Privacy vs. access

The days of poring over federal case files at the courthouse may eventually be a thing of the past. In the future, accessing these documents may require no more than an Internet connection.

The U.S. Courts are moving to create electronic case files and to provide public access to those files via the Internet. So far, the plan has received mixed reviews from the public.

During the next few years, most federal courts will begin to put in place a new case-management system called Case Management/Electronic Case Files. The system gives each court the option to create electronic case files by allowing lawyers and parties to file their documents via the Internet.

The public will access the electronic files for a fee, primarily through an existing Web-based system called Public Access to Court Electronic Records. Electronic case files also will be available free at public computer terminals at courthouses.

In November, the Judicial Conference of the United States—the policy-making arm of the courts—asked for public comment on the privacy and security implications of providing electronic public access to civil, criminal and other court case files and presented several scenarios under consideration for each file type.

Creation of electronic files means that the files may be viewed, printed or downloaded by anyone, at any time, via the Internet.

The courts received 240 responses (available at www.privacy.uscourts.gov/ matrix.htm) reflecting wide-ranging interests and concerns. For example, one user wants the majority of the files sealed, while another thinks the courts should restrict the number of files available for downloading by a user during a 24-hour period. Still another respondent supports making all court records available on the Internet. Other responses include:

John Frank, a lawyer with Lewis and Roca LLP, Phoenix, said electronic access to case files may encourage fraud. "There is a concern that this device will make it very easy for persons with no legitimate interest to obtain financial information about "targets' for possible fraud," he said. Norman Mayer, clerk of the court for the U.S. District Court, Eastern District of Virginia, speaking on his own behalf, said a balance must be maintained. "It is my belief that privacy protections should be put in place on electronic court records, restricting public access where the privacy interests outweigh the public's interests in openness," he said. "Sensitive personal and business data need to be protected before electronic records are made accessible." The Newspaper Association of America recommended that the courts follow the same access policy for electronic case files that it applies to paper files. "Electronic access to court records should complement—rather than mitigate—the important interests that are served by openness," according to the association. Chris Hoofnagle, staff counsel at the Electronic Privacy Information Center, said citizens and public officials are becoming aware of and more sensitive to the privacy issues associated with using the Internet. Foresight and planning are important to ensure that the proper balance is maintained, he said. EPIC "supports open access to government, but certain privacy must be in place," Hoofnagle said. "Whether or not the technology will work for us depends often on the rules that you set from the beginning regarding [such things as] access, security and use limitation."