INTERNAUT

Nothing is private in online court records

Shawn P. McCarthy

Should court records across America be available on the Internet? Many already are, but the effects of such postings are drawing scrutiny.

Court records ostensibly are no different from any other online government information. If people can read Senate voting statistics or Federal Register entries on the Net, why not court documents? And they're freely available at courthouse counters anyhow. The Internet just adds convenience.

But some privacy advocates say online court records violate an important boundary. Such records contain Social Security numbers, medical information, income statements and divorce histories.

Which bits of information should be fully public and which partly private? Most agencies have rules about what can be shared, but there is no agreement on how the data should be tagged and stored.

One catalyst for the court records debate is a year-old Web service called Public Access to Court Electronic Records, at www.pacer.psc.uscourts.gov/pacerdesc.html. PACER provides case and docket information from federal appellate, district and bankruptcy courts, and from the U.S. Party/Case Index. Subscribers can download and print federal court case files for a price of 7 cents per page.

The number and kinds of records available through PACER prompted the Privacy Foundation, an advocacy group affiliated with the University of Denver, to call for a national commission to set public policy on posting court information online. Details appear at www.privacyfoundation.org/release/story8court.html.

The Privacy Foundation's comments were among those submitted to the Administrative Office of the U.S. Courts, which has posted a request for public comments about PACER at www.privacy.uscourts.gov.

Because PACER collects records from many sources, setting a plan for file handling would be difficult. The Privacy Foundation has suggested that each court retain administrative power over the files it produces.

I think this is a mistake. Local control would preclude any firm national rules, and the use of software filters would be incomplete and arbitrary. Some courts likely would restrict everything; others would make only minimal effort to filter any of their records.

A better solution would be to edit the online information, taking the time to electronically tag every record indexed for PACER. Social Security numbers and other sensitive data could be stripped off.

Different search and display rules could be set up for different applications. There could be one single record, but the system could display one version of the data internally and a filtered version publicly.

The extent of such rules should be part of the called-for national debate. And it isn't just a government issue. Third-party information providers also should come under scrutiny. The best-known is CourtLink Corp. of Bellevue, Wash., which provides access to court case records at www.courtlink.com.

If the courts can agree on a universal system, perhaps using Extensible Markup Language, the tagged data in court records would be easier to share across diverse systems. Many privacy concerns about public data would evaporate. And it would set a precedent for government agencies that face a similar dilemma.

Shawn P. McCarthy designs products for a Web search engine provider. E-mail him at smccarthy@lycos-inc.com.

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