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COMMENTS REGARDING THE PRIVACY AND SECURITY IMPLICATIONS OF PUBLIC ACCESS TO ELECTRONIC CASE FILES Submitted to the Judicial Conference of the United States
February 9, 2001
I. Introduction
With the rapid growth and development of the Internet and related software, we now have the tools to communicate at a pace and in a manner not previously envisioned. These electronic tools dramatically alter both the fundamental nature of communication in litigation and the substantive development, interpretation, and enforcement of new policies and needed protections that arise with increasing electronic capabilities. The transition to Case Management /Electronic Case Filing (CM/ECF) raises many new and challenging policy issues, particularly on the proper balance to strike between public access and privacy rights.
Open, remote, and anonymous electronic access to case file information has profound and unparalleled implications for the judiciary. The judiciary is the trusted custodian of a wide variety of case files that include highly sensitive data such as national security information, information about criminal activity and investigations, or intimate details about human lives. The problems associated with management of this information are complex and will require that the Judicial Conference give serious consideration to the judiciary’s role in managing and protecting this information. Simply substituting an electronic system for a paper system without undertaking careful planning with all interested parties will not take into account the important differences between traditional and electronic processes.
The Judicial Conference, through the development of the CM/ECF, has made great progress in identifying and addressing issues related to electronic communication of court file information among users. As part of that development, the Committee on Automation and Technology has asked for comment on the CM/ECF privacy and security implications of public access through the court website to case file information, comment on policy alternatives, and comment on the appropriate scope of judicial branch action in this area of privacy and security for court filings.
The Department of Justice views this request for comment as a critical step in an ongoing process of change. Short range, the issues are conditioned by existing paper files and their supporting rules and processes. The development of electronic tools for communication is now in the process of changing that paradigm. Long range, documents and pages will give way to information and encodings. The encodings, which may be XML taggings or some as yet undeveloped software capability, will operate with pieces of information and information display, rather than with documents as a whole. The courts and the executive agencies must start examining the future of information and encodings while simultaneously addressing short-range issues related to documents and pages. Coordinating analyses and responses to these issues will benefit the public and all involved in the administration of justice. We commend the judiciary on identifying the important problem of balancing the vital interests in confidentiality with access to electronic court files.
Specifically, the Department believes that the Judicial Conference should consider short-range and long-range strategies that are appropriate in the context of their respective times, with the anticipation that these strategies might be different. In fact, the Department of Justice suggests a specific short-range strategy for the next few years, discussed at greater length in Sections IV. B. and V., which will effectively continue existing access and may or may not be what we would suggest a decade hence. Under any circumstances, given our mission of the administration of justice and enforcement of the laws, all policies, both short and long range, should aim to allow governmental entities and law enforcement the same access to case information that is currently available.
II. The Department of Justice Perspective
The Department of Justice brings a very broad perspective to this debate because it encounters issues related to both the privacy and security of case-related information and public access to court information in several contexts:
First, as part of its law enforcement and other missions, during the investigative and litigation phases of a case the Department often handles information created and communicated by others that is protected from disclosure or has privacy implications when handled in contexts other than litigation. For example, the Department routinely processes grand jury information; investigative materials; trade secrets and other confidential business information; physical and mental health records, personal financial and other business records; government procurement materials; taxpayer information; proprietary information; and bankruptcy and other business records such as investment strategies and financial records. The Department is firmly committed to the appropriate protection of these materials from unwarranted public disclosure, but equally committed to allowing appropriate access for parties in interest, their counsel and governmental entities as well as law enforcement.
Second, the Department generates original court filings that have privacy implications. For example, pleadings, briefs, subpoenas, warrants, and other documents prepared by Department of Justice attorneys may contain personal information that in some instances might be considered sensitive, such as names, addresses, telephone numbers, Social Security numbers, and employment, medical or psychiatric histories. Case files may also contain parties’ settlement positions which are routinely confidential between the submitting party and the court, and not available to other parties. Indeed, in some circumstances, even people’s names might be considered too sensitive to be disclosed widely, such as the names of victims of certain types of crimes. In criminal cases in particular, some case file information may relate to grand jury materials, unexecuted warrants, plea agreements, or victim witness information for which there are clear needs for protection from disclosure to the general public.
Third, the Department plays an affirmative role in litigating cases involving the protection of personal privacy. In the Civil Rights arena and in cases involving Privacy Act violations, the Department of Justice is frequently called upon to protect privacy interests of litigants.
Fourth, the Department prosecutes "cybercrime" or "hacker" cases that involve unauthorized intrusions into computer systems or unauthorized alteration of data stored in those systems as well as cases involving identity theft. Identity theft is the use or transfer, without lawful authority, of means of identification of another with intent to commit unlawful activity. Examples of other types of cases that may fall within this general category include creditcard fraud and cyberstalking cases. To the extent court files are made available to the public electronically, they may become targets for those who wish to attack the confidentiality, integrity, or availability of that information.
Finally, the Department of Justice supports the public interest in appropriate public access to court records and the judicial system. Many cases that the Department of Justice litigates are brought to promote the public welfare, the environment, or consumer rights, and benefit from public availability of case information.
As a result of this variety of uses and needs for the information typically contained in court case files, the Department of Justice has a number of very distinct interests in the electronic availability of the information on the CM/ECF system: records access that facilitates DOJ mission performance; records protections that implement all applicable laws and policies; consistency with other federal government activities dealing with the same or similar issues; and fairly representing the public interest in an appropriate balance between public access and privacy.
III. The Inherent Tension Between Public Access and Privacy
The capability of open electronic access to all case file information, remotely and anonymously accessible by anyone at anytime, has far reaching implications for the justice system. While there has always been inherent tension between the need for public access to certain litigation materials and the need to protect private or sensitive information, the judiciary has made informed decisions about what should be released and to whom, with appropriate tools in place to implement those decisions.
