Comments Received by the Administrative Office of the United States Courts in response to Request for Comment on Privacy and Public

Comments Received by the Administrative Office of the United States Courts in response
to Request for Comment on Privacy and Public Access to Electronic Case Files

Each comment has a number, date, and where provided, a geographical identifier. In cases
where the comment was sent by an individual with no business or professional affiliation noted,
the name of the commentor is not included. In cases where the comment was sent by an
individual in a professional capacity or on behalf of a group or organization, the name of the
commentor and/or the name of the group is included.

The Administrative Office of the United States Courts reserves the right not to post a comment,
or any part thereof, which contains irrelevant or scurrilous material. Footnotes and endnotes
attached to comments have been omitted.

No. 1
11/08/00
Richard A. Berger
Associated Professional Services
Waterloo, NY
All court records should be available to the public by all means possible at all times, with no
exceptions.

No. 2
11/10/00
Jennifer L. Hathaway
Judgment Recovery Specialist
Foremost Search & Recovery Co.
A division of DAR Services, Inc.
Camden, DE
I am writing in response to the initiative to restrict and/or shut down the electronic/PACER files.
I strongly oppose such mandate to shut down this important outlet to get information.

The use of electronic files, especially PACER, is a very important outlet for professionals that
use this source. May I also note, that the information contained in these files is a duplicate of the
information contained in the hard copy file located at the court.

Without the information access thru online sources, it would make many professionals jobs
harder. I collect judgments that debtors owe, but do not pay. These judgments are legally
rendered in a court of law.

By limiting or decreasing online sources it would make it highly difficult to locate these debtors.

While I can understand the problems in today's world with right to privacy, these court
documents are public record, are available as hard copy at the agency they are located at, and are
not altered or added to when put into an online forum, such as PACER.

Please add me to your list of those who do not wish to see this source taken away from the
professionals that use online resources in a legal and professional way.

However, I don't wish to take part in a public hearing. By all means, use my letter as evidence to
this issue.

No. 3
11/11/00
Charles T. Pinck
President of the Georgetown Group
Washington, DC
(It appears this text appeared in the Legal Times on Monday, October 30, 2000)
Need to Know: In the rush to protect privacy online, Americans must not forget the very real
benefits of public access to information.

Recently, I was contacted by a person whose aunt had died suddenly under mysterious
circumstances and had left her multimillion-dollar estate to a much younger person whom she
had known only a short time. I run an investigative services firm. My new client was very
suspicious that this younger person had exerted undue influence over the aunt and possibly
played a role in her death. But without any actual evidence she couldn't convince the police to
look into the matter.

So I ran a database search available to licensed investigators to find the younger person's address
history and Social Security number. And what I learned was that the deceased aunt's name and
Social Security number were connected to this person's home address - a possible indication of
credit card fraud. Armed with this evidence, my client was able to persuade the police to take up
the case.

As an investigator who specializes in the use of online resources, I do this kind of work all the
time. Sometimes the clients hire my firm directly; sometimes we're hired by the clients' lawyers.
And now in the name of privacy, lawmakers are threatening to stop these database searches.

With the explosion of the Internet and the ever-increasing sophistication of computer technology,
safeguarding personal privacy has understandably become a critical issue. New laws to protect
personal information are being introduced on the state and federal levels at a frenzied pace.

Many of these laws, proposed and already enacted, are reasonable. I'm well aware of the
incredible amount of information available over the Internet and the potential for misuse. New
statutes that address the collection, use, and dissemination of personal information in order to
protect individuals against identity theft and related crimes are needed.

But as I watch the concern about privacy ratchet up, I'm troubled that these efforts to protect
personal privacy will soon restrict access to previously public information. Such information is
absolutely crucial to professional investigators. And investigators play an important and often
unheralded role in our legal system.

The Truth Is Out There

Professional investigators access personal identifying information from database companies that
require every investigative agency to provide proof of licensing and to abide by specific rules for
its use. We use this information in many ways: to prevent and investigate fraud and other
criminal acts; to find stolen and misappropriated assets; to enforce judgments and locate people
seeking to avoid paying child support and other debts; to investigate the theft of intellectual
property; to find witnesses; to conduct due diligence and background searches; to assist in
litigation; and to discern the truth in a variety of other matters.

Personal identifying information is critical every time a licensed investigator must determine the
correct identity of an individual or verify that documents refer to a specific individual. This is
typically accomplished by matching a name with an address, Social Security number, or date of
birth - commonly referred to as "identifiers." Imagine the difficulty in finding, say, one particular
Michael Brown absent such information.

Database searches based on identifiers, often referred to as "credit headers," are always used
when searching for criminal records, perhaps the most critical aspect of many investigations.
Since the only nationwide criminal record database, the National Criminal Information Center, is
not open to the public, private investigators must look for criminal records jurisdiction by
jurisdiction. To determine where to search, we commonly begin by putting together an address
history from online sources.

For example, an individual's address history gathered online played a major role in a recent due
diligence investigation. With that history, I was able to locate a criminal record that otherwise
would have remained hidden. It persuaded my client not to pursue a multimillion-dollar
investment with a prospective business partner. Without access to credit headers, I wouldn't have
found it.

But new Federal Trade Commission regulations and two bills pending in Congress - the Privacy
and Identity Protection Act (S. 2876 and H.R. 4857) and the Identity Theft Prevention Act (S.
2328 and H.R. 4311) - may soon make such searches impossible. The information contained in
computer databases will be walled off, even to licensed investigators.

Under the Gramm-Leach-Bliley Act, the FTC recently issued privacy regulations, including a
prohibition on the use of credit header information other than for very limited purposes under the
Fair Credit Reporting Act. While a literal reading of the act does not require such a prohibition,
the FTC chose to interpret it as applying to credit headers. The agency did this by reversing its
longstanding position that personal identifying information contained in credit reports is not
"financial." By deciding that such information - including a person's name - is "financial," the
FTC is able to claim that this information must be protected under the Gramm-Leach-Bliley Act.

Back in 1997, the FTC reported to Congress that it saw no need for privacy legislation
concerning credit header information. The new rule, scheduled to be implemented by July 1,
2001, would effectively prohibit most current uses of this information.

The two bills now under consideration in Congress would collectively ban the sale or purchase of
Social Security numbers and require their removal from credit headers, ban the sale of credit
headers altogether, and grant the FTC broad authority to make further rules regarding the use of
personal identifying information.

Perhaps the most troubling aspect of the proposed Identity Theft Prevention Act is a provision
that would place investigators in the same legal category as credit bureaus. This would require us
to turn over our entire files upon request to suspected felons and others being investigated.
Victims or witnesses, fearing retribution, would be extremely reluctant to speak with any
investigator. We might even have to obtain signed permission from the individuals we
investigate - an obviously unworkable prospect.

Meanwhile, the proposed Amy Boyer's Law (S. 2554), which has been inserted into a "must
pass" appropriations bill, provides a better solution to this problem. It would make it illegal to
sell Social Security numbers to individuals - the greatest source of misuse - but would permit
continued access for licensed investigators and certain other businesses that have a legitimate
need. (As of last Friday, the president was threatening to veto the appropriations bill, in part
because of the Amy Boyer provision.)

Need to Know

Severely restricting access to personal identifying information will undoubtedly aid criminals and
others seeking to hide their illicit activities. It will embolden some individuals to commit even
more crime, knowing that tracking them down will be that much more difficult. It will help
criminals trying to conceal stolen assets and avoid prosecution. Ironically, legislation designed to
protect individuals against identity theft and other types of fraud will cripple investigation of the
very same crimes.

Among those hurt will be lawyers and their clients. Such laws could make the service of process
nearly impossible. They'll increase the cost of hiring investigators, who will have to resort to
more time-consuming, less effective, and costlier techniques.

According to The Wall Street Journal, a 1995 survey of major New York City law firms found
that investigators were retained in approximately "a fifth of the firms' litigation matters . . . a 33
percent increase in the past five years." I'm confident that a survey today would find that use of
investigators had risen even further.

Because state and federal law enforcement agencies are overwhelmed by their workload,
professional investigators also play a critical role in supplementing their efforts.

In short, while laws designed to protect privacy and prevent identity theft are being introduced
with the best of intentions, they will have damaging consequences. Americans need access to
information to protect themselves, their families, and their companies.

Access to public information and the right to privacy are both hallmarks of a healthy society.
Confronted by new and rapidly changing technology, we're struggling to strike a balance between
these two ideals. A former high-ranking military officer (for whom I once worked) told me that
phone books were not publicly available in the old Soviet Union. He also said that he would
never want to live in such a society, where only the government and the police had access to
information.

Americans are blessed with freedom in many different forms, including ones that we don't always
recognize. Many of us take for granted the benefits of the free flow of information. We need to
recognize that unreasonable restrictions placed on access to previously public information will
critically impair the functioning of our legal system and ultimately our society.

No. 4
11/13/00
Arianne Ciarlo
Claimsupport.com
Pompano Beach, FL
I strongly protest the Government's newest initiative to close down access to Pacer and other
Federal Court databases. This is yet another erosion of the public's right to gain access to open
records that the Privacy special interests and their political machine are
attempting to pressure the Courts to embrace.

If this rule goes through, it will result in an enormous change on how lawyers can obtain
information and the cost thereof. You will be back to having to hire investigators and paralegals
all over the nation to hand-check court files.

In short, lawyers will be once again practicing in the stone age and their clients will pick up
the cost of this type of inefficient method of conducting very basic investigation. Once access to
court records on a federal level are changed, the States will also begin to restrict data
commerce on-line by attorneys, investigators, paralegals, etc. While they cannot
shut down access to hard files at the Courthouse, one can only imagine the cost of hiring people
to go to many court facilities to do a single check.

Our experience has shown that "Request For Comments" is the first step that is used to narrow
access, as was the case by the FTC when it commenced the evisceration of the banking, credit,
and financial databases through its very narrow interpretation of recent law. (Now being
challenged in Federal Court in Washington DC; see IRSG, et al., vs. FTC, et. al.)

No. 5
11/13/00
John Healy
Litigation Intelligence Service
Warner, NH
Courts have always been open and accessible in this country. It is one thing that sets us apart
from Third World Banana Republics. The records are used, daily, by the legal, investigative, law
enforcement and investigative community. Over and above that they should remain open to the
public. They have a right, and there is a basic need for the public to be able to observe this
process.

No. 6
11/13/00
Landers Service Company
Private Investigation
Milton, MA
Thank you for the opportunity to comment on this matter. 1) Your privacy questions should be
divided between access by A) licensed professionals and B) general public. They are two
different questions. 2) Lawyers are individually licensed and responsible to the Board of
Overseers and ultimately to the court in each state where they practice. 3) Private investigators
are licensed and responsible to the state police and ultimately to the courts in each state where
they practice. 4) Both lawyers and private investigators have the professional responsibility to
develop full information on certain individuals and subjects as a duty to their client's right to full
representation before the law. 5) Background investigations performed by private investigators
are severely inhibited by privacy restrictions. Whether the subject of investigation is being
considered for the presidency of a major corporation, coach of a little league team or physician of
a girl swim team, private sector background investigations are critical to public safety and they
are all performed by licensed private investigators. Certainly, the FBI is not restricted in their
investigations of appointees who must appear before the US Congress. A simple matter of public
safety in both areas. 6) The Drivers Privacy Protection Act, 18 USC ch 123 addresses the private
investigator permitted use question better than most, allowing permitted access for permissible
uses. 7) These comments apply to civil, bankruptcy and criminal cases. 8) I have met the touring
PACER people and was very much impressed with them as professionals. 9) Caution: state laws
around the country frequently differ from each other in privacy questions such as criminal
records, birth records, electronic intrusions, interception of oral communication and others as
they also differ from the USC. 10) In your judicial conference be aware of which state each
conferee comes from. Likely, the conferee will reflect that state. 11) Texas and Florida are
outstanding in their records availability to the general public. Massachusetts is an
embarrassment. Example: In Massachusetts you may have access to criminal records and civil in
any district court or county superior court. You may walk in off the street and search the criminal
and civil indices of the court and order a copy of the file of needed. BUT, you may not search the
index of the entire state all at once via state-wide data base. How can one search every district
and superior court in Massachusetts? One cannot. 12) Television greatly influences public
opinion with very few credentials to do so. Television portrayal of private detectives is
outrageous. Those programs as created by morons for unthinking people to watch. As a result,
public opinion get formed. I have appeared as a guest speaker several years in a row at the
Romance Writers of America conference trying to teach correct facts about professional
investigators for their books. 13) Medical records. Our office has conducted Contestable Death
Claims investigations for 25 years in the insurance industry all over the United States. Even when
I am armed with letters of representation and authority from the carrier, prior releases from the
deceased, current releases from the beneficiary, probate court executor appointments and all the
rest, it is difficult to obtain the medical history on an individual. And yet, during television talk
shows some privacy freak will appear and claim that PI's can obtain anybody's medical record on
the internet without the persons knowledge and permission. It just plain isn't true. We are
constantly bombarded like this on TV and in other uninformed areas. These are some of my
concerns regarding privacy. Thank you.

No. 7
11/13/00
John P. Frank, Esq.
Lewis and Roca LLP
Phoenix, Arizona
With regard to your request for concerns in relation to the electronic access to court files, my
partners raise one concern: There is a concern that this device will make it very easy for persons
with no legitimate interest to obtain financial information about "targets" for possible fraud.
While this, of course, will be equally true if the evildoer had to go to court to get the file in the
traditional way, this device may made fraud easier. I send no solution to this problem and think it
probably is a cost which simply must be borne. However, in bankruptcy this could be particularly
serious. One of my partners sends me the following paragraph: "The big problem is with
bankruptcy cases, although some appellate cases would involve trade secrets and could be
problematic as well, if readily available. Bankruptcy debtors must disclose their Social Security
numbers, bank account numbers and other details of their lives in their petitions and bankruptcy
schedules. That's not too much of a problem for corporate debtors, but it can be a real problem
for individuals. It would be easy for anyone wanting to "steal a person's identity" to use his Social
Security number and bank account numbers to incur debts in phone transactions and have the
purchased assets shipped to the thief's residence. I suspect the problems can be much more
severe.

No. 8
11/14/00
William Losefsky
Private Investigator
Goffstown, NH
As a private investigator, I use the pacer court system on a DAILY basis. I assist people and
attorneys to collect court ordered judgments. Without the use of pacer and other public records
data bases, my efforts would be futile.

No. 9
11/14/00
E. Guy Paradee
Chief Investigator
Investigative & Accident Reconstruction Services, Inc.
Rutland, Vermont
I am the President of Vermont's only professional private investigator and security officer
association. I am a former detective lieutenant with the Rutland City Police Department. I hold
two college degrees and working on my Masters. I also teach criminal justice classes at a local
college. I work as the chief investigator and president of a large private investigating and.12
accident reconstruction agency licensed in several states. I have clients all over the US and
abroad. Obtaining information is what makes most of our investigations successful. The
collection of public information is absolutely essential in forming the foundation of many of our
investigations. Private investigators are not interested in wasting time, energy and money on
obtaining information that is not essential to their investigations. Any while I agree that certain
types of information should be obtained by private investigators or any other type of investigator
for that matter with certain restrictions and "need to know basis", the type of public information
that you seek to restrict is simply wrong. We seek this information for many types of
investigations such as locating witnesses, conducting background investigations on doctors,
nurses, teachers executives and all types of people for pre-employment purposes. The lack of
information that courts contain would be very detrimental in our ability to document any
unlawful or legal problems these people may have had. It is clear that you lack the information
necessary to understand why investigators need this information and what it is used for. I suggest
you listen to the testimony of us and read our letters to educate yourself that there are reasons
why this information is absolutely essential for us to conduct legitimate business with court
information. Thank you for your consideration.

No. 10
11/14/00
Teresa Vila
Premiere Investigation Services
Fort Lauderdale, FL
As a Licensed Private Investigator located in Fort Lauderdale FL, as great deal of my search
options include databases available over the internet to verified users. To prohibit these types of
databases would effectively shut the door on the ability of my small, minority business to
compete in the broader, nationwide market. Without an unlimited bank account to facilitate in
person searches, we would not be able to provide customers with any services. This would limit
our firm to taking on local cases only, and could, in all likelihood, cause us to go out of business.
The ability to obtain accurate and detailed information is the cornerstone of our business. We
train our employees to decipher data provided accurately. To involve the time, travel and money
necessary for in-person searches is beyond our reach. This is the age of technology, the year is
almost 2001. To return to an antiquated system rather that the advanced systems appearing on an
almost daily basis, is to walk backwards. We should all embrace technology for what it is -The
ability to provide data to a wide range of acceptable users. Let us go forward, not backwards!

No. 11
11/14/00
Ted L. Moss, President
The Background Network, Inc.
Cleveland, OH
Regarding the proposed restriction on public access to electronic case files at the federal level, I
would like to offer the following commentary. My name is Ted Moss. I am the President of The
Background Network, Inc. I am also a member of the American Society for Industrial Security
and the Legislative Committee Chairman for the Cleveland Chapter. Our organization conducts
pre-employment screening for employers on a nationwide level. Restricting electronic access to
public records is, in my opinion, the same as restricting access. I am sending accompanying
articles which I have written in the past regarding this subject. Most recently, the Driver Privacy
Protection Act restricted access of driving records to companies like mine which conduct
employment screening. All though the Driver Privacy Protection Act considers employment
screening a permissible purpose, electronic access has been restricted by this law. There are
many unforeseen consequences of restricting access to public records. One of which is the affect
it has on public safety.
In 1993, a survey conducted by Northwestern National Life Insurance found that more than two
million employees suffer physical attacks on the job each year and more than six million are
threatened in some way.

More than a thousand Americans are murdered on the job every year, 32% more than the annual
average in the 1980's. A Time-CNN poll in May 1995 reported that 37% of Americans see
work-place violence as a growing problem. In the same poll, 18% witnessed assaults at work and
another 18% worry about becoming victims themselves.
According to the American Management Association, 19% of respondent managers reported at
least 1 actual incident of work place violence since January 1990. An additional 33% reported at
least one threatened incident.

One hundred billion dollars are lost annually to employee theft and embezzlement.
One-third of business bankruptcies are caused by employee theft and embezzlement, this
according to the US Chamber of Commerce.

The statistics go on and on, not to mention the number of drunk drivers arrested each year or the
number of deaths caused on the highways by drunk drivers, some of whom were working at the
time. These issues are certainly a public safety issue. The private security consulting industry
and, specifically, the pre-employment screening industry, serves a vital role in public safety. We
serve a role that law enforcement can not logistically and legally fill. The background screening
industry utilizes public record retrievers on a nationwide level. Access to this data electronically
is not necessarily of vital importance in order for us to get the work accomplished. From a
business standpoint, my firm, in fact, would stand to gain from restricting such access to lawyers
and other individuals via an electronic means. Lawyers, as well as the general public, would be
forced to use services such as ours who employ a nationwide network of court retrievers who
physically verify records at the clerks office in both the federal county and state levels.

The problem lies in the turn-around time and cost of such services. Limiting access forces our
company and our industry to raise prices. Turn-around time can be reduced from 24 hours to as
much as a week or more in some instances to accurately check court records on a nationwide
level. This restriction of information can cause employers who should be screening to not do so
because of the lag time involved in getting an answer in a timely fashion regarding an applicant's
background. Thus, increasing the liability risk to both the employer and the general public at
large. Individuals with felony records, histories of violence, poor driving records or no driving
privileges at all can be hired and put into dangerous positions to both their fellow employees and
the general public at large.

In essence, restricting electronic access serves to hurt the general public more than help it. The
very few documented incidences of individuals using such records for unscrupulous purposes are
far outweighed by the risks created by hiring a violent employee or an individual with a criminal
record. The risk to the public safety and the US economy in general is at stake. I urge you to
consider these facts when deliberating on these restrictions that are proposed. Should you have
any questions or comments, please feel free to contact me at any time.

Freedom or Privacy?

An article by Ted L. Moss
President of The Background Network, Inc.

What is privacy? Is it a right or a privilege? The Bill of rights claims that, "Men are endowed by
their creator with certain inalienable rights", that "among these are life liberty and the pursuit of
happiness". The authors might have meant freedom from fear of oppression. It may have
included a right to be secure in ones property and home. Mostly it meant the right to govern ones
self through a government, "Of the People, By the People and For the People."

Recently The Director of The Maryland department of Motor vehicles, Anne S. Ferro
commented, "This is another example of the general public not knowing what's good for it!"
She was referring to legislation known as the DPPA or The Driver Privacy Protection Act during
hearings on the matter. The Chairman of the Hearings, The Honorable Senator Richard Shelby of
Alabama (R) may have been absent in law school when they covered The Bill of Rights and other
aspects of The Constitution.

The DPPA is legislation, which was recently upheld as constitutional by the Supreme Court
(Reno Vs.Condon). Public law 106-69, which originally enacted in 1994, says that driving
records are not public records and that the state motor vehicle departments can be barred from
disclosing or selling personal information. This would be a noble law if in fact it served the true
interests of "The People" and wasn't the latest hot button for politicians trying to score points in
the Personal Privacy feeding frenzy in Washington.

The fact is that the DPPA only restricts sales to marketing lists, databases and casual requestors.
It requires the states to adopt certain components of the Federal law so that drivers are
automatically excluded from their personal information being re sold to these types of
companies. This is known as the mandatory opt out. Prior to this drivers had the option in most
states to "opt out" or exclude themselves if so desired. In fact in Maryland when the State
conducted a huge advertising campaign by Mail, Television, Radio and at the DMV itself to
notify drivers of this right; A large majority of drivers were not concerned.

The concern has been raised that by making drivers personal information for sale it creates the
opportunity for stalkers and other criminal elements to prey upon the general public. As in the
case of a California woman who was murdered several years ago. A tragedy to be sure but there
is a much larger and more determined tragedy looming on the horizon:

In 1997 1.4 Million people were arrested for D.U.I. (Driving Under The Influence) or related
offenses----more than all other reported criminal offenses except larceny and theft. (NHTSA,
1999) Despite a 2% decline in the National Crime Rate the number of arrests for Driving Under
the Influence increased from 1.2 Million in 1993 to 1.4 million in 1994. This is an arrest rate of
one for every 127 licensed drivers in the United States. (NHTSA, 1996)
In 1997 an estimated 513,200 offenders were on probation or in jail or prison for driving while
intoxicated by alcohol (DWI). (BJS, 1999) In 1998 one out of nine intoxicated drivers in fatal
crashes have had a prior DWI conviction within the past three years? (NHTSA, 1999)

According to The Department of Labor there are 140 million people currently employed in this
country. With American Businesses losing 100 Billion dollars annually to employee theft and
embezzlement and over 1 million users of illegal drugs in the workplace employers routinely
conduct background checks on their prospective applicants. The background screening industry
is a 5 billion dollar a year business. The private security field provides an essential service to the
U.S. economy by screening applicants who may be convicted drug dealers, violent individuals or
incompetent or dangerous drivers.

The Security industries role fills a gap that law enforcement can't begin to meet. With an
estimated 20 to 30 million background checks performed nationwide each year the private
security industry is meeting and fulfilling a vital public safety need. Keeping the workplace
productive, providing a safe work environment and protecting companies profits are important
reasons for conducting background checks. In addition the liability to the company, which arises
when hiring an employee who will be driving on company business, is immense. Hiring a truck
driver, salesman, delivery person or other employee without a driving record check is not only a
potential problem to the company but also a potential threat to public safety.

The risks of an unlicenced driver on the road or a multiple D.U.I. offender driving for any
company are obvious. Background screening firms rely on access to public records, driving
records, credit reports and other information to assess an applicant's reliability, criminal history
and potential for drug or alcohol abuse on the job. The DPPA has severely hampered this
process.

Although employment screening is a permissible purpose under the act access to such records are
being granted only to a couple of select companies.

This David vs., Goliath situation has created an unfair competitive advantage for these large
information brokers. Choice Point and DAC Services have had existing agreements with the
individual states for years. Their re-sale of driving records has come under scrutiny due to a
mistake originally created by Choice Point in Pennsylvania. Both these companies have sold
driver information to Insurance companies, Marketing companies, Background Screening firms
and Private Investigators in the past. The majority of these companies have used the information
responsibly in the performance of their duties. A few have not and as a consequence caused a
panic in state and federal legislatures. With little concern for the bigger picture the threat of
misuse of personal identifiers has left this country with a much greater risk. The threat to public
safety is far outweighed by a dangerous driver than by a possible misuse of what essentially
should be a public record.

The issue for the more than 5000 background screening agencies and 10,000 plus private
investigators is access. These records are still available but not easily. The states are providing
the "Goliath" companies with electronic and automated access in many cases. These large
providers are receiving preferred pricing as well. While the smaller companies are forced to set
up accounts with each state, submit signed releases, notarized forms, pay high fees and wait in
some cases 10 to 14 days. This creates the problem for the employer who was used to a 2 to 3
day delivery of driving information at a reasonable price. The large companies suspiciously seem
to be in a unique position to solve this problem, as they just happen to also conduct criminal
background checks and other screening services. If these companies can have what appears to be
unrestricted or at least preferential access then so should the rest of the industry.

In the interest of public safety as well as business economic security access to these records must
be made uniformly available to all permissible users. Choice point and DAC services should be
responsible with their unique business advantage. Legislation such as this and other recent laws
restricting use of credit header information are ill conceived and politically motivated. They prey
upon people's fear of the Internet and unknown. In this day of the information superhighway
politicians and governments alike would have you believe that they should be the keepers of your
personal information. It is only through open government that we are truly free. When we are all
informed and each of us has the ability to stand behind our accomplishments and take
responsibility for our mistakes that we act as our fore fathers intended. Public openness means
public records.

When the judicial process is available for public scrutiny then the government cannot hide its
mistakes. This is one of the true principles of freedom of speech or rather freedom of
information! You voluntarily give your personal information out every day. Your grocer, doctor,
library, car dealership, accountant, magazine subscriptions all share sell and resell your
information. At last check we were all the better for it.

Our economy thrives on information; to stifle it is cutting off our nose to spite our face. To let the
government control it is at the least dangerous and at worst oppression. Freedom of information
and unrestricted access to public proceedings is the best way to watch what our leaders are doing.
There is a trade off between privacy and freedom. We have access to known sex offenders then
why not drunk drivers or thieves? That's acceptable until were the one who goes to court. Then
we want privacy. If we let the government fool us into thinking that closed public records and
secret files are good for us the we are no longer a democracy we will be the property of the
STATE. Personal responsibility is the true issue at hand not personal privacy!

No. 12
11/14/00
Washington, DC
I understand this issue to be one of on-line privacy. There is no reason not to provide the same
level of privacy on-line as we do at the Court. No more privacy, or security, should be had simply
by reason of the increased accessibility. If the question is one of privacy, regardless of venue,
then our case law should provide the answer. The internet should simply provide greater and
better access to those documents already in the public domain. Care should be taken to ensure
that all persons still have at least the same access as they do now. Whether that means retention
of paper documents, or provision of free computer services, I do not mean to decide. I only state
that the internet should make access easier for all persons, not just those with home or office
computers. Standards of privacy do not alter because of new technology. Technology must
change to meet our standards of privacy. The judiciary should beware a double standard for
paper and electronic documents. Companies are even now photocopying or scanning court files
to fill up their commercial databases (see, for example, Juritas.com). If we give access to paper
but not electronic copies, we are increasing the cost of public access, with minimal effect on
safeguarding privacy.

No. 13
11/14/00
Sanford Meltzer, JD
Keep current service. We protect the rights of the people and the proposal would hamper our
efforts in this age of computers and need for instant information

No.14
11/14/00
Abilene, TX
Would be helpful in avoiding travel and copying expense. Would be helpful in multiparty
lawsuits if, under local rules, files could be downloaded and discovery, under appropriate
protections, could be made accessible without the necessity of multiple duplication and mailing.
Care should be exercised to avoid publication of confidential information, which could be
addressed in local rules and protective orders.

No. 15
11/15/00
Joe Kolman
Reporter, Omaha World-Herald
Omaha, NE
What is public record in paper files should be public record in electronic files. However, as
someone who deals with information daily, I can understand the fears of providing mass amounts
of seemingly personal data electronically.

The options mentioned giving attorneys and members of the courts unlimited access. I would
recommend extending that provision to research entities, such as, individuals, academics and
members of the press. A provision could be written into the policy that would exclude gathering
of the data for commercial services, such as mailing lists. This sort of provision already exists in
some federal laws regarding public information.

Thank you for allowing me to comment.

No. 16
11/15/00
Richard Wilstatter
Criminal Defense Attorney
White Plains, NY
As a criminal defense attorney, I object to the proposed restrictions to PACER for criminal cases.
Federal criminal cases often involve prosecutions in more than one district. Frequently, we might
have a case in a district far from home. It is crucial to have continued access to PACER to keep
track of litigation on our cases. If I am representing a cooperator, I can move to have the record
sealed if that is necessary. Defense counsel are already at a tremendous disadvantage compared
to the government lawyers. We need to be able to find out what's going on in related cases in
other districts. Access to this information is a big time saver. Counsel can avoid hiring
investigators or other lawyers just to find out basic information from another district. If the
information is public, the public ought to have access.

No. 17
11/15/00
College student
Lexington, KY
In response to your request on what the public thinks about internet access to public documents: I
don't think that any document available for public viewing should receive any more protection
from such viewing just because it is being requested via the internet. After all, if any John Doe
can walk in off the street and get a copy of a public document, a student 1,000 miles away should
also be allowed the same access via their desktop computer. Any "sensitive" material, which
parties may want to keep private, should either be sealed or censored from public access, while
the main document remains a matter of public record.

In case you haven't figured it out yet, I'm a student trying to do a research project on the Metallica
vs. Napster issue. I wanted to be able to refer to the actual lawsuit itself, but cannot even find
that it exists. All I have to go on is news articles, the Metallica website, etc. But I really wanted
to have a copy of the actual lawsuit so that I would be sure to get a correct idea of the issues
involved. The lawsuit was supposed to have been filed in the U.S. District Court - Central
California Division.
I don't suppose you could help me? It would be greatly appreciated.

No. 18
11/15/00
Rebecca Lynn Woodward
Legal Assistant, Moyer and Bergman
Palo, IA
As a legal assistant at Moyer & Bergman, in Cedar Rapids, Iowa, I am often asked to obtain case
information from both the Federal Courts and the Iowa District Courts. The Iowa District Courts
have a policy wherein they will not even look up a docket number if given a case name. The
Federal Courts, on the other hand, have excellent web sites where decisions can be obtained on
line, and the Clerk of the Federal Courts are willing to assist in searches. All case information
that is available to us on-line just makes our job easier and less expensive for the client because
we would obtain the information no matter which way we have to go about it. Thanks.

No. 19
11/15/00
Newtonville, MA
Please note that notwithstanding the special interests of various groups that would
like to see the restriction of court information on the internet, I suggest that the "original intent"
of the framers of the constitution be reviewed on this matter.

I believe that the "original intent" of the founders of this nation desired a free and open form of
government, particularly in respect to the operation of the court system. In this regard, with
today's use of the internet as the growing primary form of research and communication, the
restriction of information in the court system on the aforementioned media constitutes a form of
obstruction to the public to free and open access to our court system.

I strongly believe that movement toward restriction of access to our courts in this regard
constitutes a overt disregard for the "original intent" in the establishment of our system of
government, the greater good of the public and movement towards the decay of the
integrity of our system and subsequently the decline of the public's confidence in said system. I
strongly urge you to promote the free and open access of the court system on the internet to the
fullest extent possible allowed by current and future technology.

No. 20
11/15/00
Judith Christie
Federal Court Employee
Detroit, MI
As a court employee and as a records manager, I would favor option 2 for criminal cases. Option
2 for criminal cases protects individuals from possible intimidation by keeping certain materials
out of the public eye. In the court for whom I work, very little of the named documents are
maintained in the court file, plea agreements being the ones that are kept in the case file but they
are sealed if ordered by the judge. If plea agreements were kept completely out of case files, that
would be most desirable.

The existence of social security numbers on civil documents is also a concern because of identity
theft. I think the judiciary should ban the routine use of these numbers in student loan cases and
the like.

No. 21
11/16/00
Coeur d'Alene, IO
The ability of the public to access the courts, both as litigants as well as observers has been a
right of the people since the inception of our country. That is why our courts are open, except for
special issues, instead of the other way around.

I certainly agree that medical information should remain private. I believe that a simple rule of
thumb will be that if the information would be public if I were to be in court or go to the court
house to view a file, then it should be public on the internet. If you opt to file bankruptcy, then
you must expect your financial dealings to become public.

On another topic... What is this 17 cents a page thing. If it is already computerized, it is not
costing any 17 cents a page for me to view a document on my own computer. You cannot recoup
the costs of entering the information, particularly if you would be entering the information
anyway. This is why we pay taxes!

No. 22
11/16/00
Julie Titone
Staff Writer, The Spokesman Review
Coeur d'Alene, IO
I'm writing to give my strongest possible support to continuation of, indeed enhancement of,
public electronic access to this nation's court records.

Full awareness of judicial actions is an underpinning of our freedoms. As a U.S. citizen, and as a
journalist, I see only bad things coming from efforts to restrict access. Only minor,
non-significant deletions to protect privacy -- such as shortening of social security or credit card
numbers -- should be considered.

No. 23
11/17/00
Columbia, MO
I fully support online access to records and dockets of the federal court system. I believe that the
current unified system, PACER, is antiquated and does not serve the needs of the general public.

By online access, I mean both access through dedicated machines and through the Internet.

No. 24
11/17/00
San Anselmo, CA
Any sensitive personal information should be blocked out ("xxxxx"), all else in transcript should
be made public on the Internet.
Thank you for your attention.

No. 25
11/17/00
Norman Mayer
Clerk of Court, EDVA
Fairfax, VA
(Personal views-not those of the court)
This is a very difficult public policy issue. Although I am the Clerk of Court for the U.S. District
Court, Eastern District of Virginia, my comments reflect my own personal views and are not
intended, and should not be used, as an official position of the court.

It is my belief that privacy protections should be put in place on electronic court records,
restricting public access where the privacy interests outweigh the public's interests in openness.
Sensitive personal and business data need to be protected before electronic records are made
accessible.
This can be done via built-in restrictions in the automated systems to keep pre-defined data
confidential; renewed scrutiny by the litigants and judges to seal material on a case-by-case basis;
and only allowing wide access to all data to the litigants and parties to the cases.
Further, it may also be time to make the same restrictions on the paper records, so that access is
consistent no matter what format the records are in. This would be very difficult for the records
custodians to implement, however.

Thank you for the opportunity to comment.

No. 26
11/19/00
Milwaukee, WI
I think it is rather simple. If court cases are to be open to the public, then the
public should have easy access to those records. Making access hard to obtain for
the public, when internet access can be made, only makes a opening of such records
to those who are able to go to the records office and get them. Else limiting
such access to those who are not well versed in how to apply for such information.
The last reason one might see for not allowing internet public access is for the
government to simply try to charge for copies or even access in order to
discourage the public from obtaining such information, all for the sake of making a buck!

Milwaukee for example, already allows internet access to their Circuit Court files.
People use this information many times for protection. Women who begin dating someone new
check to see if the man has a record that they need to be concerned about, for
their children and/or just for themselves. Landlords also use this service to see if someone
they might rent to has a history of violence or bill problems etc...This also works in reverse for
renters. There are so many reasons why people should have easy access to all court records. After
all, if someone is guilty of any kind of a crime, and as long as that person deals with people in
any manner, then those people should by all means, have the right to know the person they
might have to deal with! It is for their protection. Leaving the public in the dark
leaves them to danger, danger that they could very well avoid.
Please note that my name and address above is fake. I am sorry to do that, but
I am not sure if this site is suppose to be for Lawyers only. Since I am NOT
a lawyer, and since I felt you might really need to hear from a member of the
general public on this matter, I took the liberty to write this. The only thing that is real is my
email address should you wish to comment back to me or simply tell me to get lost!
I do thank you for your time and for reading my comments.

No. 27
11/20/00
Kent, WA
Electronic records should only be reviewable at the courthouse, not across the Internet.

No. 28
11/20/00
Renton, WA
While most paper documents filed today are available for viewing as public record, individuals
wishing to view them are constrained by court hours and viewing procedures. These procedures
often require individuals to document who they are before they are allowed a copy. Only copies
of documents are provided at the requesting individual's expense. Unlimited Internet access
would eliminate these few privacy safeguards now in place. If courts DO go to an open access
system, not only should the viewing hours be limited to court hours, but also some sort of system
for monitoring access should be in place to deter fraud. Charges should be similar to those
required for hard copies, and, of course, "read only" copies should be provided.

No. 29
11/20/00
Jim Sweeney
James M. Sweeney and Associates (Private Investigator)
Davenport, IA
I am the owner of a private investigation firm in Davenport, Iowa. I also have a division that
does extensive pre-employment screening for a variety of companies. My investigation company
specializes in prevention of criminal activity in the workplace and investigation of employee
misconduct. I consider myself and m y agency very professional.

For the past eleven years I have accessed both civil and criminal records on a variety cases.
These records were searched for legitimate reasons and often time s have been invaluable in
helping to protect the assets of companies and individuals.

I also know that as in any profession, there are those that take liberty with in formation that
should be kept confidential and therefore ruin it for all of us. I personally believe that there are
documents involved in certain criminal cases and civil cases that are and should remain private.
This would include tax returns, medical records, treatment results and other such documents. To
my knowledge, the court has always been just in deciding what documents should and should not
be seen by the public. For that reason, I would like to see the option that would treat paper and
electronic access equally and assumes that specific sensitive information would be excluded from
public view or presumptively sealed.

