Judges push online case file limits

A committee of federal judges has recommended that courts limit the case information they place on the Internet, according to a report released last week.

The recommendations, made by the Judicial Conference of the United States' 14-member Committee on Court Administration and Case Management, reflect a growing concern about the privacy and security of providing electronic public access to court case files.

They also are the first step in creating a nationwide policy for electronic availability of federal court case file information. The Judicial Conference — the official policy-making body for federal courts — plans to vote on the recommendations at its Sept. 11 meeting.

The recommendations include:

* Documents in civil and bankruptcy cases should be made available electronically to the same extent that they are now in courthouses. But Social Security cases should be excluded from electronic access. In addition, personal identifiers, such as Social Security and financial account numbers, should be modified or withheld from civil case and bankruptcy files.

* Public remote access to documents in criminal cases should not be available.

* Appellate case files should be treated at the appellate level just as they are at the lower level.

The panel's recommendations would not change the way users access court docket sheets through the fee-based Public Access to Court Electronic Records (PACER) system or court opinions through various Web sites. Likewise, the availability of case files at courthouses would be unaffected.

The Judicial Conference's moves were spurred by the fact that during the next few years, most federal courts will install Case Management/Electronic Case Files. The system gives courts the option to create electronic case files by allowing lawyers and parties to file their documents via the Internet.

Paul McMasters, an ombudsman at the Freedom Forum's First Amendment Center, said he's disappointed by the recommendations. It's a mistake to distinguish between "access to public records in paper files distributed throughout the country and access to the same files in a different medium," he said. "It also flies in the face of maximum access to records vital to understanding of the justice system."

Electronic access to criminal and civil records should be treated the same way, McMasters said. "These are records of public events, conducted by public officials about issues of public significance," he said. "And I think that means that a very compelling evidence of true danger or damage has to be put forth before [these] kinds of restrictions should be put on these [criminal] records."

Nor has it been proven that because it's now more convenient to access these files, that it's also more dangerous, McMasters said.

But the proposed policy "recognizes the significant privacy interests raised by providing public access to electronic case files," countered Chris Hoofnagle, legislative counsel with the Electronic Privacy Information Center.

Hoofnagle said he hopes, however, that the courts address one privacy risk. When citizens use the PACER system, they leave an electronic trail, which can be used to determine who accessed certain information. "The important question is if there will be an audit trail," he said. "What protections will be [in] place to protect the anonymity of the users [from] outside commercial interests or other parties?"

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