The Open Courts Principle, Litigant Privacy, and Electronic Court Records

• Author: Karen Eltis
• Pages: 65-91

65

CHAPTER 3

The Open Courts Principle, Litigant Privacy,

and Electronic Court Records

A. INTRODUCTION

Courts, not unli ke many others actors in society, have been eager to show

that they are not lagging behi nd the times, and so they have tended to em-

brace technology, whose promises of simplicity and eciency are dicult

to ignore. However, in so doing — and in a sincere eort to promote and

expand access — they have overlooked some of the perils inherent in the

uninformed or impulsive use of complex innovative tools.

is assessment is particu larly true with respect to electronic or online

court documents. ese tend to raise signicant issues, only now attract-

ing sober thought, amid the unbridled enthusiasm t hat originally greeted

them. In particular, I refer to the inadvertent disclosure of personal infor-

mation in ways unanticipated by existing rules a nd the resulting aront to

the very access to justice that dig ital les were meant to promote. Canada’s

privacy commissioner pointed to this emerging predicament, oering th is

caution: “the open-court rule — which is extremely historically import-

ant — has become distorted by the eect of massive search engines.”1 In-

formation of this nature has always been public — with excellent reason.

e distinction between the pas t and present circumstance lies in t he new

conception of “accessibility,” namely, that there is now an audience of in-

calculable numbers with indiscriminate access to bits and pieces of sensi-

tive, personal information in an unprecedented fashion.2

1 Kirk Maki n, “Online Tribunal Evidence Leaves Citi zens’ Data Open to Abuse”

e Globe and Mail (20 August 20 08) A5.

2 See Canadian Judicia l Council, Model Policy for Access to Cour t Records in

Canada (Ottawa: Judges Technology Advisor y Committee, 2005), online: w ww.

cjc-ccm.gc.ca/cmslib/general/news_pub_techissues_AccessPolicy_2005_en.pdf

Courts , Litigants, and the Digi tal Age66

Not surprisingly perhaps, new technology can and has produced some

very unfortunate by-products, ranging from identity the , to participants

in the justice system receiving t hreatening messages from parties entirely

removed from the case. Take, for example, the 9/11 United States v Mous-

saoui case3 where, in order to promote transparency in such a high-prole

matter, the United States District Court for the Eastern District of Vir-

ginia decided to “broadcast” t he proceedings on the Internet. Testimony,

evidence, and related material were made available to the general public in

the interest of a public trial. It turned out that strangers to the case began

to threaten witnesses and others outside the court room.

Whereas the above-recounted incidents in Moussaoui were isolated

and presumably spontaneous, the United States Department of Justice

warns of an entire web-industry organized and dedicated to collecting in-

formation from Internet court dossiers, with an eye towards intimidat ion

and retaliation. Consider one of the many instances of witness bullying,

enabled — or at the very least greatly facilitated — by electronic records,4

as Snyder re counts:

Arrested for interstate dru g tracking in New Mexico, “Stewar t” agreed

to cooperate with authorities a nd testify against his co -defendants. e

government led Stewart’s plea agreement with the court, and a n elec-

tronic version became available for download to the Public Access to

Court Electronic Records (“PACER”) service. Shortly thereaer, Stew-

art’s PACER les were featured on whosarat.com, a website that claims

to have exposed the identities of more tha n 4,300 cooperating witne sses

and undercover agents. In an eort to intimidate Stewart f rom testi-

fying, h is co-defendants plastered the whosarat.com materia ls, which

labeled Stewart a “rat and a snitch,” on utilit y poles and windshields in

[Model Policy for Access]. See also Rebec ca Fairley Rainey, “e Jury Is Out on

Online Cour t Records” Online Journalism Review (25 Janua ry 2002), online:

www.ojr.org/ojr/law/1015015443.php. Rainey refers to two policies issued by

both the Judicial C onference of the United States and the Califor nia Judicial

Council in which c ertain restrictions were place d on online posting of court

records with a par ticular focus on limiti ng the personal information avai lable

in electronic versions of cour t records. According to Rainey, “[t]he reasoning,

in both policies, i s that releasing records to a broad audience on the Internet

would expose plaint is, defendants and jurors to the risk of identit y the

through the public ation of the extensive personal informat ion collected in civil

proceedings.”

3 483 F3d 220 (4th Cir 2007) [Moussaoui].

4 See, for example, David L Snyder, “Nonparty Remote Elec tronic Access to Plea

Agreements in the Second Ci rcuit” (2008) 35:5 Fordham Urban Law Journal 1263.