I believe that it serves the purpose of the public and provides adequate protect ion to all parties
that electronic access be gained to obtain sufficient to secure understanding of what a case is
about and the determination made in the case. This has always been sufficient although at times
it would have been nice to have more.

I do believe that it is extremely important to have access to identifiers such a s a date of birth or
social security number. There must be a way to verify that the information in the file does relate
directly to the subject of inquiry. This may require different levels of access allowing certain
parties to obtain documents containing this information.

I would suggest that there be a provision in the software that allows the person seeking access to
enter the social security number or date of birth and receiving a positive or negative response as
to whether it is the correct subject. This prevents the court from providing those identifiers.
Typically, anyone seeking records has one or the other or both of the identifiers. That way the
record is confirmed.

Thank you for allowing for public comments.

No. 30
11/21/00
Norway, ME
I feel that the proposals are fair, but there has to be extreme security in the matter of
criminal cases, as noted in the outlines-defendants and their families would be at risk
for possible retaliation from absolute strangers should they be allowed free and easy access to
material that is only intended for court use and disposition. The status of a case, and other
"public" information should be readily available, but other material, such as pleas and past
personal history of the defendant should be kept off line. As one involved in a case at this time, I
feel my privacy outweighs any public interest in the case, and would be very concerned
to have absolute strangers reading material that even I would rather they not. If it were not for
the Internet, indeed, I would not have found information regarding the case I'm concerned with
more readily, as the briefs for proceedings and rulings were found on several useful legal
sites-which is all I would grant should be available to the general public at this time. Anything
more would be opening the door to abuse and possible harassment for the people concerned in
criminal cases.

No. 31
11/21/00
San Francisco, CA
The data provides very useful insights into the causes of bankruptcy, which is not
available anywhere else, and therefore should be made public for the purpose of study
and education. However, there is no reason to provide the social security number of filers,
which can be mis-used, and the street address of filers could also be blocked if necessary. City or
zip code is sufficient information for most studies. I believe long term that creditor information
should be downloadable, perhaps on a subscription basis, and anything the courts could provide
that help further explain the cause of
bankruptcy would also be helpful.

No. 32
11/22/00
Beaumont, TX
Request for Comment includes the following:
"Individuals who seek a particular document or case file will need to open a PACER account and
obtain a login and password. After obtaining these, an individual may access case files ? whether
those files were created by imaging paper files or through CM/ECF ? over the Internet. Public
access through PACER will involve a fee of $.07 per page of a case file document or docket
viewed, downloaded or printed. This compares favorably to the current $.50 per page photocopy
charge. Electronic case files also will be available at public computer terminals at courthouses
free of charge."

My comment:

In order to make electronic files available to the public and/or interested parties and attorneys via
internet on the same basis as they shall be available at the courthouse, the cost to the person
seeking those records ought to be the same, in my opinion.

At present, I may go to the courthouse and view files for free, may I not? So why not let me view
them online for free?

If I need to see a hundred pages to select the one that applies to my need, then at the courthouse,
using paper files, I would pay fifty cents for a photocopy of that one page, would I not? But with
the proposal above, I would pay seven dollars to see all hundred pages, then download the one to
my computer. Yet, if I went to the courthouse to see the electronic pages, I would look at all of
them for free, then print one out for how much? Free? Fifty cents? Seven cents?

My suggestion is that you make all the records available for free to all the public. To charge
anything - even a few pennies - for a document says on its face that access ought to be rationed
by wealth; that citizens with money are somehow deemed "more equal" than those without. I'm
sure this is not what you intend, but it is what would happen.

Also, in this same vein, I propose that it will be far cheaper to pay court bureaucrats to perform
all the necessary computer functions for this facility, than to pay private bureaucrats plus profits
for their employers. Provision of services like this is a proper government function, and ought to
be handled by the government, not the private sector.

Thank you for allowing me to comment. I may choose to comment further on this or other points
at another time, before the established deadline.

No 33
11/22/00
Cheyenne, WY
The phrase "public record" implies the information contained therein is available to the public. It
does not seem fair to limit public disclosure to those with enough time, money, or physical ability
to produce themselves in person at the District Clerk's Office. Such a policy unfairly
disadvantages those who may need the record, but find it impractical to get the information if a
personal visit is required.

There are many problems with electronic filings containing sensitive information. Perhaps the
worst would be information concerning the cooperation to the government provided by a
defendant in a drug case. Such information could result in bodily injury or death if made public
in certain populations, such as prisons. Documents containing such records should be sealed, but
sometimes mistakes are made.
The burden must be upon the filing party to insure the information in a public record is safe for
public consumption. To hold clerks liable would be impractical due to the sheer volume of
documents filed each day. Still, clerks can be asked to keep an inquiring mind when scanning in
documents to look for information that obviously should not be available to the general public.

No. 34
11/22/00
Gary, IN
I believe public information should be listed on the internet. The World Wide Web is the future.
Soon, most homes will have computers--maybe not in the foreseeable future, but computers will
be required in order to exist in the world. Having this information on line is a tremendous step
for mankind. We can do away with paper. Staff will able to be cut because information is
available at your finger tips. Even if someone were to visit an office for a document. They could
have access to the computer to look the document up. No need for someone to search through
the mounds of paper to get to a file.

No. 35
11/22/00
Seattle, WA
If it is public record, then I believe it should be as easily accessible via internet as paper. Thanks.

No. 36
11/23/00
Mineola, NY
Please do not eliminate electronic access to criminal cases. Doing so would represent an
abridgement of the free access to public information.

No. 37
Kent Morlan, Esq.
Internet Publisher
Tulsa, OK
I am an attorney and the editor of MoreLaw.Com. Among other things, MoreLaw collects and
publishes information about civil cases including jury verdict and settlement reports and
information about the judges, lawyers and experts involved in the litigation process. It is my
opinion and the position of MoreLaw that access to public records should be free to the public in
all instances and that access via the Internet should be free. For all practical purposes, the public
does not have access to the records of the Federal District Courts because an account is required
and there is a charge for accessing the information.

From personal experience, I can attest to the fact that the vast majority of attorneys don't even
know about PACER and have never used the service. Given the fact that Federal Courts handle a
small fraction of the cases handled by the state courts of general jurisdiction, the number of
people who would have any interest in the information you are concerned about will be very
small. Also, since most discovery is no longer filed with the clerks, there isn't much to see on
most sites, e.g., the United States District Court of New Mexico, that currently make some of
their records available for viewing.

In my opinion, you need to make access to judicial information easier rather than harder. The
calendars of the courts and the dockets need to be available via the Internet for free!

No. 38
11/24/00
Thomas Lincoln
Criminal Defense Attorney
San Juan, PR
The following are my comments to the proposals regarding electronic public access to criminal
case files:
Proposals:
Criminal Case Files

1. Do not provide electronic public access to criminal case files. This approach advocates the
position that the ECF component of the new CM/ECF system should not be expanded to include
criminal case files. Due to the very different nature of criminal case files, there may be much less
of a legitimate need to provide electronic access to these files. The files are usually not that
extensive and do not present the type of storage problems presented by civil files. Prosecution
and defense attorneys are usually located near the courthouse. Those with a true need for the
information can still access it at the courthouse. Further, any legitimate need for electronic access
to criminal case information is outweighed by safety and security concerns. The electronic
availability of criminal information would allow co-defendants to have easy access to
information regarding cooperation and other activities of defendants. This information could then
be used to intimidate and harass the defendant and the defendant's family. Additionally, the
availability of certain preliminary criminal information, such as warrants and indictments, could
severely hamper law enforcement and prosecution efforts.

Comment: I am a criminal defense attorney in the District of Puerto Rico. Although I would
personally find it very convenient to be able to have electronic access to criminal case files, I find
that --at least for the time being-- such information should not be available online. If such access
were to be granted, it should be on a limited basis, automatically excluding all sorts of categories
such as motions for change of plea, plea agreements, motions dealing with any sentencing issues,
to name but a few. CJA Vouchers should also not be available online. Moreover, if electronic
access to case files is to be implemented in criminal cases, procedures should be provided for
attorneys to be able to assure that any document they so request to be kept sealed and/or off-line,
be kept sealed and/or off-line, or that it otherwise be returned to counsel, thus guaranteeing that
information counsel and/or his client do not want to be made public, is not compromised. Note:
The reason(s) for counsel and/or the client to wish certain information be kept sealed and/or
off-line may sometimes be obvious, but such is not always the case, and the benefit should be
given to the attorney's determination.

2.. Provide limited electronic public access to criminal case files. This alternative would allow
the general public access to some, but not all, documents routinely contained in criminal files.
Access to documents such as plea agreements, unexecuted warrants, certain pre-indictment
information and presentence reports would be restricted to parties, counsel, essential court
employees, and the judge.

Comment: See Comment to previous proposal.

No. 39
11/24/00
Chehalis, WA
Internet access to court documents and cases is the best thing which has happened to the
American
public. It is necessary for a person to be fully informed.

No. 40
11/24/00
Andrew U.D. Straw,Esq.
Bloomington, IN
Civil: I strongly support maximum public access, with a recommendation to the legislature to
increase criminal penalties for misuse of such information and enhanced civil remedies as well
for those who are harmed by misuse. *All* records should be available over the Internet if they
are available for public perusal in the courthouse. Just as no one stands at the door of the
courthouse and keeps certain people out, so should no one be discriminated against simply
because they do not have the means or desire to travel to the courthouse to view public
records. I also oppose charging for public documents provided over the Internet. Taxpayer
money has already been expended to make these documents available, so they should be
available to anyone for free. There is a distinct difference between printing at the
courthouse on the court's copy machine and printing from one's own computer at home. The
upkeep of one's own printer should not be used as a basis for charging when the clerk does not
have to expend money to do the printing. Public documents should not be a cash cow. Tax
money should be expended to make the system open, and then the system should be open and
free for the public to use.

Criminal: I can understand law enforcement reasons for wanting to keep certain documents
private, but I disagree with the starchamber approach that prevents the public from being able to
see what happens in the courts taxpayers pay for. Plea agreements should be public so that
taxpayers can evaluate the performance of prosecutors and judges. Any documents that a judge
does not have a compelling reason to seal should remain open and available on the Internet.

Personal information in Bankruptcy and other similar cases: social security numbers and credit
card numbers should be excised or "virtually sealed" to prevent obvious likelihood
of abuse. Whole documents, however, should not be sealed simply because certain specific
information needs to be excised or protected. As XML begins to invade the e-filing business, it
will be exceedingly easy to simply ensure that certain criminal abuse-prone information gets
"private tags" -- precluding even the need for a clerk to make that determination.

The Courts should not be cajoled into a mode of secrecy simply because there is a risk of privacy
invasion due to electronic dissemination of public information. If there are rights of privacy
either under the Constitution or other statute, the person whose rights are at risk needs to take the
initiative to protect those rights.

Courts should not backpedal on their commitment to openness simply because new technology
has come along. This result would be the equivalent of sealing all order books and case files in
1960 because the new copy and fax machines made it easier to copy and transmit a document
from the courthouse than re-writing or re-typing it by hand.

No. 41
11/24/00
J. Stephen Ryan, Esq.
Katy, TX
Mechanisms, Rules, and law already exist to protect litigants' sensitive information.
Trade secrets, tax returns, medical information, and other information legally recognized
as private or "sensitive" may always be protected by motion to seal, etc.

The default policy choice should always be resolved in favor of openness of the Courts
and their records, as recognized by present law. The perceived difficulty of obtaining
physical access to Court records has never deterred credit bureaus, private investigators, and the
monied and powerful from accessing these public records at will; to impose artificial restrictions
against full public Internet-mediated electronic access would operate only to disenfranchise the
general public of their right to conveniently view the records and operations of the Courts for
which their taxes pay, and continue to ensure that the full records are available only to those
powerful, knowledgeable or advantaged enough to physically seek them out.
By its nature, the litigation process exposes normally nonpublic information to public view, but
there is no rationale for keeping the information only physically available to those willing to go
to the Courthouse, and burdening the public with such antiquated methods of accessing the
records of their hitherto fully open Courts.

In addition, many benefits to our society have been realized from the historic doctrine of
openness of the Courts, and attempts to conceal or burden the right of the public to view Court
records should be closely and stringently scrutinized.

All records of the Courts, saving only those recognized by law as appropriate subjects
for potion and Order to seal, should be available online. Privacy decisions making
certain information sealable should, as has been the case so far, be made on a case
by case basis, and the Offices of the Courts should not here make new law and policy
regarding what would be effectively a "sealing" of court records for 99.9% of the public
who cannot go to the Courthouse in person.

Additionally, great benefits for litigants, the Bench, and attorneys are realized by making all
Court documents in a case readily accessible online. Full Internet access to Court records will
benefit the administration of justice and our legal system as a whole.

No. 42
11/25/00
In the Toysmart case, customers submitted this info to Toysmart. From what I have read, it seems
like you (the government) wants to allow at least some of these customer lists to be sold to
similar companies, to appease the creditors in bankruptcy trials. This, to me, is a blatant invasion
of privacy. These customers submitted this info to Toysmart, not a similar e-toy company or any
other business entity. It appears as if the government is allowing anyone with enough money to
access huge amounts of private information. Now, the companies that purchased this info have
significant power.

Identity theft is only one of the many possible intrusions of individuals privacy that could occur.
Toysmart's customers should not be punished because Toysmart went bankrupt, Toysmart should
be punished. DO NOT allow this blatant invasion of privacy to occur.

No. 43
11/26/00
Alexandria, VA
Personal data--credit information, address, social security number, photographs, etc., whether on
paper or electronic copies accessed via the Internet--should be blacked out from court documents
released to the general public in order to protect our Constitutional right to privacy. If the
personal data are to be released to the general public, permission should first be sought from the
individual, who's right to privacy may be violated. By not following my recommended course of
action, the Courts place all of us at risk of "identity theft" and other crimes, not to mention a
serious loss of privacy.

I am not a lawyer and I do not represent any special interest groups. I am a federal employee for
a US foreign intelligence agency.

No. 44
11/26/00
Seattle, WA
I am a probate administration paralegal. I am in favor of treating unsealed electronic court files
the same as unsealed court files have been in the past--they should be available for public review
and subject to photocopying/downloading. The availability via Internet will reduce costs to our
clients as an alternative to having a messenger or attorneys' service employee copy documents at
the courthouse. As a hobby genealogist, I believe it will be a boon to future researchers.

No. 45
11/27/00

To whom it may concern:
Public access to court records is necessary and required in an information-based economy such as
we have. Making court records available over the Internet is necessary to ensure public and
corporate safety and security. Thank you for the opportunity to comment.

No. 46
11/27/00
Alan Schroder
Law Librarian
Costa Mesa, CA
I am supporting full and open access to all court records filed electronically and in print.
Furthermore, I would strongly urge the court systems to maintain both electronic and print
filings. So-called private or personal information in court filings is frequently used to further
investigate a claimant. Such use is lawful and been practiced for decades.

The transient nature of information technology makes print versions of court filings imperative.
Until a reliable and predictable electronic standard is created and agreed upon, electronic filings
are tenuous at best. The AOUSC must determine what the electronic archive standard will be
(e.g. 20 years?), software and browser considerations, form and format of filings, adaptability of
current filing requirements to the electronic world, staffing considerations, funding, and point of
service considerations including speed of delivery and conduit.

I believe the courts should function as servants for the people and not as research and
development entities for third party commercial online service providers unless a substantial
licensing agreement is reached beforehand that benefits the court systems in general. Finally, the
lawful use of court records and filings has been ongoing for decades without privacy concerns.
There are numerous laws on the "books", both criminal and civil, that protect individuals from
harm. No need to start further restricting access to court filings on account of increased
electronic filing. In this age of ADR and sealed court documents AOUSC needs to manage this
new technology effectively, much as it has the more familiar print filings in the past and present.

If you require and further comment or considerations please don't hesitate to contact me. Thank
you.

No. 47
11/27/00
I believe that the privacy policy should be confined to access via courthouse only. The
information should not be available to just stumble over when searching for something else
entirely. The person accessing this information should want it specifically and going to the
courthouse to get it, is not onerous. It just weeds out the undedicated.

I also believe that the cameras should not be allowed in courtrooms. We all saw the mugging and
entertainment play to the cameras during the OJ Simpson trail. This was not serious court. This
was strictly entertainment. Our courtrooms should not be viewed as entertainment. They should
be business and that does not include media business

No. 48
11/27/00
Linden, IN
I believe that all court records should be accessible through the internet. I can go to the
courthouse to obtain the information; however, it makes life much easier and I miss a lot less
work by being able to obtain the information over the internet. If the courthouse had hours that
were more flexible it might be different.

No. 49
11/27/00
Cordova, TN
I work in health information management and would be very concerned if patient medical
records became open to public review via the internet. I am now employed by an integrated
delivery network in an ambulatory setting. A significant part of our business is related to
occupational health and worksite injuries. For example: If a healthcare worker experienced an
exposure to HIV and then sued the organization for negligence, would that employee's records
related to HIV status be open to review on the internet?? This is very troubling legislation.

No. 50
11/27/00
Birmingham, AL
I feel the internet opens this type of data to eyes that have no business seeing this data. Please
keep access the way it is at present. As citizens, we have already lost more of our privacy and
freedom than we should have ever given up with out a fight.

No. 51
11/28/00
Rennsalaer, NJ
That the Courts should go to a computer filing system is ok . However , The intrusion into all
aspects of our private information is to great now and is being miss used by many different types
of individuals - many times in ways that provide no benefit to the individual and many times to
his or her detriment. I believe that viewing of all public court documents should be restricted to
the respective Courthouse only . Further , that the Courts should move to protect the non-court
personal information on individuals from computer dissemination because this type of
information is already being abused and needs to be curbed , restricted , or stopped .
The potential for abuse is much greater than the potential for benefit in making court documents
available in this manner.

No. 52
11/28/00
Alexandria, VA
The Internet is the means by which all people will have full access to information. It is inevitable
that one day all court cases will be available in electronic form just as all court cases are available
today in paper format. This is simply the way society will grow. The issue of privacy is an
important one, but if documents are available to the public through other means currently why
restrict access to those few who can make it to the courthouse. As long as every reasonable effort
is made to protect those who are relying upon the courts for protection this medium should and
will be used. It is inevitable.

No. 53
11/28/00
Alpharetta, GA
If a document, whether used in court proceedings or otherwise, is considered to be a public
document then immediacy of access should have no bearing on the dissemination of the material
in question. The concept of restricting electronic access to public documents, because of the
possibility of mass dissemination, treads perilously close to restriction of first amendment rights.
Would we be willing to pronounce publication of public documents off limits to traditional press
outlets? Doubtful. If it is in the public interest for a document to be deemed a public document
then it is in the public interest to encourage the widest dissemination possible. To do less makes
a mockery of the very concept of "public."

No. 54
11/28/00
Clyde Hill, WA
Civil Cases: a blend of options 1 & 2 is to be preferred; private and sensitive information would
be sealed on application of an attorney representing the party whose information is in the record;
this is an application, not a motion, and presumptively should be granted absent just cause; such
information could then be available on application to the hearing judge (or, another justice if the
trial judge is not available); such applications for disclosure would have to state the reason or
purpose for which the information is needed; commercial use of disclosed information must be
prohibited (this includes not only commercial sale but also media use/disclosure) violations must
be subject to exemplary sanctions & fines.

Criminal Cases: maintain the status quo (at least for the near future), i.e., no disclosure
electronically, no electronic record.

Bankruptcy : electronic case files should be opened and available, as at present for paper files,
using the guidelines of Sec. 107.

Thank you for your attention.

No. 55
11/29/00
Chicago, IL
I am concerned about the erosion of privacy for sensitive information. Public access to the
sensitive information can lead to great harm, including unwarranted discrimination, identity theft,
and other physical, financial, and mental harms. Accordingly, court records should have
some protection from unrestricted, widespread public access.

I submit below IN ALL CAPS a response to each proposal regarding security / privacy of court
files.

Civil Case Files

1.Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically.

It would also rely on judges' discretion to protect privacy and security interests on a case-by-case
basis through orders to seal or to exclude certain information from remote electronic public
access.

THIS OPTION DOES NOT ADEQUATELY PROTECT LEGITIMATE PRIVACY
CONCERNS. FOR EXAMPLE, IF A COURT RECORD HAPPENS TO INCLUDE A SOCIAL
SECURITY NUMBER OR OTHER SENSITIVE FINANCIAL AND PERSONAL
INFORMATION, ANONYMOUS THIRD PARTIES COULD USE THIS INFORMATION TO
ACCESS PERSONAL FINANCIAL, MEDICAL, EMPLOYMENT, AND OTHER RECORDS
NOT NORMALLY GIVEN TO INDIVIDUALS AND BUSINESSES IN THE PUBLIC AT
LARGE.
THIS OPTION DOES NOT PROVIDE SUFFICIENT PRIVACY PROTECTION.

2.Define what documents should be included in the "public file" and, thereby, available to the
public either at the courthouse or electronically.

This option would treat paper and electronic access equally and assumes that specific sensitive
information would be excluded from public review or presumptively
sealed. It assumes that the entire public file would be available electronically without restriction
and would promote uniformity among district courts as to case file content. The
challenge of this alternative is to define what information should be included in the public file
and what information does not need to be in the file because it is not necessary to an
understanding of the determination of the case or because it implicates privacy and security
interests.

THIS OPTION ENABLES PROTECTION OF LEGITIMATE PRIVACY INTERESTS BUT
WOULD REQUIRE MORE WORK ON THE PART OF COURTS,
ATTORNEYS, AND LITIGANTS. ADDITIONALLY, THE LACK OF CLEAR STANDARDS
THIS PROPOSAL SEEMS TO PRESENT COULD LEAD TO EXTENSIVE LITIGATION,
AND THEREFORE CREATE MORE DEMAND FOR OVER DEMANDED, LIMITED
COURT RESOURCES. IT IS BETTER THAN NO PROTECTION AT ALL BUT NOT THE
IDEAL METHOD.

3.Establish "levels of access" to certain electronic case file information.

This contemplates use of software with features to restrict electronic access to certain documents
either by the identity of the individual seeking access or the nature of the document to which
access is sought, or both. Judges, court staff, parties and counsel would have unlimited remote
access to all electronic case files.

This approach assumes that the complete electronic case file would be available for public
review at the courthouse, just as the entire paper file is available for inspection in person. It is
important to recognize that this approach would not limit how case files may be copied or
disseminated once obtained at the courthouse.

THIS OPTION IS FLAWED TO THE EXTENT THAT VISITORS TO A COURT CAN STILL
OBTAIN POTENTIALLY SENSITIVE PERSONAL INFORMATION FOR WHICH THE
PUBLIC HAS NO LEGITIMATE NEED AND THAT MAY BE USED TO CAUSE
FINANCIAL OR HARM TO A PARTY. PARTIES TO LITIGATION OFTEN HAVE NO
CHOICE IN THE MATTER. A LITIGANT MAY BE FORCED TO DEFEND A LAWSUIT,
WIN, AND STILL END UP RECEIVING HARM BY BEING FORCED TO HAVE
INFORMATION MADE PUBLIC THAT WOULD OTHERWISE REMAIN PRIVATE
SIMPLY BECAUSE ANOTHER PARTY ELECTED TO FILE A FRIVOLOUS OR A WEAK
LAWSUIT.

4.Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for
privacy and security interests.

PRIVACY AND SECURITY INTERESTS SHOULD BE A KEY PART OF THE HANDLING
OF COURT RECORDS. THE INTERNET AND COMPUTER TECHNOLOGY TODAY
GREATLY EXPAND THE ABILITY OF MALICIOUS AND ILL-INTENTIONED ACTORS
TO USE SENSITIVE INFORMATION TO CAUSE PERSONAL OR FINANCIAL HARM AT
ANOTHER'S EXPENSE. LITIGANTS SHOULD HAVE SOME RIGHT TO PROTECT
SENSITIVE INFORMATION NOT NORMALLY AVAILABLE TO THE GENERAL PUBLIC.
THE FAILURE TO PROTECT INFORMATION IN WHICH INDIVIDUALS MAY HAVE
LEGITIMATE PRIVACY INTERESTS CAN ACT AS A DETERRENT ON LEGITIMATE
LITIGATION.

Criminal Case Files

1.Do not provide electronic public access to criminal case files.

The electronic availability of criminal information would allow co-defendants to have easy
access to information regarding cooperation and other activities of defendants. This information
could then be used to intimidate and harass the defendant and the defendant's family.
Additionally, the availability of certain preliminary criminal information, such as warrants and
indictments, could severely hamper law enforcement and prosecution efforts.

THIS OPTION PROVIDES THE GREATEST PROTECTION TO PERSONS INVOLVED IN
CRIMINAL LITIGATION, INCLUDING WITNESSES AND JURORS, AND BEST ENSURES
THE EFFICACY OF THE CRIMINAL JUSTICE PROCESS.

2.Provide limited electronic public access to criminal case files.

This alternative would allow the general public access to some, but not all, documents routinely
contained in criminal files. Access to documents such as plea agreements, unexecuted warrants,
certain pre-indictment information and presentence reports would be restricted to parties,
counsel, essential court employees, and the judge.

THIS OPTION MAY NOT PROVIDE SUFFICIENT PROTECTION OF ALL LEGITIMATE
PRIVACY AND SECURITY CONCERNS.

Bankruptcy Case Files

1.Seek an amendment to section 107 of the Bankruptcy Code.
Section 107 currently requires public access to all material filed with bankruptcy courts and gives
judges limited sealing authority. Recognized issues in this area would be addressed by amending
this provision as follows: 1)specifying that only "parties in interest" may obtain access to certain
types of information; and (2) enhancing the 107(b) sealing provisions to clarify that judges may
provide protection from disclosures based upon privacy and security concerns.

THIS OPTION PROVIDES NEEDED REFORM TO ASSURE PROTECTION OF SENSITIVE
INFORMATION THAT MIGHT LEAD TO IMPROPER DAMAGE AND HARM TO
LITIGANTS AND PARTIES SEEKING BANKRUPTCY PROTECTION.

2.Require less information on petitions or schedules and statements filed in bankruptcy cases.

THIS OPTION MAY NOT PROVIDE DEBTORS ALL THE INFORMATION NEEDED TO
ASSURE THE FULL AND MEANINGFUL ENFORCEMENT OF THE DEBTORS' RIGHTS.

3.Restrict use of Social Security, credit card, and other account numbers to only the last four
digits to protect privacy and security interests.

AT A MINIMUM, THE COURT SHOULD ADOPT THIS OPTION AND PROVIDE SOME
PROTECTION FOR LEGITIMATE PRIVACY INTERESTS, ALTHOUGH A GREATER
DEGREE OF PROTECTION IS PREFERABLE.

4.Segregate certain sensitive information from the public file by collecting it on separate forms
that will be protected from unlimited public access and made available only to the courts, the
U.S. Trustee, and to parties in interest.

THIS OPTION MAY PROVIDE SUFFICIENT PROTECTION OF LEGITIMATE PRIVACY
INTERESTS. A BETTER APPROACH, THOUGH, MIGHT BE TO ASSURE PROTECTION
UNLESS A LEGITIMATE NEED IS PROVEN AFTER APPLYING A BALANCING TEST
OF INFORMATION SOUGHT AND REASON FOR THE REQUEST COMPARED TO
INFORMATION SOUGHT TO BE PROTECTED AND REASONS TO PROTECT THE
INFORMATION. THUS, MUCH LIKE DELIBERATIVE PROCESS PRIVILEGE ISSUES AT
THE FEDERAL LEVEL, A COURT WOULD FIRST ALLOW THE PERSON TO WHOM A
COURT FILE RELATES HAVE AN OPPORTUNITY TO OBJECT TO RECORD RELEASE.
THEN, IF THE PERSON TO WHOM THE INFORMATION RELATES CAN SHOW
LEGITIMATE PRIVACY OR SECURITY CONCERNS IN SOME OR ALL OF IT, THE
SEEKING PARTY CAN ATTEMPT TO PROVE A NEED THAT OUTWEIGHS
LEGITIMATE PRIVACY CONCERNS. SOME INFORMATION SHOULD HAVE
PRESUMPTIVE PROTECTION, SUCH AS SOCIAL SECURITY INFORMATION,
MEDICAL RECORDS, AND THE LIKE.

Appellate Cases

1.Apply the same access rules to appellate courts that apply at the trial court level.

COURTS SHOULD ADOPT AN ACROSS THE BOARD RULE APPLYING TO ALL
FEDERAL COURTS.

2.Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction
in the appellate court.

THIS OPTION DOES NOT ASSURE UNIFORMITY OF TREATMENT. THE PRIOR
OPTION SHOULD BE ADOPTED, NOT THIS ONE.

No. 56
11/29/00
Chesapeake, VA
The accessibility of files from a particular website from anyone on the Internet is not a simple
on-off function. Through judicious use of farewells and IP address controls it is possible to
achieve the benefits of electronic transfers without providing instant access to every citizen
in the world. In the interests of protecting serious information about people's lives from
becoming fodder for gossip, we must make sure that gaining requires a level of effort and cost
similar to that associated with traveling to the courthouse. I would recommend a registration
process with a subscription fee (which would become a customary cost in bona fide legal work).
This is not to say that there should be additional controls placed upon the information once it has
been accessed, but there should be a requirement to identify who is responsible for the posting
(analogous to paid political advertising). While there may be adventurous individuals who
would go to lengths to find and post information at more public sites on the web, their
traceability would at least allow motives to be exposed for public review.

More important than easing access to information for those who have the resources to use the
Internet, I believe there must be rules which require each courthouse to ensure that all records are
open to the degree of "free" inspection which paper documents have traditionally been subjected.
That is, if electronic files are acceptable to the court, then one or more workstations allow the
public to access these files at the courthouse. Additionally, since search engines relieve the work
load of attorneys using web access (thus giving them advantage), search engines should be
available to those accessing files at the courthouse.

No. 57
11/29/00
Lyman, SC
Anonymity is the problem w/ unrestricted internet access to stuff. If the person wanting
information were as visible on the net as s/he is when going into a courthouse, there would be no
problem. The people who violate privilege on the internet are the same who'd TRY to do it
out in the real world; most often they're too cowardly to try, or too inept to succeed. The problem
with the internet is the bad guys have a cloak of invisibility more through than an ordinary
disguise would offer. And, as for catching those who violate reference privilege, the cost would
prohibit the search: there's enough money to track down someone who steals from a corporation
or threatens a person in a position of political power, but no money to hunt down violators of
personal information, since protected rights are primarily those of PROPERTY, not the
reputations or privacy of ordinary people. It's a terrible dilemma, and no single answer will
suffice. I'd say the same restrictions must govern internet access to personal information as
govern in-person access. Surely the technology exists so I'd HAVE to leave a cookie when I'd
looked at a person's file. And if I don't want my presence known, I'd better not be there . . .
Skulking around is a tacky way to conduct life! Thanks for giving me the opportunity to clarify
my thoughts on this matter.

No. 58
11/29/00
Prescott, AZ
The importance of the Internet is the providing of information. If one may access information by
directly requesting photocopies of it, it makes little sense to say that one can not get the very
same information from the Internet, if available. You should be able to get exactly the same
information, no more and no less. The manner in which you get it makes no difference.

No. 59
11/29/00
Stanley D. Helsinki, Esq.
Boston, MA
I am certainly for unfettered access. The standard should be the same standard as is applied in
allowing cameras into courtrooms. The issue is not of privacy, but accessability. A document is
either public or private--no shades of grey. It also further spreads the nations resources to those
who may not have access.

No. 60
11/29/00
Los Angeles, CA
I would like to urge you to keep court records, for all types of cases, from being made available
electronically to the general public. I believe the current system sufficiently addresses the
concern for public access while making it substantially burdensome for ill-intentioned people to
access this personal and potentially harmful information. The posting of this information on
the Internet would make it increasingly easier for criminals to commit their crimes, by providing
social security numbers, personal contact information, employment, and financial information at
the click of a button. The files now exist on paper in courthouses to provide a check on these
types of nefarious individuals, to dissuade them from obtaining this information by requiring
them to interact with gatekeepers at the courthouse. With the court cases on available on the
internet, however, there is no longer a deterrent to accessing this information. Please respect the
privacy of those who place their trust in the United States Justice System, and keep court records
filed safely in the courthouse.

No. 61
11/29/00
Peter Nikitas
State Bar of Wisconsin Individual Rights and Responsibilities Section Board Member
I believe that one should analyze individual privacy data different from corporate data. Starting
with individual data, one may see great harm in disclosure of medical records and SSN's. A U.S.
statute prohibits unauthorized SSN disclosure. The ADA prohibits disclosure of worker's
medical information beyond strictly circumscribed exceptions, whether or not the worker is
disabled. See 42 U.S.C. secs. 12112(d)(3)(B - C) and 12112(d)(4)(C), and Cossette v. Minnesota
Power and Light, 188 F.3d 964 (8th Cir. 1999). Given that, and given that the Rehabilitation Act
reads along parallel lines with the ADA, it would appear that the Judicial Conference proposal
runs hard aground on legal shoals.

The IR & R should oppose broad disclosure of individual private data by federal courts. It
should oppose any effort to condition suit on waiver of privacy rights. In fact, it should support
efforts to provide open-eyed, Miranda-like warnings to federal court litigants of the use of the
data they file in court. See Minn. Stat. sec. 13.04 subd. 2 for an example of such a warning, and
sec. 13.08 subd. 1 - 4 for remedies.

No. 62
11/29/00
J.C. Desmond
Career Law Clerk to Federal Judge
Savannah, GA
I've been a lawyer for 17 years, 8 spent in private practice and 9 as a law clerk at the U.S. District
and Appeals Court levels. I'm currently the career law clerk for a federal district judge in
Savannah, Georgia. So, I know something about this topic. I've also seen enough to be
convinced that an open government is a healthy government and that when private parties use the
judicial branch to resolve their disputes they rightly make their "private" papers public
documents. "Sunshine is the best disinfectant," and far too much evil, public and private, is
concealed by "privacy" and "secrecy" concerns. Example: Ever try and find the opinion
dismissing the government's case against Daniel Ellsberg because Nixon's "plumbers" broke into
Ellsberg's psychiatrist's office? Have you read the "Abuse of Power" tape transcripts that Nixon
spent 20 years and $2 million trying to suppress?

Unlimited access to public court records also advances "citational accountability," a concept
explored in J.C. Desmond, "Zen and the Art of Law Clerk Maintenance," 4 Ga.Bar.J. 65 (June
1999) (if judges were compelled cite to the record document on which they rely to construct the
"facts" portion of their opinions, less "smoke" would support judicial conclusions, and the public
would be better able to monitor judges who'd otherwise smuggle their personal politics into
cases). Without unfettered access to court documents, "judicial legislation" and judicial
politicking would be more difficult to detect.

I'm therefore in favor of the following proposals as listed on your web site:

Civil Case Files:
No. 1 (place burden on litigants to partially or fully seal records, but promulgate a national rule --
hence, option 4 -- allowing partial (e.g., last four-digit) tax and credit card (etc.) numbers, but
keep this exception narrowly defined. As for options 2 and 3 -- NO! Also, don't nickel and dime
people - skip the 7 cents/page access charge. It'll cost too much to bill and collect and will
be a huge nuisance. I want a free and open government, not yet another layer of wasteful
bureaucracy.

Criminal Case Files:
No. 2 makes sense and is well worded.

Bankruptcy Case Files:
Bankruptcy has lost its stigma, and is abused by many.

Illumination of debtor data assists those who'd otherwise detect and illuminate fraud, not to
mention serial filers, liars and cheats. "Honest" debtors lose here, but that pain's far outweighed
by society's gain. Other than the truncated social security and credit card measure, I'm opposed
to expanding Rule 107 authority.

Appellate Cases:
I support options 1 and 2 and find them well-worded.

No. 63
11/30/00
Healdsurg,CA
Civil Case Files:
Establish "levels of access" to certain electronic case file information

Criminal Case
Files: Provide limited electronic public access to criminal case files

Bankruptcy Case Files:
Restrict use of Social Security, credit card, and other account numbers to only the last four digits
to protect privacy and security interests.
-and-
Segregate certain sensitive information from the public file by collecting it on separate forms that
will be protected from unlimited public access and made available only to the courts, the U.S.
Trustee, and to parties in interest.

Appellate Cases:
Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction
in the appellate court.

No. 64
11/30/00
I think that we must categorize the various pieces of information found in case files. Anything
that would normally be protected under existing laws should still be protected if it is found in a
case file. A few examples of such information would include trade secrets, proprietary
information, and medical records. However, it is also essential to the successful functioning of
our court system t o be able to research and examine rulings and other legal precedents. Thus,
the kind of information that relates directly to the charges, the verdicts, and the legal and logical
basis behind those verdicts should be publicly available.

On the issue of use of the internet to disseminate the public access portions of case files, I see no
legal concerns here--it is merely a matter of methodology. If something is public, it's public. The
internet is simply a more efficient means to make it so. Protected information, on the other hand,
should not even be stored in a computer that might be connected to the internet (for security
reasons), let alone be purposefully disseminated therein.

Thanks for seeking public comment on these issues.

No. 65
Walnut Creek, CA
All court records that are deemed to be subject to public access should be available on-line. It
should not be required that the requesting individual physically visit the corresponding court.

If the information is a matter of public record, the ease with which the information may be
obtained should not change the classification of the information.

Additionally, if records are made available at the court via computer without charge they should
also be available remotely without charge.

In the interest of protecting and preserving the legal process it may be desirable to not post the
information until the conclusion of the case and the parties have had an opportunity to request all
or part of the record be sealed.

