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  From: Pamela Kellet <pck2104@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Tue, 18 Apr 2006 09:26:38 -0400

[CPC] Paper 3: Letting the Light in on "Practical Obscurity"

Letting the light in on “Practical Obscurity”

Carolyn Lucas was introduced to us by Robert O’Harrow in his book No 
Place To Hide. Carolyn spends her days driving to various courthouses 
and pouring through their public records, copying down the kind of 
personal information that ChoicePoint uses to maintain its databases so 
that it can continue to be “the nation’s leading supplier of 
identification and credential verification services.” [1]

Carolyn’s job is perhaps tedious and tiresome but it is entirely legal. 
The Supreme Court has held that there is “a general right to inspect and 
copy public records and documents, including judicial records and 
documents.” [2] However, this right to access information is not 
limitless. The Supreme Court has identified that an individual’s privacy 
interest increases along with the “practical obscurity” of the 
information. Thus, the more perseverance and skill that is required to 
access the information, the more the individual’s privacy interests are 
protected.

According to the Supreme Court’s reasoning, when court records are kept 
in rows upon rows of filing cabinets in courthouse basements it is less 
likely that the personal information contained in those files is going 
to be accessed by very many people. Moreover paper records deteriorate. 
Those records that do not fade away into oblivion will eventually be 
destroyed or discarded to make room for new records.

What happens when these are no longer the properties of judicial record 
keeping? As more and more people push for the legal system to join us in 
the digital world, it is important to note that the physical courtroom, 
with the installation of state of the art equipment, is not the only 
thing that will be transformed.

There is no doubt that a “digitally integrated” legal system brings with 
it many benefits. Lawyers can file pleadings electronically with the 
court and can receive e-mail notifications when there is activity on the 
case. The courts benefit from a reduction in the need of storage 
facilities. Finally, the public can more readily access the courts and 
learn about the judicial process.

However, despite this potential for increased efficiency and community 
education, a digital legal system will also shed light on what used to 
be “practically obscure.” All of the public records that traditionally 
would have found their final resting place somewhere deep in the bowels 
of a courthouse or other government building will now be indexed and 
archived in a database, perhaps even on the internet.
The disappearance of the old obstacles to retrieving this information 
may mean that our friend Carolyn will be out of a job. However, there 
could also be much broader consequences. Certain government officials 
are particularly concerned about the threat that posting their personal 
information online could pose to their personal safety.

In the shadow of murders like that of Federal Judge Joan Lefkow’s 
husband and mother [3], several attempts have been made to provide 
judges and other federal officials with special protection from online 
disclosure of personal information. Perhaps the most comprehensive 
effort came from the state of Missouri which made it illegal to post 
certain personal information about public officials (including judges) 
online without the individual’s written consent. [4]

The law was not very well received by those counties in the state that 
were operating databases of public records online. The law was 
eventually repealed and replaced with legislation that required a 
malicious intent in the publication of the information and protected all 
individuals – not just public officials.

Ultimately, barring the publication of public records online will 
provide little protection anyway. As the Director of e-Government and 
Public Relations for Jackson County Missouri noted “If you really have a 
safety issue, you don't solve it just by taking the data offline[.] […] 
If it's still in the public record, [a person] can just come to the 
courthouse, request it and get it." [5]

As for individual fears beyond the threat of physical injury to life and 
limb, such as identity theft or other exploitation, again, official 
online obscurity will not prevent people from accessing the relevant 
information. Remember Carolyn sitting at a table in a courthouse 
somewhere copying down information which she will later send off to her 
employer who will include it in credit reports and other profiles?

The bottom line is that if the information is of particular use to 
someone, or if they think it could be of use to other people, they will 
gather it, process it and maybe even publish it online. In this 
environment, even if the government and the courts themselves decide not 
to put the records online, it is entirely possible that the data will 
make its way there anyway.

As the internet begins to house more and more of these public records, 
the Supreme Court’s reasoning that the deterioration of the paper 
documents adequately protects individual privacy over time disappears. 
Do we have to wait until we can compile a rap sheet on anybody by simply 
Googling their name – perhaps in a Google engine dedicated specifically 
to public records – before courts will begin to question whether 
“practical obscurity” still exists?

Government and judicial transparency are still important values. The 
openness of judicial proceedings can continue to serve a role in 
ensuring judicial accountability and increasing public awareness. 
However, as the courts have long recognized, these values must be 
balanced against individual privacy. As technology has transformed the 
amount of information that is available to strangers and the manner in 
which courts conduct their affairs, it is time that the courts return to 
the scales and reconsider their faith in “practical obscurity.”

[1] http://www.choicepoint.com/
[2] Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).
[3] Jodi Wilgoren, Haunted by Threats, U.S. Judge Finds New Horror, New 
York Times, March 2, 2005, available at 
http://www.nytimes.com/2005/03/02/national/02chicago.html?ex=1145419200&en=0c1b2416019b4318&ei=5070.
[4] Merrill Douglas, Privacy Concerns, Government Technology, January 2, 
2006, available at 
http://www.govtech.net/magazine/channel story.php/97730 .
[5] Id.


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