Articles

Bar Practice Of Putting Civil Case Files On The Web

Monday, November 12, 2001
by Marc J. Lane

Reprinted with permission from the November 12, 2001 issue of Crain's Chicago Business.

The federal judiciary's governing body has just adopted a policy calling for U.S. courts to
make civil case files available online. Anyone with a computer, a modem, and the petty cash to pay a 7-cent-a-page access fee will have the unfettered right to view just about any federal court file instantly.

There is no question that the public should share in all the benefits of information technology, but the Judicial Conference of the United States' ruling is irresponsible, if not downright dangerous.

The ruling betrays a fundamental misunderstanding of the differences between paper and electronic records. The simple fact is that electronic records can be exploited in ways paper records cannot.

Personal financial information, family histories and medical information can be inexpensively searched, sorted, compiled and transmitted by computer in nanoseconds. And unregulated and unaccountable "information vendors" are likely to create a profitable cottage industry overnight.

Traffickers in information can peddle mailing lists never before imagined. And with confidential information in hand, employers can automatically deny employment, and companies can automatically deny customers the opportunity to trade. No words of explanation or defense need be considered, and no one will ever be the wiser.

Ironically, the 27-member body, chaired by Chief Justice William H. Rehnquist, was to have debated the civil rights implications of the proposal at its meeting on Sept. 11, but before the group could get down to business on that fateful day, the U.S. Supreme Court was evacuated. The new rule was later adopted by a mail ballot and without any deliberation at all.

So now it's the official policy of the federal judiciary that the documents one can inspect in paper form at the courthouse are to be posted on the Web.

Fortunately, there are a few exceptions to the broad mandate. For one thing, Social Security cases are excluded from electronic access. For another, "personal data indentifiers" - - Social Security numbers, dates of birth, financial account numbers, and the names of minor children - - are to be modified or partially redacted by litigants.

Otherwise, court records will be available online to anyone interested in highly sensitive, often involuntarily divulged information, no matter what his motive may be.

The new rule invites lawyers to protect their clients by thinking twice before disclosing sensitive information when pleading their cases. And it encourages lawyers to seek protective orders sealing files where privacy and security concerns warrant.

But it will make it harder for lawyers to advocate their client's interests vigorously. And it will force litigants to rely more than ever on the vigilance of counsel and the discretion of judges.

The rule also stands to subvert the judicial process in a subtler, more invidious way. It will discourage meritorious lawsuits by engendering fear that private facts will be disclosed, and encourage frivolous lawsuits brought only to force private facts into an easily accessible public record.

What's more, the rule renders sensitive data vulnerable to the aggression of miscreants. Computer viruses, worms and even cyber-terrorism can undermine the integrity of courts' databases.

The Judicial Conference's members wisely held off on lifting a ban on remote electronic access to criminal files. They concluded that routinely allowing the public to scrutinize criminal files could compromise the administration of criminal justice. Defendants who are cooperating with the government might suffer reprisals, and targets of criminal investigations might learn about unexecuted search warrants and duck service.

But it's clear that the Judicial Conference acted precipitously in freely allowing civil case files to be viewed electronically. Its policy, although "official," is not binding on individual courts, so let's encourage our federal judges to proceed cautiously and safeguard our right to personal privacy.

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Marc J. Lane is a Chicago lawyer and financial planner and an adjunct professor of law at Northwestern University School of Law. His recently published book is "Advising Entrepreneurs: Dynamic Strategies for Financial Growth." He can be reached at [email protected]




 


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Copyright © 2001 by Crain Communications Inc.

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