This should not be deemed as approval to conceal plea agreements that may impact the due
process of other defendants.

It would be reasonable for certain information to be deemed not subject to public access, but this
should be consistent between paper and electronic documents.

No. 66
11/30/00
Santa Rosa, CA
The contents of civil cases should be completely available. These issues and their resolutions
provide data for research into the impacts of laws and the courts on the economy, the individuals,
and society as a whole. It also provides the background needed to create models to predict the
possible effects of proposed laws and regulations or identify social trends.

In the area of criminal records this should become more restrictive due to privacy considerations
and the possibility of violations of the public peace in publishing names and addresses. For this
my opinion would be to publish the court records but to strip them of names, addresses, tax and
financial information. The problem is that some records will be rendered useless for any purpose
by removing this data but it is better for our society to err on the side of over protection of
privacy than it would be to under protect an individual's privacy.

I would also tend towards over protection for the simple reason that mistakes are made. People
are arrested for crimes they did not commit (and hopefully released) and published records can
contain mistakes in the form of the wrong person's name being associated with a case that they
were never involved with. This has happened with the publication of the names and addresses of
child molesters, some times with tragic results for that person.

Thank you for your time.

No. 67
11/30/00
Vidalia, GA
Records of trials etc. are a matter of public record and should be made available to the public
on-line.

Where there are matters that the trial court or appellate court has deemed confidential, for what
ever reason, limited access should be applied, but these documents should be available for
legitimate use and by legitimate parties, excluding the curious.

No. 68
12/01/00
Binghamton, NY
As an information security professional with specialization in electronic information security, I
would like to caution the Government against making 'user-friendly' access to this particular
subset of the public record. The age-old tendency of persons of low character to use a little
knowledge about an individual to gain trust and control over that person has gained new
practitioners in the age of electronic commerce. There will be tragedies. Make people go to the
files, or at least a viewer at a Government office. It will, in some small degree, discourage the
laziest who are also sometimes the least ethically scrupulous.

No. 69
12/01/00
La Verne, CA
No one should have access to credit card numbers, social security numbers, bank account
numbers, or any personal or financial information such as creditors without a court order.

No 70
12/01/00
Who would have guessed that the electronic version of public records could or would be treated
any different than the paper equivalents? Why should these records be treated different? The only
reason I can come up with is arrogance. Arrogance may lead some people to believe that these
public records, albeit "public", should only be truly available to those that either have the
intricate knowledge of when and where these records can be obtained, or have the will to
research this subject to find out.

No. 71
12/01/00
Milwaukee, WI
I support full and open exposure of all case files. But penalties against those who discriminate or
otherwise use that info to the ill of those covered. I would go so far as to say "eyes only" with the
data--it can be read, but not used.

No.72
12/01/00
San Francisco, CA
I've given this sort of thing some time. The problem as I see it is that public records, in electronic
form, give a person who intends to violate privacy of persons mentioned in the records a new
found technical ability to abuse a mass audience of persons from these records. Given my
understanding of the problem, a simple solution would be to simply limit the number of public
records that an individual or corporation could access over a given time period. There are a
number of technical ways this could be done. Likewise, there are a number of ways that someone
could skirt around this. I don't claim to think that this is a complete solution, however I think it
could quite possibly be a partial solution.

No.73
12/01/00
I have read that this is about releasing court documents to the web. Since such documents may
contain info such as names, addresses, social security numbers or even, in bankruptcy cases, bank
account numbers, I would like to point out that identity theft is becoming increasingly common.
As long as info like this is a principle means of personal identification, it behooves you to
recognize that releasing such info to the general public simply makes identity theft that much
easier. Until biological (fingerprints, voice analysis, retinal patterns) info becomes the principle
means of identification, it seems to me that go slow is the order of the day. Otherwise you are
simply handing thieves, sharpsters and ne'erdowells the keys to people's bank accounts. With the
worldwide reach of the internet, such malcontents do not even need to be in the same country.
This vastly increases the pool of prospects for such identity theft.

No. 74
12/01/00
Palo Alto, CA
All this data should be sealed, and not accessible to the public. In many court cases, there is a lot
of data which would normally be private, and which should not be freely "published". The only
exception should be where public safety and welfare are at risk if data are sealed. For example, if
someone is convicted of fraud, their identity should be public, so that the truth can be discovered
later by anyone who searches for information about that person. This would help people conduct
due diligence prior to making various business and personal decisions.

No. 75
12/01/00
Boulder Creek, CA
My recent experience with jury duty convinced me that the court had absolutely no concept of
data security. I stood near the name-tag-printing machine and could have easily written down
many valid name/SSN/driver's license number combinations. My concern increased when a
questionnaire was given the jury pool, consisting of a number of personal questions ('have you
ever seen a psychiatrist?') The same sheet asked personal questions about me and my girlfriend,
whose answers I refused to write on the same questionnaire or link to my own. Given my
experience with the jury pool information above I conclude data security in the court is
appallingly lax, and the court's attitude of benign neglect shows they are not interested in any
juror's rights. A mechanism to protect jurors' personal data, obscuring any and all address,
telephone, SSN and driver's license data is urgently needed. Further, a law holding judges
personally responsible and liable in tort for data security in their courts is needed: if the judge is
not personally responsible for data security, data security will not happen.

No. 76
12/01/00
Plano, TX
This is a really tough question. These records need to remain open to the public. At the same
time a computers ability to download these records in bulk and then compile lists of data allow
for several type of misuse. The problem the internet imposes is the access to very large numbers
of cases from long distances. If physical access is required, discrimination is limited to what one
person can carry away, thus providing a physical limit the degree of discrimination of this
information. Since both objections cannot be fully met, I suggest a form of unsatisfactory
compromise. Make the court records available on the internet, but limit download to (say) 2 cases
per IP address in any 24 hour period. I realize that this can be circumvented but that requires
effort. This would allow public access to a case where interest is high. It would also inhibit mass
compilation and cross referencing of this data. Also logging the requestor's IP address of each
download and possibly (also) his MAC address could help in the case of criminal abuse resulting
from access to these files. I wish I had a better idea.

No.77
12/01/00
San Jose, CA
Electronic dissemination of court documents should be limited in all cases where any harm may
befall an individual if the information is widely available. Court documents are made public such
that an interested party can investigate a particular trial proceeding. Through the use of
computers, the process of gathering information can be vastly simplified, and damaging
information can quickly be harvested on a large number of people.
An individual can be harmed by dissemination of personal information, such as Social Security
numbers. Anyone reasonably proficient with data searching will quickly be able to find such
information, and combine it with other freely available information that could be used to commit
crimes against an individual. Credit card fraud is a prime example of persons being harmed
through wide dissemination of information, that, although it is not confidential, should not be
widely available.

No. 78
12/01/00
San Angelo, TX
I believe that this is a matter of grave importance in our nation's future. By making these records
available on the Internet, we are allowing full access to documents that all citizens are currently
allowed. By placing them in a downloadable, platform-neutral format, we would be empowering
those who would normally be unable to access them. Technology that functions as such a great
equalizer as the Internet, should be embraced wholeheartedly by our government. Doing so
would demonstrate to our country's citizens that they ARE a part of our great republic.

No. 79
12/01/00
Brian Lee Corber, Esq.
Panorama City, CA
Court filings are generally public record unless otherwise made confidential via court order. All
such filings should be made easily accessible. Using the Internet to make files easily accessible is
a wise plan. Why? It gives easier access (1) less expensive access because one need not travel to
the court house to view the files which could be great inconvenience if a Los Angeles resident
wanted to view a file in the Southern District of New York (2) if only access is physical, in
person, then only one person can access the files at a time--via internet multiple parties can
access simultaneously (3) less use of non-renewable resources, like gasoline, to travel to and
from court (4) less expense to a member of the public who might want to make copies of a file--
court's generally charge 50 cents and up per page for copies (5) greater ability to do research
because you can access files from one location more swiftly than doing an in-person access (6)
would help with determination, by individual seeking access, of existence of particular files
rather than running to each district court (7) decreased personnel costs--i.e.: less need for in-court
clerks to just retrieve and hand out files (but more need for those skilled enough to maintain the
system) (8) might lead way to electronic filing system which would be more immediate than the
old way of filing papers, pleadings and documents (9) GREATER ACCESS TO FILES MEANS
GREATER ACCESS TO THE SYSTEM OF JUSTICE, EASIER ACCESS TO SYSTEM OF
JUSTICE MAKES LAY PUBLIC MORE COMFORTABLE WITH THAT SYSTEM, WHICH
IS THEIR SYSTEM

No.80
12/01/00
Lancaster, Ca
I believe that both civil and criminal records should be made available to the public. But I
believe that any information contained in those files that would identify a specific individual
should be removed. The records should not contain addresses beyond the resolution of a state.
They should not contain social security numbers, drivers license numbers, telephone numbers, or
as I said any other piece of information that could be used to identify an individual. Where this
information is applicable to a business I believe that it should be included. I believe that a
business operates as a public entity and should be open to public scrutiny. Additionally I believe
that the personal information removed from public record should only be made available upon
approval of a request to a court.

No. 81
12/01/00
Nashua, NH
Given that the same information would be made available in both electronic and paper forms,
there should be no reason to restrict access to the electronic version. It would allow research
without the danger of damage to documents, and by more people than paper copies would allow.
The law has always been in place for helping people; restricting electronic access in no way helps
people and, in fact, could harm them if they need immediate access to documentation that has
been restricted.

No. 82
12/01/00
Manassas, VA
"Should electronic case files be protected from unlimited public disclosure, or should they be
treated the same as paper files?" Electronic records of court cases should not be openly available.
Currently multiple corporations keeps profiles about millions of Americans. These profiles track
things such as race, sex, age, credit history, lists of purchases, familial statistics, hobbies and
interests, even tracking use of the world wide web. By allowing unlimited access to these files at
a low cost, said corporations will be able to assimilate court records into their already vast
databases. The data kept in these databases will become far more personal than ever before.
Corporations will be able to target consumers at a depth never before imagined, and it is unlikely
that any of this targeting will be in any way beneficial to the people. The myriad of categories of
information that can be gleaned from court records could create a host of new kinds of
discrimination, as companies look for new reasons to exclude those that they find undesirable.
Keep these records open to the courts and law enforcement only. Anything else could lead to a
gross destruction on America's collective privacy.

No. 83
12/01/00
Menlo Park, CA
Please do NOT allowing web-publishing of personal records, even if those records on paper are
considered public. At present, paper records are effectively protected by the inconvenience of
making physical copies in person, and physical copies are inconvenient to redistribute. If the
same information is available on the web, it will be far easier to obtain, to organize and cross-
reference with other information, and to copy at will...there will be no more privacy at all. The
courts must distinguish between information which can be obtained somehow (with sufficient
motivation and cause) and information which is effectively cost-free, available to marketers,
scam-artists, overseas companies, and anyone else with a profit motive and possibly without
ethical or legal constraints. Not everything "public" should be in the latter category.

No. 84
12/01/00
Toronto, Ontario Canada
I'm an American Citizen, so I feel the right to comment, at least. Perhaps it would be best to
create a subclass of public information. To give an idea, it might be 'replicable' or 'transmissible'
information. As an example, take Social Security Numbers. While they are a mater of public
record in some court cases, removing them for the publicly accessible online data and marking
them non-transmissible (baring the moving of data beyond the person or corporation who
retrieved it from the courthouse) might be the best option. It would allow the court case data to
be available online, for quick reference by law students or other researches, but providing a
shallow 'barrier to access' in the effort needed to go to the courthouse and retrieve the document
to obtain non transmissible information. It should me noted that monetary barriers to information
simply remove it form the public which is individually poor, and restrict access to corporations,
large institutions and governments. A procedural barrier which treats all applicants equally is
probably the most effective. I'm not happy with the idea of my information being so casually
available, but I also see the need to balance that against the disclosure of information about
fraudulent activities of an individual.

No. 85
12/01/00
Durham, NC
I find it alarming that THE most private form of personal information, one's Social Security
number, is available on the internet in a few States. If someone needs legal information regarding
ones SSN, they can look it up the old fashion way. With the advent of the Information age, we
now have a very powerful tool, the Internet. Although it truly is a wonderful and powerful tool, it
is also a double edged sword. I've been in the computer/IT business for over 26 years, and have
seen this business transform into mind boggling advancements, but we must act prudently and
responsibly on private and personal
information. I have been directly involved in numerous breech's of security and hacks
throughout my career, and have seen the damage that evil people can do with credit card numbers
and bank accounts. We MUST stand firm on keeping SSN's OFF any part of the information
highway.

No. 86
12/01/00
Plant City, FL
I definitely oppose electronic public access to Federal Court case files. Personal information such
as medical, financial, tax records, etc. are just that.....PERSONAL. The futures of the citizens of
the United States are at stake here. What chance does someone have for a job, or credit, or
insurance if anyone can just get on-line and look up this person's every movement throughout his
or her life? Competition in the world is so great right now that just the slightest flaw in
someone's background can stop him/her from being considered for employment, and that person
might be the best person for the job and has worked hard at making a better life for his/her
family, but could be turned down because of some old piece of information picked up off the
internet by the potential employer. With hundreds of individuals applying for every good job in
this country, what chance does this person have?. Opening this information to the world will be
crucifying a person for the rest of his/her life for whatever mistake or failing they may have done
in their life. It is setting that person on to a road of failure. How can we ever expect people who
are down on their luck to ever get on their feet and make the choice for bettering their life when
the internet/court system is going to mark this individual with a "red X" on their backs for life. I
didn't even get into another important area, and that is our personal financial information being
on-line. There are so many computer wizards in the world right now, we are just opening the
door to thievery. If we have young people smart enough to break into the government files and
into the master of them all, Microsoft, then what could happen when these people get access to
personal information on millions of people whose lives and information is just laying open to the
world for reading on the web. I think you get the picture. I do not agree and am voicing my
opinion not to allow electronic public access to Federal Court case files. Thank you for listening.

No. 87
12/01/00
Duvall, LA
The Internet offers great benefits in involving the public in the judicial process. At the same time
it offers great pitfalls. I believe that all public court records should be made available over the
Internet but that certain personal information should be removed such as home addresses, SSNs,
Driver's License numbers, home telephone numbers, banks account numbers, credit card
numbers and the like. I also believe these should be removed from records publicly available at
the courthouse unless the requesting party can prove a legitimate need to know them.

No. 88
12/01/00
Mobile, AL
After experiencing the Alabama State Court system's electronic access, I cannot tell you how
convenient, how accessible, and how informative the whole process is for the entire law office.
The paralegals rely on this tool heavily, rather than bogging down their
time by trying to get information over the phone and, thus, bogging down important court
personnel, they access cases on the internet, and then decide it they need to follow-up with
speaking with the court clerks. Most of the time, they find their answers right on
line. Most of my access, as a legal secretary, is looking up service information on defendants,
attorneys making appearances for those defendants, and other valuable information. It is just like
going to the court clerk's office and peering right into the court docket.

No. 89
12/02/00
Port Orange, FL
Full disclosure of public information is vital for the safeguarding of our rights.
Certainly, there are issues which at times can trump this concern, such as the protection of an
individual's right to privacy. The important step to be taken is to compare the current system -
generally considered as reasonable - with any proposed system to be implemented. It would
appear that the primary concern here is the reduction in cost to find information that previously
had a rather high barrier for obtainment. The solution is to determine that information deemed
"critically private" and make that available separately, with significant safeguards in place, or to
find some way to make the high cost exist only for the "critically private" data. For example, a
web page might contain the entire transcript of a trial, save for private information such as
residence address, phone number, etc. of witnesses. These certainly could (and, in my opinion,
should) be made available online, using simple tools such as secure servers. A link to the relevant
information would release the information only when security information has been verified;
perhaps the user must register and be accepted before he/she is allowed access.
There are certainly many ways that control could be reasonably and lawfully instituted. Perhaps
personal (but public) data could be made available only in person at the courthouse. While not as
"open" as access through the internet, the higher cost has been relegated only to that portion
where security requires it. This is certainly preferable to eliminating all electronic access to
public information. My chief concern is that as much public information be made available to the
common citizen as possible. There should be virtually no barrier to getting general information
that is of public record. And whatever information exists that *should* be protected, should only
be protected as much as necessary. As there exist classes in court records today (sealed and
public, for example) we could also have classes for specific parts of court records. General
proceedings would be "public"; personally identifying information: "protected"; information that
could contribute to illegal discrimination (such as sexual orientation, medical history, etc):
"secure". These are three that come to mind. Each classification would then be fitted with access
controls appropriate for that classification. I firmly believe a thoughtful approach can enable free
flow of information while protecting individual rights. Thank you for the enlightened attitude
toward the freedom of information and the consideration of citizens' rights.

No. 90
12/02/00
Gainesville, TX
Public access to court information is predicated on the concept that the activities of the
Government (in this case, the judicial branch) are subject to public scrutiny. To my mind, the
degree of disclosure should be governed by the degree of Government involvement in the case in
question and, more specifically, whether the Government is involved as a party to whatever
action is being recorded. With that in mind, there is (generally) a clear distinction between Civil
and Criminal processes. Using a divorce as an example of a civil action, we should consider that
the Government's sole role is as arbiter and/or decision maker. The actual parties involved are
Mr. and Mrs. Doe, and I would be frankly astonished if there is any public interest being served
by a full disclosure of any of the material contained in the private action of these two individuals.
The fact of the granting of the divorce is public record, an action taken by an arm of the
Government, and should be available. The listings of property, allegations that Mr. Doe is
sleeping with the babysitter, or that Mrs. Doe is a bizarre woman of odd tastes, while of
considerable titillating "human" interest, is of no value whatsoever in providing the public with
the opportunity to "watchdog" the Government which, at the end of the day, is the purpose of
"open" Government. This same concept applies to monetary lawsuits or requests for relief, all
the way from fender-bender traffic accidents up through and including corporate fistfights over
who owns multi-billion dollar patent rights. Final rulings should be available, but not all the
filings, personal information, etc., etc., etc. Note, this is not to say that each or all of the parties
can't go public with whatever they're whining about, at least to the degree that it becomes
libelous or otherwise actionable, but it should not be a Government function, nor is there a valid
public interest in routinely providing the information in electronic form for whoever can access
the public web-site. Any civil action involving a Government entity as a PARTY, however,
should be electronically available, including all filings, etc. I think that the valid public interest is
pretty self-evident in this sort of case. Examples include quasi-criminal functions (asset
forfeitures, recovery of costs of prosecution, IRS actions, freezing foreign accounts, etc.) and
actions in which a private citizen or interest group sues some governmental entity (or vice versa).
The involvement of a government entity as a litigant is presumptively of public interest. And
with that, we come to Criminal actions. ALL criminal actions involve the Government as a
litigant, and therefore ALL criminal actions should be immediately and easily publicly available
for review to the degree that it does not interfere with an ongoing investigation. That is to say,
unexecuted warrants, sealed and/or pre-arrest indictments or information, and other pre-trial
matters involving an ongoing investigation should NOT be available. There is a long standing
series of rulings which (correctly) establishes that the public's interest in having a government
capable of engaging in investigation of crime FAR outweighs the public's interest in immediate
access to information. Note that ALL this information should become immediately available on
substantial completion of the investigation (usually indicated by the arrest and charging of the
defendant), with the exception of the identity of confidential informants or other persons under
threat of harm unless the trial or appellate court determines that identity must be provided for a
fair trial. As to an individual's so-called "Right To Privacy" as to his criminal record - he has
none. In this case, the intersection of a citizen with the most intrusive and potentially dangerous
arm of the government (Law Enforcement) is of the highest degree of public interest, and should
unquestionably be subject to the most stringent public scrutiny. Now, I believe there should be a
mechanism in place to expunge any record of any arrest which does not result in formal charging
or which a trial court determines was made without warrant AND without probable cause, but
that's another issue for another day. As to the 40-something who is whining because he got
caught sticking up a convenience store when he was 19 and it's still on file -- tough. Don't be a
criminal, and this sort of thing doesn't happen. This is not a game and there are some things in
life that you just don't get a "Do-Over".

No. 91
12/02/00
Sunnyvale, CA
Hi, thank you for asking for opinions on this matter. The following is my opinion on this
particular topic: You could keep certain aspects of Public records confidential with the use of
software that takes out certain fields, such as: address, soc sec #, etc, before uploading the
information to the Internet. Protecting privacy is important for safety and security reasons -
wouldn't you be concerned if your daughter's name and home address were posted onto the
Internet (which is sort of like a modern-day bathroom wall)? Of course you would be concerned.
I believe citizens should be protected just as you would protect your own daughter. It's a matter
of common sense: easy access to information is not more important than privacy as it relates to
safety and security. Also, as a customer of mothernature.com (which unfortunately went
bankrupt) I was personally stunned when I read the bankruptcy Court had posted on a website the
salaries of all mothernature.com's employees. That's a violation of an employees' rights to
privacy. The employees lost their jobs and then the court posts their salaries on the website so
headhunters can find these out, without the permission of the employee. Salaries shouldn't be
released unless an employee allows it to be released - this is the rule that companies operate
under, so I believe the government should operate under this same rule. Part of the employee
salary negotiation process is the right to decline the release of prior salary information in order to
secure a salary which pays for what your current duties will be, not for what your past duties
were at a cash-tight-dot-com. And I think this applies to everyone: no home address should be
provided, not even for a director, officer, or board member. Even if I had lost money with
mothernature.com (which I didn't), I would maintain the same opinion: I think safety of all
citizens of this country should be your first priority when considering how to handle this matter.
Privacy should be protected.

No. 92
12/02/00
Southbury, CT
Although it seems that it would be better to censor personal information such as Social Security
numbers, addresses, phone numbers and medical records, it also opens up a pandoras box of
problems regarding enforcement and the risk of parties questioning the guidelines that will
eventually be drawn up. Although I personally do not enjoy the concept of someone potentially
having full access to my personal information via court documents, I believe that the principle of
the thing takes precedence and thus there should not be any sort of censorship of the material.
Perhaps a full recording of who accesses the material or monetary restrictions would be better?

No. 93
12/02/00
Owensboro, KY
It is my belief that some of the information contained in most court-related files is too sensitive
to be freely distributed electronically, and that some of the information is really not suitable to be
accessed in the existing manner. With a name and a social security number, it is but a few short
steps to assuming a person's identity and destroying their name or financial status. That is a
liability that neither you nor anyone would like to assume, I am sure.

No.94
12/02/00
Menlo Park, CA
The arguments for not providing full access to criminal case files are not compelling.
The concerns are exceedingly vague, and seem to stem from a fear that criminal defendants
might obtain public information about cases in which they are involved, information to which
they are obviously entitled and in which they have a legitimate interest. Reduction of the rights of
defendants generally is an inappropriate argument against disclosure. There is a more real issue.
Widespread public access to criminal case files allows for automated data mining. This is both
good and bad. On the one hand, automated analysis is a valuable tool for researchers and
journalists evaluating the effectiveness of law enforcement and the judiciary. On the other hand,
it is likely that widespread availability of such information will lead to the equivalent of arrest
records being searchable online. As a compromise, I would suggest that in criminal cases in
which a defendant was found guilty, all available information should be on line. In criminal cases
with other outcomes, the defendant should be offered the informed opportunity to easily
request that the record be sealed. This is consistent with the historical policies of the courts and
public policy.

No.95
12/03/00
Los Angeles, CA
Whatever the solution to this potential problem, it should not prevent the average user from
accessing the information if criminals can get the information as easily by other means. Also, an
elite class should not be set up as is the case here in California with DMV information. Here in
California, anyone can run a license plate simply by paying $30 to an online service, despite the
fact that the information is available inexpensively from the DMV by anyone willing to comply
with a host of restrictions and a "legitimate purpose". $30 buys the way around the law. Simply
creating a class of people who get the information based upon ability to pay and then assuming
those individuals will make better use of the information and not use it criminally is a mistake.
Specifically, I would suggest a form be allowed to be filed with each pleading containing a social
security number, bankruptcy record, medical record, etc. so it is filed similar to a document filed
in camera. Then the person scanning the document can make a photocopy of it and strike with a
black marker the specific information specified on the form and then scan the document that way,
in a manner similar to how FOIA requests are handled on occasion. Perhaps to save the
government expense, the redacted copy can be filed with the request and then the unredacted
copy goes in the file and the redacted copy is scanned. Care should be taken that only very
specific identification is allowed to be removed to give the public the greatest possible benefit of
electronic records. All of this having been said, this is an attempt and fixing a symptom and not
addressing a cure along the lines of the way credit information companies keep records based
upon social security numbers, etc. Passage of laws in that area would be of the greatest benefit in
the long term. Identity theft should be targeted by changing the way records are kept and people
are identified instead of passing stricter criminal laws which prove useless or further restricting
public access to public documents.

No.96
12/04/00
Laconia, NH
Court record dealing with any financial litigation should never be placed online. There is already
enough evidence that a citizen's financial information on the internet can lead to financial
mayhem or ruin. Placing this information in an easily accessible public forum is an infringement
on a person's right to privacy.

No. 97
12/04/00
The law I want will say that no secret testimony will ever be allowed as evidence in a court case.

No. 98
12/04/00
Zachary Mosner
Ass't Attorney General
State of Washington
Bankruptcy & Collections Unit
The institution of RACER, and to a lesser extent PACER has made equal access to justice more
than a sound-bite--it is becoming a reality. No matter where you are in the country, you can
educate yourself about a case by reading the pleadings filed therein. No longer are you dependent
upon someone else to walk to the courthouse and report back to you across the country on what
concerns you expressed. The unlimited, in-depth electronic viewing of cases in bankruptcy is a
great "equalizer". There is no longer a jurisdictional "edge" for those who would choose the
forum non conveniens of filing in a Delaware or New York court in order to gain some
competitive tactical or economic "edge" wholly unrelated to the legal merits and bases of the
case. In short, the RACER/PACER system is establishing a level playing field. It lets people who
are not lawyers read court documents at their leisure, initially saving the cost of hiring a
professional. They can choose a more measured response to matters by first being "proactive" in
a case on their own. This will undoubtedly cut down on needless filing of pleadings and litigation
on points already in controversy through other parties in interest. As this technology expands and
is refined there may well be opportunity to identify areas of actual abuse and establish rules to
cope with these issues. But there should be error on the side of full disclosure. It is a rule that
already appropriately pervades our legal system--it would be disingenuous to change this
standard because an electronic system would "truly" open already public files to "too many
people" when it should have always been readily available on an unlimited basis. There are many
abuses in legal systems around the country today where unethical loan companies, lawyers,
bankruptcy petition preparers and other "professionals" cull public records of foreclosure, tax
liens, etc. to secure an economic gain or advantage to the detriment of unsophisticated people in
distress. The obligation of our legal system is to curb those who abuse the system. But, to start
off an exhilarating change in court technology by restricting it, or in some way thwarting access
through rule-making is an effort to "shoot the messenger" without balancing the right to access
the message. We must embrace change in this field and accelerate our work in electronic
information retrieval/access for the courts. The opinions expressed herein are personal and do
not reflect policy or positions of the Office of the Attorney General.

No.99
12/04/00
Virginia Beach, VA
Allow internet access to court cases. Current laws required to be amended to restrict information
to individuals with an identifiable persona grata.

No. 100
12/05/00
Long Beach, CA
This idea is only palatable if you plan to require purchase of the information. That is, copies of
court documents from the court house usually are accompanied by a fee. Visitors who wish to
obtain information should be required to log in, providing information about themselves and pay
using a credit card. This way if the information is used in some fraudulent manner, the persons
involved in acquiring the data would have left some electronic fingerprints. I believe strong data
encryption should be used and private credit card and ss# information should be omitted from the
online files. There is some value to the difficulties associated with going to the courthouse. The
internet provides too much anonymity otherwise.

No.101
12/05/00
Orange, CA
Criminal case files should not allow general public access to the entire body. The parties, though,
should be listed to allow for searching. Only the "interested parties" should be allowed full
access. A particularly nauseating point has arisen with the advent of the Internet - spam. The
potential for harvesting a great deal of information electronically is quite a simple matter from a
technological stand point. Perhaps a limit to the number of documents that may be retrieved at
one time or in total from an account or IP address. Although this can be circumvented by the
more determined info-harvesters, it should deter the casual cretin.

No. 102
12/07/00
Bethesda, MD
I work with the Internet and my comments are based on the ease of Internet access versus a
visit to the "courthouse". Physically having to visit the courthouse naturally restricts the level of
access. Internet access would open court documents to casual browsing by anyone. Is that in the
public interest? Secondly, information obtained electronically takes on an entirely new life and
can be distributed far and wide (globally) and in many cases can remain in some forgotten
computer file for years and years. Is that in the public interest? I suggest that each type of court
case (civil, criminal etc.) be given its own level of access protection, protection that draws a
balance between the public's right to know and the defendant's privacy. For general access, I
would limit all case information to summary files without any details. Detailed information
would require a password or a visit to the courthouse.

No. 103
12/07/00
Norwood MA
As a concerned "regular citizen" of the US, I'd like to offer the following commentary and
opinion. While it would seem that a privacy policy should be consistent regardless of the access
method -- requesting paper copies, or online perusal -- the fact remains that the internet has
created an ability for abuse of privacy. That is, privacy rights might have been violated less in the
past due to the overhead involved in requesting paper court documents, etc. Making it very easy
and convenient to do so only increases the chance for abuse. I do feel it would be reasonable to
post an online index of cases/dockets, but the actual contents would not be revealed via the
internet; the existing request for paper copies would continue. Additionally, whether online or
not, the authenticated identity of the person requesting case details should be known. This means
the court would have a responsibility of validating the identity any requester of case details,
especially if online. Lastly, if online access is granted -- and the technological hurdle of
authentication can be cleared -- then the Court should also be required to post the details -- name,
company, and contact information -- of anyone who purchased case details online, and link it to
that case. In this way, citizens involved in a court case have the opportunity to know who is
accessing their data. Thank you very much for the opportunity to provide comment.

No. 104
12/08/00
West Virginia
I believe that in the world today with the advantage of technology we should use them and
therefore endorse the filings via internet and records being placed on internet. There is a lot of
information that can be gleamed from studying a case file. The public have a right to know,
unless it is restricted or not in the best interest of the public/parties involved.

No. 105
David Balint, Esq.
Seattle, WA
I have been a trial attorney for 26 years. I have always considered the public nature of our court
system to be a guarantor of the honesty and integrity of the system. The public access to the
courts has always meant to me that it is available to anyone from the public, regardless of
whether they were interested in the particular case. However, this has always required that the
person who wants to review court files or attend court sessions demonstrate a solid interest by
taking the time and energy to come to the courthouse and go through the minimal procedures
required for access.

I have long kept in mind that participating in court proceedings is traumatic, often, for most people.
Most of my clients have only had one court experience. They are required to be open and honest in
the discovery process and in trials. They are willing to do this because they have an expectation that
the material is not going to be widely disseminated. To make documents available at the click of a
mouse button is tantamount to active distribution and voyeurism.

A good example is a good friend of my wife's who was about to be married to a gentleman that I
have had experience with in the courtroom. Revealed in the court files was all sorts of information,
some true, some not about this man. Although our friend was aware of these court proceedings, she
was unwilling to play private "investigator" by going to the courthouse, checking out the files and
reviewing the documents because she felt that was intrusive and a breech of trust. I respect that
decision that she made.

To open the court files electronically would impinge on the integrity of the proceedings by making
people reluctant to be completely open and honest. It would also be an invitation to those who know
that there is protection in the law for materials filed within the context of a court case to put all sorts
of scurrilous information in court documents without fear of liability for defamation.

In short, although records are "public" I think they should be prevented from what amounts to
worldwide dissemination of each page ever filed. The public should come to the records rather than
the records go to the public.

No. 106
12/09/01
Eau Claire, WI
I recommend that, absent special circumstances, all documents filed in all open cases be available
to the public on the internet. However, when a case is closed then its data should be removed from
the web site. This balances the public's right to know about and monitor current cases with the
litigants' right to get on with their lives after the case is concluded.

No. 107
12/10/00
In Criminal matters everything (except where there is a specific reason to with hold the information)
should be available to the public, along with a good index to aid in finding information.
In civil cases subpoenaed information should be withheld, including all involuntary testimony.

No. 108
12/10/00
Portland, OR
I think that electronic case files should be treated the same as paper files. If parties wish to protect
sensitive/private information, they are more than able to move the court to seal the particular
materials. The courts would then weigh the potential for undue prejudice/damage/misuse/abuse of
the information and either grant or deny the request to seal. Any other solution would be extremely
difficult, if not impossible, to manage with the consistency necessary to ensure protection of the
appropriate documents and access to the remainder. I also believe the decision to charge people for
access to electronic court documents is ridiculous and should be promptly reversed. $.7 per "click"
while merely viewing a document is simply absurd.

No.109
12/11/00
San Francisco, CA
I am in favor of making court documents available on the internet.

No. 110
12/11/00
Toni L. Imfeld, Esq.
Linville, Clausen, & Linton
Seattle, Washington
I am an attorney at law practicing in the field of litigation in Seattle, Washington. I would like to
advocate the adoption of the following alternatives in your Privacy Policy Document:
Civil: Option 2. There needs to be access to most, but not all, documents via electronic means, and
uniform rules protecting privacy would be the most effective means to do this with the most
protection of the litigants' private information.
Criminal: Option 2: The fact that criminal files exist is important information, but many items in
them are not public information now, and should remain that way.
Bankruptcy: Option 4: The easiest way to segregate the private information (bank accounts, social
security no's, etc) is to collect them in a specific place or document and restrict access to that
document. It would then be up to the parties and their attorneys to be sure that information did not
make it's way into a public file.
Appellate: Option 2. I feel that electronic access to court files is an important development in the
law, which will greatly reduce the cost to litigants. It is entirely appropriate that the courts consider
the matter of privacy, unless and until Congress can act in the matter.

No.111
12/11/00
Salt Lake City, UT
I see no reason why the public's business should not be accessible to the public by way of the Web.
Someone's private business becomes the public's business when it gets involved in a government
action. I also do not see why the public must pay for access to government documents--as taxpayers,
we already paid for the collection and storage. When government puts records on the Web, they
should save worker time it used to take for them to provide the public with the information and to
store the records. If private business can make a copy for 5 cents, why can't the government?
Providing access to public records by putting them on line allows every citizen the opportunity to
access the public's records.

No. 112
12/11/00
Howard M. Unger
Sarasota Herald-Tribune
Bradenton, FL
Electronic files should be treated the same as paper files, as there is no legal difference between the
two. My only concern, as a journalist, is the timeliness of document postings. As the judiciary turns
more to databases and electronic filings, I do not think the files, themselves, should be treated
differently than paper files.

No. 113
12/11/00
Needham, MA
While it is important to allow court documents to be accessed by interested parties, it must also be
considered fat these parties likely have the resources to obtain the documents in person in a timely
manner. Other interested parties such as the public at large would be able to access these documents
at the court as well.
The advantage of being able to obtain these documents immediately is arguable; however, it should
be noted that for hundreds of years documents have been stored on paper and could not travel faster
than the man carrying them. Justice was served at that time in this country's history. Lawyers who
are investigating cases have traditionally gone to courthouses to read these documents, but the
technology now available would allow these documents to be sent anywhere in the world within
seconds. This mere fact does not require that electronic access be provided. The essential problem
is that technology - especially technology promulgated within the last ten years to distribute tent
documents in a widespread and nearly instantaneous manner - has grown at a much faster pace than
societal regulations. It is imperative that the best system in this country for preserving the rights of
the citizenry - the judiciary - does not move too hastily toward a new system for information
distribution.
The rush to put sensitive documents (namely, medical, judicial and financial) online has largely been
to facilitate public access or business interests. To certain entities, this has proven to be helpful and
successful; what cannot be ignored is the effect on the subjects of that information. Medical and
financial information available online is generally not available to the public at large. It is protected,
for the most part, from public view on private computes systems. Even these private systems,
generally well protected, can be infiltrated and the information contained on than posted to public
websites. Thus, it can be argued that this information should only be stored on computes systems not
connected to the Internet. Judicial documents, on the other hand, would not be protected from this
invasion, because the information is itself for public release. Indeed, it is important for this
information to be available to parties interested in it, as outlined above; it is also important to realize
the differences between making documents available at courthouses and making information
available on the Internet.
Consider a medical malpractice suit. The private information contained in such an action is financial
information about the doctor, medical information about the plaintiff and possibly more information,
depending on how the suit is argued. Thus, you have the private financial records and private
medical records of individuals available to anyone -who requests thin. This information would not,
as it is now, be protected from frivolous or fraudulent claims to the information. With court records
and included medical, financial and employment records available only by request from the
courthouse these is a certain security through obscurity provided the documents. Why one has a
legitimate reason or interest to see court documents, that party can request than from the proper
courthouse in person. Generally speaking, if one desires to research a case they are likely to know
something about it. This could be the court date or the name of a party to the case. With such
information paper records can be rather easily identified. Making these documents available - even
at the courthouse - electronically creates serious potential privacy problems. 1n electronic form, these
documents would all be searchable instantaneously and thus allow many documents to be searched
for specific information for illegitimate reasons. This is a privacy concern at the courthouse level;
the consequences of this information being made available over the Internet expand these same
problems to a nationwide level. Even if records were segregated by courthouse on the Internet, even
if each courthouse maintained an independent site, these cases could be rather quickly searched. In
fact, it is entirely possible that a program could be created to search any number of sites quickly and
report the results in a unified format. This could allow an individual to search for the phrase "social
security number," and find cases where a person's social security number is provided with his or her
address. This would facilitate identity theft and would constitute only one of a great many potential
privacy invasions.
The previous example would result in criminal activity facilitated by online records; however, it is
important to keep in mind that criminal activity is only a small factor in the issue of privacy. Simply
not having private information revealed to a potentially large group of the public is equally
important. Just as laws allow people not to disclose, for instance, that they have HIV for fear of
discrimination, allowing the release of medical records containing that very information in court
cases would defeat the purpose of such laws. The aforementioned medical information, as well as
other private matters such as financial information could be released as a public record along with
court cases. These cases would allow employers and insurance companies to glean information about
their employees and clients from the public record and use such innocuous but private information
against thin. Insurance companies could search court dockets for medical information to day
acceptance into various plans and employers could use that same information to day employment
or benefits based on a probability of death a unwarranted fear of infection to that company's
employees. Of concern as well are simple matters of privacy in general. Citizens of this country are
titled to many rights and freedoms; however, these freedoms bring with them many restrictions.
Lawsuits are one of the foremost examples. In a suit one seeks to redress grievances that may occur,
or to defend oneself against another's allegations. One could end up fighting against an inflammatory
and false claim which may have no merit other than that given it by the court filings. The evidentiary
and identifying information contained in these cases are the main concerns because - beyond
employment and insurance problems - it allows others to invade one's privacy simply so the subjects
involved in a suit can use the court system of this country to settle disputes. Whether alleging or
defending, privacy must be sacrificed in court ; the extent to which that needs to happy is debatable,
but what is not debatable is that the information currently contained in such matters is ,generally only
accessed by those who have a legitimate interest in that information and are willing to work to get
it.
It is of great importance to ensure that lawyers are able to find case law to defend their clients and
for the public to check on their government, but allowing court documents to be accessible over the
Internet takes away the security they now have and rely than unfiltered into the judgmental and
inconsiderate view of the public. This was not the purpose of public record laws and will result in
fewer people willing to use their judicial system to address their concerns for fear that their whole
life, as it exists on paper, will be released to anyone willing to pay seven cents per page.