Historically, a common law right has existed "to inspect and copy public records and documents, including judicial records and documents" Nixon v. Warner Communications Inc., 435 U.S. 589 (1978). Court records are presumptively open to the public for the express purpose of assuring that the public can monitor the integrity of the judicial system.1 That right is not to complete and unfettered access, but is a rebuttable presumption of openness. In the cases that discuss the right to public access, there is no declaration that access must be provided with state-of-the-art tools. Instead, the message is that where there is a determination that information should be available for review, access to the information should be provided.
Because new technology eliminates the built-in safeguards that have evolved over time in a paper system, the natural tension between the need for public access to case information and the need to protect certain case information has escalated dramatically. In the paper world, anyone seeking case file information must appear at the courthouse in person, request a file, in some instances sign for the file, and return the file intact. In addition to the practical limitations associated with this kind of one-on-one communication, certain inherent characteristics of a paper system cannot be minimized. Only one person at a time may handle the file, the requestor is at least seen and may sign for the information, further dissemination requires manual photocopying either by the requestor or court staff, and paper files simply are not as easily compiled, searched, and analyzed as electronic files. Furthermore, people who go to the sometimes extraordinary lengths required to get the documents are typically those with concrete interest in the litigation. Finally, some identifying information like fingerprints on a paper file, a signature on a sign out sheet, or a witness description may be retained in the event any improper use of information prompts investigation.
In this paper system of communication, there are also established, additional "tools" available to protect information from disclosure where there has been a legal or policy determination that information must be protected. For example, the Federal Rules of Criminal Procedure protect certain types of information at the outset and motions to seal2 allow parties to ask that certain sensitive information be protected from dissemination. A body of case law has developed to support sealing various types of information in criminal and civil cases.
In contrast, in the digital world current software capabilities, combined with the widespread use of the Internet, can allow any number of individuals to search and download numerous files, remotely and anonymously, and allow forwarding to multiple sites in minutes.3 While there are clear advantages to the justice system with some of these new capabilities, there may also be clear disadvantages. Differences in paper versus electronic system capabilities cannot be ignored when considering privacy and security implications for electronic access. Merely substituting an electronic system for a paper system without undertaking a business process analysis4, i.e., a thorough analysis of how and why litigation files are created, used, transferred or stored from all the various users’ perspectives, along with the policy implications, ignores the inherent differences between paper and electronic communication.
IV. Department of Justice Comments:
A. The Role of the Judiciary
The Judicial Conference efforts to gather information and examine these issues is the natural continuation of its longstanding role as the policy-making body for the federal courts in managing conflicting needs of public access and privacy. As the policy making body for the federal courts, the custodian of all case files for the judicial branch, and the systems developer of the CM/ECF system, the judiciary must continue to play a prominent role in examining and developing underlying policies for privacy and security of electronic case files that will affect access to those files and future systems development.
The approach to determining this policy should include the development of a vision for the use of the technology tools that expands beyond mere ease of use or records management, to maximizing the benefits of technology for all users--the judiciary, parties and their counsel, governmental entities and the general public-- while balancing the needs of public access with privacy concerns in the administration of justice. There are obvious benefits for all who participate in the justice system to finding and reading public documents over the Internet without physically going to a courthouse to obtain them. On the other hand, there are, and always have been, recognized concerns about the availability of case information.
The Judicial Conference should undertake a thorough analysis of objectives, constraints, and costs of access to case files and develop the underlying policies now that will allow systems development with necessary protections while enhancing the justice system. Once it develops an articulated vision with respect to the use of technology and its enhancement of the justice system for all users, the Judicial Conference must analyze the nature and content of case files and the appropriate dissemination of that information. That analysis should also take into account the federal records implications for case files, and the differences between the privacy and security aspects of cases that are in process versus those that are concluded and on their way to the National Archives.5
This analysis may take a variety of forms, including seeking public comment as the Judicial Conference has done here. We recommend that the analysis include identifying: the minimum information necessary to satisfy public access needs; certain types of information that have traditionally enjoyed privacy protections like social security numbers, proprietary and trade secret information, taxpayer information or grand jury material; and governmental and law enforcement needs for the information. We encourage the Judicial Conference to determine what, if any, information deserves special protections and what information should always be available, by what means and to whom.In conducting or commissioning the necessary thorough analysis of these issues, the Judicial Conference should focus on case information flow and risk factors related directly to concerns expressed in these comments. These kinds of analyses, traditionally used in the business world when converting from paper to electronic systems, can provide the judiciary with the necessary underlying information on which to base judgments and policies concerning public access and system development.
We caution strongly against proceeding to implement a system without carefully considering and addressing the vital privacy and public access interests that are involved. Although we believe that these interests can be reconciled, doing so may require careful analysis that is highly attentive to particular situations and interests, and a substantial effort in process design and corresponding technological investments. The result of this type of review will likely be that wide scale implementation of CM/ECF will require a combination of rules, policies, legislation and systems development in order to maximize the benefits of these technology tools for all users while balancing the interests of public access with those of privacy
B. Comments on Proposed Policy Alternatives
In its request for public comment, the Judicial Conference enumerated several alternative proposals in order to generate discussion about options in this area. The Department of Justice reiterates its recommendation for a long range planning process.
The following comments address the various proposals enumerated in the request for public comment. They are followed by comments on both specific types of information that may require certain heightened protections, and comments on business uses and access needs for governmental entities and law enforcement. Finally, we have provided a list of precautions to consider when evaluating issues in this area. For the purposes of responding to the proposals in the request for comment, we interpret electronic access to mean the current concept of remote, Internet-based access to information. As discussed above, other forms of electronic access could exist. We hope that these comments will contribute to the overall discussion on these very important issues.
Civil Cases
1. Maintain the presumption that all filed documents that are not sealed are available both at the courthouse and electronically. While on the surface this alternative appears to promote treating paper documents and electronic documents in the same way, this alternative does not take into account inherent differences between paper and electronic communications systems. In fact, because of the inherent characteristics of a paper system, and the expanded communication capability in a remotely accessible electronic system, simply substituting Internet access for paper without analysis of the real impact and building in appropriate safeguards effectively results in inconsistent treatment of the same information. While the Department of Justice favors approaches that promote openness, this approach even in the short term neither maintains the status quo nor provides a long-term solution. Also, for the reasons stated in footnote 2, we strongly disagree with using the traditional mechanisms of "sealing" documents to address the privacy concerns implicated by electronic access to civil cases.
