Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records
62 Pages Posted: 11 Sep 2008 Last revised: 2 Jan 2013
Date Written: September 9, 2008
Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability, instead of enabling greater public understanding, risks degrading the value of the information obtained. There is a growing body of scholarship considering the privacy implications of electronic access, but the literature has not yet addressed these issues from the perspective of the criminal justice system. This Article begins to fill that gap by focusing on the skittish responses of prosecutors and courts to the expanding availability of information that had always been public, but was traditionally hard to obtain. Such evasion is particularly troubling in the context of cooperation, an important law enforcement tool that is essentially unregulated and susceptible to capricious application. The Article proposes an approach that pairs limitations on online access with systematic disclosure of detailed plea and cooperation agreements in their factual context, but divorced from identifying data. This proposal would protect privacy and security, while enabling the public and press to engage in genuine government oversight.
Keywords: cooperating defendant, electronic access, privacy, criminal court records
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