Privacy is the single most difficult issue confronting legal-information providers today. There is no resolution of competing concerns that will satisfy everyone. There is tension between the belief that it is important for the business of the legal system to take place in public view, on the one hand, and the need for individual privacy on the other. That’s at the center. On the edges you’ll find a collection of other agendas that complicate things no end; and even at the center, what we are talking about is a little more complicated than it first appears.
That “need for individual privacy” is not one thing; it’s a bundle. There are crimes that inappropriately shame the victim, such as rape, or where danger to the victim still exists should their identity or location become known. There are crimes where publicity serves to inappropriately extend the punishment of a perpetrator. There are dramatic circumstances in which it is dangerous to be known as witness or whistleblower, and many more less-dramatic settings in which the public nature of proceedings discourages the exercise of rights. And above all there is the threat of identity theft, which is now the main reason for public concern about public-records privacy in general.
And then there’s the question: “privacy in what?”. Not everything is a judicial opinion; courts generate a lot of other material that goes into the public record. Records of plea agreements are a good example of this. In January, the LII hosted a session with Peter Winn of the US Attorney’s Office in Seattle that talked about, among other things, the reaction to whosarat.com — a web site that exposes informants in criminal cases (Peter also had a lot of good things to say about policy in this area, and the video of the session is well worth viewing). In a recent paper, my colleague and co-founder Peter Martin discusses the aftermarket for court-created information among data-mining services — a less dramatic story, perhaps, but one that might tell of greater harm in the long run.
Many causes of harm are beyond the reach of policy, and a practical policy would account for that — very likely with an educational component involving judges and court administrators. These days, there is a lot of “collateral damage” — exposure of personal information that is unnecessary to the business at hand. This includes myopic court-administration practices like the recycling of personal ID numbers into document or case identifiers. In the texts of the opinions themselves, we often find unnecessary personal information about parties or (worse) others involved in the case. I’ve seen many instances where the violation of privacy has occurred in what amount to dicta, and involves someone who is not a party to the case and is not even particularly important to its story, much less its conclusion. These careless, inadvertent exposures will be the hardest to eradicate in the long run. And of course the “back file” of decisions written before widespread electronic distribution was even dreamt of is potentially expensive and difficult to redact.
Public legal-information providers are far from unanimous in their views on this subject, as recent discussion in an online group shows. The LII is a little idiosyncratic in this respect. First, we run into this much less frequently than many providers do, simply because we deal in the opinions of high-level appellate courts where problems are less likely to occur (by contrast with, say, the local Family Court). Second, we’ve taken an avowedly hard-line approach. We believe that the courts (Federal courts, in particular) have a strong obligation to deal with the issue. We won’t shield them from that. As a result, we never withdraw or suppress information that the court has made public. Our sympathies are very much with the victims — but the best route to relief for many is unrelenting pressure on courts to change their policies.
Not all courts are indifferent to these issues. Many, many state courts are making real progress, and some policies are masterful in the way they balance competing concerns. You can find many of them at sites operated by groups like the National Center for State Courts and EPIC. It’s instructive to see who was involved in discussion of the policies — take a look at the New York State Commission’s roster. You’ll find a reporter, the executive director of a domestic-violence shelter, an insurer, a publisher, a county clerk, and a Reporter of Decisions, among others.
The policies are best where the process has been open and representative. The worst policy, in the long run, is what we seem to be getting by default in some jurisdictions. If courts take the attitude that they simply decide cases, and will not concern themselves with the mechanics of promulgation, then privacy policy will be determined by publisher-vigilantes. This is unhealthy. However high their aspirations, or benign their actions, publishers represent no-one but themselves. It is not their business to determine what the de facto policy of the courts should be. Anything as difficult as balancing the fundamental principle of open court with the individual right to privacy should be decided in the open, with vigorous public involvement.