2. Define what documents should be included in the "public file" and thereby available to the public either at the courthouse or electronically. The Department agrees that, in the long-term, public information in a case file should be available to the public regardless of the technology used to create or store the information, and the public should be able to take appropriate advantage of technological advances to access it. The underlying question of what information (we do not refer to "documents," because information will not necessarily reside in documents) should be publicly available will involve an extended public policy debate about the nature of the U.S. court system, public records, and privacy in an electronic age. Implementation of this alternative is not a simple process. For example, if a different balance between privacy and public access is drawn than current law provides, statutory changes may be required. It may also be necessary to design specific standards and technologies to distinguish public and private information within a particular document and to allow public information to be disclosed while maintaining the confidentiality of other information.
3. Establish "levels of access" to certain electronic case file information.
The Department supports this concept as an interim approach. For example, the Judicial Conference could provide enough basic case information on the public website to assist public users in determining whether to obtain further information from the courthouse file while allowing certain pre-approved persons (such as parties, their counsel, and law enforcement) access to the full electronic file. The "public file" should contain at a minimum, for example, the names of the parties and their counsel, the case number and the docket entries, and any other statutorily mandated information. This alternative would provide the most reasonable interim approach because it would continue to allow full access at the courthouse, yet begin to take advantage of the benefits of remote access. In addition, by providing "levels of access" during this interim period of analysis, as a practical matter the judiciary, all users and the system developers gain the benefit of actual testing of the system. The administrators of the system, however, should take particular care with regard to security in implementing this proposal. A system that provides levels of access could prove particularly vulnerable to abuse by outside individuals seeking to gain access to information from which they are prohibited, since that information would be available on the system to some people but not others.Finally, the Judicial Conference should consider the federal records aspects of case files, and the role and actions of the National Archives and Records Administration. The courts might wish to pursue a strategy that differentiates among cases in progress, cases that are concluded but whose files are still in the courts' custody, and concluded case files that are transferred to the National Archives. The burden of electronic access to case files of concluded cases might be shifted to or shared with the National Archives.
4. Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy and security interests. This alternative is premature for other than a "levels of access" approach. Beyond allowing for certain levels of access to electronic case files, any rule would require the same kind of analysis as that recommended above before there could be a sufficient determination of what the rule would control. Certainly at some point, there will likely be a need for amendments to the Federal Rules of Civil Procedure to implement whatever decisions are made about what should be available and to whom.
Criminal Case Files
1. Do not provide electronic access to criminal case files.
See response to Criminal Case Files proposal number two below.2. Provide limited electronic access to criminal case files.
When considering these two proposed options, the Judicial Conference should take into account the characteristics of criminal case files. Even when not filed under seal, criminal case files often contain sensitive information. A typical file may include victim/witness information, information that may identify the existence of investigations or informants, plea agreements that identify the cooperation of one or more defendants, grand jury material or tax information. Sealed criminal matters and case files may contain any or all of the above as well as wiretaps, sealed indictments, search warrant applications, applications for trap and trace or pen register orders and names of juvenile victims protected by the Victim/Witness Protection Act.6
The potential for harm to individuals or to criminal investigations and prosecutions by widespread dissemination of this type of information cannot be minimized. Thus, the analysis of what is available to satisfy requirements for public access must be carefully balanced against the potential for consequences far more serious than mere dissemination of private material. The Judicial Conference must consider the unintended consequences of setting up a system of unfettered remote electronic public access to criminal case files. With respect to any system of escalating privileges, whether password-based or otherwise configured, it must be assumed that unauthorized individuals will obtain escalated privileges. Accordingly, any decisions with respect to making court records available for remote electronic access must take into account not only ideal considerations (the degree of access the court would like to extend to the general public) but also practical ones (assessing the virtual certainty that any system will operate imperfectly).
It is realistic to anticipate catastrophic consequences in cases of inadvertent disclosure of certain information in criminal cases, particularly sealed criminal matters.7 When significant law enforcement operations are compromised, the loss is not only in the wasted government resources but in the continued victimization of the community. If the identities or even the existence of undercover agents, informants, cooperators or confidential witnesses, are disclosed, people will be threatened, intimidated and, not infrequently, murdered. Other sensitive or secure case information occurs in criminal cases involving national security issues where the release of that information may result in more widespread disaster to people and communities. On the other hand, there are compelling reasons to allow extensive access to case files to law enforcement during investigative stages, and legitimate reasons for allowing the general public access to basic or "core" information for purposes of monitoring the criminal justice system.
Bankruptcy Case Files
Full disclosure of debtors' financial and personal data – such as bank and credit card accounts, social security numbers, income sources, and medical and other expenses – is essential to deter fraud and enable creditors to recoup their fair share of available non-exempt assets. However, technological advances now allow sensitive personal and financial debtor data to be obtained by means never contemplated by the Bankruptcy Code and for purposes that bear no relation to pending bankruptcy proceedings. For example, it is now possible to engage in nationwide "data trolling" via Internet for virtually any information stored in unsecured databases.
In recognition of the impact of technology on the competing needs for public access and privacy protection, the Departments of Justice and Treasury and the Office of Management and Budget ("the Study Agencies") recently conducted a study of financial privacy issues in bankruptcy which makes recommendations related to public access to bankruptcy court files as reflected on the USTP website www.usdoj.gov/ust/privacy/privacy.htm. Some of the principles discussed in these comments are also applicable to civil case files (e.g., Segregating certain information from the public file).
1. Seek an amendment to section 107 of the Bankruptcy Code.
Amendments may well be needed, and should be explored, in order to achieve the proper balance between public access and privacy protection. Close coordination between the judicial and executive Branches is particularly important, given the need to consider law enforcement interests and other public policy concerns in balancing the competing interests of access and privacy, including the possible need to seek analogous legislative amendments.