No. 114
12/12/00
Orange, CT
My only opinion is that either it should be free too look at for everyone, or no one -- the level of
access is a bad idea and will only encourage people to try and "gain" higher levels of access by illegal
methods. Actually, I do not think they should be available electronically at all. Although they are in
the public domain, the ease of access to personal information via the Internet could cause a massive
loss of privacy -- especially if they are keeping records over 17 years old!!!

No.115
12/12/00
John Longino, MBA/JD
I read in Lawyers Weekly that you are considering what to do about public access to court records
via the Internet. It surely seems like a good idea to me to limit case files so that the general public
has no ability to see what is going on and to be sure that only the elite, the local lawyers and judges,
are knowledgeable. For what would ever happen if we were to have equal information for all? Why
the plebeians might demand equal justice too! Let them eat cake! Limiting public access is an idea
worthy of Washington, DC.

No. 116
12/12/00
I am an information security professional and a devout Libertarian. I hold personal privacy above
most other freedoms. However, I see no reason why there should be a distinction between what
information is available through the internet and what is available in person. Are you trying to punish
lazy criminals and reward criminals that are willing to expend some effort? If bank account and
social security numbers are part of the public record and this is a potential hazard in terms of fraud,
they should not be available to anyone regardless of the medium through which they are accessed.
I would rather see these things removed from the public record altogether, but if that doesn't happen,
there should be no double standard. The American public does not trust the government as it is. Do
not give us further reason to mistrust you. We already draw a distinction between us (public) and you
(government) even though the Constitution clearly states that such a distinction is meaningless.
Furthermore, such a distinctions harmful to the morale of the country. Take a step toward reparation.
Do the right thing. Remove potentially threatening information from the public domain. I believe in
the Freedom of Information Act, but only when the right to personal privacy is not sacrificed in order
to be forthcoming.

No. 117
12/12/00
New York, New York
I had a federal judge lose my files in his own file room for several months. This created delays and
the cost of replicating the file from Microfilm.
Now, the Southern District of New York ships the files to somewhere in New Jersey. One has to rent
a car and drive out there to review the files. Posting these documents on the internet would be a time
and money saver for anyone.

No. 118
12/13/00
Samuel B. Blanchard
Breidenbach, Buckley, Huchting, Halm & Hamblet
Los Angeles, CA
As a PACER user for several years, both web-based and dial in, I am familiar with the existing
system of obtaining documents from various Federal courts, mostly in my home/9th circuit. In
general, I feel that if the document in question is available to the public then it should be scanned
and online. Emphasis should be on active cases, but it would be nice to have some
availability for the "recent" past, say the last 5 to 10 years. I much prefer web-based to dial-in as my
firm is on a DSL and I have to run dial-in sites from home. For my money, the .pdf file format is
superior for viewing and printing. The .tiff file format is not as consistently reliable and the image
quality and ease of printing are inferior. Thanks for the great improvements in accessability we
presently enjoy. I look forward to continued and hopefully increasing access to Federal materials.

No. 119
12/13/00
Memphis, TN
I think the Rules of Civil Procedure should be changed so that a party is not required to routinely file
any information. Of course any information required to produced as part of the case must be
provided to the parties and if one or more of the parties thinks certain information is relevant, then
such parties may provide such information to the court. And until the Rules of Civil Procedure are
changed in this manner, it appears to me that the harm of allowing the public free access to sensitive
information is greater than the public good of allowing such access. That is, it foreseeable that
unscrupulous people could use free access to sensitive information to take advantage of and/or harm
people having a connection to the information. Thus I suggest that sensitive information should be
accessible only by those who need to have access, such as the parties, their attorneys and the courts.
After all, there is a difference between the public having access to physical files and electronic
access. That is, to have physical access one must physically appear at the clerk's office where one
can be seen and ask to "check out" a specific file to review allowing at least a modicum of
identification of suspicious actions. Further it is more difficult to review and copy sensitive
information from a physical file. On the other hand, with electronic files, any anonymous person can
simply search for all file for certain types of sensitive information and then if that person is
unscrupulous, use that information to take advantage of and harm people connected to those files.
The opportunity for mischief in this manner is too great and the advantages of such open
access relatively small.

No. 120
12/13/00
Schenectady, New York
Public proceedings are an essential part of our republican government. Star Chamber proceedings
were rejected by the framers, and I reject them too. Public records flow from public proceedings. The
government serves us best by making records easily available. Never forget, we the people are the
government. If any class or type of public records is published on the internet then all must be
published on the internet. I hold that all records of all proceedings before all courts should be
published and available. Secrecy is anathema to our type of government.

No. 121
12/13/00
Winston Ross
Health and Social Services Reporter
The Idaho Spokesman-Review
I'm writing in response to the call for comment on the federal courts' RACER system. The records,
no matter what form, should remain open. My bias is as a reporter. We work on deadline, and often
don't have the same amount of time afforded lawyers and other professionals to run down to the
courthouse every time we need to reference a case. Time shouldn't prevent us from accessing the
information. In fact, if it's been decided that the information should be public record, it shouldn't
matter who can access it or how often. The easier, the better, regardless of who's seeking the
information. I think the court should consider what the rationale is behind having a person present
to receive the documents. Is it to ensure that they're really serious about getting the information? I
don't know many people who look up federal court cases for fun. Is it to ensure that only certain
types of people can access the information? That seems contrary to the principles of the FOIA. The
RACER records should stay open. They should be as open as possible, to anyone who wants them,
at any time.

No. 122
12/14/00
Sloughhouse, CA
Electronic access to bankruptcy court files has reduced costs for my office and improved my
responsiveness to the court. Electronic access helps even more when the court is not located nearby.
This reduces the cost of services, making legal assistance more affordable to the public. It also
improves the delivery of information, and hopefully reduces delays for everyone involved.

No. 123
12/15/00
Elgin, TX
I believe access to electronic files should be completely open. This is to allow ALL persons access
to all information -- not just those who know how to find "back-doors" to the desired data. Secrets
do more damage then the truth.

No. 124
12/15/00
San Francisco, CA
I would like to keep court documents accessible.

No. 125
12/18/00
Bernard Cane
Santa Monica, CA
Private Investigator
Public record access is the fundamental basis for the FREEDOM we all enjoy in this country. To
take public record access away would be in itself unconstitutional and moreover impractical. So
many industries and professions rely upon public records for decision making and due diligence. Not
to mention the justice system and the court system though the thousands of legal vendors
and services. Closing access would invite a flood of fraud and deception this country has never seen.
The balance of integrity is keep in check by public record access. As a businessman and as a legally
licensed private investigator, I implore you to use commonsense. Do not eliminate public record
access. I am a registered user of PACER as well as a number of other public record sources. No
further steps are necessary if we recognize that national access should be limited to registered
qualified users for legitimate purposes.

No. 126
12/22/00
Bogalusa, LA
The ability to find any legal information should be encouraged, in that it would be one more tool that
the uneducated and poor can look to defend themselves from the injustices inflicted by employers,
attorneys(yes they do)and other professionals. Many of today's poor do not possess the knowledge
they need to cope in society due to their lack of fundamental educational opportunities guaranteed
by the government, both state and federal . Over the years the government has consistently failed to
provide the basic quality education necessary to survive in the modern World and as a result the
public needs as much legal information on any program that can assist or be a benefit to the
individual.

No. 127
12/22/00
New York, NY
In some cases, public offices only release documents to citizens presenting identification. The
Americans With Disabilities Act challenges the courts to distribute documents to hospital or bed-
ridden citizens. The interests of efficiency encourage secure measures for remote identification. The
NSA should be extensively consulted concerning a single Federal ID: Password schema. This ID is
not mandatory, and can be distributed using the same methods and offices as the United States
Passport Agency. I think. Increasingly, public offices are dispensing information via the internet.
The internet is a large, public-private owned backbone of non-audited networks. The possibility of
interception, transformation and retransmission of public documents is real. All court documents
should be released via the internet using a secure network protocol.

No. 128
12/22/00
Ira E. Hoffman,Esq.
Grayson & Cable, P.C.
McLean, VA
I strongly support expanding electronic access to court files to the same extent that access to paper
files is available. Of course, electronic access to existing files would have to be read-only, and
impregnable fire-walls would have to be constructed against hackers. I also strongly support
electronic and fax filing (and service). Law firms located in close proximity to courthouses can have
a significant advantage over firms that must allow extra time for filing via courier. Often the
advantage nearby firms enjoy is relatively minimal, but in cases with expedited proceedings or with
particularly litigious parties, the advantage that nearby firms enjoy grows significantly. Both the
GAO and the FAA's Office of Dispute Resolution for Acquisition ("ODORA") allow fax filing and
service on other parties in their administrative adjudications, and our experience with fax filing and
service, which has been considerable, has been entirely satisfactory. Since both adjudicators notify
parties in advance that fax filings will not be accepted unless the entire fax is received before the
filing deadline, the parties know that they must allow sufficient time for pre-deadline completion of
fax transmissions. Since law firms that are located near those agencies still must allow sufficient
time for their filings to be delivered, their geographical advantage is effectively neutralized.
Moreover, because fax copies are physically the same as photocopies (with the exception of the
small fax tag line at the top of each transmitted page), there has never been a question about the
integrity of fax-served documents. To the extent that pure fax filing is too revolutionary for the
courts, they could allow modified fax filing, i.e., allowing filing by fax, but requiring that the
originals of documents that are filed by fax also be filed by mailing (even though the mailed originals
can be received after the filing deadline, as long as the faxed filing was completed before the
deadline). If electronic filing were to be permitted, I would urge that attorneys be allowed to file in
either MSWord or WordPerfect. This may require that the courthouse procure more expensive
software to accommodate both word processing programs, but that additional expense, if any, should
be minimal. One other technological issue is whether attorneys would be required to scan documents
that they have not generated (e.g., exhibits) or whether they could fax exhibits and submit hard
copies for the court to scan. I take no position on that, but I would think that others may have
constructive comments. In any case, the court would need to decide one way or the other, and it
would be appreciated if, whichever way is selected, the decision be implemented uniformly
throughout the federal courts.

No. 129
12/28/00
It is my opinion that the records of government should always be open unless it can be shown in
court that they affect the defense or vital interests of the U.S.

No. 130
12/29/00
Richmond, VA
Currently, civil court records and post-conviction criminal court records are public documents
accessible by anyone for any or no reason. This access is not used because it is administratively
difficult for one who is not working in the court system to know the people and the processes
necessary to get access. Practicing attorneys and their bar associations often see access to the courts
as an economic threat to the attorneys' ability to charge fees. Here in the Richmond, Virginia
metropolitan areas, court administrative personnel, at least under perceived pressure from the
organized bar, are not helpful to citizens who want access to court processes. In state district courts
which are civil courts of limited monetary and subject matter jurisdiction, judges are often although
not unanimously hostile to pro se litigants. This is true even though there is no "small claims" court
or other place for the non-represented party to bring a civil action. Electronic access makes possible:
* Inexpensive and easy academic and citizen review of the court process; * Inexpensive and easy
resource access for the potential pro se litigant; * Less costly administration for the private bar and
government agencies when dealing with litigation; and * Greater opportunities for commercial
exploitation of public record information. Electronic access better serves the general public and
provides the public with the opportunity for greater involvement in the process and function of
government. The improved efficiency of electronic access for practicing attorneys and government
agencies will enhance efficiency with a reduction in legal costs and the costs of government
operations.

No. 131
12/31/00
Lynn Murray Evans
Executive Director
Mississippi Center for Freedom of Information
Jackson, MS
The Mississippi Center for Freedom of Information is organized to safeguard and protect the people's
right to know what its government is doing. It is our position that electronic filings of federal court
cases should be open and publicly accessible. One of the most long-standing rules of common law
has been access to court documents. This public access protects not only the public at large from
frivolous or prejudicial use of the court system, it also protects the parties involved by giving clear
and open access to the case on either side. A defendant has a right to know the case against him; a
victim has the right to know how well the government prepared and presented the case. In a civil
proceeding, the parties involved make use of government resources to resolve a dispute. Again, the
public at large must have clear access to information about the proceedings to protect against their
frivolous or prejudicial use. Particularly in the case of a small litigant suing a large and powerful
corporation or other group, equality before the law is protected by public access to court papers and
proceedings. Restricting public access of electronic filings to court personnel, government officials,
and lawyers erodes the watch dog role that open access provides. The ordinary citizen -- the
neighbor, the sister, the co-worker, as well as other possible victims -- relies on public access to
public records to ensure that government is fair, government is accountable, and government
protects the welfare of the people it represents. In Mississippi, the State Legislature recently passed
a law requiring that all government records filed electronically be governed by the Public Records
Act; the public has the same access to electronic filings as any other public records. We have had
experience in this state with what happens when government agencies operate in secret; we have
learned that open records are a most important safeguard of the public interest. We look forward to
this question being resolved on the federal court level in favour of open and public access to all
electronic filings of the court.

No. 132
1/1/01
Port Clinton, OH
I approve of electronic access to court proceedings; as long as the process of Justice is not
encumbered by record keeping. Although I was displeased that the Democrats made it necessary to
prolong the electoral process by sneaky vote interpretation of chad-laden ballots, thus leading to the
court challenges, I was very pleased for example, that the Election 2000 test of the Judiciary was
completely documented with PDF files from U.S. Supreme Court, the Florida Supreme Court, and
the Leon County Circuit Court. I was able to determine a complete history of all proceedings, most
of which were crucial to the settling of who got the 25 electoral votes.

No. 133
1/02/01
Warren Matson
Pastor, First Love Assembly of God
Milwaukee, WI
I just want to express my interest in seeing greater availability to full disclosure of public records.
As a pastor employing volunteers working with children, my ability to access this material will
enhance our ability to do thorough and competent background checks. Thanks for taking my view
into consideration.

No. 134
1/02/01
Dousman, WI
1. The court system should take great care to only require that information which is necessary for the
conduct of its mission. 2. The members of the court should be fully apprized that the record of the
court's work is a public record. 3. The entire record of the court should be public. 4. Any public
record should be available to the broadest body of viewers by all means of technology. 5. The court
should not discriminate against those who cannot physically travel to the courthouse when
technology allows them equal access.
By the way, your website does not contain a clearly defined privacy policy. I believe that is a
violation of federal policy if not law and it is invasive to require name, address and phone numbers
before accepting comments. Further, it is presumptuous on your part to assume that every
commentor has a phone (or even an address for that matter!) I could be a homeless person
commenting from a public internet access point at a library. Does my opinion not count unless I have
address and phone number information for you?

No.135
1/02/01
Grand Marsh, WI
I believe we have the right to view all public records on the internet, including criminal records. For
too long the criminals have had all the rights, it is time for the public citizens to have access to
criminal records. If people don't want their criminal past revealed perhaps they should become more
law abiding.

No. 136
1/02/01
Fairfield, CA
There is no substantive difference in providing public access to filed court documents by way of
electronic means as compared to accessing the hard file. Creditors, parties, and even interested
members of the public in general can access the records now. Making the access easier does not
change the fact that access is allowed. Any party that has a valid legal reason to seal their records
may seek to do so using either system.
The advantages of easier and more direct access are many. Parties may review their records to
determine the accuracy of the filing and whether a document had indeed been filed. Once the system
is fully implemented, there will be a substantial savings to the clerk's office in personnel time, thus
eliminating extraneous payroll needed to provide direct file access. Ultimately, storage space could
be reduced if the files were reduced to an electronic format and then the hard file is destroyed.

No. 137
1/03/01
Shannon O'Brien
U.S. Bankruptcy Court
Spokane, WA
I support the proposal to limit information such as social security numbers, credit card numbers, etc.
to only include the last four digits. With the debtor's name, address, and other information, this
should be enough to identify the party.

No.138
1/03/01
San Jose, CA

The sheer magnitude of what you are attempting makes me wonder whether the US Judiciary has
the financial, personnel, and hardware resources to maintain such a huge endeavor in light of the
large volume of papers filed daily in our federal courts. I sincerely doubt that it can be done in a
timely manner. Of more value to the public and legal practioners would be free public access to all
of the judicial decisions issued since the founding of the republic that constitute legal precedent. At
present, such decisions are electronically available in most cases only for the past dozen years or so,
at disparate websites, or for a fee at private commercial sites. Providing a single public searchable
database of such decisions would be much more valuable, much more manageable in terms of the
limited judicial resources, and much more easily timely maintained than electronic access to even
just the active case files.

No. 139
1/03/01
Rolla, MO
I will submit my comments broken down into sections as divided by the matters at hand.
First, in regards to Civil Case Files. Option Four, seek an amendment to the Federal Rules of Civil
Procedure to deal with Privacy Concerns. I would see this combined with Option Two, these
amendments dealing primarily with that information would be available electronically and in the
printed record. Specifically, any financial information that could be used for "identity theft" or fraud
purposes; also, any information that could be used to harass a defendant or plaintiff, such as medical
information or insurance-related information. With regard to Criminal Case Files, it does not seem
necessary to provide these in electronic form. The need for using the Electronic system is space-
saving due to the voluminous documentation involved, and because these cases do not generally
create such large files, it does not seem that this is necessary. Further, these records contain
information and pertain to matters which are highly sensitive and personal. With regard to
Bankruptcy Case Files. I would imagine a combination of Options One, Three & Four would be
necessary to prevent fraud and "identity theft" by those who would use electronic access to gain
sensitive financial information contained in these files. These options would still allow the parties
to these matters, as well as other parties such as Credit Agencies, Banks, lenders and other Financial
Institutions access to the information as permitted by statute. With regard to Appellate Cases, either
Option would suffice to protect privacy while allowing sufficient access to the public. As a former
Litigation Paralegal, I have had access to the PACER and CM/ECF Systems, and find them to be an
invaluable tool. As a private citizen who has also acted pro se to represent myself in civil court, I
could see these as valuable tools for the public. Further, I believe that good government is
government that operates in the open. In the electronic age to have these records easily available, but
with secure logins for record keeping and tracing that's time has come. Thank you for this
opportunity for public comments.

No. 140
1/04/01
John Wiltse
Senior Associate General Counsel
University of Nebraska
Lincoln, NE
I hope that there is still time to submit comments on the three alternative policy models under
consideration. I would think that alternatives two and three are preferable to alternative one.

No. 141
1/04/01
Rose L. Thrush
U.S. Bankruptcy Court
Portland, OR
These comments are directed specifically to the proposals for Bankruptcy Case Files.
Proposal 1. Seek amendment to Bankruptcy Code Section 107. In order to work, it would have to
be in combination with proposal 4.
Proposal 2. Require less information. The information currently required is necessary to the
administration of the case. I don't see anything that could be omitted.
Proposal 3. Restricting use of SSN, credit card and other account numbers to
the last four digits. Credit card and account numbers could be reduced to the last 4 digits but I don't
think the Social Security Number should be as it is used to track and identify serial filers and those
who have been prohibited by court order from
refiling.
Proposal 4. Segregate sensitive information and make it available only to the courts, UST and to
parties in interest. This, in conjunction with Proposal 1 would seem to be the best solution. But, do
we have the technology that would allow access to parties in interest which changes with each case.

No. 142
1/04/01
Cincinnati, OH
I believe we do need to secure the information that is available on the internet. I have recently been
divorced and was shocked at how easy it was to access all documents pertaining to my divorce via
the internet. Social security numbers, addresses, as well as the name and birth dates of my children
are easily accessed. I have no way of removing these documents from the internet unless a judge
seals them. I have been told this is not something that can be done - nor do I have the funds to pursue
this. We need to protect the privacy of all citizens. Only basic information such as party names, case
numbers and dates should be available. The system in Hamilton County, Ohio works with entering
only a parties name. I believe that at the very least you should have the case number before you can
access information. I happen to be an employee of the courts and realize the sensitive nature of many
of the documents. I know this is not an easy task but one we must
carefully review.

No. 143
1/05/01
Harrisburg, PA
As to criminal cases, I would suggest adopting the recommendation to provide limited electronic
public access to criminal case files. The public is entitled to some information regarding criminal
cases, but I agree with the statement that safety and security concerns should be met with regard to
plea agreements, unexecuted warrants, etc. Thank you for affording me the opportunity to comment
on this very important and timely issue.

No. 144
1/05/01
Phoenix, Arizona
Access via the internet is not the same as access by visiting a court house and going through paper
or microfiche files. Any curious browser of any age has easy access on the internet to many things
not relevant to their interests, but easily copied and forwarded around the world. The potential harm
far outweighs ease of access for the legitimately interested few. A distinction exists and should be
defined between "public access" and internet access, which is essentially random distribution. All
technological advancements are not "advancements" and are not beneficial. Identification of a file
and the status of that file, as is currently available on the internet, may be all that is appropriate.

No. 145
1/05/01
Case files should be protected from public disclosure. In fact, all files/records containing private or
sensitive information such as medical records, personnel files, tax returns, proprietary information,
motor vehicle information or police records should be protected from public disclosure. These
files/records should never be put on the internet for the whole world to see. Case files/records
contain private or sensitive information that can bring down bias attitudes on a person that will
prevent a person from improving himself and lifestyle literally destroying the person being exposed.
There is no such thing as security that can not be penetrated, this was proven via YAHOO and
Microsoft. The police departments, FBI, CIA, Secret Service, as well as, the court system have
several cases alone to attest to that. Disclosure of sensitive information such as medical records,
personnel files, tax returns, proprietary information, motor vehicle information or police records
should be on a "need to know" bases. People can and will use this information to unlawfully keep
other people from obtaining such needed things as medical insurance, jobs and housing. All of which
people strive for to better themselves. There is another side that should be considered, when people
feel that the truth will threaten their livelihood, they tend not to tell the truth. I see this action
bringing in a slew of court suits, the likes of which we have not seen. The likes of which the courts
and laws are unprepared and will not be able to handle. The people have trust in the system that it
will not expose them or backlash on them and that when they make a mistake they can correct it. If
the system is prepared to expose them, throw them to the wolves and strip away their pride, won't
this hinder the people from exposing themselves for as simple a reason as they did not want their
neighbors or boss to know? People with prison records have a hard time getting a job and find they
have to just not expose that part of their lives to obtain a job and a lot of these people go on to
become productive citizens and can get other jobs based on their performance on the previous job,
but if their records are there for all the world they will never be able to get on their feet and are added
to the list of non-productive people. People who have never been in trouble before, can be ruined for
life because of one mistake. Heck, politicians can be ruined. I know people always can find a way
around something but is that really what we want? Why is the disclosure of this information so
secretive? Why was this question not set out for the people to vote on? Thank you kindly for your
time.

No. 146
1/07/01
Chattanooga, TN
A close relative of mine unexpectedly married a man of whose character I was suspicious. I wanted
to know if my concerns were valid, and I was able to use the internet to verify that the man has a
long history of misdemeanor arrests in our county, a few convictions for those, and that he is
currently on probation for a home invasion involving a hatchet as a weapon. He plead guilty to 2
misdemeanor charges in lieu of trial for the felony charge and an accompanying misdemeanor. The
laws which make this information easily accessible to me enabled me to make a decision to avoid
contact with him as much as possible. Since he recently yelled offensive, hostile remarks at me when
I was on the phone with my relative, I know he has no intention of improving his behavior. With a
clear conscience, I can now avoid this person completely. Please work to make this information
available for all of our law-abiding citizens. Dangerous criminals try to cover up their past so that
they are more easily able to take advantage of their next victim. The internet has enabled citizens to
recognize and avoid physical and financial harm. Our government has given us the ability to avoid
these situations, and I protest any legal restraints that protect the criminals instead of protecting the
law-abiding citizens.
Thank you for soliciting comments and for considering mine.

No. 147
1/08/01
El Centro, CA
First, I do not wish to attend any hearings unless at government expense. My concern is including
too much personal information such as social security numbers on any INTERNET access. Identity
theft is growing. Crooks will soon be accessing the internet to obtain that number then steal
identities. The current controls are elementary. By way of example, one merely has to sign up to
access any court document and agree to pay 7 cents a page. Many do not pay once the information
is obtained. I am not against that system, however, there is no verification or investigation into the
person desiring access. As a recommendation I recommend legislative sanctions for unauthorized
use of the information. From the enforcement side certainly some computer person should be able
to trace where the information went. My primary concern is image to the courts - imagine some 60
MINUTES interview in the future from some jail or prison. The crook stating words to the effect that
" I dialed up the stuff from the federal court site, it was that easy."

No 148
1/08/00
Waukesha, WI
I wish to comment on the issue of public access to electronic federal court files.
The alternative l favor is to allow access to the complete case, file at the courthouse, but limit public
electronic access to sensitive information. Social Security numbers should be guarded from the
public.
I have had first-hand experience with stolen identity. Someone used my Social Security number to
set up a wireless phone service account. They probably obtained my-.,number from the motor vehicle
licensing dept.,, or any number of different sources. I would never put my number on the Internet.
I also experienced a serious breach of medical records privacy when I signed a simple sounding
release of medical information when I applied for life insurance.
Saying "You can go to the judge and get a court order to seal it". That is not what a person should
need to do, and is not something the general public knows about, Protect witnesses, and :Litigants
as much as possible.

No.149
1/08/01
Carolyn Elefant , Esq.
Law Offices of Carolyn Elefant
Washington, D.C.
My name is Carolyn Elefant and I am an attorney and member in good standing of the D.C. and New
York bars. I hereby submit my comments on the electronic filing proposal and ask that I be permitted
to share by views on the proposal during the public comment session. By way of background, for the
past seven years, (following stints with the federal government and a small boutique practice) I have
had my own law firm, the Law Offices of Carolyn Elefant. At my law firm, I have had the
opportunity to handle a wide variety of cases, including appeals before the United States Courts of
Appeals for the D.C. and Second Circuit, the D.C. Court of Appeals and New York Court of
Appeals, civil and criminal jury trials in D.C. Superior Court, federal administrative proceedings
before the Federal Energy Regulatory Commission and Merit Systems Protection Board. I also serve
as "of counsel" to a small law firm with a renowned national, consumer oriented energy practice.
Although I am a small firm practitioner, I am heavily dependent on Internet technology in my
practice and recognize its potential for improving the quality of legal services for all litigants. For
example, two years ago, I used the Internet to develop a website where I have posted resources for
pro bono practitioners in the District of
Columbia.(http://www.his.com/israel/loce/probono/probono.html). My site was briefly written about
in the Washington Legal Times and will be the subject of an article in the ABA Technology Journal.
More recently, I have written several articles on the impact of technology on small firm practice,
which have been published in the Washington Legal Times. In October 2000, the Washington Legal
Times published my article on E-Filing and Privacy. The link is included below:
http://www5.law.com/dc-shl/display.cfm?id=3943&query=Elefant. My article already describes
many of my positions on where to strike a balance between the privacy of litigants and the
importance of allowing attorneys to access e-filed resources to facilitate and improve their
representation of clients. I am aware of how e-filed documents can help attorneys represent clients
on a budget from my own personal experience of practicing before the Federal Energy Regulatory
Commission (FERC). For the past three years, FERC has scanned documents and pleadings filed by
parties in proceedings and made them available at its website. On more than a few occasions, I have
searched these documents and relied on the research contained in pleadings to expedite my own
research for my clients. Because not all of my clients can afford LEXIS or WESTLAW, the quality
of my pleadings would have been substantially diminished in the absence of access to these
pleadings. As I point out in my article, I expect the same to be true -- and even more so-- with
pleadings and briefs filed in court proceedings. Many of these documents will contain arguments and
information so that attorneys working for clients with meager resources do not have to waste time
"reinventing the wheel." Moreover, access to these documents may enable attorneys to improve the
quality of arguments or finesse arguments so as to distinguish cases from existing precedent -- which
can lead to new developments in the law. For that reason, the ability of attorneys to freely access,
at a minimum, briefs and motions is absolutely paramount. It is a right which must be considered on
par with litigants' rights to privacy. What is also troubling is that already, briefs and motions are
becoming available on the Internet -- at a cost. Services such as briefserve.com and briefbank.com,
to name a few, make briefs and motions available at a cost. I have investigated these costs and
though they are not exorbitant -- perhaps ranging from $75.00 per document at briefserve.com to a
$30.00 monthly fee at briefbank.com, these costs can add up. Unless I were certain of what I were
looking for in a particular document, I would not risk paying the access charges for most of my
clients. But why should a client with more resources be able to access these documents without
concern for cost? Allowing all attorneys to access the database of briefs and pleadings freely will
ensure that all clients have equal opportunity to utilize these resources. For that reason, I advocate
what I have come to call an "attorney's fair use doctrine" as a standard for access to electronic files.
Under this standard, attorneys who are members in good standing of any bar would be permitted
unfettered access to complaints, pleadings, motions, memoranda of law and appellate briefs with the
understanding that such material would be used for the purpose of (1) representing litigants
(including investigating prior claims against plaintiffs or defendants, since such information would
come out eventually in discovery anyway) or (2) writing educational articles. In any case, parties
could seek protective orders to shield disclosure of sensitive information such as social security
numbers or financial documents. Alternatively, files such as tax reports, probation reports or other
sensitive information could be withheld from disclosure to attorneys. In any event, should an attorney
misuse the information, for example, sell the information to the press or not handle it with the
appropriate degree of confidentiality, the attorney could be subject to disciplinary action before his
or her local bar association. Ultimately, attorneys are officers of the court -- and can be entrusted to
use the utmost discretion in accessing electronic files. Given the paramount importance of such
information to representation of clients and ensuring that clients of lesser means have the same
ability to obtain electronic documents as wealthier clients, the court should adopt an "attorney fair
use doctrine" as an exemption to any more serious restrictions it might impose. As to the suggestion
that the Federal Rules of Civil Procedure be amended, I would agree. When I first heard of the
electronic filing initiative, I was reminded of an old chestnut of a Supreme Court case from my civil
procedure class in law school, Sibbach v. Wilson (which I really never understood until now). In
Sibbach, the appellant challenged the legality of one of the then-recently enacted FRCP discovery
rules which required that she be subject to a physical examination by the appellee. Mrs. Sibbach
argued that such a rule was an impermissible federal intrusion on her state right to privacy. The
majority disagreed, claiming that the FRCP were merely rules of procedure and did not confer or
detract any substantive rights. But Justice Frankfurter dissented, holding at the very least that the
legislature should have an opportunity to rule on the issue prior to the court inferring that the
legislature, through the FRCP, had intended to take away important state rights to privacy. As with
the discovery rules questioned in Sibbach, the rules of electronic filing that the Judicial Conference
is currently considering are not merely rules of procedure, but substantive rules which can forever
change the way we practice law. The rules may impact the privacy and security of individuals by
allowing the general public to access social security numbers or tax returns -- and adequate
protection for sensitive pieces of information such as that must be provided. At the same time, if the
courts do not allow all attorneys open and cheap (if not free) access to "lawyer work product" such
as pleadings, briefs and memos, the court will give rise to a system where commercial providers will
come in and package and re-sell the information at a high price, making it available to some while
denying access to those with fewer resources and further widening the gap between those who can
afford justice and those who cannot. For that reason, either the FRCP must be amended or legislation
must be adopted to guarantee that any practicing attorney anywhere in the country can access
whatever files necessary to provide the best possible representation to his or her clients -- no matter
their resources. I would welcome the opportunity to provide comments at a public forum. Even if
I am not selected, I believe that it is very, very important to have the views of a small firm or solo
practitioner represented.

No. 150
1/11/01
Sevierville, TN
I think all bankruptcies should be a matter of public record via the internet. I do not understand why
anybody would claim there are privacy issues regarding such postings. I plan on taking bankruptcy
soon and I would certainly understand access to my case via the internet. Putting bankruptcies on the
internet will only increase efficiency within the bankruptcy arena. Thank you.

No. 151
1/12/01
Eddy L. McClain
Director & Past President
The National Council of Investigation and Security Services
The National Council of Investigation and Security Services representing licensed private
investigators nationally and forty state and regional investigation associations, appreciates the
opportunity to comment on privacy and public access to electronic case files of the Federal Courts.
The United States has traditionally been a nation that provides open access to governmental records.
It is a hallmark of our democracy that any citizen has the right and the opportunity to review the
decisions of our courts, just as citizens have the right to information about Congress and the
Executive branch. As pointed out in your December 15, 2000 paper, "In numerous cases the federal
courts, including the Supreme Court, have held there is a common law right to `inspect and copy
public records and documents, including judicial records and documents. Nixon v Warner
Communications, Inc., 435 U.S. 589 (1978)." And in the case of criminal records, the rights of law-
abiding citizens to protect themselves, their families and property from criminals should outweigh
any right to privacy to which a convicted criminal is entitled. But NCISS is equally concerned as the
many who feel that making all case files available on the World Wide Web will invade the privacy
of individuals and organizations who are drawn into our justice system. In response to privacy
concerns in the electronic age, some of our members have remarked,"It does not make sense that
access to these files was acceptable when they resided in a dusty courthouse basement but is now
unacceptable because they are more readily viewed." But, in fact, there is a difference between a
record being available for public review in a courthouse and broadcasting a record over the World
Wide Web. Another member stated, " Saying electronic access really isn't any different from going
to the courthouse may be technically correct but in practice there is a big difference. It's like saying
a car is no different from a horse and buggy - just faster. Improved technology requires some
improved controls. The ease of access, ability for the casual person to browse, and the complete lack
of control over access cannot be ignored." We strongly oppose any restriction of access at the
courthouse or of limiting unsealed information to the public. But there is no question that being
required to make an appearance at a courthouse and to identify oneself before viewing these records
has more security than the anonymous access to a complete file over the Internet. We must
sympathize with the theory that, "while there is no reasonable expectation of privacy in case file
information, there is an expectation of practical obscurity that will be eroded through the
development of electronic case files." NCISS does not feel that an amendment to the Federal Rules
of Procedure is indicated at this time. Our members are staunch supporters of the individual's right
to privacy, but we are perhaps more aware than most of the negative ramifications of a hasty reaction
to the relatively few horror stories that the media need for grist every evening. Weighed against the
hundreds of thousands of daily informational transactions that are necessary for our society and civil
and criminal justice systems to function smoothly, these aberrations do not justify tinkering with a
system that has made this country the bulwark of democracy and open government that it is today.
Therefore, with regard to the "Policy Alternatives on Electronic Public Access to Federal Court Case
Files," we offer the following:
Civil Case Files We are aware that on occasion a court proceeding may involve information which
need not be made available to the public. But in those instances, the litigants have the ability to
request and the courts to rule that such records be sealed. There is no need to restrict access for all
those persons who have legitimate need for the information.
The presumption that all filed documents that are not sealed should be available at the courthouse,
should be continued. Any blanket bifurcation of information into two files, one the public may view
and one excluded from public view by some artificial means, would be a poor substitute for the
court's discretion on a case-by-case basis. It would, in our opinion, also create an arbitrary nightmare
for the courts to have to divine and decide what documents would occupy the two categories. Such
a system would, by necessity, be subjective and would make national uniformity impossible.
Unlimited access to file information on the Web to any person in the world electronically and
without regard to who they are and what purpose they have can only lead to problems which then
could lead to the total elimination of electronic access to everyone. Since the courts seem to favor
the Web as the instrument to use for electronic access, we feel that some restrictions should apply
in order to register and qualify for electronic or PACER type access. We do not believe that
electronic access should be available to persons outside the United States, just because they can
access the Web. Moreover, allowing foreign access could increase intellectual property theft and
leave American victims with little or limited recourse. Electronic access should be on a case-by-case
basis when the subscriber submits a name or case number. Wholesale selling of records to
information data base providers will lead to abuses and a lack of control. The current system of
requiring individuals to obtain a PACER account in order to obtain electronic access to docket
information could be tightened by requiring applicants to certify their occupation such as licensed
private investigator or attorney thereby demonstrating their need for access. At the minimum, there
should be an electronic trail that indicates who accessed the information. Such a registration
requirement in itself would enhance privacy and discourage the casual viewer who might not have
a legitimate legal or business purpose for the information.
Criminal Case Files We feel that criminal case files should be treated the same as civil case files. We
do not believe that courthouse access procedures should be restricted any further than they are at
present. Certainly, every precaution must be taken to ensure the safety of witnesses and others but
we do not believe that electronic access to the file will lead to any appreciable danger to witnesses
or their families. The continuing public need for knowledge of criminal activity must be recognized
and having access to criminal record information by registrants through a PACER type system will
help fill that need. A system to provide electronic access to criminal record information by
registrants will be beneficial to the public and to employers who are trying to provide a safe
workplace.
Bankruptcy Case Files NCISS is categorically and philosophically opposed to the closure of public
records. In the case of bankruptcies, we feel the petitioners have a duty to make full disclosures in
order to receive the economic relief they seek. Bankruptcies are usually instigated by the petitioners.
And the petitioners waive certain rights to privacy in order to avail themselves of the relief. We
believe that society has a right to know the details of bankruptcies so that they may make their own
judgments with regard to future relationships with the petitioner. It is not just creditors who have a
vested interest, but also potential creditors and others who might rely on responsible financial
behavior by the petitioner. There are good reasons that bankruptcies are disclosed. We do not believe
the public's interest will be served by requiring the petitioner to submit less information nor by an
arbitrary restriction of information availability by the court. In fact, only an increase in mischief and
fraud would likely result from such a revision. All investigations require positive identification of
subjects. Courts do not tolerate incomplete evidence and investigators must constantly be able to
differentiate between the true subject(s) of an investigation and persons with similar names or
identification. The Social Security number was not originally intended to be a national identifier, yet
that is exactly what it has become. It is virtually impossible to navigate our world without providing
one's social security number, even if you are an infant. NCISS is concerned about identity theft and
the misuse of the social security number, but we are equally concerned about the unintended
consequences of draconian measures to eliminate means of identification. When a "Robert Smith"
files for bankruptcy, the other Robert Smiths of the world have a right not to be confused with the
petitioner. For this reason, we urge the courts to be extremely cautious about eliminating identifiers
from records as has been suggested as an alternative. Requiring a date of birth on all case files and
perhaps with the docket information would greatly enhance accuracy of identification.
Appellate Cases NCISS believes that Appellate cases should be treated the same as cases at the trial
court level with full electronic access to any documents not sealed by the Court. In Closing, As a
final reiteration, we strongly oppose the bulk sale of records to third party re-sellers. Access to file
information through a PACER type system should be on a case-by-case basis to end users. While
bulk sales may be profitable to offset expenses, it can only lead to a loss of control and misuse.
Proper use of records is essential. We also feel obliged to express the concern of many of our
members regarding the efficacy of completely eliminating any hard copy files and relying totally on
electronic document storage. We presume the downside of an electronic catastrophe has been
weighed and discounted by the experts in favor of a cost saving, but we feel an obligation to express
our concerns. In recent months, hackers have successfully penetrated government data bases and
wrought some mischief. It would seem to us that having no fall-back position to such sabotage could
wreak havoc on our system. On the plus side, the improved availability of necessary information and
reduced copying charges will surely improve the civil and criminal justice systems and make the
work of the professional investigator more cost effective to the benefit of the consumer. We thank
the Court Administration for allowing us this opportunity to comment.

