Electronic Access to Case Files, with the able backup of NCISS lobbyist Larry Sabbath.

The panel, a wing of the Committee on Court Administration and Case
Management of the Judicial Conference of the U.S., invited NCISS to participate with a cross section of national representatives of the legal, press, commerce, government and privacy advocate communities, on
Friday, March 16, 2001. The invitation followed the submission of a
position paper by NCISS on January 12, 2001.

In his opening remarks, Judge Lungstrum explained the purpose of the
hearing was to help determine policy on electronic access to court files in view of the privacy loss issue. It is evident that the panel is wrestling with how to better serve the interests of our citizens by taking advantage of technological developments while at the same time recognizing the privacy issues that are raised by full electronic access. Following the opinions NCISS expressed in its position paper, McGuinness acknowledged that we recognize the "expectation of practical obscurity that will be eroded through the development of electronic case files." In
other words, broadcasting files over the Internet is different than reviewing the file at the courthouse and we have to admit, could lead to abuses. The primary concern of NCISS is that the attention to privacy issues could
lead to restriction of access at the courthouse, as was proposed in Maryland recently. This fear was assuaged by Judge Lungstrum when he stated that some form of the current PACER system of docket information as well as access to files at the courthouse, would be continued.

Though the format allowed judges to interrupt at will, which precluded the reading of a lengthy statement, McGuinness was able to explain, and the judges seemed to understand, that private investigators are an important integral part of the civil and criminal justice systems.

It seems likely that there will have to be some means of controlling unlimited electronic access to files and that parties in interest will have that ability which is the prime benefit of this streamlining. The question is, who else will have access. McGuinness explained our position which is that if attorneys who are not representing parties in interest are allowed
electronic access, then private investigators should be allowed access. He noted that we favor some form of registration or subscription such as is done in the current PACER system. There are many security issues,
particularly with regard to criminal files, and Brian McGuinness was able to let the panel know NCISS does not favor complete, unfettered access to anyone in the world with a computer.

It is evident, from comments by the panel, that they are concerned about
access to identifying information which could be used for identity theft or other crimes, particularly from bankruptcy files. Charlotte Hardnett, Acting General Counsel for the Social Security Administration, testified that SSA has concerns about privacy of medical and mental health records as well as access to the consumer’s social security number. Fortunately, the panel seemed to understand that some form of positive identifier is necessary to conducting a proper investigation in any matter, though
McGuinness reports he feels they will limit access to social security
identifiers.

The Newspaper Association of America, represented by John Sturm, said they represent 2,000 newspapers and favor unrestricted electronic access to all files, 24 hours a day. It was evident by the grilling that followed that the panel is concerned about privacy and security in spite of the public interest expressed by the press.

It seems evident, as recommended by the Department of Justice testimony, that caution is indicated in approaching this issue and the Subcommittee is likely to take all issues and interests into consideration. This Subcommittee will submit their recommendations to four other committees for review this summer. Then, in September, the results of those deliberations will be submitted to the Judicial Conference which is chaired by Supreme Court Justice William Rehnquist. Our thanks to Brian McGuinness for sitting in the hot seat and the NCISS Legislative Committee including Brian who put in untold hours of preparation on our written submission which led to our invitation to testify.

(For more information regarding federal legislation and its impact upon the private investigative profession, please visit http://www.nciss.org