2. Require less information on petitions or schedules and statements filed in bankruptcy cases.
The financial information that debtors most disclose in bankruptcy cases is the product of a long history and careful deliberation by the judiciary and Congress. Any decision toward reducing the amount of information, or eliminating certain elements, should be made with caution and only after careful consideration of how a specific change will affect the bankruptcy process, and only with safeguards to assure that a change will not invite fraud and abuse.
As opposed to changes in the amount and character of financial information required, the Department of Justice suggests that access to sensitive personal/financial information be limited to those directly involved with a case, such as creditors and parties-in-interest (subject to re-use and re-dissemination restrictions), as well as estate trustees and governmental entities.
3. Restrict use of Social Security, credit card, and other account numbers to only the last four digits to protect privacy and security interests.
Less information should not be required, and a reduction in the amount of data required of debtors could invite fraud and abuse. Rather, access to sensitive personal/financial information should be limited to those directly involved with a case, such as creditors and parties-in-interest (subject to re-use and re-dissemination restrictions), as well as estate trustees and governmental entities.
4. Segregate certain sensitive information from the public file by collecting it on separate forms that will be protected from unlimited public access and made available only to the courts, the U.S. Trustee, and to parties-in-interest.
The presumption should be that public access, whether manual or electronic, extends to all "core" documents relevant to understanding and monitoring judicial proceedings. Sensitive personal and financial information (e.g., Social Security numbers, account numbers, tax information, mothers' maiden name, etc.) should be deemed "non-core" data – without the need to obtain an order sealing such materials on a case by case basis – in view of the damage that could result from such material's misuse. Consequently, access to such sensitive non-core data should be limited to creditors, litigants and other parties-in-interest directly involved in the case (subject to re-use and re-disclosure limitations), as well as estate trustees and governmental entities.
Establishing "levels of access" could certainly be one means by which to limit access to sensitive non-core information to authorized parties. However, at least until the day when all court filings are electronic, analogous mechanisms should also be established to limit manual access to non-core data in paper files, possibly by redesigning forms to keep sensitive personal/financial information together in a separate part of the docket.
Appellate Cases
1. Apply the same access rules to appellate courts that apply at the trial court level.
The Department of Justice agrees with this recommendation.
2. Treat any document that is sealed or subject to public access restrictions at the trial court level with the same protections at the appellate level unless and until a party challenges the restrictions in the appellate court.
The Department of Justice agrees with this recommendation.
V. Input into process analysis:
In the long-range, we recommend that the Judicial Conference establish a commission or similar effort to define the issues, propose a vision, recommend policies, and suggest mechanisms to change existing processes and build new processes. This analysis should include, but not be limited to, understanding objectives, constraints, costs and benefits of case information flow and risk factors. It should also include analysis of the benefits and drawbacks for each of the following alternatives, along with other viable options: (1) maintaining the status quo; (2) local electronic access, i.e. access only by use of terminals at the courthouse; (3) limited electronic access with user registration and password; (4) Internet access with different levels of access; (5) Internet access to only certain categories of information; (6) Internet access in which the format provided would be restrictive, i.e. viewing and printing only whole pages; and (7) full Internet access in the context of current and projected technology capability.
We believe that while the Judicial Conference continues to study these issues it should at least maintain the status quo with respect to information contained in case files at the courthouse. In other words, there should be an interim or short term plan that allows what case file information is now available to the public at the courthouse to continue to be available to the public at the courthouse (whether the files are electronic or paper) with remote electronic access allowed for parties, their attorneys and governmental entities and law enforcement. This type of communication would at least mimic the paper environment. At the same time, the Judicial Conference should allow remote public access to certain limited or "core" case information like names of the parties, case numbers and docket entries. The Department of Justice does not recommend precluding use of the electronic systems completely pending specific policy and technical development of CM/ECF because that position would not support efforts to maximize the use of the technology. Moreover, not allowing any remote electronic access in the short term would also preclude the judiciary and other users from gaining valuable experience with the use of these tools.
The approach we recommend would establish new safeguards to ensure that access is equivalent in practice to that available now, but does not become so broad as to harm confidentiality and privacy interests. For example, the system could prevent the ready electronic manipulation of discrete information items contained within a page. Users might be able only to view and print whole pages. Publication might be inhibited and alteration made difficult and detectable. If human document viewers want to capture discrete information items, they would have to do so in an equivalent way to what is involved today with paper documents. The principle would index case files at the document level, not at the information item level. This is the specific short-range strategy mentioned above. A scenario for its specific implementation is presented in Attachment A.
Finally, we urge the Judicial Conference to recognize that as long as the same information that has always been available at the courthouse is still available at the courthouse, any decision to delay or limit remote electronic access through CM/ECF pending further analysis and policy development does not amount to a reduction in public access. With this premise in mind, the Judicial Conference should err on the side of limiting remote public access to electronic files until the thorough functional requirements analysis recommended above is complete.
Some of the issues we recommend for inclusion in the analysis follow.
A. Record Access that facilitates DOJ mission performance
1. Law Enforcement-
Foremost among the Department of Justice’s missions is the well being of all Americans and the enforcement of the nation’s laws. Access to criminal case files is crucial to the Department’s law enforcement mission and serves a wide range of valuable public and private sector functions. Law enforcement agencies frequently use an array of records databases to verify identities, detect fraud, track down criminals, and locate assets.
Any proposal regarding privacy and electronic public access to court files should state in clear and unambiguous language that not only is electronic access to information contained in court files needed by federal, state and local law enforcement, but that such access is entirely appropriate. In fact, since the primary focus of the Department is enforcement - civil, criminal and regulatory - clearly the Department, as well as the entire law enforcement community, must have access to the wealth of information contained in court filings. If any proposal restricting electronic public access to court files diminishes law enforcement’s access to those same records, specific measures must be crafted to ensure that law enforcement has continued access to those records.
2. Administration of Justice
Another critical element of the Department’s mission is the support of the federal justice system. Support of the justice system is multifaceted. It requires that all litigants and other participants in the judicial system provide information required by law, have access to information necessary to protect their interests so that cases can proceed expeditiously, that applicable requirements of confidentiality are protected, and that judicial decisions are based on admissible evidence. It also means that the operations of the justice system are open to the public, and that the public has confidence in the integrity and fairness of its courts.
