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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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