McGuinness & Associates, Inc.

A hearing on the privacy and security implications of a plan to grant the allow public Internet access to all US court documents became a virtual court battle today. Journalists, lawyers and investigators all fought charges that the new system would only encourage illegitimate uses of detailed personal information.

The panel at today's hearing, made up of eight judges from several subcommittees of the Judicial Conference - the policymaking body of the Judicial Branch - kept witnesses on their toes, interrupting opening statements and peppering speakers with tough questions.

The panel's most frequent question was whether documents, which already are publicly available at the local courthouse, pose a greater privacy and security threats to litigants when published online.

Most witnesses today said documents found at the local courthouse should be made available online. There was far less agreement, however, on the extent of information that ought to be included in online records.

Chris Hoofnagle, staff counsel for the Electronic Privacy Information Center (EPIC), said Social Security numbers and any other "personal information" that could facilitate identity theft or financial fraud should be erased from online records, a suggestion supported by the majority of witnesses.

But US District Court Judge James Robertson asked how the court should define "personal" information when the documents to be made available include bankruptcy files, criminal records, and divorce proceedings, as well as medical and health conditions. These often are in play during Social Security eligibility appeals, he noted.

Several groups, including EPIC, the American Association of Law Libraries, Trial Lawyers for Public Justice, and the Electronic Frontier Foundation said they would favor some sort of "hybrid" system. It could allow for the removal of Social Security numbers and bank account information from online documents, while preserving public access to the entire physical record at the local courthouse, they said.

Brian McGuinness, a private investigator representing the National Council of Investigation and Security Services, noted that Social Security numbers are the primary identifiers connecting individuals to a wide range of crimes across state boundaries. Removing them from the public record, he said, would take away one of the primary tools used by investigators and law enforcement.

McGuinness also warned that information brokers and criminals might employ automated search tools to cull sensitive information from the online files for use in any number of fraudulent schemes.

"You're going to need to have top-level programmers working on this to be able to deter hackers and trolling software from mining this information," McGuinness said.

McGuinness added that with the exception of judicial opinions and final judgments, all other documents should be restricted to lawyers, investigators and law enforcement.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said while she was willing to concede that including Social Security numbers in online records was "a losing political battle," all other information - even in criminal records - should remain in the online files.

Committee Chair Judge John W. Lungstrum, D-Kan., noted the court records first began to move to electronic format in civil cases, where records tend to be more voluminous than in criminal cases. Moreover, he said, criminal cases often contain information that can implicate potential "snitches," or others who might suffer retribution.

Dalglish said in such cases the court should use its discretion to issue a protective order or otherwise seal the sensitive documents, noting that the "trade off" in the American justice system is that "often the greater harm is produced by secrecy than by openness."

Many federal appeals, district and bankruptcy courts already place case documents online using their own versions of a prototype of the system, known as the Public Access to Court Electronic Records or "PACER" system. However, users searching for a case must log onto the PACER site for the court in which those documents were filed. In addition, most documents currently available through PACER are limited court dockets, rather than the full record of court proceedings.

By 2005, the Administrative Office of the Courts will have completed work on an integrated PACER system, which will, for a nominal fee, allow users to search virtually all court documents from a single site. So far, only eight of the 201 US federal, district and appellate courts have converted to an all-digital, publicly accessible court document database.

Jonathan Meyer, deputy assistant attorney general of the Justice Department's office of policy and development, referenced a recent study by the DoJ, the Treasury Department and the Office of Management and Budget (OMB), which found substantial privacy concerns in public bankruptcy filings.

Meyer urged, as an interim solution, that the Judicial Conference limit public access to electronic court files containing decisions and judgments. In the long term, he suggested a separate commission be created to study the issue further.

Lungstrum and other judges on the panel were clearly miffed by that.

"While I sympathize with what Mr. Meyer said about an ongoing need for study … the truth is a lot of this stuff isn't a matter that needs study, it needs analysis and decision," Lungstrum told Newsbytes following the hearing.

"In the end," he said, "we simply need to move forward, because the world doesn't wait for us. There's going to be electronic case filing whether we come up with a policy recommendation or not."

Lungstrum said the subcommittee will make its recommendation to the Judicial Conference by September.

In the meantime, however, lawmakers on Capitol Hill could trump any decision by the conference through any one of a half-dozen bills currently in play that would restrict use of Social Security numbers and other "sensitive" and "personal" information in public records.

George Wallace, an attorney representing the American Financial Services Corp., told members of the subcommittee that he was altogether uncomfortable with the judiciary's role in the decision, given the traditional "checks and balances" placed on the judiciary branch over the public's right to access court records.

"I'm very concerned about the Judicial Conference taking a position on this issue, and there's a certain lack of fairness about adjudicating on this," Wallace said.

"While Congress often makes sausage rather than clear rules - and we may laugh at the accommodations they do make - they are very concerned about this issue," he said. "Even if you do not act, Congress is likely to do so, and that is the more appropriate way to resolve this issue."