Sustaining Privacy and Open Justice in the Transition to Online Court Records: A Multidisciplinary Inquiry
O’Melveny & Myers, LLP
Carnegie Mellon University - School of Computer Science
New York University
Carnegie Mellon University - Department of Electrical and Computer Engineering
July 18, 2012
Maryland Law Review, Vol. 71, 2012
On the face of it, what could be controversial about placing already-public court records online? If courts are obliged to make these records available, should they not do so as effectively and efficiently as possible by offering a digitized collection on the Web? Indeed, the advent of PACER for the Federal Court System suggests that the matter has been settled — at least for federal courts. But at state and local levels around the country, where some of the records richest in personal information are found, privacy concerns have brought this issue to the fore. As they update administrative rules, looking for guidance in constitutional, legislative, and common law sources, legal scholarship, citizen and expert commissions, and the practices of peer institutions, courts continue to grapple with questions about online access to civil, state court records that traditionally have been available only in hard copy from courthouses or electronically via local terminals.
This article develops a distinctly multidisciplinary approach to understanding courts’ obligations to post records to the Web. Embracing legal, philosophical, and technical perspectives, drawing on past work, and guided by the framework of contextual integrity, it carefully traces critical alterations in information flows afforded by online placement. So doing, it makes precise what others have attempted to capture with terms such as “hyper-dissemination” and “practical obscurity.” But beyond merely tracing these alterations in flow, the article reveals underlying factors that have shaped access practices, in the first place demonstrating systematic connections between the functioning of court records and the attainment of the fundamental ends, purposes, and values of courts themselves in liberal democratic justice systems. Given these ties, we illustrate that the danger of settling for misguided access policies is that Courts’ service of these vaunted ends will be derailed and access policies for court records shaped by unacknowledged parochial interests. The article concludes with recommendations of alternative courses of action to address or mitigate these (sometimes surprising) findings.
Number of Pages in PDF File: 76
Keywords: privacy, contextual integrity, court records, electronic court records, court records online
Date posted: July 19, 2012