Courts face guilty verdict on bad privacy, public access policies

Robert Gellman

Last year, the federal courts developed privacy rules for electronic records to keep the lives of persons entangled in bankruptcy and other cases from being exposed through open court records. I am not talking about judicial opinions, but about briefs and other filings that contain the nitty-gritty details.

Privacy concerns are greater for documents available online than for those that exist on paper. The Judicial Conference came up with a policy that balances access and privacy interests. The policy generated many comments, but almost everyone overlooked a more outrageous feature of access to judicial records: the fees.

Look at it from a citizen's viewpoint: If you want electronic access to court records, you have to pay. Access to legislative documents and most online executive branch documents is free. But you pay for court documents.

How much? The amount isn't the point. Dial-up access is 60 cents a minute, and using an Internet site costs 7 cents per page.

Dial-up? Per-page charges? Welcome to the 1980s. Not only must visitors pay for access, but they also are forced to use outdated technology and sometimes outdated software.

Those who need access in a hurry are out of luck. They register online for the service but wait two weeks for the courts to snail-mail a password. What are the courts really delivering in exchange for their fees? Bad service.

Why charge at all? The courts blame Congress, and there could be some legitimacy to that, but the courts have never shown any interest in being advocates for public users. For decades, courts charged 50 cents a page to copy documents. Lawyers never cared. They merely passed the charges along to clients. No one speaks for the public, so the public is poorly served.

What about the privacy policy for the court's online-access site? It says that no personal information is transferred to any third party. How can anyone promise that? What if hackers get in or someone doesn't pay the bill?

The policy also says that a person can be prosecuted for modifying data on the site. OK, but that contradicts the privacy policy.

In other words, the privacy and security policies are wrong, incomplete and inconsistent. They read like something written by an unsupervised first-year law student. If you want to review the documents for yourself, go to www.uscourts.gov/electaccrt.html.

It is time for Congress to step in and require the U.S. courts to comply with basic government information policies. Judicial records that are public should be freely available on the Internet, and judicial Web sites should meet minimum standards for user privacy and security. The best way to do this is to apply the Freedom of Information Act and the Paperwork Reduction Act to the Administrative Office of the U.S. Courts. Maybe the Privacy Act, too.

The Administrative Office will, of course, scream for judicial independence. But if judicial independence is an excuse for incompetence and bad policy, we can do with a little less of it.

Robert Gellman is a Washington privacy and information policy consultant. E-mail him at rgellman@cais.com.

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