A. Access by parties and their counsel - Parties and their counsel have a clear and unambiguous need for documents and pleadings filed in their cases. In addition to service requirements under the federal rules, the traditional notion of the fair administration of justice requires that parties be provided information about claims against them and all responses thereto. Considerations of counsel range from the ethical obligation to represent clients fully to the need to determine case strategy, to the underlying information that is necessary to prepare appropriate responses to pleadings or court orders, to standard business and ethical requirements that impose record retention obligations. Given a vision that contemplates maximizing the use of the technology, and the Department of Justice analysis of the impact of CM/ECF on its attorneys, electronic access will ultimately streamline the process of communication and potentially provide more efficient, less costly communication of critical information.
B. Access by Executive Agencies- While executive agencies may be or become parties to cases underway in the Federal Courts and thus, gain remote access privileges, these privileges must be defined and implemented. For example, the Department of Justice represents the Social Security Administration in litigation arising out of claims for Supplemental Security Income and Disability Benefits. In these cases, the Department of Justice attorney has access to the case files. The SSA has requested that its administrative transcript not be posted on the Internet because of concerns about identity theft and the sensitivity of the information contained in the files.
Nonetheless, the SSA has some need to access the information to carry out its mission. The SSA requires access to documents in court files in those cases where it is not the counsel of record in order to facilitate the payment of benefits ordered by the courts and otherwise comply with court orders. At times, the content of other court papers filed on behalf of the parties may be instructive regarding the meaning of court orders and access to this information would also be useful. This provides one example of the need to consider how to allow access for counsel and parties, particularly large governmental or corporate parties to an action.
C. Access by the public - In addition to the traditional, common law and constitutional principles that support allowing public access to case file information for purposes of monitoring the functioning of the courts and the legal system, there are other considerations that support public access. For example, citizens have a strong interest in knowing what is happening in their communities, who may be causing environmental (and in some cases health) hazards, and complainants or victims have an interest in knowing how a case is proceeding. In criminal cases, the private sector may use public record information to perform cost-effective due diligence on individuals and entities to prevent fraud, perform background checks and serve other legitimate business purposes. The press has long been entitled to access to information contained in court files (with certain limitations), and this right is fundamental to our system of government. These kinds of access needs should be considered when determining what information should be available to whom.
In addition, when considering public access needs, the Judicial Conference should review as well the method of access for persons with disabilities. Just as Congress has passed laws designed to shield sensitive personal information from unwarranted disclosure, it recently passed Section 508 of the Rehabilitation Act to ensure that federal agencies make their electronic information accessible to people with disabilities. While Section 508 does not apply to the federal courts, the underlying principle – that electronic information should be usable by everyone entitled to use it, regardless of disability – is important in any analysis of access needs.
For instance, scanning legal documents into an electronic format commonly results in an electronic image file that is inaccessible to people who are blind who use screen readers. The same documents – if they are generated electronically from the word processor instead of scanned into an image file – can generally be made accessible to people with disabilities with little or no extra effort.8 People with disabilities – including judges, attorneys, litigants, and others – will have limited access to the court system unless the Judicial Conference requires its members to adopt simple rules of electronic accessibility.
Finally, we urge the Judicial Conference to consider other issues that might have a negative impact on public access. For example, there has been discussion about charging fees for public access to CM/ECF case files. The imposition of fees would further limit public access to files because access, tasks and services that previously were free will no longer be available without cost. This may further serve to deter access where there is no policy determination that access should be limited. Significantly, to the extent that counsel for parties incur costs for downloading case documents that previously were provided to them by opposing or co-counsel under Federal Rules service requirements, parties may now incur additional costs just to maintain their case files and litigate their claims.9
D. Access in support of bankruptcy administration- The Department, through its United States Trustee Program, oversees the administration of one million bankruptcy cases through approximately 1600 chapter 7 trustees, and 200 standing chapter 12 and 13 trustees. The number of cases, the work required to administer each case, and the efficiency of the bankruptcy process depends on these trustees having ready electronic access to case information. Moreover, the Department is a representative of government agencies that are frequent creditors in bankruptcy, including the IRS, and those agencies would benefit from ready access to such data.
B. Records protection considerations:
1. Personal privacy interests-
There are currently dynamic and ongoing discussions in the legal, government, medical and business communities about privacy interests and access to sensitive personal information such as physical and mental health records, victim/witness information, and personal financial information. The Department of Justice urges the Judicial Conference to study the wide variety of information available relating to these issues both inside the legal system and in other contexts.
One source of information relating to the conversion of paper communications systems to electronic communications systems is the legal guidance provided to federal agencies by the United States Department of Justice in response to the Government Paperwork Elimination Act.10 The Freedom of Information Act and the Privacy Act, while they do not apply to the judiciary, may also offer useful guidance as the judiciary deals with these delicate privacy issues.
In addition, the Department of Justice recommends that the Judicial Conference undertake a review of the types of cases in the federal courts that may give rise to particular privacy concerns because of the nature of the information that is typically contained in case files. For example, at issue in many disability rights cases is potentially-stigmatizing personal information, such as mental health records, HIV status, etc. This information is often required as part of the case record, in order for someone to establish that he or she is a person with a disability protected by federal civil rights laws. Similarly, in Social Security Disability Claims cases, information relating to the claimed disability and supporting medical and personnel records are typically included in the administrative transcripts of the case. In bankruptcy and tax litigation, personal financial information that would be protected in other contexts is always a part of the litigation case file. While these records may be protected in other contexts by a matrix of federal and state laws, assertion of valid legal rights will subject them to full public disclosure. Many people with disabilities, or with records containing sensitive information, may well be deterred from asserting their legal rights in court if their private information is so easily and widely available on the Internet.
Examining these various categories of cases and determining what information is commonly found in what type of case will provide the Judicial Conference much needed input in the analysis of what information requires protection and at what level.
