The judicial system in the digital age: revisiting the relationship between privacy and accessibility in the cyber context.

• Author: Eltis, Karen
• Position: Canada

Despite technology's reach into all parts of social life, its effects on the judiciary have been under-theorized. The "Digital Age", and unfettered usage and access to digital information, will have untold effects on core values of judicial independence, impartiality and the delicate balance between privacy and the "open court" principle. Technology--as well as the dramatically increased availability of information of all kinds and quality--is distorting the judicial process and its outcomes. It is of primary importance, therefore, to identify the broad issues that emerge from the growing use of technology, and to provide a theoretical basis for adjudicating the ongoing tension between privacy and transparency in the judicial setting. Too often the judiciary pits privacy against the "open court" principle and accepts a culturally narrow view of what constitutes privacy and how it affects the judicial process. In particular, this article investigates the effects of online court documents to establish why, despite the current preference for openness and transparency, a contextualized understanding of privacy is desirable. Indeed, if we rethink privacy within the cyber context, it can be considered an ally of openness in the court system.

Malgre la presence de la technologic dans tousles aspects de la vie sociale, ses effets sur le systeme judiciaire sont sous-theorises. L' >, l'acces a l'information numerique et son utilisation sans entraves auront des effets inedits sur les valeurs fondamentales de l'independance judiciaire et de l'impartialite, ainsi que sur l'equilibre de1icat entre le respect de la vie privee et le principe de la publicite des debats. La technologic, et l'enorme augmentation de la disponibilite d'information de nature et de qualite variees, deforme tant le processus judiciaire que ses resultats. Il est donc d'une importance primordiale d'identifier les grands enjeux qui ressortent de l'utilisation croissante de la technologic et d'elaborer un fondement theorique pour examiner la tension continue entre le droit a la vie privee et la transparence en milieu judiciaire. Il arrive trop souvent que l'appareil judiciaire oppose le droit la vie privee au principe de la publicite des debats et accepte une vision culturelle restreinte de ce que constitue le droit a la vie privee et son impact sur le processus judiciaire. Plus particulierement, cet article etudie les effets de rinformatisation des documents des tribunaux pour determiner pourquoi une comprehension contextuelle du droit h la vie privee est desirable, et ce, malgre la preference actuelle pour l'ouverture et la transparence. En effet, si nous reconcevons le droit a la vie privee dans le contexte electronique, il peut etre considere comme un allie de la transparence dans le systeme judiciaire.

Introduction I. The Impact of Technology on Courts and the Judiciary:. An Overview II. Why Does Technology Matter? The Effect of Online Court Docmnents on Litigants and Non-Judicial Participants A. Paper Versus Net B. A Brief Apergu of the Relevant Normative Framework III. Rethinking Privacy, Access, and their Relationship to One Another Conclusion: Privacy as an Ally of Access Introduction

"It seems as though everybody is talking about 'privacy', but it is not clear exactly what they are talking about"

Daniel J. Solove (1)

Technology plays an incontrovertibly central role in contemporary judicial work and life, both on and off the bench. Along with tremendous benefits, it imports substantial new challenges that increasingly impact upon courts, litigants, and witnesses. Notwithstanding its growing relevance, the question of technology's ramifications on the courts has thus far evaded scholarly inquiry almost entirely. As a result, they are left with little choice but to attempt to fit new technologies into outdated regimes and practices. (2)

Issues such as online court records and privacy, ex parte electronic communication, inadvertently e-mailed draft decisions, and the challenge to judicial independence posed by government-owned and operated court servers, (3) are arising with greater frequency. These challenges have prompted courts to revisit the conventional construction of fundamental concepts such as disclosure, accountability and the delicate balance between foundational values such as transparency and privacy. (4)

In an effort to alert courts to up-and-coming matters deriving from the use of technology, this article will concern itself first with identifying emerging issues arising from technological change generally. It will then proceed to address the challenges that electronic court records raise, particularly, the inadvertent disclosure of personal information in ways unanticipated by existing rules, and the resulting affront to the very access to justice that digital files were meant to promote. Canada's Privacy Commissioner pointed to this emerging predicament, indicating, "The open-court rule--which is extremely historically important--has become distorted by the effect of massive search engines." (5) In an effort to address the problem in the judicial context, this piece proposes an alternative, complementary understanding of the relationship between privacy and access in light of technological change.