No. 152
1/12/01
Andrew Oh-Willeke
Rumler Law Corporation, P.C.
Denver, Colorado
I am an attorney admitted in the State of Colorado and New York, and the applicable federal district
courts. I do not plan to attend a public hearing. I favor, in a nutshell: (1) Maintaining the presumption
that all filed documents that are not sealed are available both at the courthouse and electronically.
(2) This presumption should also extent to criminal case files, where the Sixth Amendment
guarantee of a "public trial" gives public access to criminal case files a constitutional dimension. (3)
Rule 107 of the Bankruptcy Code should not be modified to reflect a movement to electronic records
access. (4) Restricting use of credit card and other account numbers, and to passwords, which
provide access to funds or property to the last four digits is appropriate in all contexts, not just
electronic ones, unless the entire number if for some reason "at issue". (5) Consistency with these
rules at the appellate level is appropriate. Applying different standards to paper records and
electronic records is not sensible. Nothing in the public record is ever really private. If you can access
it on paper, nothing prevents a commercial company from electronically scanning those records (or
the records of most interest to third parties regardless of the legitimacy of their interests) and making
them available electronically for a fee. We have already seen large scale well organized examples
of this in the credit reporting industry, in the legal publishing industry and in the title abstract
industry. Illegitimate users, such as individuals set of profiting from criminal identity theft, are
precisely the people who have a financial interest in taking the trouble to inspect the paper records
personally to obtain and then misuse information, and will not be inhibited by a paper record
standard. Similarly, in a high profile case, the press will access paper files and make any and all
information widely available. The only person effectively prevented from accessing information by
not making it available electronically, is the publically minded citizen who has an interest in seeing
the workings of the court, one of the uses of public records which has traditionally been considered
legitimate. The way to protect privacy, if it is going to be effectively protected, is by keeping
information out of all public records, electronic or paper. For example, it may be legitimate to keep
complete credit card numbers or computer passwords out of public records as a matter of universal
rule, to prevent theft and fraud. In the case of social security numbers, this benefit is far more
dubious, because so many records, public and private contain them, that anyone can easily obtain
one from a credit reporting agency. The information reporting regime of the Internal Revenue Code,
most evident in the ubiquitous form 1099, means that any active business person must make his
social security number (or the equivalent) available to dozens or hundreds of people. A social
security numbers, and driver's license numbers, for better or worse, have evolved into a numerical
version of a person's given name except that it is less subject to change, rather than a number that
by itself serves a material security purpose. Another way privacy could be enhanced, would be to
permit litigants who would ordinarily have to disclose a residential street address for certain purposes
in court pleadings, to use a post office box instead, if that person consented to service of process at
that post office box address. Any concern about prisoners obtaining inappropriate access to
electronic records, is best handled as a matter of prison regulations on access to the Internet, and not
by restraining the rights of the general public. Moreover, the prisoners about whom the most concern
has been expressed, criminals who are acting in some form of organized crime, are likely to have
lawyers and associates outside the prison who can legally obtain access to the paper records. Controls
on the interactions prisoners may have with the outside world are again, the best defense in this case.
Absent a legislative mandate, there is no reason for the courts to change their privacy policies, simply
to reflect a new technology. The courts did not change their privacy policies when the photocopier
was invented. The courts did not change their privacy policies when organized companies started
to abstract public court records and make them available electronically. The courts should not do so
now. Electronic record availability simply provides the public the useful service of making records
that the public already has a right to see, less burdensome for court personnel to make available to
those people.

No.153
1/15/01
Erik S. Bakke, Sr.
Davis, Arneil Law Firm, LLP
Wenatchee, WA
I would like to applaud the efforts of the judiciary in general, and in specific, the works of such
courts as the United States Bankruptcy Court for the Eastern District of Washington and the District
of Delaware for making court files available to counsel over the internet, through the use of programs
like WEB-RACER. The amount of time and monetary savings to our clients as a result of these
services are immense. The court's files are a matter of public record. Anyone has the ability to go
to court to review a court file. The only difference that access of court records over the internet has
made is that it is far more convenient and accessible for anyone, lawyer, client or consumer. While
I can appreciate concerns that may arise as a result of making identification information of
individuals contained in court records more easily available, those individuals who want to exploit
this information already have access to the information either over the telephone or even personally
appearing in clerk's offices and requesting to review the files. WEB-RACER has become an integral
part of my practice, and I suspect of many attorneys who practice in the fields of bankruptcy and
commercial law. If any limitations are contemplated to the electronic access of court records, please
consider not limiting attorneys who are officers of the court and who use the information in the
representation of the clients before the courts.
Perhaps access to such records, if it is deemed appropriate (which I believe is not) can be made
available for access only after signing up, requesting a user name and receiving a password. Access
can be limited to certain areas of the court file or identifying information based on the "level" of
access that is permitted to a user. In closing, I wish to point out that access to court records has not
changed as a result of our technological advances. What has changed is convenience. The law is a
fluid thing. We in the profession must be willing to embrace and move forward with technological
advances. It is in our own and societies best interest. Limiting electronic access to information which
is already public, makes no sense, and is short sighted.
I wish to thank you for the opportunity to comment.

No. 154
1/15/01
Paul Stewart Snyder, Esq.
Ashland, KY
Everyone recognizes that electronic distribution of documents will have significant negative
implications for maintaining privacy, however free public access to public records is critical in a
democracy. If maintaining the privacy of certain information is considered to be desirable, that
information should be segregated by the judiciary for cause in both the paper and electronic file, with
the consent of the parties. To make an artificial distinction based on ease of access, rather than on
content, represents a dangerous move toward restricting public access to the courts. As electronic
documents replace paper documents, that precedent would allow the creation of an electronic "star
chamber", where the judiciary would have the power to close the courthouse doors to the public and
press. The only alternative that preserves both privacy and first amendment rights is to eliminate the
disclosure requirements for essentially private information, and to maintain the rule of free access
to all information that is traditionally considered an appropriate part of the public record.

No. 155
1/16/01
Everett, WA
Public information should be accessible electronically under the same provisions currently in place
for paper copy. Either a document is public or it is not. Electronic access will make obtaining public
information easier, more convenient and less expensive than the current system. It will remove the
restrictions of geography, allowing everyone access to public information no matter where he is or
when. This is one of the amazing qualities of the internet and one that many people regard with fear.
The internet removes certain barriers which have always been imposed upon us by space and time.
It is difficult (and I think scary) for most people to imagine the absence of a barrier which has always
been there. Enabling electronic access to public documents dissolves a barrier whose removal should
be welcomed.

No 156
1/16/01
Mississippi Press Association
Jackson, MS
Thank you for giving our organization the opportunity to comment. Newspaper associations and
other media organizations such as ours are vitally interested in this topic. The Mississippi Press
Association, a trade organization representing over 120 daily and weekly newspapers, strongly
supports extending the well established common law right of public access to court proceedings and
court records to electronic court files.

In our view, there is no reason why court files online should be treated any differently than the court
files and proceedings that our democratic system of government has long made open to the public.
James Madison wrote: "A popular Government, without popular information, or the means of
acquiring it, is but a Prologue to a Farce or a Tragedy, or, perhaps both. Knowledge will forever
govern ignorance: And a people who mean to be their own Governors, must arm themselves with
the power which knowledge gives." 9 Writings of James Madison 103 (G. Hunt Ed. 1910), as
quoted by the United States Supreme Court in Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
518 n. 4, 78 L. Ed. 2d 629, 643, 104 S.Ct. 819 (1984).

In that landmark Supreme Court opinion, popularly known as "Press-Enterprise I," the Court held
that closed court proceedings, although not absolutely precluded, must be rare and may be closed
only for cause shown that outweighs the traditional value of openness carried over into our form of
government from English common law.

In Mississippi, the State Constitution expressly provides that "[a]ll courts shall be open." Miss.
Const. 24 (1890). The State Legislature has endorsed this principle, requiring that all government
records filed electronically be governed by the state's Public Records Act, meaning that the public
has the same access to electronic files of the state as it has to paper files. In 1941, the Supreme Court
of Mississippi addressed the then new technology of photocopying and held that public land records
should be open to being reviewed and photocopied by any member of the public, even people who
had no interest in the public land records at issue, just as those records had always been open to
inspection and hand-copying by the public. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200
So. 716 (Miss. 1941).

Again in 2001, we are faced with a new technology potentially allowing enhanced access to court
records. Once again, with the same wisdom demonstrated by the Mississippi Supreme Court in
1941, we should adhere to the principles of openness that have governed public access to judicial
records since the beginning of our Republic and beyond, regardless of the medium through which
those records are made available. We should not allow the new medium to distract us from what has
always been a core of our system of government -- openness.

As a representative of members of the Fourth Estate, the Mississippi Press Association has a
heightened sensitivity to this issue because its members often serve as watchdogs for the public. In
our state, state judicial records are kept in small courthouses in 82 counties, widely separated across
a landscape stretching from the Mississippi Gulf Coast to the border of Memphis, Tennessee. We
have federal court records located in six different courthouses that span this same area. For the
reporter who must drive from one end of the state to the other to view and copy court records while
researching a news story on deadline, the availability of court records online would be of great
benefit. Availability of public records from a computer terminal would enhance the news media's
ability to perform their watchdog function by reducing costs and time constraints. Such an
advancement could only serve, not hurt, the public interest.

Objections to online access now being raised by privacy interests voice no new controversies. We
are still dealing with the same privacy arguments confronted by the U.S. Supreme Court again and
again in our past. Chief Justice Burger wrote in 1980 that "[p]eople in an open society do not
demand infallibility from their institutions, but it is difficult for them to accept what they are
prohibited from observing." Richmond v. Newspapers, Inc. v. Virginia, 448 U.S. 555, 572, 65 L.Ed.
973, 987, 100 S.Ct .2814 (1980). In 1984, he wrote that "[o]penness. . . .enhances both the basic
fairness of the criminal trial and the appearance of fairness so essential to public confidence in the
system." Press-Enterprise, 464 U.S. at 508. He spoke of an "unbroken, uncontradicted history [of
openness], supported by reasons as valid today as in centuries past." Richmond, 448 U.S. at 573.

In Press-Enterprise I, the question was whether transcripts of jury questioning in a case in which a
15-year-old girl was raped and murdered should be open to the news media - a situation much like
scenarios proposed by those who argue against online access to court records today. The Court held
the records should be open.

Nothing has changed except the technology. Our nation's unbroken history of openness of the courts
and the records produced therein compels us to carry those values into this new technology without
hesitation. We support electronic access to court documents.

No. 157
1/17/00
Charles A. Schaffer
Director, Small Business Assistance Office
Minnesota Department of Trade and Economic Development
In response to the invitation for comments regarding the Administrative Office's "Privacy and Access
to Electronic Case Files in the Federal Courts" (the "Paper"), the Minnesota Small Business
Assistance Office, for the reasons set forth below, urges the adoption of the Paper's Alternative 1
regarding public access to electronic case files: "Extend current open access policies to cover
electronic case files." As the Paper's discussion of Alternative 1 indicates, that Alternative
implements the philosophy "...that the public case file should not be treated differently simply
because it is in electronic rather than paper form."
By way of background, the Minnesota Small Business Assistance Office (the "Office") is a
statutorily created operating unit of the Minnesota Department of Trade and Economic Development
which, among other things, recommends or develops policy to facilitate the start-up, operation or
expansion of a small business in Minnesota. As part of that effort, the Office regularly monitors legal
and regulatory developments affecting the business community. Such monitoring is not limited to
legislative or administrative action but also includes the substance and contents of cases filed in
federal courts. The contents of a business bankruptcy filing by a firm that employs Minnesotans, for
example, will be useful in determining the substance and timeliness of State action to address job
loss and direct or redirect economic development assistance resources. The contents of civil case
files involving parties presently receiving or potentially seeking State resources is a necessary part
of economic due diligence.
Nor is the need to be aware of the contents of such case filings limited to situations involving actions
directly involving immediate State decision making. The contents of such filings offer, to a degree
and detail not available in published judicial opinions or even parties' briefs, substantial insights into
the structure and competitive position of both firms and industries: information useful in the
development of economic policy. It is not an overstatement to, say that electronic access to case files
has resulted in both better State policy making and a better informed small business community in
Minnesota. Restricting access, under either of the other two alternatives set forth in the Paper, would
prevent this Office from securing timely and accurate information with which to inform Minnesotans
and shape good State policy.
In addition, this Office believes that there are other compelling reasons to adopt Alternative 1. As
is clear from the Paper's review of the common law and constitutional bases of a right of access to
court files or privacy-based limits on such access, the full contours are unknown as to how privacy
concerns can, should, or do limit a right of access. In practical terms, and certainly in terms of
litigation, that which is "private" is that which a party considers sufficiently sensitive to be worth
taking necessary steps to protect from broad release. In many cases that sensitivity is circumstance
or situation specific, very often the circumstance of litigation itself, rather than being tied to the
nature or content of the data or information itself. To date, when a litigant has such privacy concerns,
the litigant's requests to seal court filings have been left to the relevant judge's discretion. That
mechanism has worked well to date, and the Paper's Alternative 1 is the only alternative that
incorporates it.
Moreover, both Alternative 2 and Alternative 3 have troubling elements. Given the circumstance or
situation specificity noted above, it is hard to see how any new definition of a "public case file" could
be produced that would be uniformly applicable. It is easy to conceive of situations where the same
litigant could have very different views of the need for protection of the same data, depending on
whether the litigant was plaintiff or defendant; in antitrust actions, for example. It is difficult to
imagine who would be in a better position than the litigants and the judge to review the elements of
a case file to determine what should be public in either a paper or electronic file. With respect to
Alternative 3, the concept of different "levels" of access is by itself troubling. In this Office's view,
the costs of technology already provide such strong barriers to access that it is difficult to endorse
the erection of additional barriers. In addition, looking at the examples in Alternative 3, it is difficult
to understand what articulable standards could be used for an objective and always-defensible
process of deciding who gets what level of access. For example, in Alternative 3, what would
determine how a case file, in a case unrelated to current litigation, was or was not "relevant" to
litigants and their attorneys?
Again, this Office believes that the best course of action is extension of the current open access
policies to cover electronic case files. We would welcome the opportunity to participate in a public
hearing though our remarks here are not contingent upon, nor offered in expectation of, such
participation.

No. 158
1/17/01
Toby Brown
VP Strategic Initiatives
iLumin Corp.
I believe the courts (federal, state and local) should revise their policies to protect private information
within public court documents. Although the public has a right to know of certain actions, citizens
should be able to use the courts without fear of having their personal, private information published
on the Internet. The current court approach utilizing .pdf formats will not easily accommodate this.
A better approach would be to use XML-based documents. With XML the courts would have the
ability to show portions of documents, while easily redacting the private data from them. PDF and
other formats are an 'all or nothing' proposition where the courts will have to chose between showing
everything or showing nothing. Neither of these options are reasonable. I refer to Legal XML
(www.legalxml.org) for efforts to develop XML standards for court filings. These standards could
easily include privacy categories, which could correspond with Court privacy policies. Thank you
for the opportunity to submit comment. P.S. Given the nature of this comment request, you might
want to post a more comprehensive privacy statement in re: to the use of the information being
submitted.

No. 159
1/17/01
Richard J. Byrd, Esq.
Byrd Mische, PC
Fairfax, VA
This is a response to your news release seeking comments on internet access to court documents.
I am an attorney practicing in Fairfax, Virginia, and I am a member of the Electronic Filing
Committee. Fairfax is the jurisdiction selected for the pilot project in the Commonwealth of Virginia
for electronic filing. Our committee has worked with the Clerk of Court to design the electronic
filing web site. We too are facing the dilemma of the traditional public access to courts versus
remote electronic access of the most detailed and sensitive personal and financial information of our
citizens. We are particularly concerned about divorce cases, which is, of course, not a concern to
your courts. In divorce cases, typical property settlement agreements have an unbelievable amount
of personal and financial detail, much of which is required by law. Persons with evil intent could
easily make a software robot to remotely access ten thousand property settlement agreements and
create a database of names, addresses, phone numbers, work addresses and phone numbers, social
security numbers and the account numbers of every credit card account that the parties have.
Certainly, this is a potential horror waiting for a place to happen.

I have drafted legislation being presented to the Virginia General Assembly this year for divorce
cases, which would have the electronic file be "sealed from remote electronic access" upon the
motion of either party. We would leave untouched the access that the public has enjoyed for 250
years in Virginia, to personally view the file in the Clerk's office.

Federal cases also often involve extremely sensitive personal and financial information of the
litigants. Such cases often involve intimate details about children, whose records have traditionally
been protected from public access. It is the seemingly universal opinion of practitioners here in
Virginia that we need to restrict our court files from remote electronic access. I often hear the
argument about "open government" and that only totalitarian societies have closed court systems.
If the public still has the access to files at the courthouse, as they always have, we will still have
"open government." We all have to file an income tax return, but no one is proposing that everyone's
income tax return be available for access over the internet. The fact that someone has a lawsuit
which is filed in a court operated by the government should not necessarily mean that every detail
of that person's life which is put into the court record is therefore open for public access by anyone
over the internet.

I hope these few comments from someone who is very involved in this question are helpful to you
in the decision that you need to make with regard to the federal judiciary.

No 160
1/17/00
Anne Gardner
AUSA
Eastern District Arkansas
Little Rock, AR
Below is a brief response to the Federal Judiciary request for comment on public access and privacy
issues. I am currently working on similar issues with state, local, and tribal governments in
cooperation with COSCA and NACM, the Department of Justice, and the National Criminal Justice
Association. The views represented below are my own, and not the official position of any of these
agencies. I would be glad to engage in further discussion with your office on this topic.

Response to Request for Comments - Privacy and Public Access to Electronic Case Files

Computerization has not only changed the way courts can do business, it has changed the way they must do business. The responsibilities of the court system to maintain public access to its processes and case records is coming into direct conflict with the privacy issues raised by electronic information exchange in all sectors of government and in e-commerce.

Electronic information systems have changed the concrete notion of court records from 'papers in a file' into a concept that includes a compilation of pieces of electronic information gathered from various sources and organized by an identifier. This information is two dimensional, meaning, information must be considered by its type, as well as the context in which it appears.

Information contained in the justice record can be "large or small," such as a single element (name) or a sum of many elements (indictment, pleading, order). Each element needs to be considered in context. For example, the data element "social security number" may never be publically accessible. The data that makes up the rest of that document, however, may be suitable for public access. Electronic systems do not see the document as a whole, but must process "releasing some data" and holding back other data. Systems must also be programmed to process data releases by context. For example, a data element such as "address" may be deemed publically accessible, generally. If, however, the address is that of a victim and appears in the victim statement or a court exhibit, it is probably not suitable for public access. Public access policy must be integral to system design in order to account for the nuances of this data.

As is evident in comparing the justice record in the old sense and the new, 'inconvenience or impossibility' that was an accepted part of paper record systems' privacy policies no longer provides adequate privacy protections in an electronic age. Broader access to personally identifiable information is an inherent result of new information technologies, and privacy policies must reflect the new information access, sharing, and analysis capabilities. It is unrealistic to create policy based a default to 'paper access' for protection. Similarly, it is important not to limit privacy policies to currently available information technologies. Today's technologies will give way to better, faster technologies that may change, again, the way we view information access. However, developing a policy rooted in "privacy principles" will allow justice agencies to be pro-active in adjusting to new technologies, rather than reacting to their effects.

For these reasons, the propositions in section 1 of the Criminal Case Files section are unrealistic. As noted in section 2 of the Civil Case File section, the difficulty in developing public access policy is determining what information is public. To honor the court's responsibility to promote openness of the justice system, public access may start with a broad access framework. Next, recognizing that information technology use and analysis capabilities have taken us beyond where we've been before, some restrictions on "gratuitous data" should be made. The test suggested, "not necessary to the determination of the case" or for personal safety reasons is a good place to start. In extreme cases, parties may request that the court seal documents containing sensitive data.

Finally, the discussion about 'levels of access' implies that the information is not truly public information. If the information is only available to those practitioners within the justice system or other individuals "with authorization," the information is better described as "discloseable" or confidential, rather than publically accessible.

No 161
1/18/00
Anonymous Attorney
RECOMMENDATION; Modify the definition of "public record" to afford privacy to certain matters
filed in federal court.

As a practicing attorney in an area not trial-practice in nature, I was a plaintiff in a lawsuit before a
federal court. It is in the context of my experience as a plaintiff, that I respond here to the issue of
public access to cases filed in federal court. I relish the opportunity to share my experience and
comment. The Judicial Conference of the United States is pondering the issue of electronic filings
and privacy, seeking to determine appropriate treatment of cases where anyone can simply download
files over the Internet. The issue pits privacy and press freedoms against one another, with necessary
considerations being explored as to whether the Conference should redefine "public records" to allow
for exclusion of matters in order to afford privacy and avoid the need for frequent consideration and
imposition of seals or tedious redaction of information. This is a very critical matter in my view.
Medical records, social security numbers and a plethora of private information is now available from
federal court cases and pleadings contained on the web. I am very against the approach to allow
pleadings, transcripts, motions and other case matters to be generally and readily available to the
public in this manner. I support a redefining of what should be deemed "public record" matter. I am
additionally concerned that if certain changes are adopted by the ABA to the Professional Codes of
Lawyer Conduct (concerning confidentiality of client information and secrets in which attorneys may
be allowed to release to a tribunal or Bar Counsel privileged or secret information obtained from the
client in the course of representation without the client's consent) that allowing such information to
be posted on the web would be a disaster that would harm the legal profession and the public. Thus,
certain exclusions must be incorporated to preserve the very nature and value of the legal profession.
No mention has been made in the proposed changes of the ability to have such matters sealed.
Absent appropriate attention to this, the consequence could mean clients choosing against bringing
suit, or being forthright with counsel, or using counsel at all, instead opting to act pro se, etc.

As a party who would bring a lawsuit, I may find the whole notion of having my entire life splashed
over the Internet a disincentive to my bringing the lawsuit, at least in federal court (unless I was the
type to simply thrive on publicity – and there are those in society who do). However, I believe that
this body should set a privacy standard, in this regard, that should be available for state courts and
all courts in the American legal system.

Certainly, as a plaintiff, I felt as though I was being punished (publicly flogged) because I had to
make my life so public just to assert my right to address what I considered a legitimate grievance.
In my case, I was additionally burdened because my relationships with my former attorneys
deteriorated and resulted in my having to terminate the relationship during the proceeding. Thus,
the acrimony is publicly available to be witnessed by all, very much to my dismay. Additionally, my
former counsel and I had a fee dispute, which in part, stemmed directly from the judge's concerns
that the attorney's fees were excessive. As a result of the judge's concern, my former counsel were
directed to file a limited justification of their fees. However, the pleading that was filed, absent my
approval, contained confidential or secret information about the decedent who was the subject of the
lawsuit. Upon my objection, the judge indicated she would allow the pleading to be withdrawn. My
former counsel agreed to have the pleading withdrawn. However, none of the matters involved were
allowed to be sealed, not even upon a motion expressing concern for the safety of the children
beneficiaries who received a portion of the settlement proceeds. Hence, all of our grief and anguish,
and the acrimony between plaintiff and defendant and between plaintiff and plaintiff's former legal
counsel became fodder for the net. Having all this play out over the Internet was not appropriate
in my view. We should not be made to feel punished or placed in potential danger for bringing our
lawsuit. These are my very personal feelings.

That cases filed in federal court are now totally open to the public by virtue of the Internet creates
a climate for leverage and manipulation of the plaintiff by defendants and vice versa. This can also
lend to blackmail (payment to avoid the filing of a case) and a presumption of guilt because the case
was filed (assuming the broad public may not understand the context of filings, but just see that a
lawsuit has been filed with all kinds of salacious allegations, etc.). I further believe this approach
(broad availability of case records over the Internet) could result in fewer cases being brought, more
cases being withdrawn, increased requests for seals and/or redaction (necessitating greater court
resources), etc. I certainly would have thought twice if I had known how public my life could
become (far too invasive with the additional element of the Internet). Also, I wonder how many
attorneys are making their clients aware of this consequence? Clients need to be told about this
because it adds a significant dimension. While judges may opt against having televised hearings,
allowing all matters involved in the case to be aired over the Internet seems somehow inconsistent
if part of the thrust is to preserve judicial decorum and privacy. I submit you can't have it both ways.

I do not believe it is in the best interest of the judiciary or the public to allow widespread, general
access of federal case matters over the Internet. There must be standards for determining what case
material or cases for that matter are to be given public or public record status, especially as the
Internet continues to have a pervasive and penetrating impact on society. Thus, the standard should
address whether the entire matter is to be given public status or whether certain parts of cases are to
be generically treated as non-public. This needs to be done in advance, beforehand because once a
document is made public, in the Internet age, there is no protection even if it is allowed to be
removed. Judges should be given principals and guides. We also need to ensure against abuse by
judges. Thus, there needs to be mandatory rules and also certain flexible guidelines. In that regard,
the Conference may wish to evaluate the definition of "public record or public matter" in the context
of the analysis used for libel/slander, i.e., public figure versus private figure. Treatment could also
be given to public issue versus private issue. For example where a government entity is being sued
or a class action is brought before a court. Certain kinds of matters likely warrant wide public
access. The danger is where to draw the line. I hope the Conference reviews the Nixon tapes
decision rendered by the U.S. Supreme Court and other cases that carve out standards for imposition
of a seal and use the thinking for establishing a generic standard to determine when a matter should
be excluded from public access. For example, in one case it was recognized that private,
embarrassing facts between parties in a divorce or custody dispute need not be made available for
public consumption.

Redaction solutions and seal solutions are not the answer because there is no guarantee that the task
can be handled and handled timely and appropriately by a limited court staff. Moreover, the court
would likely have to increase resources to handle the additional tasks. However, even with increased
resources, once something is placed on a web, even if it were removed, the harm is done. Thus, there
needs to be a pro-active approach to establishing standards before a document/matter is made public
and then qualifies for removal.

It used to be that public access to court records was in the best interest of society. Not anymore, in
my view social engineering is warranted, especially with the danger that marketers and others can
use the information inappropriately and to the detriment of individuals. Thus, this very public
process can serve to embarrass those individuals and plaintiffs who merely seek to right a wrong,
but could be exposed to whatever twist and ridicule, or danger could arise (being stalked or
threatened/kidnapped for ransom, denied employment, being fired, not being able to cope with
having one's private facts and life made public could also lend to suicide, threats against the judiciary
or its staff, hacker threats, etc.) We do live in a world where there is "Post Office Syndrome".
Obviously, there may be those who will go to great lengths to try to have a document removed.
Thus, allowing such open access of records by the courts likely will entail a need to invest in
resources to protect the security of personnel, computer systems and software. Enterprising parties
could even make a show out of the funniest or interesting court cases (television, web programs and
chatroom fare). After all, we live in a society where we now have "Internet Guy" who displays every
aspect of life on the Internet. Then, courts may see more suits for torts for using someone's name,
information, etc., as identity theft is on the rise. For that matter, even to the extent that attorney
signatures appear on pleadings over the net and can be lifted poses a great danger, especially if as
a society, we move forward digital signatures. We can see this coming. It's here. We need to protect
against this before it become a problem we can't solve. What will happen when attorney signatures
are of value and can be lifted off the net? Will we have to file documents with our fingerprints or
using a retinal security method? The Internet has transformed society overnight. We are behind in
protecting against certain dangers that we can readily see have occurred or are on the cusp of
occurring.

As a privacy advocate and as an attorney who has seen the impact of having my private grief and
anguish splashed all over the Internet in order to pursue a legal remedy, I can firmly state that if I
would be discouraged from bringing a lawsuit for this reason, just think what it might mean for the
average Joe. While this may be one method of cutting down the number of cases, it is against the
notion of having a legal system that invites those who have been wrong to pursue their rights.

We are at a critical point as a society in terms of dealing with the challenges that the Internet is
creating. However, we must get a hold of this beast. Please, I urge you to set standards for when
matters are to be deemed public, so that some semblance of privacy will still be preserved.
Obviously, certain judges did not relish the invasion of having their financial information disclosed
on the net. Also, the Internet means that everyone with a computer is now a member of the press and
can publish and republish. This was not what must have been envisioned as freedom of the press
under 1st amendment protections. For that matter, how costly will it be to society to have to address
increased instances of libel. I, respectfully, urge that the Conference take all necessary measures to
preserve and respect privacy. Who we are as individuals is integral to society. Every one who
comes to court should not have to waive their privacy and simply become an "Internet Persona". The
risk to society from transforming brick houses in to glass houses is not one we should take lightly.
Give us the ability to opt out if we wish to opt in to the legal system to pursue our right to a legal
remedy (and this should also apply in certain respects to instances where we are forced into court).
Courts may even be in threat as parties opt for arbitration to simply avoid the public display over the
net. Serious thought about lawyer signatures on pleadings being available for public consumption
is needed. Lawyers can change social security numbers if someone lifts them, but are not as flexible
in changing their signatures (also fingerprint security and retinal security will, for sure, do away with
individual privacy as we know it if lawyers are forced to do this in lieu of using their signatures on
pleadings). This is the age we live in!

No.162
1/18/01
Richmond, VA
I have a deep concern about allowing public internet access to sensitive, identifying information on
individuals who have cases with the Federal Courts. My concern is that any individual may obtain
social security numbers, bank and credit account numbers, maiden names, medical information, etc.
over the internet. This information can be used to steal one's identity for purposes of obtaining credit
fraudulently or to obtain identity for illegal aliens or others needing new identity. This information
could also be used by stalkers and others for purposes of harassment. Law enforcement, credit
agencies, and the Social Security Administration advise to be careful about who you give your social
security number to. Many Department of Motor Vehicles allow the option of using a DMV issued
drivers license number instead of a social security number. In addition, it is not necessary to provide
the Federal Government with a social security number for employment purposes.
I agree that bankruptcy and federal criminal cases should be made available to the public, however,
sensitive identifying information should be removed from public viewing. It should be the
responsibility of the Federal government to protect a citizen's privacy. Please don't make it easy for
criminals to commit crimes by allowing access to this sensitive information. I hope you will take my
remarks into consideration when making your decision.

No.163
1/18/01
Englewood Cliffs, NJ
I am a firm believer in the right to access. However, I don't think the right to access ever meant
"anonymous" access. Making all documents publicly available by anonymous users should not be
allowed. Some kind of verification/ user tracking should be required. In the past, by having to show
up at a town or county office, make a request in person, fill out paperwork -- all of this resulted in
the person accessing the information identifying him/herself, a process of public visibility. Some
method of "account creation" would be ideal. The creation should probably take place at some
government (state, municipality, something) office, in person. Perhaps it could be done via mail /
fax. The idea is that it would be done in a mostly verifiable way, and would thereby require
information users to identify themselves. This account could then be used online, thereby retaining
the benefit of online access: access anytime, text searches, composite searches, etc. Of course, there
are many technical and practical problems with validation of online users, but certainly the risk is
much lower than having no identification process at all. Additionally, the system could potentially
have the added benefit of, once in place, allowing people whose information was accessed to have
access to that information. This would extend the benefits of digital availability even further. If Mr.
Smith wants to know how much Mr. Jones paid in property tax, he should be willing to want it to
the extent that he doesn't mind Mr. Jones knowing that he found out. Currently, with the physical
file method, such information is hard or impossible to get.

No. 164
1/18/01
Chicago, IL
I am a very experienced computer professional, and have spent the last 10 years working with large
and very large databases (data warehouses). So I am very aware of how information from disparate
sources can easily and rapidly be combined. Criminal Case Files: I am in favour of the alternative
that states: "1.Do not provide electronic public access to criminal case files". I cannot see how
unlimited, or even limited electronic access can serve the public good, but can easily see how it can
do the opposite. Imagine anyone doing a "white page" search on the web for an old friend, and
coming up with not only their name and address, but also their criminal or victim history.
Civil cases files: I think that this is more difficult problem, and prefer the alternative that states:
"Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically.").This might add significant time and cost to civil cases, since the
parties might argue about discloseable items, and use disclosure as a bargaining chip in the
settlement. And what about prior cases, that were settled before the rules are established? Will there
be a presumption of disclosure or non-disclosure? Will these cases be re-opened to settle that issue?
Probably the best solution is to only carry new civil cases electronically. But none of the other
alternatives seem workable; as a computer professional, I am very skeptical about the "levels of
access" solution. It is difficult to enforce, subject to hacking, and does not protect against second
readers who obtain copies that were legally obtained.

No 165
1/19/00
Charlotte Hardnett, Acting General Counsel
Social Security Administration
Arthur Freid, Former General Counsel
Social Security Administration
In response to the public notice at 65 Fed. Reg. 67,016 (2000), the Social Security Administration
believes that Federal court records in Social Security   cases should not be made available to the
public at   large through the use of the Internet. In addition, we offer the following general and
specific comments on the privacy and security implications of Judicial Conference proposals for
providing electronic public access to Federal court case files.

The notice observes that electronic court files may be "viewed, printed, or downloaded by anyone,
at any time" and such universal, instantaneous access to court files may be substantively different
from accessing such paper records at the courthouse. Id. at 67,017. Because Internet access by the
general public to the complete court records of Social Security claimants would substantively
different and entail potential harms for these claimants, the Social Security Administration
recommends that electronic case files be available only to judicial personnel and parties to the
particular court proceeding. In so recommending, the Social Security Administration does not seek
to change the traditional access of the general public to paper records at the courthouse. Social
Security records that must be filed in court cases pursuant to 42 U.S.C. 405(g) contain the
claimant's application for benefits, disability and vocational reports, administrative determinations
and decisions, and medical and vocational evidence submitted in support of the application. These
materials include the individual's Social Security number, date of birth, address, telephone number,
other names, including maiden name, and in the case of disability insurance benefits, earnings
records. In Supplemental Security Income cases, the application also includes other personal
financial information. The parties' briefs also contain detailed medical and other personal
information. In most instances, this information is not releasable by the Social Security
Administration, absent the consent of the claimant. Internet disclosure of Social Security case files
would increase the incidents of identity fraud. The information in these files is personal and could
be extremely embarrassing, especially with respect to medical treatment reports, including mental
health examinations. The potential for fraud and invasion of privacy based on Internet disclosure
of personally identifiable information in these records may chill the right of claimants to obtain
judicial review of administrative decisions on their claims. On balance, such disclosures are simply
too high a price to pay to justify the benefits of general public access to this court information. As
the Courts embark on the implementation of new data systems that will support their operations and
facilitate electronic access to the files they maintain, this is an opportune time to establish policies
properly limiting access to this personal and sensitive information.