2. Protection against impermissible access - While access to case files and information is essential to the effective administration of justice, impermissible access–access that violates the rules of procedure and evidence–can undermine the integrity of the justice system. For example, protection of case file information from juror access during the proceedings is critical to the integrity of the jury system. Department of Justice attorneys try many cases to juries. Most criminal prosecutions that reach trial are jury trials and many types of government civil cases result in jury trials, like employment discrimination cases, civil fraud cases, Bivens cases, and other types of civil cases where the United States, even though not subject to a jury verdict, may be co-defendant with parties who seek jury trials. In any case, where there are non-sequestered jurors, there should be concerns about juror remote electronic access to case file information. Clearly, juror review of Motions to Suppress, Motions for Summary Judgment, or Motions in Limine and all supporting documents and affidavits will be detrimental to maintaining the integrity of the jury process.
In the traditional paper system, while a juror could theoretically go to the clerk of the court’s office and request case information, as a practical matter the one to one physical communication between court staff and jurors militates against those requests. Most jurors in most courthouses come to the courthouse for orientation, are seen by many members of the court staff throughout their tenure, and are required to wear some kind of identifying information while in the courthouse. In addition to the likelihood that a juror might be recognized, in many jurisdictions, anyone seeking paper case files must sign for them. This picture changes when the electronic case file system allows for remote and anonymous access by anyone at anytime.
C. Other governmental activities or interests:
The Department of Justice, Justice Management Division, has responsibility for systems security issues at the Department of Justice. The judiciary’s initiative on CM/ECF in general will clearly impact DOJ systems security, particularly in the area of privacy policy.
Protecting the data that is transmitted to the Courts, stored by the Courts and made available to the public will be a notable system security challenge for the Courts and to a lesser extent for all parties, including DOJ, in dealing with the Courts. Generally speaking, the threats to electronic information security are much more sophisticated than the security protections that are available and economically feasible to implement. Particular issues that must be addressed include data integrity (ensuring the data that is sent by a party is the data that is received by the Courts), data privacy (ensuring that only authorized parties have access to the data) and data availability (ensuring the Court system(s) storing the data are operating and are not attacked). The latter of the issues will be the greatest challenge because the very effort to make data available to the public electronically introduces risk. Likewise, the above issues apply to data that should not be made available to the public, but which the Courts still want sent to them via electronic means (civil case information that is sensitive or "sealed" grand jury information or other information that the judiciary deems sensitive and restricted but still subject to distribution to selected users).
It is noteworthy that the CM/ECF initiative will have a resource impact on the Department. It follows that any part of that initiative, including decisions with regard to how and what information may be accessed by whom plays a part in that impact. To the extent that decisions about privacy policies, procedures, rules and technology systems affect Department of Justice systems, coordination with the Judicial Conference on solutions that maximize the technology while promoting the fair administration of justice will become critical.
D. Changing privacy implications at different stages of a case:
As noted in section V.B.2., the need for protection of information contained in case files may change depending upon the status of the case or archiving requirements. Information that might require protection from juror access at one stage will not at another. The issue of juror access exists only as long as the case is pending. Once the case is complete, and the jury verdict rendered, any concerns about juror contamination are ended.
Also, by virtue of participation in litigation, certain information loses its protected status. For example, tax return information, previously protected by statute and included in the record is no longer confidential and in bankruptcy the submission of one's financial information is the necessary quid pro quo for the protection of creditor's interests.
E. Stakeholders in the CM/ECF Systems Development:
Given the wide variety of users and beneficiaries of the justice system, in conducting any business process analysis, the Judicial Conference should seek input from all stakeholders. The Department of Justice views the following as additional interested entities from whom representative views should be solicited on privacy interests and the system impact of CM/ECF:
1. All federal agencies, as such agencies may use case file information, be parties to litigation, or have an interest either in privacy protection or in public access.
2. State Courts
3. State and local law enforcement
4. State Attorneys General
5. Representatives of private sector attorneys, perhaps through the ABA and Federal Bar Associations
6. The Federal Public Defenders and Panel attorneys
7. Representatives of the public interested in the full range of privacy and public access issues (e.g., the media, consumer groups, environmental groups, businesses, victim/witness organizations, etc.)
F. Precautions:For some time now, the Department of Justice has been wrestling with the numerous issues involved in electronic case files, mostly in our bureaus. The experience has led to identifying some precautions that should apply broadly in the Federal government, and also specifically to electronic case file systems design in the judiciary. They are as follows:
1. What is recorded already on paper will not necessarily stay that way for purposes of use. The paper may be retained for archival purposes, but it is becoming increasingly cost-effective to make electronic "copies" of paper documents so that they can be used electronically. For example, the DOJ's Drug Enforcement Administration (DEA) recently made a substantial investment in performing a "back-file" conversion of a very large number of its case files to permit the files to be accessed and used concurrently and speedily in two or more offices. There may be instances where the courts will find it more cost-effective to convert paper files to electronic form than to handle conventional paper copies, for the same reason - to permit inexpensive speedy concurrent use by two or more persons.
2. Do not assume that all electronic case file information is or will be character-based. In electronic systems, data items such as those entered into forms are prescribed strings of letters and/or numbers. Similarly, word processing documents are strings of characters and spaces, combined with "control codes" that are themselves similar to language characters. Software that performs searches for data finds its "hits" by examining characters and numbers. By contrast, photographs, sound recordings, and image copies are recorded not as characters but as TV-like or fax-like scans of light and dark areas. If a document, even a word processing document or data form, is recorded in its scanned-image presentation, that recordation can not be searched directly for such character content as names, dates, addresses, or data numbers. In order to accomplish such searching, scanned (TV/fax-like) images must be processed in the same way that today's paper copies are processed. In fact, many of the documents in our DOJ case files are scanned image files, usually combined with some index data that is character-based. In the field of litigation support, evidentiary materials are more often than not scanned images of documents obtained in discovery. Such images are not searched directly, but by means of index data that was entered separately when the documents were imaged. This has a range of consequences. For example, because of the way scanned materials are indexed or searched, it may be more difficult to detect information requiring protection in such materials.