With an eye towards generating practical recommendations in a crucial area previously unexplored in Canadian legal literature, this paper will adopt the following structure: Part I will provide a general introduction to the principal issues that emerging and existing technologies raise for judges and other participants in the justice process. (6) Because these cannot all be thoroughly addressed within these pages, the objective is not to provide a comprehensive survey. Instead, a few observations will be made in an effort to weave Parts II and III--which develop the questions of electronic court records, access, and privacy--into a wider fabric of reflection. Part II will then turn to online court documents more pointedly, explaining why the current presumption in favour of openness yields unsatisfactory results in light of technological change. It will proceed with an exploration of the issues surrounding the balance between the judicial system's commitment to access, transparency, and accountability; and its fundamental obligation to protect litigants, witnesses, and others. Having already exposed the ills of unfettered access in terms of quantity of information, rather than relevance or quality, this article, in Part III will then posit an understanding of privacy in this context--as part of access rather than adversative to it. (7)

1. The Impact of Technology on Courts and the Judiciary: An Overview

   Before the day now known as 9/11 became forever etched in the world's collective memory, a meeting of the Judicial Conference headed by Chief Justice Rehnquist, as he then was, was scheduled for 11 September 2001. (8) The gathering in question was to address a much-decried US government proposal to monitor federal judges' electronic communications and Internet use. (9) In the midst of vocal protest, (10) monitoring software was installed in order to surveil the Internet use of federal judges and judicial employees. (11) The proposal, touted by Congress as a push for efficiency, (12) was said to represent a significant threat to judicial independence and a manifest violation of the separation of powers between the judiciary and the legislature, and indeed of institutional independence. (13)

   The federal judiciary's experience in the United States indicates that the idea of monitoring judges' Internet and email use for content is far from theoretical. (14) The installation of monitoring software on judges' computers is no longer unprecedented and therefore must be soberly addressed. (15) Moreover, since technology creates new criteria for measuring judicial productivity, judicial dockets can be monitored with great ease, and expectations of judges' workload and performance can vary as a function of technological advances. (16) This is arguably doing violence to both independence and impartiality. (17) Similarly, government ownership of court servers may foster a perception of infringement upon the separation of powers, thus prompting some Canadian courts to take active measures towards electronically distinct servers and technical support. (18)

   Let us now fast forward to 2006, to the trial of 9/11 bombing suspect Zacarias Moussaoui. (19) With the aim of promoting transparency generally, and responding to public interest in the trial specifically, the United States District Court for the Eastern District of Virginia decided to "broadcast" the proceedings on the Internet. Testimony, evidence, and related material were made available to the general public in the interest of a public trial.

   Information of this nature (e.g., trial proceedings, court records) has always been public--with excellent reason. The distinction between the past and present circumstance lies in the new conception of "accessibility"; namely, now there is an audience of incalculable numbers with indiscriminate access. Individuals gain access to sensitive, personal information--oftentimes anonymously--in an unprecedented fashion. What is more, they can subsequently engage in intimidating or even threatening behaviour, if not identity theft, (20) facilitated by said anonymity.

   Not surprisingly perhaps, and as posited herein, applying the traditional standards of disclosure to the World Wide Web can and has produced unfortunate by-products ranging from identity theft to witnesses being threatened by external parties. These parties, by virtue of the medium if nothing else, now fall into a class of "interested parties" who enjoy access to the intimate details of participants in the judicial process. (21)

   Whereas few but the most dedicated (or academically interested) individuals would take it upon themselves to conduct empirical research, the mere click of a...