It should not be overlooked that typically, Social Security claimant litigants have simply chosen to
pursue their right to judicial review of Agency claims decisions. 42 U.S.C. 405(g). They would
likely be among those most significantly affected by global electronic access to Federal court case
files due to the large quantity of detailed   personal, medical, and financial information contained in
their court case files. These litigants may be aged or disabled and, therefore, could suffer greater
distress or harm than other litigants due to invasions of personal privacy or criminal activities
stemming from the posting of personally identifiable information in their Federal court records on
the Internet. Social Security claimants' records inevitably contain sensitive information   for which
they have some privacy expectations even though they are pursuing their claims in court. Court
filings in these cases should be protected from unfettered disclosure on the Internet.

Our comments must be placed in the context of the Social Security Administration's longstanding
attentiveness to the privacy of Social Security records. Even in the electronic age, the Agency's
Internet site, www.ssa.gov, assures the public of such confidentiality, stating: " . . . the privacy of our
customers has always been of utmost importance to the Social Security Administration." In fact our
first regulation, published in 1937, was written and published to ensure your privacy. Our concern
for your privacy is no different in the electronic age. Analogously, Kenneth S. Apfel, Commissioner
for Social Security, testified before the House Ways and Means Committee, Subcommittee on Social
Security, last March: "As electronic services expand, we are fully committed to prudent
authentication and security technologies to protect the privacy of the information with which we are
entrusted." Given the realities of moving to the electronic environment and longstanding policy to
protect the privacy of Social Security claimants' records, the Social Security Administration
advocates strongly for protecting personally identifiable information of claimants from Internet
disclosure, even when the information is in Federal court case files at the courthouse. Comments
are organized according to the proposed Judicial Conference policy options printed in boldface
below. 65 Fed. Reg. 67,016-19.

Policy Alternatives on Electronic Public Access to Federal Court Case Files

Regardless of what entity addresses the issues of privacy and electronic access to case files, the
effort must be made to balance access and privacy interests in making decisions about the public
disclosure and dissemination of case files. The policy options outlined below are intended to
promote consistent policies and practices in the federal courts and to ensure that similar protections
and electronic access presumptions apply, regardless of which federal court is the custodian of a
particular case file. One or more of the policy options for each type of case file may be
recommended to the Judicial Conference for its consideration. Some, but not all of the options are
mutually exclusive.

We highly commend the efforts of the Judicial Conference to develop a nationwide Federal court
electronic filing procedure that addresses privacy and security concerns. This is a difficult objective.
Congress has attempted to address closely related issues through legislation, but with limited results
to date that provide no comprehensive legislative solution. The Executive Branch has only limited
powers concerning the treatment of Social Security claimants' records in the courts. We are pleased
that through Judicial Branch efforts the Federal Government can serve as a role model regarding
Internet disclosures of personally identifiable information. Accordingly, this effort to implement a
uniform and sound policy is laudable.

Given the efforts that have already been undertaken by all three branches of the Federal Government
to establish privacy and security safeguards for personally identifiable information, it would be
anomalous to take an inconsistent path by establishing any procedures that would make Social
Security numbers and other identifying information available through the Internet. Although the
United States courts have a long tradition of maintaining open access to their records, they recognize
the access rights are not absolute and technology may affect the balance between access rights and
privacy and security interests. 65 Fed. Reg. 67,107, citing United States Department of Justice v.
Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989) and Nixon v. Warner
Communications Inc., 435 U.S. 589 (1978). Further, through their supervisory powers, courts deny
access to court files that might become a vehicle for improper purposes. Id. at 598. Congress has
long regulated disclosures of certain personally identifiable information. E.g., 42 U.S.C. 1306
(felony for disclosure of Social Security Administration information), 1320b-11 (felony for
disclosure of confidential blood donor information), and 290 dd-2 (fines for violating confidentiality
of alcohol and drug abuse treatment records); 5 U.S.C. 552a(i) (misdemeanors for Privacy Act
disclosures); 26 U.S.C. 6103 and 7213(a) (felony for disclosure of tax returns and tax return
information). Recently, Congress established civil and criminal penalties for improper disclosures
of identifiable health information in the Health Insurance Portability and Accountability Act of 1996
(HIPAA), Public Law 104-191, 1177.

Under HIPAA, the Department of Health and Human Services issued comprehensive
regulations to protect the privacy of individual medical records. 45 CFR Parts 160 and 164,
Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462-01
(2000). See also Johnson v. Sawyer, 120 F.3d 1307 (5th Cir. 1997) (including taxpayer's middle
initial, age, home address, and occupation in IRS press release about taxpayer's criminal conviction
was wrongful disclosure of return information, even if such information was included in court
record, where immediate source of such information was taxpayer's return).

Internet disclosure of personally identifiable information is particularly inappropriate in context
of Social Security litigation. It is wholly contrary to the overall privacy and security protection
framework within which the Social Security Administration operates. Social Security
Administration policy is not to disclose personal information pursuant to a Federal or State court
order or other legal process unless the disclosure is permitted by the Social Security Act. 42 U.S.C.
1306(a). If pursuant to law the Social Security Administration must disclose personally identifiable
information in court filings, once the information is disclosed, its confidentiality cannot be protected.
20 C.F.R. 401.190. Yet much of this information remains "especially sensitive." Participation in
Social Security programs is mandatory, and people cannot limit what information is given to the
Social Security Administration. Id. Further, it is likely that most Social Security disability claimants
do not fully appreciate the public nature of their court case files when they seek judicial review of
administrative denial of their claims. As claimants become aware of global electronic access to
Social Security disability court case files, some may decide not to request judicial review of an
administrative denial to avoid making public their private information. Thus, completely open access
to Social Security litigation case files would likely have a chilling effect on seeking judicial review
of administrative decisions on Social Security claims. Such a policy alternative is not warranted as
the cost of exercising a Social Security claimant's legal right to seek judicial review of an
administrative decision under 42 U.S.C. 405(g). Any such chilling effect would be in tension with
the congressional intent to furnish Social Security claimants the right to judicial review. 42 U.S.C.
405(g)-(h). A claimant's right to such review necessarily outweighs any general public interest in
universal, instantaneous electronic access to a claimant's personally identifiable information.

Civil Case Files
Since the Social Security Administration is a party in a large volume of civil litigation, the proposed
policies in this area are of greatest concern to the Agency. The civil case record in Social Security
cases generally includes the pleadings, the parties' briefs on the merits of the Social Security claim,
the administrative record, and the court's decision. The administrative record contains large amounts
of personally identifiable information, described below; in addition, it contains the application for
Social Security benefits, claimant statements and reports to the Agency, Agency determinations, and
Administrative Law Judge hearing testimony. Merits briefs must refer frequently and in detail to the
administrative record and, therefore, contain personally identifiable information as well. Any
docketed court filing in a Social Security case may contain the claimant's Social Security number.

1. Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically. This approach would rely upon counsel and pro se litigants to protect
their interests on a case-by-case basis through motions to seal specific documents or motions to
exclude specific documents from electronic availability. It would also rely on judges' discretion to
protect privacy and security interests on a case-by-case basis through orders to seal or to exclude
certain information from remote electronic public access.

The Social Security Administration does not consider sealing records on a case by case basis as a
viable method for addressing privacy and security of Social Security claimants involved in civil
litigation with the Agency. The potential harms outweigh the benefits of general public in Internet
access. First, virtually every Social Security case file contains sensitive information. Presumably,
Social Security claimants would not want such personal information to be made available to the
general public through the Internet. Such disclosure would expose Social Security claimants to
invasions of privacy and criminal activities, such as identity theft, because merely publishing Social
Security numbers affords criminals the information they need to perpetrate identity theft. There can
be no public interest in facilitating such activity, and certainly none that outweighs the claimant's
interest in some measure of security while pursuing a claim for Government benefits.

Second, due the pervasiveness of personally identifiable information in Social Security court case
files and the large volume of Social Security civil litigation, this policy alternative would be
extremely burdensome for the courts and the parties. In each Social Security case, one or more
courts could be called upon to determine whether to seal one or more of the documents containing
personally identifiable information.

Third, we know of no legal authority for sealing Social Security court records at the courthouse.
Moreover, moving to the electronic filing environment should not alter the traditional availability
of these records at the courthouse. Accordingly, courts may tend not to seal court Social Security
case filings under this alternative, making them available to the general public on the Internet. As
indicated herein, the Social Security Administration opposes this result. Moving to the electronic
filing environment should not entail untoward invasions of personal privacy and the potential
victimization of Social Security claimants. They are just pursuing a right to judicial review under
the Social Security Act. 42 U.S.C. 405(g).

Fourth, a single, nationwide approach is necessary to help ensure uniform treatment of Social
Security claimants and consistent handling of their records in Federal court litigation. Clearly, this
is not an appropriate area for the percolation of ideas through litigation in the various district and
appellate courts. It is inappropriate for Social Security claimants litigating in one court to be subject
to greater risks due to less protective decisions about sealing records in that court, while those
litigating in another court enjoy greater protections. Indeed, district and appellate courts would be
in an awkward position if asked to create their own rules concerning Internet disclosures of Social
Security records. In fact, it could lead Congress to amend the Social Security Act with respect to
protecting claimants' privacy and security interests uniformly.

2. Define what documents should be included in the "public file" and, thereby, available to the
public either at the courthouse or electronically. This option would treat paper and electronic access
equally and assumes that specific sensitive information would be excluded from public review or
presumptively sealed. It assumes that the entire public file would be available electronically without
restriction and would promote uniformity among district courts as to case file content. The challenge
of this alternative is to define what information
should be included in the public file and what information does not need to be in the file because it
is not necessary to an understanding of the determination of the case or because it implicates privacy
and security interests. Since this policy alternative links the public file in the courthouse and on the
Internet, the Social Security Administration does not view this as a workable alternative for the same
reasons. Although this alternative may handle Internet disclosures more uniformly than in the
previous alternative, the unacceptable result of inappropriate Internet disclosures of Social Security
claimants' personally identifiable information would occur under this approach.

3. Establish "levels of access" to certain electronic case file information. This contemplates use of
software with features to restrict electronic access to certain documents either by the identity of the
individual seeking access or the nature of the document to which access is sought, or both. Judges,
court staff, parties and counsel would have unlimited remote access to all electronic case files. This
approach assumes that the complete electronic case file would be available for public
review at the courthouse, just as the entire paper file is available for inspection in person. It is
important to recognize that this approach would not limit how case files may be copied or
disseminated once obtained at the courthouse.

If Internet access to Social Security court case files were restricted to judicial personnel and parties
to the litigation, the Social Security Administration would favor this alternative. As the Judicial
Conference has observed, access and privacy interests must be balanced in deciding about public
electronic disclosure and dissemination of court case files. In balancing these interests, we endorse
the use of technology to shield personally identifiable information in courthouse records of Social
Security claimants from Internet disclosure to the general public.

It is noted, however, that filing paper copies of the administrative record portion of the Social
Security court case record is the best currently available alternative. Currently, scanning is the only
way to electronically file these records and it is of limited value for several reasons. Scanning the
many, lengthy records would require the considerable additional funding. Further, scanning does
not produce word-searchable texts that are reliable. At present, optical character recognition
conversion of scanned records generates inaccuracies not found in paper copies due to the prevalence
of forms and non-text materials, e.g., medical graphs. Review and correction of the numerous,
inevitable inaccuracies would require additional funding and, through human error, the electronic
product would still contain more errors than a paper copy. Current technology for scanning and
viewing voluminous, non-word searchable texts does not permit quick and reliable comparisons of
various parts of the administrative record as manual working with paper copies does. Finally, failure
to rely on accurate records would lead to erroneous court decisions.

4. Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy
and security interests.

The Social Security Administration would be amenable to employing this approach to accomplish
the objectives described above. For this alternative, we would want to participate in the development
of any such amendments sufficiently to help ensure the privacy and security of personally identifiable
information in Social Security case records.

Criminal Case Files

The Social Security Administration prosecutes a limited volume of criminal litigation through United
States Attorneys.

1. Do not provide electronic public access to criminal case files. This approach advocates the
position that the ECF component of the new CM/ECF system should not be expanded to include
criminal case files. Due to the very different nature of criminal case files, there may be much less
of a legitimate need to provide electronic access to these files. The files are usually not that
extensive and do not present the type of storage problems presented by civil files. Prosecution and
defense attorneys are usually located near the courthouse. Those with a true need for the information
can still access it at the courthouse. Further, any legitimate need for electronic access to criminal case
information is outweighed by safety and security concerns. The electronic availability of criminal
information would allow co-defendants to have easy access to information regarding cooperation and
other activities of defendants. This information could then be used to intimidate and harass the
defendant and the defendant's family. Additionally, the availability of certain preliminary criminal
information, such as warrants and indictments, could severely hamper law enforcement and
prosecution efforts.

No comment.

2. Provide limited electronic public access to criminal case files. This alternative would allow the
general public access to some, but not all, documents routinely contained in criminal files. Access
to documents such as plea agreements, unexecuted warrants, certain pre- indictment information and
presentence reports would be restricted to parties, counsel, essential court employees, and the judge.

If this policy alternative is chosen, the Social Security Administration is concerned about any
personally identifiable information, especially Social Security numbers, that would be made
available to the public on the Internet. Indictments of Social Security number fraud cases always
include the victim's Social Security number. Further, indictments of representative payees usually
include personally identifiable information about the Social Security beneficiary. Court records may
contain other personally identifiable information about victims and witnesses. In the case of
fraudulent use of Social Security numbers it would be an intolerable irony if the victim's Social
Security number were made available to the public on the Internet.

Bankruptcy Case Files

Generally, the Social Security Administration is concerned about making Social Security numbers
and other personally identifiable information in bankruptcy case files available through the Internet.
We would support efforts to restrict Internet access to such information.

1. Seek an amendment to section 107 of the Bankruptcy Code. Section 107 currently requires public
access to all material filed with bankruptcy courts and gives judges limited sealing authority.
Recognized issues in this area would be addressed by amending this provision as follows: (1)
Specifying that only "parties in interest" may obtain access to certain types of information; and (2)
enhancing the 107(b) sealing provisions to clarify that judges may provide protection from
disclosures based upon privacy and security concerns.

For the reasons previously stated, we believe that personally identifiable information, and Social
Security numbers in particular, should not be included on Internet postings of bankruptcy case
filings.

2. Require less information on petitions or schedules and statements filed in bankruptcy cases.

3. Restrict use of Social Security, credit card, and other account numbers to only the last four digits
to protect privacy and security interests.

The Social Security Administration concurs.

4. Segregate certain sensitive information from the public file by collecting it on separate forms that
will be protected from unlimited public access and made available only to the courts, the U.S.
Trustee, and to parties in interest.

The Social Security Administration has no objection.

Appellate Cases

1. Apply the same access rules to appellate courts that apply at the trial court level.

The Social Security Administration concurs.

2. Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction in
the appellate court.

Any document that is sealed or subject to public access restrictions at the trial court level should
enjoy the same protections at the appellate level, until a court of competent jurisdiction unseals the
documents or revises the access restrictions.

In conclusion, we appreciate the opportunity to comment in this matter. Pursuant to the request in
the Federal Register notice, we are interested in participating in a public hearing, if one is held.

For additional assistance in this matter, you may contact us by e-mail reply. Additionally, you may
directly contact the undersigned at 410-965-0600, or Donna J. Fuchsluger at 410-965-3209.

Very truly yours,

(signed by Charlotte J. Hardnett)

                                    Charlotte J. Hardnett
                                   Acting General Counsel

Enclosure

     cc:
     Mr. Deyling

August 2, 1999

Mr. Leonidas Ralph Mecham
Secretary
Judicial Conference of the United States
1 Columbus Circle, N.E.
Washington, D.C. 20544

Dear Mr. Mecham:

I am writing to request the support of the Judicial Conference of the United States in ensuring that
the confidentiality of information regarding Social Security and Supplemental Security Income (SSI)
claimants under the control of the courts, is maintained. While we strongly support electronic filing
of court documents, we believe that general publication of administrative transcripts and parties
briefs on the Internet raises significant concerns.

The administrative transcripts contain the individuals application for benefits, disability and
vocational reports, administrative determinations and decisions, and medical and vocational evidence
submitted in support of the application. These materials include the individuals Social Security
number, date of birth, address, telephone number, other names including maiden name, and in the
case of disability insurance benefits, earnings records. In Supplemental Security Income cases, the
application will also include other financial information. The parties briefs
contain detailed medical and other private information.

The posting of administrative records and briefs on the Internet substantially increases the risk of
identity theft, an issue of great concern to the President, the Congress, and the Social Security
Administration. In addition, it makes readily available personal information that would not be
releasable in most instances by the Social Security Administration, absent the consent of the
claimant. Finally, because of the potential for fraud and the invasion of privacy, the availability of
this information on the Internet may chill the right of claimants to appeal benefit denials to district
court. As the Courts embark on the implementation of new data systems that will support their
operations and facilitate electronic access to the files they maintain, this is an opportune time to
establish policies properly limiting access to this personal and sensitive information.

Identity Theft

Armed with only a persons Social Security number, an unscrupulous individual could obtain a
persons welfare benefits or Social Security benefits, order new checks at a new address on that
persons checking account, obtain credit cards, or even obtain the persons pay check. Greidinger v.
Davis, 988 F.2d 1344, 1353 (4th Cir. 1993) (citations omitted). Clearly, the availability and
accessibility of the Social Security number as well as various additional forms of personal identifying
information on the Internet would significantly enhance the risk of identity theft, the prevalence and
cost of which are growing. For example, the General Accounting Office (GAO) reported that the
actual losses to individuals and financial institutions that the U.S. Secret Service had tracked
involving identity fraud totaled $450 million in 1996, and $745 million in 1997.
Identity Fraud: Information on Prevalence, Cost, and Internet Impact is Limited, May 1, 1998,
GGD-98-100BR, at 29. Further, GAO reported that the Social Security Administrations
investigations of Social Security number misuse increased nearly fourfold from 1996 to 1997. Id.
at 31.

Concerned by the dramatic increase in identity theft, Congress enacted the Identity Theft and
Assumption Deterrence Act of 1998, P. L. No. 105-318, 112 Stat. 3007 (1998). The Act expanded
18 U.S.C 1028 to criminalize the theft of identity information, and established restitution provisions
for individual victims of identify theft. In expanding the current law, the Senate Judiciary
Committee noted that [t]oday criminals do not necessarily need a document to assume an identity;
often they just need the information itself to facilitate these types of crimes. S.Rep. No. 105-274, at
5 (1998). The Senate Judiciary Committee also noted the statistics contained in the GAO report
discussed above, and concluded that identify theft was a proliferating problem which crossed State
lines and required Federal action. Id. at 6. It also found that increasingly criminals involved with
identify theft are part of international syndicates committing financial, drug-related, immigration and
violent crimes. Id. at 7. More recently, the
White House announced its strategy to implement this legislation by launching a vigorous identity
theft enforcement and prevention strategy. White House Press Release, The Clinton-Gore Plan for
Financial Privacy and Consumer Protection in the 21st Century (May 4,
1999).

Claimants Privacy Interest in Preventing Wide Dissemination of Medical Records I am also
concerned about the availability on the Internet of plaintiffs medical records that are contained in
their entirety in the administrative transcript and summarized in the briefs. Medical records typically
contain information about a plaintiffs health that he or she had not previously held out for wide
public scrutiny, and may contain information about matters of an especially sensitive nature, e.g.,
HIV status, mental illness, substance abuse, etc. The sensitivity of such information is evident in
the procedures and safeguards mandated by Congress. See, e.g., 42 U.S.C. 1320b-11(d) (protecting
the confidentiality of blood donor records and directing that address information and related blood
donor records must be destroyed upon completion of their use in providing the notification for which
the information was obtained, so as to make such information and records undisclosable.); 42 C.F.R.
Part 2 (imposing restrictions, pursuant to Congressional statutory provisions to prohibit the
disclosure and use of alcohol and drug abuse patient records which are maintained in connection
with the performance of any federally assisted alcohol and drug abuse program). Pending legislation
in the Congress demonstrates the public concern about the confidentiality of medical records. See,
e.g., The Patients Bill of Rights, S.240, 106th Cong. (1999); Medical Information Privacy and
Security Act, S.573, 106th Cong. (1999); and The Health Care Personal Information Nondisclosure
Act of 1999, S.578, 106th Cong. (1999).

Further, the aforementioned categories of personal information and medical records are protected
by the Privacy Act, 5 U.S.C. 552a. While the Privacy Act is not binding on the courts, it would
generally preclude an individual from obtaining the same information directly from the Agency.
The Privacy Act provides that [n]o agency shall disclose any record which is contained in system of
records by any means of communication to any person, or to another agency, except pursuant to a
written request by, or with the prior written consent of, the individual to whom the record pertains
[subject to 12 exceptions]. 5 U.S.C. 552a(b). One of those exceptions is that information must be
disclosed if required by the Freedom of Information Act (FOIA), 5 U.S.C. 552.

However, the FOIA identifies nine categories of records that are exempt from mandatory
disclosure. Exemption (b)(6) specifically exempts from disclosure, personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy. 5 U.S.C . 552(b)(6).

Additionally, Social Security numbers enjoy special protection under the Privacy Act. Pub.L. 93-579
7; reprinted in, 5 U.S.C. 552a note. In its report supporting the adoption of this provision, the Senate
Committee stated that the extensive use of Social Security numbers as universal identifiers in both
the public and private sectors is one of the most serious manifestations of privacy concerns in the
nation. S.Rep. No. 93-1183 (1994), reprinted in, 1974 U.S.C.C.A.N. 6916, 6943.

Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), requires the Commissioner to file
administrative transcripts in court when a claimant seeks judicial review of a final administrative
decision. Consequently, these transcripts then become a judicial record. However, Congress never
contemplated that such records should be published for unrestricted, public viewing on
the Internet. While the public has a general right to inspect and copy judicial records and documents,
this right is not absolute. Nixon v. Warner Communications Inc., 435 U.S. 589, 597-98 (1978).
Every court has supervisory power over its own records and files, and access
has been denied where court files might become a vehicle for improper purposes. Id. at 598.

Currently, transcripts are only available to a member of the public if that individual requests the case
file, in person at the courthouse. This process at the courthouse typically involves filling out a
request form, which, at a minimum, requires the identity of the requestor. Thus, from a practical
standpoint, availability of court documents in the courthouse does not significantly prejudice
plaintiffs privacy expectations. Conversely, publishing the transcripts on the Internet greatly
infringes upon plaintiffs privacy concerns. Any individual has ready access to the electronic
database of all cases filed electronically and can easily identify the subset of Social Security cases.
Then, in only a matter of minutes, that individual, located virtually anywhere in the world, can view
and download personal and confidential information, which pursuant to the Privacy Act and the
FOIA, would not be available from Federal agencies and would be available in a limited manner at
the courthouse. Thus, unlimited accessibility on the Internet to such records causes an untoward
intrusion into plaintiffs privacy.

In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court upheld a States right to record, in a
centralized computer file, the names and addresses of all persons who obtain prescribed drugs for
which there is both a lawful and unlawful market. But in his concurring opinion, Justice Brennan
noted that [b]road dissemination by state officials of such information, however, would clearly
implicate constitutionally protected privacy rights. Id. at 606 (Brennan,J., concurring). He further
indicated that [t]he central storage and easy accessibility of computerized data vastly increase the
potential for abuse of the information, and I am not prepared to say that future developments will not
demonstrate the necessity of some curb on the technology. Id. at 607.

The difference in plaintiffs privacy interest in information which must be manually collected versus
that of information which is readily accessible on an electronic database was recognized by the
Supreme Court in United States Department of Justice v. Reporters Committee For Freedom of the
Press, 489 U.S. 749 (1989). In Reporters Committee, the issue was whether the disclosure of the
Federal Bureau of Investigation criminal identification records, sometimes referred to as rap sheets,
could reasonably be expected to constitute an unwarranted invasion of personal privacy within the
meaning of the FOIA. 489 U.S. at 751. The Court, although recognizing that much of the rap sheet
information was a matter of public record, observed that its availability and dissemination was
limited. Id. at 753. In holding that the information was exempted under the FOIA, the Court wrote
that there is a vast difference between public records that might be found after a diligent search of
courthouse files. .. and a computerized summary located in a single clearinghouse of information.
Id. at 764.

If administrative transcripts and briefs in Social Security cases are made available on the Internet,
it will substantially increase the possibility of identity theft and substantially prejudice plaintiffs
privacy concerns. Ultimately, it also may have a chilling effect on a claimants willingness to bring
a civil court action pursuant to 42 U.S.C. 405(g). As noted by President Clinton upon signing the
Identity Theft and Assumption Deterrence Act of 1998 into law, [a]s we enter the Information Age,
it is critical that our newest technologies support our oldest values. Statement by President William
J. Clinton Upon Signing H.R. 4151, 34 Weekly Comp. Pres. Doc. 2203 (Nov. 9, 1998). Further,
Chief Judge Sifton of the Eastern District of New York and Chief Judge Matia of the Northern
District of Ohio have acted vigorously in response to these concerns. Chief Judge Sifton issued a
standing order prohibiting electronic filing of transcripts and litigants briefs in Social Security cases
to protect plaintiffs in Social Security benefits cases from the dangers and invasions of privacy that
could readily result from having such private and personal information easily attainable on the
Internet. Chief Judge Matia also confirmed to us that such materials maintained by his court, will
not be made accessible on the Internet to the general public.

In conclusion, I strongly oppose the ready availability of Social Security transcripts and briefs on the
Internet. I am confident that technological solutions exist which would allow electronic filing of
the transcripts and litigants briefs but still safeguard the plaintiffs privacy interests. If it would help
to assist your efforts, we would welcome an opportunity to discuss alternative measures with Judicial
Conference representatives. I request your strong support in encouraging courts not to make this
information available online in the various electronic filing efforts either currently underway or that
may be undertaken by the courts in the future.

Very truly yours,

Arthur J. Fried
General Counsel

No. 166
1/20/01
Seattle, WA
I hope this switches to a secure connection when I press submit because you are asking people to
jeopardize their privacy by requiring that they send personal information over what doesn't appear
to be a secure connection. My concern about internet access to court cases is the potential for others
getting access to personal information present in court documents. This concern is for two reasons -
the first is that victims of stalking or domestic violence need to keep their personal whereabouts
hidden. (I didn't mind sending you my address because it is a PO box and does not reveal my
physical location.) The other concern is that access to personal information increases one's chances
of becoming a victim of identity theft.

No. 167
1/20/01
Harry Hammitt
Editor/Publisher, Access Reports
Lynchburg, VA
I have followed the access and privacy debate on court records at both the federal and state levels.
I have testified before a judicial committee of the Washington State Judiciary reviewing its own
dissemination policies. I thought I would submit a few comments on the outlines of potential
policies for the U.S. court system.

As more information becomes available electronically and courts move closer to creating all their
records in electronic form, as well as accepting more and more filings from parties to litigation and
others, it would set a dangerous precedent if the court established some kind of blanket knee-jerk
policy to prohibit access to large portions of court records solely because they have the potential to
constitute an invasion of personal privacy. We have been told for years that computers will make
information more useful, not less, and to remove large portions from the public record when the
privacy alarms are sounded would not be appropriate information policy.

That having been said, I believe that there is information in many court files — Social Security
numbers, sensitive financial information, intimate sexual and family details — that should not
routinely be made public. I have come to the conclusion that we as a society have not conducted the
necessary debate, and probably never will, as to what information in traditionally public records
should be public and what should be private. Nevertheless, we can make some rational decisions
and set policy goals that can achieve an acceptable consensus.

My first and foremost concern in this area is what I see as the acceptance of the U.S. Supreme
Court's decision in Department of Justice v. Reporters Committee for Freedom of the Press as being
the correct analysis of these issues. In my opinion, this is far from the truth, and, while Reporters
Committee is the only analysis of related issues by the Supreme Court, it is an extremely poorly
reasoned decision that is neither supported by the language or the legislative history of the Freedom
of Information Act, doesn't even address the narrow issues that were before the Court, and has been
much too readily accepted by federal appellate courts and, more recently, state appellate and supreme
courts. Of course lower federal courts are bound by Supreme Court decisions, but Reporters
Committee addresses only an interpretation of Exemption 7(C) of the Freedom of Information Act,
nothing more, and need not be expanded exponentially to cover any access/privacy conflict. I would
urge you to view Reporters Committee in a very limited sense and not to take it as gospel.

Beyond botching the analysis of access/privacy issues, another strand that emanates from the
Reporters Committee decision that has greatly muddied the waters is the notion that the Freedom of
Information Act, and by implication any public access scheme, was created solely for allowing
individuals to find out what their government was up to, to shed light on government activities and
operations. The Court's analysis in this area stems from a total misreading of the public interest
standard incorporated in the FOIA for fee waivers, which provides that waivers should be given
when disclosure will significantly contribute to public understanding of government operations and
activities. A fee waiver under the FOIA is a benefit, not a right, and Congress put the burden on the
requester to provide convincing evidence that he or she deserved this further benefit. But general
access to government records is a statutory right, not an added benefit, and it is in no way tempered
by what the records might reveal. It is subject to nine exemptions, but those don't serve to thwart
the ability to request the information. What this misreading accomplishes, in my view, is to assume
that requests for public records are somehow inappropriate if they do not reveal information about
the government. This of course begs the question of why the information was collected by the
government in the first place if it had no value to the government and didn't relate to government
functions. My firm belief is that the Freedom of Information Act is a color-blind access statute
designed to allow individuals access to government records period. This leads me to the
accountability question that seems to have been impaired by the Court in Reporters Committee by
being limited to information that sheds light on government activities or operations. Accountability
flows from public access precisely because the records are public. Government has a greater
incentive to behave ethically and wisely when it knows that any member of the public has the
opportunity to view the records of government. In the judicial sphere, this goes to secret settlement
agreements that generally harm the public more than anyone else, particularly where a public body
is a party to the agreement. While some agreements between private parties should be confidential,
that is something that should be decided on a case-by-case basis and not given merely because one
or more parties asked the court for secrecy.

Applying this to court records, I agree with the notion that court records are not necessarily public
at creation, but only when they enter the "public record." This gives clerks, etc., some leeway in
severing particularly sensitive information. The parties to litigation are probably in the best position
to have a sense for what would be an invasion of privacy if made public, but, of course, litigants
should not be given carte blanche in deciding what should be excluded from the public record, but
should probably have to go through a process that could be challenged contemporaneously by public
interest (the press, etc) groups and could be challenged again at any time that public access might
be sought. This opportunity for parties to redact the record would have to be based on an objective
standard, such as the "offensive to a reasonable person" tort standard, or the long-ago "intimate
details" standard of the D.C. Circuit. It could not be based on subjectively perceived embarrassment
to the parties. Further, the court should have the ability to reject the redactions based on its analysis
of the public interest in disclosure and wherever the court has actually relied on personal information
in making its decision, that information must be public as well. Again, provision should be made
for outside parties representing the public interest in disclosure to argue that the information should
be made part of the public record.

I think there are a number of instances in which financial or sexual information included in litigation
should be made public. Such instances might be where a public official involved in a divorce case
has provided financial information that is at odds with other financial information he provided on
a financial disclosure form filled out as part of his public duties, or other kinds of behaviors that
indicate some abuse of the individual's public office.

I am heartened by what I see as the measured and thoughtful approach the federal courts are currently
taking on this issue. At the time your request for comments was published, the Maryland state courts
came up with a quick access/privacy policy that was horrid and reflected little thought on its part as
to how such a policy would affect public access. The final goal is to maximize the amount of
information that can responsibly be made public. Public oversight of the courts is essential in our
democracy and should not be given short shrift for personal privacy considerations. Electronic
filings and access to electronic court records should be seen as an opportunity to make the court
system more open, not less so.

No. 168
1/21/01
Kirk T. Hartley
Butler Rubin Saltarelli & Boyd
Chicago, IL
I submit these comments based on 17 years of practice in commercial litigation in Chicago, and
about 5 years of personal injury litigation. I also clerked for a year. I also am interested in electronic
legal publishing, but am not in the business and do not represent any clients in that area. These views
are purely my own. I believe the courts should encourage more legal publishing to reduce the costs.
The rates paid to WESTLAW and Lexis for opinions are exorbitant. Rivals (LOIS, Versuslaw, etc)
do exist today at lower rates, but their coverage is less comprehensive because, in part, of the cost
of collecting opinions. One primary missing part of their collections is federal district court opinions.
I suggest that the per page charges for downloading should NOT apply to opinions, and that PACER
should be designed to facilitate distributing opinions as easily and widely as possible. The courts also
should work as much as possible with companies like Casestream, Juritas, etc to facilitate access to
court files. During 17 years of commercial litigation for public and private companies, I have seen
very few cases in which truly private information actually made its way into court files. When
information actually is truly sensitive, judges can and do seal the information. Therefore, except for
bankruptcy cases, I urge that the policy presume free access to the full court file unless specific data
is ordered sealed.
I am not a bankruptcy lawyer so I do not know the real extent of the information filed in those cases.
My main point on this topic is that bankruptcy concerns should NOT inhibit access to other court
files. For what its worth, my sense is that commentators rightly fear that credit card listings, account
listings, etc will be wrongly retrieved and used. I leave the best solution to those more expert than
me. Finally, I urge the courts to very soon (e.g. next year) require digital filing of all pleadings,
briefs, etc. The only room I see for debate is whether lawyers should be forced to create and file
images of all exhibits to pleadings, briefs, etc. Even there I see little room for real debate. Scanners
are cheap ($250. buys a very nice scanner with a multiple page feeder; 1 page at a time scanners are
$100. or less), and are easy to use. Thank you for your efforts and consideration.

No. 169
1/02/01
Rep. Jeff Hatch-Miller
Arizona House of Representatives
Phoenix, AZ
Your document outlines some of the key issues related to digital government records and privacy.
We are quickly transforming to a computer-based system for the submission, storage and retrieval
of all government documents. At this point in time, few controls over publication of information
exist. We must affirm the basic public right to expect that, except in specific circumstances (e.g.
criminal conviction, holder of public office, etc.), doing business with the government does not
require a citizen to become a public personality. In other words, citizens have the right to expect that
information about themselves, gathered by the government in the course of conducting legitimate
business, will be held confidential. This is particularly true in regard to date of birth, social security
number, driver's license number, current residential address, e-mail address, telephone number, fax
number, tax returns, wage stubs, bank statements, account numbers, medical diagnosis, and other
information of this type. Aggregate information such as tax returns, wage stubs, bank statements,
medical evaluation and treatment records should likewise be protected from public display. The type
of record should be irrelevant. These fields, if contained in a government record, should be protected.
The level of protection should not change by record type. Given digital input, it is rather easy to
require that these information elements be entered as individual "data fields" within an electronic
record. These fields can then be encrypted and otherwise protected from display or retrieval. Except
for court purposes, records of individuals should be searchable only individually (with sensitive
fields encrypted), not in bulk. Searchability should be limited by subscription (with or without a fee).
The identify of the searcher should be verified prior to system entry and data download. I
realize that several organizations (such as newspapers and those that provide credit checks) are
vocally opposed to any protection of personal information. They wish for citizens to become public
personalities based only on the fact they did business with their government. However, many of the
opponent's needs can be addressed by subscription and by limiting downloadable information to
incomplete data fields (e.g. age range rather than birth date, first five digits of the social security
number rather than all nine, zip code address rather than street address, etc.) Through use of these
generalized data fields, distinction can be made between individuals without privacy being
compromised. The questions you are addressing are significant and may lay the foundation for either
a continuation of personal privacy of which the founders of our nation dreamed or else the "big
brother" envisioned by Orwell. Best wishes for your success in reaching a just conclusion.

No. 170
1/22/01
Greenfield, WI
To whom it concerns: I Mary Jo Trepczyk am very much against the Courts giving out information
on the Web such as Social Security Number and Medical Information to anybody. It can get into the
wrong hands!

No. 171
1/22/01
Jeannine M. Prager
Waukesha, WI
Inasmuch as putting material on the Internet is similar to broadcasting it (to receive it one simply has
to "tune" into it), I feel great care must be taken to protect sensitive information.
I favor the alternative of excluding public access to all, or most, sensitive information from all paper
and electronic case files.
Also, unless Social Security, medical and other sensitive information is pertinent to a case, it should
not be a required part of it.
Also, any information which could jeopardize the safety of someone, should not be released to the
public. Discretion should be used.
There also should be procedures whereby access can be shut down by court order.
Electronic filing systems, yes. Everything on the Internet, N0.

No. 172
1/22/01
Joseph S. Pomykala
Department of Economics
Towson State University
Towson, MD
I will only comment with regard to proposed Policy Alternatives on Electronic Public
Access to Federal Court Case Files with respect to Bankruptcy Case Files which may be
may be recommended to the Judicial Conference for its consideration.
My comments below follow each section of the proposed policy alternatives for
bankruptcy cases.

Bankruptcy Case Files

1.Seek an amendment to section 107 of the Bankruptcy Code. Section 107 currently requires public
access to all material filed with bankruptcy courts and gives judges limited sealing authority.
Recognized issues in this area would be addressed by amending this provision as follows: 1)
specifying that only "parties in interest" may obtain access to certain types of information; and (2)
enhancing the 107(b) sealing provisions to clarify that judges may provide protection from
disclosures based upon privacy and security concerns.