3. Case files will not necessarily be either all paper or all electronic. We expect that for many years to come, DOJ case files, and the case files of most attorneys and courts, will be mixtures of materials recorded on paper and materials recorded on electronic media not readable directly by the human eye. Making case files all electronic is expensive, because it requires not only converting all items, such as letterhead correspondence, to electronic form, but also requires the integrating electronic items that are encoded and represented in a variety of ways. Examples of the variety are e-mail, voice-mail, word processing, images, and Web pages. In today's world, someone seeking to combine all of these must usually resort to putting them all onto a CD-ROM disc, an effort that is not trivial. In DOJ, we are approaching case files with the expectation that many, perhaps most, will be mixtures of various materials and recordings, unless a strong business case is made for a homogeneous electronic file and format. It will therefore be necessary to devise procedures for linking or grouping paper and electronic file entries and for working with files containing materials of both types.
4. The NARA must be taken into consideration in systems design. We believe that the courts face very similar design issues to those faced by DOJ in respect to case files as federal records under the Federal Records Act. That law empowers the NARA to determine ("schedule") how long the records must be kept. For many, even all, cases, the records are deemed to be "permanent." Permanent records are the small percentage of all federal records that are taken ("accessioned") into the National Archives. When the records enter the National Archives, their ownership transfers along with them. The National Archives then pursues its dual objectives of making the materials available to the Public and preserving them for posterity. To support those objectives, the materials must be sent to the National Archives in one of the forms that it deems acceptable. If the sending agency, or court, has not been holding the materials in one of the acceptable forms, the agency or court will have to bear the cost of converting the materials into such a form. The suggested short-range strategy of publishing documents in a national-standard image format is a strategy that should be agreeable to the Archives. As to the long-range, NARA as a party should be involved in systems design activities for all "permanent" electronic records.
5. The nature and role(s) of the case file will undergo change. The most significant change with which all "case file" systems must come to terms is that in the world of paper documents and forms, a case file is a physical file. It is a gathering in one place of all the pieces of paper (or their photographic images) that contain the documents and forms in the case. By contrast, in the world of electronic information, a "case file" is a logical construct, not a physical one. Forms exist only as displays on a computer screen; their data contents are stored as separate data items in a database containing data items belonging to all cases. In fact, the data items may be spread across multiple databases, stored even in different computer storage boxes. Similarly, the documents in a case may be stored across different systems, different databases, and even different storage units. All the data items and documents in a case are brought together by software - software that uses sophisticated indexing and internal library management techniques all of which can be transparent to users, including judges and clerks.
As to the role(s) of case files, DOJ is already seeing how electronic case files can alter what had been "customary" processes. One example is in the noticing of counsel and parties involved in cases. In the world of paper files, the opposing counsel in a case are expected to send copies of pleadings to one another directly; whereas in the world of electronic case files the notice (which might originate from either the filer or the court) might be merely a notice that a document has been filed, which the recipient of the notice can read by accessing the case file where it is to be found.
The terms "push" and "pull" in the world of information technology refer to whether information is sent from one party to another at the discretion of the sender, or whether it is obtained by the receiver through an action at a time and place of the receiver's choosing. The judicial processes, heretofore paper-based, have necessarily followed the push model, including the sending of opinions and orders from judges as well as the sending of forms and pleadings to them. In the future, the courts together with the practicing bar are likely to find that some processes can be accomplished more cost-effectively and expeditiously under a pull model.
Furthermore, the role of electronic case files might differ from paper files as the justice system finds benefits in integrating the files with the events and record-keeping that can follow a jury verdict or judicial order. Electronic case files, or portions thereof, might play a direct role in such areas as victim rights, debt collection, prisoner management, and parole determination. Today, the justice system finds itself re-entering information at multiple points, from investigation to prosecution to conviction to incarceration to parole management. Electronic court case files as the official files of record might help the nation reap economic and performance benefits across the broad justice system. Information systems professionals refer to this as information sharing or information reuse.
6. Electronic filing and electronic case files are separate issues. Just because several forms or pleadings in a case are filed electronically does not mean that the case file must or will be itself electronic. Today, as just one example, it is almost universal practice to print out e-mail messages for filing with incoming paper correspondence. Also, as this is being written a major effort is underway in the legal community to establish standards for "tagging" electronic information to make the information easily recorded electronically and also readily interchangeable across jurisdictions. That effort is focused now on data items that are typically entered into forms, such as names, addresses, dates, and dollar amounts. The effort seems to be several years from standardizing textual documents, which by then are likely to employ color ubiquitously, contain multiple internal hyperlinks, and perhaps also contain such multimedia ingredients as sound clips and video clips.
Similarly, because a case file is electronic does not mean that all of its contents were or will be filed electronically. As noted above, the technology today can make it cost-effective in many situations to take paper documents and feed them through machines that create electronic images of them - machines that also "read" the character information (text) on the documents and even index the contents automatically. Therefore, the courts should maintain clear distinctions between the processes of filing discrete submissions from parties to the courts, and the processes of creating, maintaining, using, and keeping case files within the courts.
As a final precautionary thought, it should be noted that the subject areas of "privacy" and "security" are themselves undergoing change, especially with regard to the capabilities, tools, techniques, and norms for achieving levels of expectation or requirement. The DOJ cannot reliably forecast the security capabilities it will be using two years hence, much less at the end of this decade. We anticipate that privacy expectations will stay about what they are now, in 2001, but we have no expectations about how we will accomplish them in a multimedia world of unified e-mail and voice-mail, ubiquitous teleconferencing, ubiquitous video interactions and recordings, and Web-based transactions as the dominant modes of conducting business. As we approach electronic case files in our own operations we are mindful of dealing with a moving target, evolving rules, and shifting economics. That is why we encourage the courts to approach electronic case files as both a short-range (2001-2003) and a long-range (2004-2010) issue, with similar expectations that the two are different and will lead to different designs.
