The U.S. federal courts are quickly moving to create electronic case files and to provide public access to those files through the Internet. The Judicial Conference of the United States has been studying the privacy and security implications of vastly wider public access to these court documents via a Web-based system called Public Access to Court Electronic Records (PACER). In mid-November, the Administrative Office of the U.S. Courts solicited comments about PACER from the public, due by January 26, 2001.According to Dick Carelli, a spokesperson for the Administrative Office, 244 comments have been received and will be posted on the court's Web site (http://www.uscourts.gov), possibly by Wednesday, February 14. There will also be a public hearing on March 16, from 8:30 a.m. to 12:30 p.m., in Washington, DC, at which a number of those who submitted comments will be invited to testify. It's not surprising that the issue has attracted this flood of opposing views from advocates of privacy rights and First Amendment rights.
Case file documents, unless sealed or otherwise subject to restricted access by statute or federal rule, have traditionally been available for public inspection and copying, but easy access to the information via the Internet raises the stakes considerably for privacy and security concerns. Many federal courts already place documents online through PACER, but, under the current system, a user must log onto the appropriate PACER site for a particular court. Under the new PACER system being developed, users will be able to search all courts from a single site.
Individuals who seek a particular document or case file will need to open a PACER account and obtain a login and password. Public access through PACER will involve a fee of 7 cents per page of a case file document or docket viewed, downloaded, or printed. Electronic case files also will be available at courthouses' public computer terminals free of charge.
The Privacy Foundation (http://www.privacyfoundation.org), an advocacy group based in Denver, submitted extensive comments to the Administrative Office, urging it to consider the ramifications of the Internet availability of sensitive private data. The foundation recommended that the office appoint a national commission to review the balance between the public's right to know vs. an individual's right to privacy in regard to court records. "Each court should retain complete supervisory power over all court records with complete authority to deny public access to files, or portions of files based on present, well-established legal principles." The statement included a recommendation to implement a method of electronically editing out sensitive personal information—ranging from Social Security numbers to medical records—from court filings. "Given the alarming rise in identity theft, restrictions to sensitive-but-not-confidential information is essential."
The Electronic Privacy Information Center (EPIC; http://www.epic.org), a public-interest research organization in Washington, DC, filed a statement that supported broad public access to electronic case files, tempered with certain privacy safeguards. For example, the group stated: "Sensitive information required in a bankruptcy filing, such as Social Security and account numbers do not impart a meaningful social or political message to the public. These numbers are not needed by the public to evaluate the court system. In this context, the privacy interests in keeping this information secure outweigh the public interest in access."
Countering the privacy view was a lengthy statement issued by a prestigious group of journalist organizations that included The Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the Washington, DC Professional Chapter of the Society of Professional Journalists, and Radio-Television News Directors Association. Basically, the group urged that the court permit the same access via the Internet or other electronic technologies—for all types of files—that citizens have when they walk into the courthouse. The statement raised concerns that restrictive policies on access to information would violate First Amendment law.
While the group did prefer an option that would restrict viewing of Social Security, credit card, and other account numbers to only the last four digits, it pointed out that although this information is freely available in files that are at the courthouse, there has been no call for secrecy in the records. The statement stressed the great benefits for the public and the media to the improved access to court information, and urged a policy of openness. It provided a number of examples to illustrate that information contained in court records is of vital public interest.
A single system that provides easy electronic access to U.S. court records will be a boon for all. We can only hope that such a careful study of the issues and options will lead to a wise decision that balances the public and private interests. Watch here for reports of new developments.