Comment: U.S.C. 11, Sec. 107., Public access to papers, should not be weakened by restricting
such to "parties of interest." All case documents should be open for public inspection,
electronically or otherwise; except if sealed under 107(b) with an exclusion whereas "parties in
interest" may obtain access to all sealed information in a case. Recommended amendment to Section
107(b) allowing wider judicial authority to seal certain information upon security concerns is
warranted - for example not to publicly disclose credit card, Social Security, and bank account
numbers. However, Judges should only be given narrow authority and discretion to seal documents
and such should be "either upon the request of the debtor, a party of interest in the case, or U.S.
Trustee."

2.Require less information on petitions or schedules and statements filed in bankruptcy cases.

Comment: Proposal 2 is unjustified. More information should be required on petitions and
schedules, pro se debtors should have their bankruptcy petitions rejected if such required
information is not provided, and information currently required should be made more detailed.
Bankruptcy data is lax and Congress has in recent bills tried to enhance the collective reporting of
bankruptcy information by federal agencies. Such information provided on official forms is needed
to that goal. This would also enhance public research. The total amount of debt discharged annually
is now just an estimate because of incomplete source data reported despite a demand by policy
makers for such information. The check off debt amount categories now used on bankruptcy
petitions should be replaced by actual dollar figures for debt type categories.

3.Restrict use of Social Security, credit card, and other account numbers to only the last
four digits to protect privacy and security interests.

Comment: Proposal 3 is clearly justified, and maybe the entire number should be stuck out of
publicly released records instead of merely restricting such to the last 4 digits. The Social Security
Act clearly restricts the usage of Social Security numbers.

4.Segregate certain sensitive information from the public file by collecting it on separate
forms that will be protected from unlimited public access and made available only to the
courts, the U.S. Trustee, and to parties in interest.

Comment: Proposal 4 is only an logistical step to make the release of segregated case information
less of a burden upon those who gather such. It may be unwarranted. The public should have
unlimited access to all court documents for inspection unless sealed. It may be unwise to create a
category of information withheld from the public which then may be augmented in the future by
those other than Congress and not directly by legislation.

In General: All case file documents, unless sealed by judicial authority or by law, should be available
for public inspection with the exclusion of "Social Security, credit card, and other account numbers"
as proposed, and maybe augmented by the names of minors mention in case filings, for example
when the debtor requests in a proposed plan under chapter 13 money as necessary maintenance for
dependents before calculating disposable income. Such names of minors used in publicly released
documents may treated similarly as other narrowly defined private information. Narrow judicial
authority under section 107 to seal documents with regards to private information is warranted, but
should not be broad.

The drawing up of proposals concerning privacy and the electronic release of bankruptcy
court documents should also take into consideration proposed legislation. The Bankruptcy Reform
Act of 2001 will likely be very similar on the Bankruptcy Reform Act of 2000 which passed 106th
Congress and has a high likelihood of becoming law this year. Proposed means-testing under this
legislation to limit access to chapter 7 would require debtors to provide substantial information on
past income likely from prior tax returns in calculation hypothetical future income to limit eligibility
to chapter 7 or be grounds for dismissal under substantial abuse provisions of section 707(b). Public
access to reported tax filing information may be restricted under other statutes. If copies of such
forms as I.R.S. 1040 forms are required by the courts in applying new provisions, and as evidence
of claimed information, then public access to such information should be limited only to information
as possibly required by statutory law and extracted from such, for example, adjusted gross income,
and not the entire tax document.

No. 173
1/23/01
Seattle, WA
I would like to offer my comments regarding the proposed Internet Access to Court Documents.
This amendment would surely affect the privacy and safety of individuals if access to court cases
were made easier through the Internet. Especially, in light of the potential abuses that may arise as
a result of the availability of online information such as domestic violence cases and bankruptcy
cases.

Access and information on individuals has become too easy and the ability to search the databases
with ease and anonymity could be harmful. Court files are available as public record, but they do
not pose the same degree of risk for participants in the court system. There is no need to make
access to banking records and personal information such as medical records, social security numbers
and tax returns readily available.

Court Records

Privacy implication in domestic abuse cases may contain information that may be sensitive such as
facts that may harm the victims. The information in the records is social security numbers, driver's
license numbers, address, telephone numbers and financial information. Other required disclosures
may include medical information, including medical history and disabilities, work history and a
personal history that may include names and ages of children, their social security numbers and birth
dates.

Improper Commercial Uses by Insurers, Employers, Credit Bureaus and Companies Engaged in
Target Marketing and Profiling.

Personal information that is contained in the court files can be easily searched and compiled to match
information that may be needed by credit bureaus. Employers against employees may use
information such as bank records, medical history and bankruptcy information. The commercial use
of profiling information for marketing purposes and for resale is increasing. I am afraid that the
availability of information that can be obtained by insurers, employers, credit reference bureaus, and
commercial entities in the resale of such information would facilitate the uses of the personal
information that is contained in court files in a discriminatory manner.

Access to the Courts Should Not Subject Participants to Increased Danger or Embarrassment.

Consideration should be given concerning the ease in which online information can be searched,
compiled, and disseminated over the Internet and reconsideration of how easily accessible "public"
information should be. Court records are already a matter of public record, having them on the
Internet cuts between the balance of public access to court records and respect for an individual's
dignity, personal privacy, and personal safety.

I respectfully request that the Judiciary reconsider the Proposed Amendment regarding the Internet
Access to Court Documents.

Thank you for the opportunity to comment on this proposed rule, if a public hearing is held I will
not be available to participate in the public hearing.

No. 174
1/23/01
Sir, the only thing here is lawyers don't want the public to know
anything with out paying them First. Just to fill out a form for a nickel is claimed to be practicing
law with a license. Has nothing to do with too much public information. They think the courts in
any form is their private playhouse. This is nothing more than a turf war, they think they are better
than a plain citizen .

No. 175
1/23/01
Grass Valley, IA
My concern is the content of the published items. Full electronic disclosure will create an assembly
of documentation that contains detailed information about criminal or personal activity.

Court rooms would be publishing the contents of a drug dealers "cookbook", bombers "guide to
destruction", or pictures of a spouse "in the act" of infidelity. These results, although not
intentional could VERY VERY VERY easily occur, intentionally or unintentionally.

This information is dangerous in the hands of the wrong people. Also, the effect of this would
immediately make these web sites unacceptable according to numerous social / ethical groups.
Current legislation is calling for schools and public entities to filter such content. It is easy to draw
examples of what may very well happen. The court room publishes, a public university / library /
school filters it.

Review the information already published by the federal courts and you will find how drug dealers
are operating and the mistakes they made to get caught. WE DON'T WANT TO CREATE A
MANUAL ON WHAT NOT TO DO IF YOU ARE A CRIMINAL OR HOW TO SETUP YOUR
OWN ILLEGAL BUSINESS.

No. 176
1/23/01
An American
"The credit belongs to the person who is actually in the arena, whose face is marred by the dust and
sweat and blood; who strives valiantly; who errs, and comes short again and again, because there is
no effort without error and shortcoming; but who does actually strive to do the deeds; who knows
the great enthusiasms, the great devotions; who spends himself or herself in a worthy cause; who at
the best knows in the end the triumph of high achievement, and who at the worst, if he or she fails,
at least fails while daring greatly, so that his or her place shall never be with those cold and timid
souls who know neither victory nor defeat." Teddy Roosevelt. Part of being an American is our right
to individuality. Even if that means making a mistake and starting a new life. This is the decision I
made as a young man when my life went in a direction I had not planned due to a career loss. I was
unprepared emotionally as well as financially. Thoughts of suicide or of leaving the country crossed
my mind. Instead, I filed for bankruptcy and started my life over. I am not proud of what I had to do,
but now, years later, I look back and see how far I have come. I did what I had to.
Of course, there are people who will never understand how bad things were. This is a terrible secret
I carry with me. At the time, I reasoned that perhaps I would get lucky and no one would ever make
their way to discover what I had done. I now realize this is not the case. While I know there are other
ways that people obtain this information--credit bureaus, information brokers, etc.--I didn't expect
it to be so easy for people to take this one, painful moment in my life and to offer it to the world.

Today, everyday, I now wake up wondering who will be the first person to discover this? My
partners? My soon -to-be wife? No matter what, I will deal with this challenge when presented with
it. I will try my best to explain my actions. What happens to me is irrelevant. But what does matter
is this: I do not believe that founders of our country could see this change in technology,
but if they had, I am sure they would have agreed with me in raising their pens against this intrusive
invasion of privacy. Who knows, perhaps they would have issued an anonymous pamphlet on
privacy?

No. 177
1/23/01
Charlotte, NC
It has been my observation that the quality of behavior and the degree of excellence in performance
is always improved when actions are subject to observation.

This is true of children, employees, spouses....even little puppy dogs. What would happen if children
were left unattended, if employees were not monitored or measured in some way....

There is nothing to insure the behavior and performance of the courts nor of attorneys. As one
attorney once told a client, "He would do what he wanted to do, because, he could."

For anyone who has had close experience with those involved with the court system, there is always
a long line of stories of misbehavior or reckless performance by officers of the courts. . . .

How much of what is decided within the court rooms of this country is the result of the activities of
the unfit or unrighteous? The public needs to know and to know we need access to the proceedings
to see.

How many cases are won from intimidation of the weak by the strong.

I believe that not only should all court proceedings be published on the internet but I also believe that
all legal documents should include the names of any and all attorneys who were involved in the
creation, review or approval of such documents.

No agreement, settlement or judgement should exclude the names of any of the attorneys who were
used to represent either side in the proceedings.

I believe that if this kind of information were to be available to the public, there would be far fewer
cases. As the system exists now, there is very little motivation for the courts nor attorneys to resolve
problems.

As long as problems can be perpetuated, the money clock just keeps ticking on, often times this is
the very weapon used by the affluent against the less affluent.

I believe that Americans are basically a compassionate people, an intelligent people
and a just people. If we, the public, were allowed to see the inner workings of the courts, I believe
that justice would be served and injustice would not be tolerated.

With the ever increase of ease of surveillance technology, there must be a means of monitoring the
decisions of the courts to insure that logic and good principles are applied. It is too easy to slide
coercion and abuse through the system as long as it is held behind a black curtain of secrecy.

No. 178
1/24/01
Sandown, NH
Absolutely Not! No, I do not feel that court documents should be public information on the internet
and accessible to all who can type a few key strokes to access them. Currently I perceive this to be
a public nuisance, as the information will undoubtedly, be used, interpreted, and misappropriated by
those not skilled enough to know when it is serving the public's interest or doing damage far beyond
anyone's comprehension or control to correct its misuse. Because those that define, interpret,
understand the laws of the land are highly educated, for the most part, and have a moral, legal, and
ethical obligation, responsibility, and legal professional license to do so, it should be left in their
hands to explain a documents message context. I as a common citizen, with a B.S. in Business
Management, B.A. in Criminal Justice, and am currently working on attaining a certificate in
paralegal with the prospects of going on to Law School do not encourage this action, nor do I feel
this action would be in the best interest of the public because of the potential harm it may induce by
those not competent to understand the ramifications of this action, be it civil, criminal, or federal in
nature. Let this if anything be in the realm of National Security, the right to enjoy a peaceful
coexistence with thy neighbor. Airing our individual 'dirty laundry' to the world of 'backyard
scholars' is not advisable, nor prudent, and certainly not in the best interest any one particular entity.
Thank You

No. 179
1/24/01
Brian Long
President, Dolan Media Co.
on behalf of
Beth Climo and John Byrne
American Bankers Association
Washington, DC
The American Bankers Association (ABA) is pleased to submit this response to the request from the
federal judiciary for comments on the privacy and security implications of providing electronic
public access to court case files. According to the request, the "Judicial Conference of the United
States is studying these issues in order to provide policy guidance to the federal courts." The ABA
brings together all categories of banking institutions to best represent the interests of this rapidly
changing industry. Its membership — which includes community, regional and money center banks
and holding companies, as well as savings associations, trust companies and savings banks — makes
ABA the largest banking trade association in the country.

As a general matter, the ABA is strongly committed to open access to public court documents,
whether in electronic or paper form. At the same time, we recognize the need to balance privacy
concerns but the ease by which public information is available should have no bearing on who has
access. Any privacy concerns in this area can be addressed by requiring registration with the courts
prior to accessing information as well as prosecuting to the full extent of the law those that commit
crimes with personal information.

Executive Summary

The ability of new information technology to make court data that already is public more readily and
easily available is a dramatic improvement to the current system and any changes to accessibility
should only occur after careful consideration.

Financial institutions need access to public records to protect their institutions against fraud and to
be able to extend credit and offer financial products to their customers.
Personal financial information is sufficiently protected by court procedures and existing law since
the courts, upon request, may seal documents from public view.

Through a combination of education by the government and by the private sector, individuals can
have sufficient information on how to protect personal information from abuse.
Limiting electronic access to those who register with the courts will help ensure legitimate use of
the electronic case files. Existing federal law (18 USC 1028) already criminalizes fraud committed
through the use of personal information.

Areas of Concern for the Federal Judiciary

In this request for public comment, the Judicial Conference of the United States is seeking a response
on several related issues:

The judiciary's plans to provide electronic access to case files through the Internet;
The privacy and security implications of public access to electronic case files; and
Potential policy alternatives and appropriate scope of judicial branch action in this area.

We will address each of these issues below.

Electronic Public Access to Federal Court Case Files

As the paper indicates, the movement to electronic access to case files means that the public will be
able to gain access to court documents that "will no longer depend on physical presence in the
courthouse where a file is maintained." The court points out that case files "may be viewed, printed,
or downloaded by anyone, at any time, through the Internet." It should be noted, however, that the
court plans to provide public access through their "PACER" web-based password-protected system,
which requires a user to open an account with the court. ABA supports the continued open access
of court records and this requirement related to PACER, we believe, will give the courts some ability
to protect against potential abuse of information.

Potential Privacy and Security Implications of Electronic Case Files

The judiciary recognizes the "significant benefits" of electronic case files, and the long tradition of
open access to public court records. The financial services industry relies heavily on public records
to, in part, authenticate identities and to determine the viability of potential customers as acceptable
credit risks. The courts do, however, raise the legitimate concerns about how unlimited internet
access could have personal privacy implications --- specifically, the ease of access to court
documents that may include "personal and sensitive information" of litigants and third parties such
as those found in bankruptcy filings and both civil and criminal files. A solution to that concern
mentioned in the Judicial Conference paper, however, is the fact that some portions of a case file,
if not all, may be sealed by court order. ABA believes that this is a strong tool to prevent privacy
abuses and eliminates the need for additional restrictions.

It should also be noted that the Office of Management and Budget, the Department of Justice and
the Department of Treasury have just released a study of bankruptcy filings as potential areas for
privacy concerns. ABA filed a comment letter on that issue (copy attached) and we stated in part
that:

the financial privacy expectations of individuals filing for bankruptcy must, as a realistic matter, be
far less than for individuals who do not use the system. This is due to the inherent nature of the
process, which utilizes the intervention of a branch of the public sector, the judiciary, to block
pending legal actions as well as to extinguish or substantially modify contracts entered into in
exchange for credit. In addition to being part of the very nature of an open judicial process, it is
desirable that the fact that an individual has filed for bankruptcy protection be disseminated as
widely as possible, so that business and individual creditors of the bankrupt can avail themselves of
available rights and remedies, and so that others who may be approached by the bankrupt for new
credit may protect themselves.

The study, released on January 19, found that "access by creditors to detailed financial information
is essential for the efficient operation of the bankruptcy system…" It also noted that "[c]reditors and
other parties in interest in bankruptcies should continue to have access to detailed information about
individual bankruptcies in order to pursue their legitimate claims as efficiently as possible."

Policy Alternatives on Electronic Public Access

In this request for comments, the Judicial Conference offers several policy alternatives to the current
system. Under the "civil case files", there is a recommendation that it is the responsibility of counsel
and pro se litigants to protect their interest through motions to seal specific documents. ABA prefers
this method of reliance on the individual party and the judge to decide how information should be
protected. We would also recommend, however, that the courts explain the potential for information
abuse to each litigant so that they may make informed decisions regarding their information. As the
Cate and Varn paper concludes:

An informed citizenry is essential to the balancing process for both the individual choices they may
make and in understanding the costs, risks, and benefits of privacy and access solutions.
Government---assisted by industry, not –for-profit organizations, and the academic
community----has a duty to educate the public about privacy and access issues. The more
policymakers and the citizenry know about this issue, the more accurate and satisfying the balancing
process will become.

ABA would also like to emphasize that current law already penalizes those that abuse personal
identifying information to commit fraud. 18 USC 1028 criminalizes "identity theft" and thus
provides sufficient protection to those that use court data to commit fraud. We have attached the
statute to this paper for your information.

The second option is to define what documents should be in the "public file" and what should be
shielded from pubic view. This option would be extremely difficult to follow without a detailed and
lengthy debate on what information presents a potential for continuous privacy abuse. The third
option, to establish "levels of access" to certain electronic case file information, appears to be too
cumbersome, and probably unnecessarily costly.

As far as the options for criminal case files, ABA still maintains that there should be no distinction
between on-site access and electronic access of public documents. There is still judicial oversight
to whether a file should be sealed and that provides sufficient protection for any privacy and security
concerns. Finally, the recently released paper on financial privacy in bankruptcy confirms the need
to continued access to the financial services industry for bankruptcy case files.

Conclusion

ABA strongly believes in the need for access to public records. Current law and processes more than
adequately protect the privacy of sensitive information. The courts should continue to provide access
to case files, whether in electronic or paper form, with only the limitations coming from individuals
that petition the courts to seal the documents as necessary.

Thank you for the opportunity to comment on this important matter.

Appendix

Sec. 1028. Fraud and related activity in connection with identification documents and information
(a) Whoever, in a circumstance described in subsection (c) of this section -
(1) knowingly and without lawful authority produces an identification document or a false
identification document;
(2) knowingly transfers an identification document or a false identification document knowing that
such document was stolen or produced without lawful authority;
(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more
identification documents (other than those issued lawfully for the use of the possessor) or false
identifi cation documents;
(4) knowingly possesses an identification document (other than one issued lawfully for the use of
the possessor) or a false identification document, with the intent such document be used to
defraud the United States;
(5) knowingly produces, transfers, or possesses a document-making implement with the intent such
document-making implement will be used in the production of a false identification document or
another document-making implement which will be so used;
(6) knowingly possesses an identification document that is or appears to be an identification
document of the United States which is stolen or produced without lawful authority knowing that
such document was stolen or produced without such authority; or
(7) knowingly transfers or uses, without lawful authority, a means of identification of another person
with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of
Federal law, or that constitutes a felony under any applicable State or local law; shall be punished
as provided in subsection (b) of this section.
(b) The punishment for an offense under subsection (a) of this section is - (1) except as provided in
paragraphs (3) and (4), a fine under this title or imprisonment for not more than 15 years, or both,
if the offense is - (A) the production or transfer of an identification document or false identification
document that is or appears to be - (i) an identification document issued by or under the
authority of the United States; or (ii) a birth certificate, or a driver's license or personal
identification card; (B) the production or transfer of more than five identification documents or false
identification documents; (C) an offense under paragraph (5) of such subsection; or (D) an offense
under paragraph (7) of such subsection that involves the transfer or use of 1 or more means of
identification if, as a result of the offense, any individual committing the offense obtains anything
of value aggregating 1,000 or more during any 1-year period; (2) except as provided in paragraphs
(3) and (4), a fine under this title or imprisonment for not more than three years, or both, if the
offense is - (A) any other production, transfer, or use of a means of identification, an identification
document, or a false identification document; or (B) an offense under paragraph (3) or (7) of such
subsection; (3) a fine under this title or imprisonment for not more than 20 years, or both, if the
offense is committed - (A) to facilitate a drug trafficking crime (as defined in section 929(a)(2));
(B) in connection with a crime of violence (as defined in section 924(c)(3)); or (C) after a prior
conviction under this section becomes final; (4) a fine under this title or imprisonment for not more
than 25 years, or both, if the offense is committed to facilitate an act of international terrorism (as
defined in section 2331(1) of this title); (5) in the case of any offense under subsection (a), forfeiture
to the United States of any personal property used or intended to be used to commit the offense; and
(6) a fine under this title or imprisonment for not more than one year, or both, in any other case.
(c) The circumstance referred to in subsection (a) of this section is that - (1) the identification
document or false identification document is or appears to be issued by or under the authority of
the United States or the document-making implement is designed or suited for making such an
identification document or false identification document; (2) the offense is an offense under
subsection (a)(4) of this section; or (3) either - (A) the production, transfer, possession, or use
prohibited by this section is in or affects interstate or foreign commerce; or (B) the means of
identification, identification document, false identification document, or document-making
implement is transported in the mail in the course of the production, transfer, possession, or use
prohibited by this section. (d) In this section - (1) the term ''document-making implement'' means any
implement, impression, electronic device, or computer hardware or software, that is specifically
configured or primarily used for making an identification document, a false identification document,
or another document-making implement; (2) the term ''identification document'' means a document
made or issued by or under the authority of the United States Government, a State, political
subdivision of a State, a foreign government, political subdivision of a foreign government, an
international governmental or an international quasi-governmental organization which, when
completed with information concerning a particular individual, is of a type intended or commonly
accepted for the purpose of identification of individuals; (3) the term ''means of identification'' means
any name or number that may be used, alone or in conjunction with any other information, to identify
a specific individual, including any - (A) name, social security number, date of birth, official
State or government issued driver's license or identification number, alien registration number,
government passport number, employer or taxpayer identification number; (B) unique biometric
data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or (D) telecommunication
identifying information or access device (as defined in section 1029(e)); (4) the term ''personal
identification card'' means an identification document issued by a State or local government
solely f or the purpose of identification; (5) the term ''produce'' includes alter, authenticate, or
assemble; and (6) the term ''State'' includes any State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the
United States. (e) This section does not prohibit any lawfully authorized investigative, protective,
or intelligence activity of a law enforcement agency of the United States, a State, or a political
subdivision of a State, or of an intelligence agency of the United States, or any activity authorized
under chapter 224 of this title. (f) Attempt and Conspiracy. - Any person who attempts or conspires
to commit any offense under this section shall be subject to the same penalties as those prescribed
for the offense, the commission of which was the object of the attempt or conspiracy. (g) Forfeiture
Procedures. - The forfeiture of property under this section, including any seizure and disposition of
the property and any related judicial or administrative proceeding, shall be governed by the
provisions of section 413 (other than subsection (d) of that section) of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (21 U.S.C. 853). (h) Rule of Construction. - For purpose
of subsection (a)(7), a single identification document or false identification document that contains
1 or more means of identification shall be construed to be 1 means of identification.

No. 180
1/24/01
Lemont, IL
I do not believe these records should be on the internet. You have listed full names, addresses, social
security numbers and signatures on the internet so that this information is accessible to anyone!

Do you realize the implications and the precarious position you have put everyone in that has filed
for bankruptcy?

Anyone has access to each individuals most important and what should be private information plus
their signature!

This information should stay in the courthouse on paper to protect the individual's privacy and
protect them from fraudulent use of this information.

Anyone can assume these individuals identity via the listed social security numbers and signatures.
I am disturbed by this world wide web use of each individual's private information and signature!

No. 181
1/24/01
Mark Bernsley, Esq.
Encino, CA
As a preliminary matter, I commend and thank the staff on the Office of Judges Programs of the
Administrative Office of the United States Courts for their paper entitled "Privacy and Access to
Electronic Case Files in the Federal Courts," which provides an excellent explanation of the issue
presented and a common foundation and context for comment.

The Request for Comment (the "Request") addresses the privacy and security implications of
providing electronic public access to court case files. It is apparent that the current technological
opportunities to provide wide public access to court files has focused attention on the privacy
concerns of that public access, and suggested that the historical ad hoc judicial approach to
addressing privacy concerns may no longer be adequate.

This paper provides the author's analysis and suggests an outline of one possible approach to the
issue. First I argue that the balance of public access and personal privacy be based on the respective
purposes of the two competing concerns, and that exclusions from public access be based on specific
details and not the documents containing them. Next, I argue that there be two levels of access (full
versus restricted) and that they be based on the involvement of the person rather than the medium
of the file. Finally, I propose an outline of a practical approach for implementing the conclusions
that I reach.

The Balance of Public Access Should be Based on Details, not Documents. All Documents Should
be Available- But Not all Details.

As the Request and the Staff Paper point out, the Courts have long recognized a common law right
of public access, and that such right is not absolute. From this, many, including courts, have
presumed that full and complete public access to all information in the courts' files is the appropriate
starting point; and litigants have often faced a tough burden to have "private" information sealed or
otherwise protected from actual or potential public scrutiny. The law does not require such a starting
point, however, and I would ask the reader to suspend any such predisposition for the purpose of this
discussion. and accept as a starting point neither that "court documents ought be public unless…"
nor that they "ought be private unless…".

I suggest, as a starting point, a review of the purposes we seek to fulfill, to wit, providing
"appropriate" public access while providing "appropriate" protections and safeguards of privacy.
Obviously, critical to the foregoing balance is determining what is "appropriate" for each concern
and, as a general matter, this can be gleaned from the purpose each policy was adopted to promote.

I assume that the purpose of protecting privacy is either intuitively or readily apparent, or adequately
addressed elsewhere, so as not to require extensive discussion here. For purposes of the present
discussion, however, let me suggest that the purpose of protecting privacy in the present context is
to prevent the use of information, properly presented to the court in connection with the resolution
of a matter, for some other purpose. See, e.g., Hill v. National Collegiate Athletic Assn., 7 Cal. 4th
1, 17 (1994).

The purposes and importance of public access (the "Access Purposes"), as outlined in the Staff
Paper, are: (a) monitoring the function of courts, thereby insuring quality, honesty and respect for
our legal system, and (b) encouraging proper political public discourse concerning the administration
of justice. What stands out in the foregoing is that the purpose of public access focuses on oversight
of the courts and the judicial process, and not on any right the public has with respect to the
individual litigants.

If we accept the foregoing purposes as the goals of privacy protection and public access, respectively,
we can create a general outline of the information that the public would likely need to fulfill the
Access Purposes and, depending on the nature of any particular case, can assume that further details
probably do not require public access and can remain private without compromising fulfillment of
the Access Purpose. As an example, it may be concluded that, as a general matter, the public would
require access to the following information to promote the Access Purpose:

Who litigants are (to ensure that justice is evenly and fairly distributed);
What issues are presented;
What procedure(s) is/are used by the court to resolve the dispute;
The type, quality and quantity of evidence presented;
The factual and legal arguments presented; and
The rulings, decisions and orders entered by the court.

In most cases, public access to certain details is probably not necessary to the Access Purpose.
Those details would likely include: addresses, telephone numbers, non-public personal identifying
information (such as social security numbers), property identifying numbers (bank account numbers,
serial numbers), financial details such as income, assets and liabilities, details of trade secrets and
other non-public business data, details concerning the nature and extent of personal and sexual
relationships and with whom such have been conducted, personal physical characteristics (scars,
moles, birthmarks, etc.) and similar personal and familial details. The type of case, e.g., bankruptcy,
criminal, tax, may well affect the types of information necessary for public review and may result
in a slightly different list; however, the approach outlined will likely produce a legitimate starting
point for finding balance.

If and to the extent that the Access Purpose is defined differently than it is above, the conclusions
as to what information ought be public versus private might well be different, but the analytical
process need not be any different.

It is also apparent that the competing principles could not be balanced in advance based on document
categories. Thus, any attempt to differentiate public versus "sealed" documents in advance, based
on document type, will likely fail. Further, such an attempt would invite mischief, by permitting
unscrupulous litigants to "plant" sensitive information of an opponent into a "public category"
document, as a means of leverage, frustration, etc. Thus, it would be futile and unwise to attempt to
define public access based on document type. It would be workable, however, to exclude public
access to "private details" in any document.

Finally, I suggest that it is unnecessary and inimical to privacy, to create a policy which attempts to
restrict the scope of "private" information before anyone without access to such details, wants them.
Thus, as a matter of policy, while the courts' files ought remain publicly accessible, details contained
in documents ought easily be "privatized" by the litigants, unless and until someone outside the
litigation has made a clear showing that, with respect to such detail, an Access Purpose outweighs
the privacy interest protected.

There Should be Two Levels of Access, Based on Involvement, Not on Medium.

The previous section addressed the reasons why certain details (rather than certain documents) ought
not be publicly accessible. Clearly, however, the court and the litigants require access to this
information, so a two-level access system would be necessary.

As set forth in the Request, some have suggested that the level of access be based on the medium-
with full access being available via physical file, and limited access be available electronically. I
reject this approach. As acknowledged in the staff paper, some litigants, courts and advocates have
relied on a "practical obscurity" of court documents a source of privacy protection; and this "practical
obscurity" is seen as threatened by the broader access which electronic availability promises. It is
apparent that the medium-based dichotomy relies on the validity of "practical obscurity."

Initially, I question whether "practical obscurity" is really the result of the inconvenience of access,
as is subsumed in the arguments of proponents of a media-based dichotomy, or whether "practical
obscurity" has historically been the result of a general lack of interest in most litigation files. The
rich, the famous, and those involved in litigating matters of broad public interest over the years have
likely not found the purported "practical obscurity" of their cases much of either. I suggest that most
people have kept their disputes private more because they have generally been boring and because
others haven't cared, than because court files have been inconvenient to access. Coincident with
technological developments has been the increased competition among news and entertainment
media for public attention, and the resulting increased efforts to find or create news and drama from
ordinary life-- witness the plethora of reality-based and dispute-based television shows. The judicial
process and its participants have obviously been a source of content for this competition. Thus,
review of court files by non-participants in court cases has risen significantly without regard to the
medium in which the files are kept or the technology with which they are accessed. It appears that
many non-participants most interested in court files have the financial ability to engage agents or
employees to physically review files, leaving little left of the "practical obscurity" theory.

"Practical obscurity" does not logically support a medium-based access dichotomy, because it is easy
for anyone to widely disseminate information electronically. As mentioned, physical files have been
"practically obscure" only to those lacking both the resources to hire someone else to review files,
and the time to review court files themselves. Technology would allow those with practical access
(via physical inspection) to easily re-publish the information electronically (either for free or for a
fee)- so an effort to retain a "practical obscurity" based on medium, will ultimately fail wherever
there is demand for the details.

Thus, electronic and paper files need to be subject to coherent and consistent principles and
procedures regarding privacy and public access and one should assume that, absent other protections,
access by one could effectively result in access by all.

As discussed in the previous section, whether one has access to full or limited information should
be a function of one's involvement with the case. The court, the parties and parties' counsel, should
have full access; the public's access should exclude those "private" details not necessary to promote
the Access Purposes. Those with full access should be prohibited from disclosing information
concerning any other participant.

Initial Guiding Templates are Available for Developing Implementing Processes and Procedures.

Creating procedures to protect privacy on a day-to-day basis in the midst of an otherwise public
enterprise is something the courts have little experience with to date; but other Federal agencies have
had significant experience dealing with the issue.

The following procedural suggestions are based on the procedures used by the Internal Revenue
Service in reviewing requests for rulings, where the ruling may well be published, but the law
requires the protection of private information. See, e.g., Rev. Proc. 2000-1, 2000-1 I.R.B. 4. Simply
summarized, the IRS teaches a procedure whereby two versions of the same document exist: one of
which is complete, and the other of which has certain details redacted. The redacted version is or
becomes the public version.

From the conceptual starting point described, specific procedures can be defined to accomplish the
desired result. The following outline presents a sample of implementing details based on the
foregoing discussion.

General Principles

Certain information will not be public absent Court order, issued after balancing privacy concerns
with the reasons for public access. Non-public information concerning a case will be available to
the court (and its staff), the parties and their counsel in any and all forms and formats.

Documents may exist in two versions: complete and redacted. Where two versions exist, only the
redacted version will be public. There are a myriad of ways to redact document, and a standard
should be adopted. Two possible approaches are: (a) to block out "private" words and phrases,
leaving the document otherwise in tact; or (b) use shorthand phrases in the body of the document as
substitutes for actual detail, with the detail defined or contained in a supplement, which is not made
public.

Those having access to non-public information regarding another may not disclose the information
other than to the court or to parties otherwise having access. Criminal sanctions and civil liability
should attach to violations of this duty, and no privilege should prevent disclosure of the source of
non-public information by one not authorized to have the information. These provisions are essential
to maintaining the integrity and viability of the system.

Judges need the authority to modify general rules and procedures to suit the needs of any particular
case.

Document Filing Procedures, Redactions and the Timing of Public Access

Any party filing a document may file a "redacted copy" therewith, which removes or provides
substitutes for "private" information.

Any party being served with a document may submit a revised copy to redact or further redact
information.

No document will be made public until all parties have been served and have had an opportunity to
present redacted copies, as provided below. (It is unlikely that, before such time, there would be any
need for the type of judicial action warranting public access or review). One assumption here is that
at least one of the parties would have an interest in "looking out for" the privacy interest of any third
party whose "private" details might become the subject of a pleading or other court document.

The clerk can order the party submitting the original document to provide a copy (or revised copy)
including all redactions requested by any and all parties, which copy will be the public copy unless
and until further order of the court.

The court may, sua sponte or upon application of any interested person, with or without notice or a
hearing, order additional redactions to be made. The theory here is that all parties have access to all
information in the file. Party A would rarely have a legitimate interest in providing public access
to potentially sensitive information of Party B. Thus, if Party B wanted something redacted
concerning itself, the court could order it regardless of Party A's position on the matter. Any such
order would be subject to reversal or modification upon motion of any person to make information
public.

Certain guidelines and procedures could be set in place to obviate the need for judicial intervention
in the privacy concerns of most routine matters. For example, to further supplement the above
processes, the court could adopt a rule or issue a standing order that all documents be submitted
without certain specified information unless necessary, and where the information was necessary,
that the document be submitted with a redacted a copy omitting such information. Information
mandated to be redacted might include the following, for example:

Names (other than the parties);
Addresses of people;
Personal Identifying numbers (social security, drivers license, bank account, and similar numbers);
Certain financial details (for example, compensation, assets, liabilities, net worth, etc.
in most matters, but such information is probably necessarily disclosed in bankruptcy);
Identification of commercial processes and procedures which might constitute trade secrets.

The above procedures would supplement, rather than replace, the alternative of sealing documents,
although the above procedures would be preferred to the sealing of an entire document.

Coordination of Transcripts

It accomplishes little to protect information from public access in court files, if the information is
revealed by a witness, including a party, in open court during a hearing or trial with the public
looking on. To some extent, this may be unavoidable, and the disclosure of certain information may
be a considered a cost which a party must endure for the right to a court trial. There are alternatives
with respect to much information, however. For example, witnesses are routinely asked for their
names and addresses at the beginning of their testimony. If a procedure allowed such witnesses to
provide their addresses by written declaration, which would not be made public, the information
could be easily protected without interfering with the conduct of the trial. There are other details
which could be similarly treated.

Procedures for Making Redacted Information Public

Ultimately, there will be information which is withheld and to which the public, or someone desires
access, and some procedure must exist for a determination of whether the desire is legitimate, such
that the information be made public. On the other hand, it is in the court's interest to keep the
number of such challenges as low as possible, and to not be burdened with an endless sea of such
challenges.

Motions to make information public might be made by any person (or raised by the court) at any time
and granted if it is shown that serving the purposes of public access in the case outweighs the privacy
interests of those affected. The person whose information is the substance of the request would
necessarily be served and have the right to oppose such a motion (or waive objection). The age of
the case, the current accuracy of the information and the degree of public knowledge could be among
the factors considered. To restrict repeated motions seeking the same or similar information in the
case, public notice of such motion could be ordered published (in addition to required notice to those
whose information is sought), with the right of anyone to submit arguments on either side. The court
would have discretion to dispense with or limit oral argument. If public notice were given, and an
opportunity for anyone to join, only one motion would need be heard with respect to any
information, document or category of information or documents. This would avoid a continuous
source of motions. Further, if motions were brought during the course of a matter, the court could
defer hearings and decisions on any such motions to a time after the conclusion of a matter, to avoid
disruption of the courts primary concerns.

The above procedures are provided only as an example of how the concepts discussed might be
practically applied, and further consideration and detail is admittedly required for actual
implementation. The procedures do suggest, however, that the concepts discussed could be
practically implemented without an undue burden on the courts.

Conclusion

Public access to court files should be open, regardless of medium, to the extent it is necessary to
fulfill the purpose of that access, which is to monitor the functioning of courts and to encourage
proper political public discourse concerning the administration of justice. Details not essential to
that purpose ought be easily "privatized" by parties and others involved in the litigation process.
This suggests that exclusions to public access be based on details and not the documents containing
them. The court and the parties and their counsel should have full access to the entire file, while the
public should have access only to documents which have had "privatized" information redacted--
but in either case, the medium used (paper or electronic) should be irrelevant. Finally, procedures
used by Federal agencies such as the IRS have demonstrated the viability of a system in which both
complete and redacted versions of certain documents are maintained, with public access being
granted only to redacted versions of documents, and I recommend the adoption of this type of
system.

No. 182
1/25/01
The first and foremost concern for the courts is, and always should remain, the expedient carrying
out of justice. Will making these documents electronically accessible limit justice? Absolutely. In
the short term the effect might not be very noticeable, but as the mass of accessible data grows, ever
more companies move to exploit the information. This will possibly lead to victims being afraid to
confront their attacker because of the personal information that may need to be revealed; it may also
lead to witnesses and convicted offenders being much less willing to assist law enforcement officials.
Would this open access apply to minors? Are we to assume that the agencies that sift through the
data will relinquish what they have once a minor's records are sealed, or might that be the best to
profit by providing information no longer publicly available? The First Amendment
does not extend to all documents. Perhaps the best parallel here would be to compare court records
to medical records - the information contained in either could be potentially damaging to the
individual. Because of this it seems that serving the call of justice outweighs the concerns regarding
freedom of information, and perhaps a solution would be to seal court documents in the same manner
as medical documents. They should be accessible only to those who would be able to use them to
further the cause of justice.