7. Strive for consistency between systems used in different jurisdictions. At present, the many federal courts are each adopting their own, sui generis approaches to electronic filing and case management. This creates numerous risks and inefficiencies. As explained, designing a workable electronic filing system that appropriately balances confidentiality, security, and public access interests will require extraordinary efforts. It is clearly preferable to undertake this task once rather than to attempt to reinvent the wheel repeatedly across jurisdictions. Moreover, as the DOJ GPEA guidance document explains, there are many pitfalls to designing workable electronic processes. If the judiciary concentrates its resources on designing a single system of high quality, it will be easier to avoid these hazards. Finally, the existence of multiple inconsistent systems also creates numerous other risks and costs; for example, it increases the risk of user error and cost of user training
Conclusion
We consider these issues to be very important, and do not believe that they are amenable to easy solutions. Although the problems can be solved, and the essential interests of access and privacy can be reconciled, doing so will require a very substantial effort (including a substantial investment of resources) by the courts, careful consideration of many particular situations and interests, and sustained consultation with the numerous interested parties. We appreciate the opportunity to comment and the efforts to address these very difficult questions. We look forward to continuing to work with the Judicial Conference on resolving the sometimes conflicting interests of privacy and public access.
Attachment A: Sample Scenario for Short term Public Access to Mimic Paper System
1. A Requestor logs onto court site and requests a specific case.
2. The site displays the list of available documents in the case file and the number of pages in each document.
3. The requestor selects the desired document(s) for his/her shopping cart and the desired photo image* format.
4. The site presents the secure order form.
5. The requestor enters the e-mail address to which the pages are to be sent.
6. The court e-mails the purchased pages as photographic images (mpeg or jpeg), that have been protected with an anti-exploitation mechanism.
* Because the photographic images we are suggesting as the sole means of electronic dissemination in this sample scenario are inaccessible to people who use screen readers and some other types of assistive technologies, courts must also consider how to provide the material, upon request, in an alternate accessible format (e.g., Braille, audio cassette, etc.). This will protect the privacy and security interests while ensuring that people with disabilities have equal access to the information.
Footnotes:
1For more in depth discussion of the common law right to access and its limitations see the Administrative Office of the United States Courts staff paper, "Privacy and Access to Electronic Case Files” available on the Internet at www.uscourts.gov/privacyn.pdf .
2While motions to seal information occur frequently in criminal cases, they are less favorably viewed in civil cases. Typically, a motion to seal in a civil case occurs in extraordinary circumstances. While, hypothetically, a motion to seal can be filed to protect information from electronic posting in a civil case, there is already evidence to suggest that the number of motions would be overwhelming to the courts and to the Department of Justice.
For example, the Social Security Administration has approached AOUSC and judges in CM/ECF pilot jurisdictions and requested that the administrative transcript in Social Security cases not be posted on the court website. The Social Security administrative transcript contains social security numbers, medical and psychiatric records, personnel and payroll records and other sensitive personal information.
There are currently about 12,000 SSA cases filed a year. The SSA expects up to 18,000 per year to be filed over the next several years. Filing routine motions to seal in that number of cases would unduly burden all users of the system–the judiciary, parties and their counsel. Furthermore, since each motion would be decided individually, there would likely be inconsistent treatment of similar information across the country.
The type of information contained in a Social Security Administration administrative transcript–medical records, mental health records, personnel records–is also information routinely found in other types of civil cases like employment discrimination cases and personal injury cases.
3The request for comments and the current electronic case files systems assume that electronic access will be an Internet based, remotely accessible system. Electronic access does not necessarily come in one form. Other alternatives, such as electronic access only at courthouses, or some other system could be considered.
4In the comments, we use the term “business process analysis” to refer to an analytical process for evaluating organizational proposals as described above. It is not meant to imply in any way that the system under consideration for the court generally should operate as “a business.”
5The National Archives takes full ownership and exclusive possession and control of the small (less than three percent) number of federal records that are determined to be "permanent." That determination is made by the Archives' parent regulatory organization, the National Archives and Records Administration (NARA), whose primary duty is to make record keeping rules for all federal records, under its Federal Records Act authority. The 97+% of federal records that never go to the Archives are "temporary" records regardless how long they are kept, and they remain always in the ownership and under the exclusive control of the agencies that created them. Court case files are permanent records, whereas many DOJ case files are temporary.
6While the potential for catastrophic consequences as a result of widespread dissemination of sensitive information in criminal case files cannot be minimized, the release of sensitive personal information contained in a variety of civil files might also prove equally harmful.
7For example, the mere disclosure of the fact that there exist sealed filings associated with an otherwise public criminal proceeding may be understood as a signal that a particular defendant has sought court-appointed alternative counsel in order to explore the prospect of cooperating with the prosecution. Violent criminals, whether as individuals or in organizations, are--by definition--ready and willing to act violently. A mere hunch that someone is cooperating with the prosecution, or contemplating doing so, could result in death. Such concerns are not hypothetical. See, e.g., United States v. Cintolo, 818 F.2d 980, 999-1000 (1st Cir. 1987) (describing evidence of Mafia underboss’s order to murder individual believed to be considering cooperating with prosecutors).
If there is any possibility of violation of access restrictions and given the potential for catastrophic consequences, the courts’ public dockets, whether paper or electronic, should not reflect the existence of sealed filings. Nor should the existence of sealed filings be reflected in any electronically stored docket (whether intended to be public or not) that is maintained in a computer system that is potentially subject to remote access.
8A more full explanation of the accessibility implications of electronic files appears at pages 5-7 of the Executive Summary of the Attorney General’s April 2000 report, "Information Technology and People with Disabilities: The Current State of Federal Accessibility" found at http://www.usdoj.gov/crt/508/report/content.htm.
9The Judicial Conference has not requested comments on its fee proposal and that proposal is not directly addressed here. However, the Department of Justice strongly objects to the current fee proposal for the reasons stated here, and for other reasons.
10This guidance was prepared by the Department of Justice, is entitled “Legal Considerations in Designing and Implementing Electronic Processes: A guide for Federal Agencies,” and can be found at http://www.usdoj.gov/criminal/cybercrime/eprocess.htm. A number of other GPEA guidance documents exist, including guidance prepared by the Office of Management and Budget and by the National Archives and Records Administration. These may also be helpful.
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