No. 183
1/25/01
Craig Husa
Senior Vice President
Courtlink Corp.
CourtLink is the nation's leading provider of electronic public access to court records - an Internet
pathway to and from our nation's courts. CourtLink has been providing electronic public access to
court records since 1991. It currently provides access to over 1300 courts nationwide, including over
90% of the federal courts, and state courts in Washington, Oregon, New York, New Jersey, North
Carolina, California, Texas and Maryland, among others.

Between January 1999 and October 2000, CourtLink's customers, which include law firms,
corporations, financial institutions, government agencies and investigative firms, electronically
accessed court records over 1.2 million times. Our over 30,000 customers include the top 100 law
firms in the United States. We currently have electronic access agreements in place for state courts
that serve nearly 50% of the U.S. population. CourtLink's mission is to provide the public with
better access to the nation's courts, while complying with legitimate determinations as to what
information is public.

At the heart of establishing policy for public access to court records is the delicate balance between
the public's right to know of public adjudications and the rights of the involved individuals to keep
the public resolution of the dispute private.

OPEN ACCESS BETTER THAN RESTRICTED ACCESS

Generally the law and sound public policy favor a long-standing tradition of open trials. This right
is especially true when it is applied to criminal trials. The Supreme Court has stated, "A trial is a
public event. What transpires in a courtroom is public property". It is difficult to logically construct
an argument that would make the court records of that "public trial" unavailable to the public unless
there was a significant and compelling public policy need to do so. The public's right to court records
is therefore derivative of the "public trial" element of dispute resolution. As the public deals with
substantial issues concerning the public trust and confidence of the courts, it would be a step
backwards to curtail rather than advance the public's access to information concerning an otherwise
open public proceeding. Moreover, if the records are available only upon a personal visit to the
courthouse, the records are expensive and the public's access to courts is frustrated.

Open access to courts and information contained in court records should be distinguished from
"freedom of information" requests and government compilations of data such as criminal "rap
sheets". The Supreme Court's decision in the Reporters Committee case does not create a privacy
interest in the underlying court records of a criminal case. It only protects a privacy interest in a "rap
sheet" of an individual when the government is in control of a compilation of information from many
underlying sources some of which may have been otherwise public criminal prosecutions. This
distinguishing element is evidenced by the fact that the Federal Courts make criminal case records
available by electronic access through PACER and private information providers such as CourtLink.

PUBLIC'S LEGITIMATE NEED FOR COURT RECORDS

The public has many legitimate needs for court information. CourtLink customers include attorneys,
law enforcement, private investigators, insurance companies, title insurers, the media, financial
institutions, securities firms, tenant screening and employment screening companies which use the
service to find information critically important for their work.

In a recent survey of Public Attitudes Toward Uses of Criminal History Information it was
concluded that, " there is substantial public support for making certain types of justice records
available outside of the criminal justice system when there is a perceived rationale of public benefit
and/or safety."

In today's mobile society, it is common for citizens to move freely across county and state lines to
conduct their business and personal affairs. The regional, and often national, nature of such activity
highlights the need of individuals and businesses to have the ability to search the court records
throughout the country. One illustrative case is that of Shawn C. Lowrance, an adopted 10 year-old
child who drowned in October 1999. One of several articles published about this case in The News
Tribune of Tacoma, Washington, described the facts concerning the adoptive parents:

"As reported in The News Tribune, the couple had a troubled financial past, including two
bankruptcy filings and the loss of their Lacey home to forestall a foreclosure. Criminal investigators
became suspicious about [Shawn Lowrance]'s death when they learned the couple tried to collect a
$650,000 in life insurance they took out on Shawn within a year of his death.

An online search would have also turned another equally disturbing "red flag" - the 1993 arrest of
the adoptive mother on suspicion of assault against her husband, Shawn's adoptive father. The couple
didn't mention the incident while undergoing the adoption process. A Washington State Patrol
background check turned up nothing because, unlike the online service [CourtLink], the State Patrol
doesn't disseminate arrest records."
Had the adoption agency made an electronic search of court records prior to Shawn's adoption, it
might have made all the difference for him. In fact, in the 13 page report of an independent
investigation into the adoption, the six member panel recommended that the Washington Department
of Social and Health Services consider using CourtLink.

It is common for law enforcement agencies to have criminal record information about witnesses
while defense investigators and attorneys cannot obtain the same information unless they search each
court record. The same is true for parties in civil litigation who desire to determine if a witness has
a prior criminal record that would affect their credibility. The inability to find relevant information
frustrates the "search for truth" and, ultimately, a just result.

EFFICIENCY OF ACCESS

Underlying much of the discussion concerning the public's trust and confidence in courts are the
inefficiencies of the courts, which are directly related to a dependency on paper-based work
processes. It is also impossible for the many courts of any one region to make records available in
one central location. While the federal courts may present the opportunity for access to all federal
courts though one system, state courts have many different systems and multiple methods of access.
A member of the public is therefore required to make a physical trip to the courthouse for
information that is needed and available at the clerk's counter. Thus, there is a public need for
commercial enterprises to provide information from courts in multiple states or regions through one
system.

Clerks' offices, Judges' chambers, and other judicial offices are not adequately staffed to handle the
numerous requests for information; consequently the staff is frustrated from accomplishing its
mission of dispute resolution, and the public is frustrated by having to spend more time and money
to get the information needed to make legitimate business and personal decisions. Often citizens
make decisions " in the dark" because they do not have the time or resources to search numerous
court records. Facilitating and allowing responsible commercial enterprises such as CourtLink to
electronically access court records enhances the ability of the court to concentrate on its mission of
dispute resolution and allows the public to access needed information at a lower cost.

ALTERNATIVE METHODS OF PROTECTING PUBLIC POLICY INTERESTS

There are many significant public policy interests which need to be considered and protected. Some
are already protected by statute, and appropriate legislative bodies will consider more. Indeed, there
are some in our society who would misuse information contained in court records. The remedy to
protect the public, however, should not be to reduce access to public information when effective
alternative methods exist. For instance, laws that prohibit harmful activity, such as criminal record
profiling, and by punishing harmful conduct, can protect the public. Such was the approach of
Congress when it enacted the Fair Credit Reporting Act. In addition a subscription agreement to
access the records can be required to contain a provision against use of the information for prohibited
purposes.

SUMMARY

We urge the Judicial Conference of the United States to continue to support the broadest public
access to electronic case files. Limitations on access should be rare and only when required by a
compelling public interest. Only through assured and timely public disclosure of records of legal
events occurring in our courts can the public's confidence in the judicial system continue.

No. 184
1/25/01
Mercer Island, WA
Please keep website operational. Continued solicitation of comment in this rapidly developing area
is essential for (a) developing good policy; (b) enhancing public understanding and trust in the
process.

No. 185
1/25/01
Ethel Zelenske
National Organization of Social Security Claimants Representatives
Washington, DC
These comments are submitted on behalf of the National Organization of Social Security Claimants'
Representatives (NOSSCR). NOSSCR is an organization of attorneys and nonattorneys who
represent claimants for Social Security and Supplemental Security Income (SSI) benefits. The
current membership is approximately 3,450 representatives. Collectively, we have many years of
experience in representing individuals at every level of the administrative and judicial process.
NOSSCR is committed to providing the highest quality representation and advocacy on behalf of
individuals who seek Social Security and SSI benefits.

These comments are submitted in response to the request for public comment published at 65 Fed.
Reg. 67016 (Nov. 8, 2000). As described below, we recommend adoption of a policy similar to
Policy Alternative number 3 for Social Security and SSI district court and appellate civil case files.
This policy option would establish levels of access. We do not recommend any change in the current
policy regarding the availability of case files at the courthouse.

Since all judicial appeals in Social Security and SSI cases take place in the federal court system,
NOSSCR is very interested in the Judicial Conference's study of the privacy and security
implications of providing electronic public access to court case files. We recognize the advantages
to the courts and attorneys in allowing documents to be filed electronically and in providing
electronic access to those files. However, these advantages must be tempered by ensuring the
privacy rights of plaintiffs and protecting them from victimization through identity theft.

We are particularly concerned about public electronic access to Social Security and SSI case files
because they contain extensive personal, identifying information and other extremely private and
sensitive information. The administrative transcript filed by the Social Security Administration
(SSA) includes the plaintiff's Social Security number, date of birth, address, telephone number,
maiden names, earnings records, financial information, medical evidence and vocational reports.
The administrative record also contains a transcript of the hearing before the Administrative Law
Judge which includes testimony by the claimant about his or her impairment and by medical and/or
vocational experts. Further, the parties' briefs focus on specific, personal information and
extensively discuss it.

In addition to concerns about identity theft and disclosure of information without the claimant's
consent, some individuals may decide not to appeal denials if they believe that the information will
be available over the Internet to any third party. This could result in the unintended result of chilling
the right of individuals to pursue claims for benefits to which they are rightfully entitled.

In 1999, the Social Security Administration raised three major concerns regarding the Electronic
Case Filing Pilot in the Eastern District of New York: (1) a substantial increase in the risk of identity
theft because of the posting of the individual's Social Security number; (2) the ready availability of
personal information which SSA would not be authorized to release without the claimant's consent;
and (3) the right of claimants to appeal benefit denials to district court might be chilled because of
the potential for fraud and privacy invasion. SSA recommended the use of a standing protective
order prohibiting electronic access to the administrative transcript and to the parties' briefs. The
court eventually excluded Social Security and SSI cases from the pilot.

NOSSCR strongly agrees with SSA's concerns and urges the Judicial Conference to adopt an
approach that protects the privacy interests of Social Security and SSI claimants while
accommodating the need for public access to court documents.

Civil Case Files

We believe that Policy Alternative 3, establishing "levels of access," best meets the objectives
discussed above. This option would restrict electronic access to certain documents either by the
identity of the individual seeking access or the nature of the document to which access is sought, or
both. Judges, court staff, parties and counsel would have unlimited remote access to all electronic
case files. We have no objections to the continuation of the current practice that allows public
review of the file, either the paper file or electronic file, at the courthouse since, to date, it has not
resulted in significant problems.

Criminal Case Files

We recommend limiting access to criminal case files to parties, counsel, essential court employees,
and the judge, as described in option number 2. The policy also should ensure that personal
information about victims in fraud or misuse cases involving Social Security benefits should not be
available over the Internet.

Bankruptcy Case Files

To meet the objectives described above, we recommend adoption of option number 1, 3 or 4.
Personal, identifying information, such as the individual's Social Security number, should not be
posted on the Internet.

Appellate Cases

The same access rules that apply at the trial court level should apply to appellate courts.

NOSSCR offers its assistance to the Judicial Conference as it considers and implements a policy
regarding electronic access to court files. Our membership has extensive experience in handling
cases in the federal court system throughout the country and we would be pleased to provide further
information about Social Security and SSI cases.

No. 186
1/25/01
Jodie Z. Bernstein
Director of Bureau of Consumer Affairs
Federal Trade Commission
Washington, DC
The staff of the Federal Trade Commission's Bureau of Consumer Protection recently submitted the
attached comments in response to the request for public comment by the Department of Justice, the
Department of Treasury, and the Office of Management and Budget (the "Study Agencies")
regarding their study of privacy and security issues associated with consumer bankruptcy filings.
We hope that these comments may prove useful to the federal judiciary in its review of the privacy
and security implications of providing electronic public access to court case files, particularly with
respect to bankruptcy case files.
As you may know, the Federal Trade Commission has been involved in the broader public debate
about consumer privacy for the past six years. In addition, the agency has implemented the Identity
Theft and Assumption Deterrence Act of 1998, and is responsible for maintaining the federal
government's centralized repository for identity theft complaints and victim assistance. We have
found that the key pieces of information for identity thieves are a consumer's Social Security number
and date of birth. In our attached comment, we suggested that the Study Agencies may wish to
consider to what extent highly sensitive information, like the Social Security number, must be
included in public record data – a suggestion the Study Agencies adopted in the report they released
last week. We believe that this suggestion might apply equally to highly sensitive information
contained in non-bankruptcy case files, such as medical records, personnel files, and tax returns.
As the federal judiciary recognizes in its request for comments, the Internet and technological
advancements in databases and computing promise to transform our understanding of "public
access." Many of these changes will benefit consumers and society through greater availability of
information at a lower cost. At the same time, these changes may pose risks to consumer privacy
and may increase the threat of identity theft. It is vital that these potential risks be fully examined,
and we would be pleased to provide further assistance to the federal judiciary in its review of these
issues.

ATTACHMENT

Comments on Study of Privacy Issues in Bankruptcy Data

Dear Mr. Barnhill:

The staff of the Federal Trade Commission's Bureau of Consumer Protection is pleased to offer
comments in response to the request for public comment by the Department of Justice, the
Department of Treasury, and the Office of Management and Budget (the Study Agencies).(1) The
Study Agencies are conducting a study (the Study) of how the filing for bankruptcy relief affects the
privacy of individual consumer information that becomes part of a bankruptcy case.(2)

This comment focuses on the privacy and identity theft issues raised by the collection and use of
personal financial and other information in personal bankruptcy cases. As a threshold matter, the
Study Agencies may wish to consider to what extent highly sensitive information, such as a
consumer's social security number, must be included in public record data in light of the increased
risk of identity theft and other illegal conduct. The comment also suggests that the Study Agencies
consider prohibiting the commercial use by trustees of debtors' non-public data for purposes other
than for which the information was collected (i.e., to administer the bankruptcy case). Finally, the
comment suggests evaluating the interplay between consumers' privacy interests and the Bankruptcy
Code, focusing for example, on issues where private customer information is protected by a
company's privacy statement.

A. Interest and Expertise of the Federal Trade Commission

The Federal Trade Commission (Commission or FTC) is an independent law enforcement agency
whose mission is to promote the efficient functioning of the marketplace by protecting consumers
from unfair or deceptive acts or practices and to increase consumer choice by promoting vigorous
competition. The Commission's primary legislative mandate is to enforce the Federal Trade
Commission Act (FTCA), which prohibits unfair methods of competition and unfair or deceptive
acts or practices in or affecting commerce.(3) With the exception of certain industries, the FTCA
provides the Commission with broad law enforcement authority over entities engaged in or whose
business affects commerce.(4) Pursuant to these responsibilities, the Commission has acquired
considerable experience in addressing privacy issues in both the online and offline worlds,(5) and
has long had particular interest in, and gained extensive experience dealing with, privacy and
consumer protection issues.(6)

Beginning in April 1995, the Commission held a series of public workshops on online privacy and
related issues. It also has examined: Web site practices in the collection, use, and transfer of
consumers' personal information; self-regulatory efforts and technological developments to enhance
consumer privacy; consumer and business education efforts; the role of government in protecting
online information privacy; and special issues raised by the online collection and use of information
from and about children.(7) The Commission also has issued a series of reports to Congress
regarding privacy online: Privacy Online: Fair Information Practices in the Electronic Marketplace
(May 2000) (2000 Report); Self-Regulation and Privacy Online: A Report to Congress (July 1999);
Privacy Online: A Report to Congress (June 1998) (1998 Report). In its 2000 Report, a majority of
the Commission recommended to Congress that consumer-oriented commercial Web sites that
collect personal identifying information from or about consumers online be required to comply with
fair information practices.(8)

Concurrent with its online privacy activities, the Commission has implemented the Identity Theft
and Assumption Deterrence Act of 1998.(9) That Act directed the FTC to establish the federal
government's centralized repository for identity theft complaints and victim assistance. Indeed, the
Commission's toll free hotline, which was established so that consumers could report identity theft
and obtain counseling to resolve identity theft issues, averaged over 1,000 calls per week during the
months of July and August, 2000.

Identity theft occurs when a person's identifying information -- name, social security number,
mother's maiden name, or other personal information -- has been used by another to commit fraud
or engage in other unlawful activities. Common forms of identity theft include taking over an
existing credit card account and making unauthorized charges on it; taking out loans in another
person's name; writing fraudulent checks using another person's name and/or account number; and
opening a telephone or wireless service account in another person's name. In extreme cases, the
identity thief may completely take over his or her victim's identity -- opening a bank account,
obtaining multiple credit cards, buying a car, getting a home mortgage and even working, or being
arrested under the victim's name.

Although statistics from the Commission's Identity Theft Data Clearinghouse show that about 80
percent of identity theft victims who have filed a complaint with the Commission report
finance-related fraud, such as the opening of fraudulent credit, loan, bank, or telecommunications
accounts,(10) the Commission also has received hundreds of complaints involving an identity thief
obtaining employment, compiling an arrest record, or receiving government benefits in the victim's
name. Most of the consumers filing these complaints did not know how their personal information
had been compromised. However, the victim's social security number, coupled with date of birth,
are key pieces of information for identity thieves. These key pieces of information are of course
contained in bankruptcy filings.

B. Privacy and Identity Theft Issues Raised By the Collection and Handling of Sensitive Information
in Bankruptcy

The Study Agencies may wish to consider crafting future policies and procedures regarding the
collection, use, and dissemination of personal information in light of the highly sensitive nature of
the data collected and the new technological ease by which it can be used to facilitate identity theft
and other illegal activities. Personal bankruptcy cases may involve the collection of highly sensitive
personal information, such as social security numbers, financial information, credit information,
income, and details about routine living expenses.

As a threshold matter, the Study Agencies may wish to consider whether certain items of highly
sensitive personal information, such as an individual social security number, needs to be included
in "public record" data. It may not be necessary for those creditors, and other persons who need
notice of the filing and access to relevant information about the debtor, to gain access to such
sensitive data through a public record. This concern is heightened by the increasing availability on
the Internet of courts' public record data as well as data compiled offline from these same records
that is subsequently made available on the Internet. As noted above, a social security number is
currently the key piece of identifying information used to commit identity theft. Internet publication
of social security numbers through the bankruptcy process is one way for identity thieves to ply their
trade in a manner that is completely invisible to their victims and impossible for consumers to avoid
or mitigate. For example, the identity thief can use a victim's social security number to open
fraudulent credit, loan, bank, or utility accounts in the victim's name. A valid social security number
is also essential to the thief's ability to obtain a driver's license or other official identification in a
victim's name, and to obtain employment in a victim's name.(11)

Additionally, to the extent the Study Agencies determine that certain personal information should
be kept on the public record as part of the bankruptcy case, they may wish to consider the feasibility
of restricting, in an appropriately tailored manner, the commercial use of such public record data for
certain purposes unrelated to the bankruptcy.

As a related point, the Study Agencies have asked commentors to address "[p]rinciples for the
responsible handling of information in bankruptcy records" and describe "[b]usiness or governmental
models that can provide access to, and protect debtors' privacy interests in, bankruptcy records."(12)
Recognizing that certain information necessarily must be placed on the public record during a
bankruptcy case, the Study Agencies should consider ensuring that debtors are given notice as soon
as possible in the bankruptcy process as to how their information will be used and whether and how
it will be disclosed. Consumers cannot fully consider the implications of pursuing relief from their
debts in bankruptcy unless they are informed of the consequences and the extent and means by which
their personal and financial information will be divulged to parties in interest and the larger public.
The Study Agencies may wish to consider a requirement that potential debtors receive clear and
conspicuous notice of this information before any filing is made to begin the bankruptcy process. For
example, if the Study Agencies require that putative debtors receive notice of the potential
dissemination of bankruptcy information before filing, the burden of disclosure will rest on debtors'
counsel in the pre-filing consultation process. In this scenario, counsel would be required to certify
that they have notified debtors of the consequences of providing their personal and financial
information. Currently, counsel are required to certify that they have discussed with individuals
whose debts are primarily consumer debts the types of relief available to them through the various
chapters of the Code (see Bankruptcy Official Form 1). A certification of disclosures regarding
dissemination of private information could be accomplished in the same manner. Alternatively, such
disclosures could be made post-filing at the first meeting of creditors conducted pursuant to Section
341 of the Bankruptcy Code. The disclosures could be made in the informational sheets that the
United States Trustees or their designees presently distribute at Section 341 meetings.(13)

C. Future Practices for Collecting, Analyzing and Disseminating Information in Personal Bankruptcy
Cases

The Study Agencies have noted that "some trustees and creditors are considering compiling
information contained in bankruptcy records electronically for easier administration of bankruptcy
cases in which they have a claim. They may also envision some possible commercial use."(14) The
Study Agencies have asked for comment on an appropriate commercial use of such information.

"Non-public" data, described in the Federal Register Notice as "additional data gathered by
bankruptcy trustees in the course of administering the cases assigned to them," can include tax
returns, and additional documentation or information regarding the value of assets and amounts of
liabilities. Commercial use of such highly personal and sensitive non-public data raises several
problematic issues and should be prohibited. In addition to privacy concerns, the non-public data
should not be used for purposes other than those for which the information was collected (i.e., to
administer the bankruptcy cases) for four reasons.(15) First, as discussed above in connection with
certain items of public record data, disclosure of such non-public data may facilitate identity theft
and other illegal conduct.

Second, trustees - whether appointed from a panel to a particular case or appointed by virtue of their
position as a standing trustee -- serve as trustees as a result of governmental action and receive
sensitive private information from debtors as a direct result of their appointment as trustees. Trustees
use this information to scrutinize and marshal the debtors' assets, determine the universe of existing
creditors, and ensure that all available assets are liquidated for the benefit of those creditors. The use
of such non-public information for commercial purposes appears to fall outside the scope of the
trustee's responsibilities.

Third, it is well-established that bankruptcy trustees are fiduciaries and thus owe a fiduciary's duty
of loyalty to the bankruptcy estate and all participants in the system.(16) These common law duties
and principles remain viable today.(17) It is difficult to reconcile the common law prohibition
against self-dealing with the commercial use of information that trustees obtain in their fiduciary
capacity. It is also difficult to reconcile the commercial use of information obtained in a fiduciary
capacity with the Department of Justice's recent rulemaking prohibiting standing trustees from using
estate funds for their personal benefit.(18)

Finally, the commercial sale of such information by a trustee may implicate concerns under the Fair
Credit Reporting Act (FCRA).(19) Generally, the FCRA limits the disclosure by "consumer
reporting agencies" of "consumer reports," information that is used or expected to be used as a factor
in determining a consumer's eligibility for credit, insurance, or employment. Applicability of the
FCRA would turn on several factors including examination of the purposes for disclosing the
information as well as the actual uses of the information.(20)

Notwithstanding these considerations, if the bankruptcy trustees begin to use debtors' non-public
information for commercial purposes or any purpose other than the administration of the debtor's
bankruptcy estate, the debtor should receive notice of this use and be given some opportunity to
choose whether to have their information used in such a manner.

D. Related Issues

Finally, the Study Agencies may wish to consider the interplay between consumers' privacy interests
and the Bankruptcy Code in the context of evaluating possible additional statutory changes.
Traditionally, the Code vests a case trustee or a debtor in possession with sweeping powers to sell
assets free and clear of liens and claims.(21) It is also well-settled, however, that a debtor or trustee
in bankruptcy cannot take action in violation of extant law.(22) Recently, the Commission and
various States have asserted that the sale of private customer information in direct violation of a
company's privacy statement contravenes applicable law.(23) (We note that any governmental
actions to exercise or enforce police and regulatory powers are exempt from the automatic stay
pursuant to 11 U.S.C. § 362(b)(4).)

The interplay between these various interests is unsettled and involves competing considerations.
For example, the more valuable the customer information is perceived to be, the greater the pressure
on a bankruptcy estate to sell private information despite explicit pre-petition company promises to
the contrary. The Bureau believes that the interplay of the Bankruptcy Code and law enforcement
efforts to protect consumer privacy merit further in-depth analysis.

Conclusion

We are pleased to submit these comments. Please contact Jeanne M. Crouse, the Commission's
Counsel for Bankruptcy and Redress, at (202) 326-3312, if there are questions about our comments
or additional information that we may provide to assist your efforts in this important matter.

Respectfully submitted,

________________________
Joan Z. Bernstein
Bureau of Consumer Protection, Director
Federal Trade Commission
600 Pennsylvania Ave, NW
Washington, DC 20580

No. 187
1/25/01
J. Michael de Janes
General Counsel, ChoicePoint, Inc.
Alpharetta, GA
I. Introduction.
ChoicePoint Inc. ("ChoicePoint") submits the following comments in response to the request of the
Judicial Conference of the United States, Committee on Court Administration and Case
Management, Subcommittee on Privacy and Electronic Access to Court Records ("Subcommittee")
for comments regarding the privacy and security concerns associated with making federal court case
files available electronically.

As a result of law and tradition, the courts have long made court records publicly available, unless
there was a compelling reason not to do so. Court records contain information that is used by
businesses, individuals, and government for a wide range of socially beneficial purposes. As
discussed below, information products that draw information from court records and other sources
are utilized by businesses, individuals, and government for a wide array of socially beneficial
purposes. These purposes range from law enforcement to fraud prevention, to due diligence, to
locating missing children, beneficiaries, and heirs.

Private-sector companies, like ChoicePoint, use information from court records in a wide range of
information products designed to support these socially beneficial purposes. The private sector is
also sensitive to the privacy concerns associated with personal information. ChoicePoint and other
leading companies that utilize court records for information products, use personal information from
court records in a privacy-sensitive manner, complying with any laws that may be applicable, such
as the Fair Credit Reporting Act; complying with self-regulatory principles, such as those of the
Individual Reference Services Group; and complying with their own privacy principles.

As the courts consider the balance between access and privacy, ChoicePoint urges the courts to
continue their longstanding tradition of permitting and facilitating access to court records, while
restricting access in instances where there is a clear and compelling need to do so. Such an approach
will protect privacy interests while at the same time preserving the ability of governments,
businesses, and individuals to use the information in court records for many vital, socially beneficial
purposes.

II. Background.
ChoicePoint is the nation's leading provider of credential verification and identification services for
making smarter decisions in today's fast-paced world. Through the identification, retrieval, storage,
analysis and delivery of data, ChoicePoint serves the informational needs of the property and
casualty insurance market; life and health insurance market; private businesses, including Fortune
1000 corporations, asset-based lenders and professional service providers; and, federal, state and
local public sector agencies. ChoicePoint is also the largest provider of personal information
products to employers for pre-employment background screening purposes. In addition, ChoicePoint
is the leading private-sector supplier of personal information products to numerous government
agencies, including the Federal Bureau of Investigation and the Internal Revenue Service.

Continued access to court case files is vitally important to ChoicePoint customers. As described
below, ChoicePoint and our customers rely upon information contained in court case files for many
products and services that promote the greater good of society by enhancing public safety and
personal security and fostering economic activity and growth.

At ChoicePoint, protecting the privacy of personal information in public records is a priority. As
described below, ChoicePoint adheres to all applicable laws and industry-initiated self-regulatory
principles that govern the collection, use, and disclosure of personal information. In addition,
ChoicePoint has been and continues to be an industry leader in adopting strong consumer privacy
protections that go beyond the legal requirements.

III. Continued Access to Public Records Is Important for the Greater Good of Society.
Historically, information has been placed in court records because its availability served compelling
public purposes, including public confidence in the judicial system. ChoicePoint has recently
published the final results from its 2000 Public Opinion Survey, Public Records and the Responsible
Use of Information. We found strong majorities of the American public strongly support the use of
public records, including court records like criminal records and bankruptcies, for decisions that
matter to the greater societal good interests of personal safety and public welfare.

Our survey found that 86% of respondents think it is very or somewhat acceptable for commercial
services to provide criminal conviction records to employers making hiring decisions.
We also found that 81% of respondents think it is very or somewhat acceptable for bankruptcy
histories to be used by e-commerce businesses checking out the background of potential product
vendors. Finally, 96% of respondents think that it is very or somewhat acceptable for commercial
firms to use public records to locate fathers who have had court orders to pay child support but have
not paid, and have changed their addresses.

ChoicePoint relies upon access to public records, including, court case files, for numerous socially
important purposes including identity verification, identity theft prevention, locator services,
background checks, investigating insurance claims and subrogation cases, and pre-trial preparation.

A. Identity Verification and Identity Theft Prevention

The information industry, including ChoicePoint, uses personal information contained in public
records, including court case files, to combat identification theft. Without certain identifying
information, it is difficult, if not impossible, to verify whether an individual is who he claims he is;
to match the right person with the right data; and to identify the correct individual in response to a
request for data. Efforts to minimize and guard against identification fraud would be crippled if
private sector information repositories could not use personal identifiers to detect and guard against
identification fraud.

B. Additional ChoicePoint Products and Services

In addition to using personal information contained in court records in an effort to verify identity and
to prevent identification fraud, ChoicePoint uses court case file information to create products and
services used by legal firms, private investigators, insurance investigators, police, government
agencies, and many others:

Developing background information on a person or on a business: ChoicePoint is the largest
provider of pre-employment background screening services in the United States. Court case files,
including criminal history records and bankruptcy records, provide critical information for employers
considering an individual for certain positions. ChoicePoint is also a leading provider of online and
on-demand public records, including court records, for due diligence information services to secured
lenders, legal, and professional service firms.

Investigating insurance claims and subrogation cases: ChoicePoint may provide court record
information to insurance companies in connection with fraud investigations. Reducing the instances
of fraudulent insurance claims benefits all insureds by keeping premiums down.

Conducting pre-trial preparation: Representatives of the legal community rely upon ChoicePoint
products and services for trial preparation such as locating witnesses and finding assets.

Locating individuals: Personal information included in public records, including court case files,
may also be used to help locate individuals in connection with fraud cases; to track down individuals
whose child support payments are in arrears ("deadbeat dads"); to locate missing persons such as
kidnapped or runaway children, heirs, pension beneficiaries, witnesses, and prospective organ
donors; and, for law enforcement purposes (e.g., locating bail jumpers or fugitives with outstanding
warrants). For example, ChoicePoint is the leading provider of information services to the National
Center for Missing and Exploited Children.

Identifying and verifying the assets of a person (or business): ChoicePoint obtains information from
court case files, such as land records and bankruptcy records, regarding debtors' total assets and
liabilities. This information is critical to our customers, for example, in locating assets in connection
with child support cases and verifying that an individual has accurately represented his or her assets
in court proceedings.

IV. ChoicePoint Protects the Privacy of Consumers' Personal Information.
All of ChoicePoint's products are subject to important privacy protections provided by federal and
state laws, such as the Fair Credit Reporting Act and its state law counterparts, and/or self-regulatory
standards. A founding member of the Individual Reference Services Group ("IRSG"), ChoicePoint
adheres to the IRSG Self-Regulatory Principles which have been approved by the Federal Trade
Commission.

To underscore our fundamental commitment to privacy and our vision that good privacy is good
business – for ChoicePoint, for our customers and for consumers – we have adopted comprehensive,
state-of-the-art privacy principles which we apply in addition to the privacy protections mandated
by law or self-regulatory principles. ChoicePoint supports fair information practice standards
including a robust consumer notice, choice, consumer access and correction, data quality, and
meaningful oversight and remedies. These fair information practices are the very foundation of our
Privacy Principles.

In addition, ChoicePoint is one of the few companies, if not the only major company, in the nation
that has created a special committee within its Board of Directors devoted exclusively to privacy
issues, and in particular, to overseeing the implementation and future development of our privacy
principles.

Our commitment to privacy is also demonstrated by our extensive administrative, physical, and
technological security measures. For example, ChoicePoint takes steps to protect information from
unauthorized access by written security policies; employee background screening; employee
confidentiality agreements; security training; secure facilities (e.g., restricted access, access codes);
the use of encryption and firewall technology; monitoring employee/contractor/subscriber
compliance; and, audits. ChoicePoint also regularly undergoes review of its security policies and
procedures.

ChoicePoint also follows strict procedures to determine that subscribers are reasonably identified,
meet qualifications that establish them as appropriate users, and agree to terms and conditions prior
to accessing information. ChoicePoint follows a procedure to establish that the user is an established
professional or commercial entity. Access requires user identification and user passwords.
ChoicePoint does not provide access to members of the general public. We also require users to
agree to use the information appropriately or risk termination of their access.

V. Conclusion.
ChoicePoint is committed to balancing the individual's desire for personal privacy with society's
interests in protecting the greater good – the responsible use of information is a fundamental plank
in our business strategy. As we have found in our public opinion survey, there is a high level of
public support for access to government records, including court records, to facilitate consumer
transactions (e.g., bankruptcy records for loan applications) and to conduct employment background
checks (e.g., criminal conviction information for job applicants).

We are concerned, however, that some of the policy proposals under consideration by the
Subcommittee would restrict access to federal court case files, thereby impacting these greater good
interests in ways that are adverse to society and are unintended by the Subcommittee. For that
purpose, we respectfully ask that you reject any policy proposal that would restrict access to federal
court case files. I appreciate the opportunity to respond to the proposals, and if I can be of assistance
in the future as you seek ways to preserve the balance between privacy and the greater good, please
do not hesitate to call on me directly. ChoicePoint is interested in participating in a public hearing
on this issue if one is held.

No.188
1/25/01
Terry Francke
California First Amendment Coalition
Sacramento, CA
The California First Amendment Coalition (CFAC) is an independent, nonpartisan, nonprofit
organization whose purpose is to "promote and defend the people's right to know"—that is, the
freedom of information (to find out) and freedom of expression (to speak out) about matters of
public interest.

CFAC is particularly interested in this topic because of its frustrating involvement in a very similar
rulemaking exercise by the California court system several years ago. I served by invitation on a
special advisory subcommittee comprising representatives of trial judges, the state attorney general's
office, the information vendor industry, the legislature and a privacy advocacy group. The
committee's charge was to recommend rules or standards reconciling the conversion of paper case
documentation into electronic files with the common law and constitutional presumptions of access
to case information.

The subcommittee's report comprised a majority view, representing a consensus of the judges, the
attorney general's office and the privacy advocate, advising a minimalist approach; and a minority
report representing the views of CFAC, the legislator and the information industry participant.

The standing committee on court technology (of the California Judicial Council) received the report
and, to the surprise of all, adopted the minority view and recommended it to the council. As
published for comment almost exactly four years ago, the draft rule strongly favored public access
to computerized case files, in declaring:

* "Any record that a judicial branch agency makes available to the public shall be made
available electronically, to the extent that the agency has determined that it has sufficient resources
to do so. . . Electronic access may be provided at the agency's place of business, remotely, or both
. . . Remote access shall not be provided, however, to information in records that by law becomes
unavailable automatically after the passage of time or the occurrence of certain events.

* "Direct electronic access to court records must be reasonably available to individual citizens
and must include access through public terminals at the courthouse, and when feasible at off-site
locations such as public libraries."
* The court need not share with the public all the software features of its own data management
system, "as long as public information is reasonably available by means of software that is based on
industry standards or that is in the public domain."
* Electronic access charges may be "sufficient to recover the marginal costs of providing the
access," with costs, as defined in Government Code Section 68150(h), meaning "all costs associated
with duplicating the records as determined by the court."
* A court which contracts with a vendor to release information electronically "must also
provide the public with direct electronic access to the information to the extent that this rule requires
and at fees no greater than prescribed by this rule."
* Each court agency must designate a public records administrator to educate the public about
its rights, to develop protective procedures for confidential information, to train other court staff in
implementing the rule, and to serve as an initial ombudsman for complaints about electronic access.
This official's determination would be appealable to the presiding judge.

But this proposal provoked enough resistance from trial judges and court
administrators—particularly those in Los Angeles County—that it was scrapped. The issue was
quietly assigned to a new advisory committee, this time including no access proponents, and the
ultimate set of standards adopted by the council in October 1998 encouraged courts to hew to a
restrictive policy on access to case records in electronic form.

That action left the status of electronic court records access somewhere between the liberal position
first recommended by the court technology committee—essentially, the same presumption of access
as applies to the information in paper form— and the second position adopted by the reconstituted
subcommittee, namely elimination of any wholesale access, with only certain civil case records
available, and then only by case name request, all as part of a three-year pilot project. Both versions
had been framed as rules; what the council approved was merely a recommendatory standard.

As adopted by the judicial council, Section 38 of the California Standards of Judicial Administration
states, in pertinent part,

(1) (Electronic records) A court should grant access to an electronic record only when
the record is identified by the name or number of a case and only on a case- by-case
basis. A court need not grant access to all or part of an electronic record if access is
not feasible because of the court's resource limitations.

(2) (Summary reports) A court may provide access to electronic versions of summary
reports.

(3) (Direct electronic access for the public) Direct electronic access to court records
should be reasonably available to the public remotely, through the Internet, or by
means of software based on industry standards or in the public domain. When
feasible, remote access should be available at public off-site locations such as public
libraries. Access should also be available at public terminals at the courthouse.

But a key qualifier states, "Cases involving family law, child support, juvenile law, mental health,
probate, criminal law, or public offenses, as they are defined in Penal Code section 15, should not
be included in electronic records made available through remote access."

In short, by limiting any access to case-by-case party name or case number identification (rather than,
for example, cases defined by a time period), and by excluding altogether remote access to cases
involving criminal law or public offenses (i.e. those involving misconduct by public officials), the
adopted standards fall far short of the promise of the original subcommittee proposal, and tend to
discourage press or public interest in electronic access, which after all is not mandated in any event.

It is with that experience in the background that we react to the proposed alternatives here.

Case Law

The referenced staff paper, "Privacy and Access to Electronic Case Files in the Federal Courts,"
contains a helpful summary of some relevant case law demonstrating what appears settled or
unsettled, and under which authority and with respect to which information, on access to judicial
records. In general we would concede what seems obvious, that where there is neither a general
circuit consensus nor a final
determination by the Supreme Court as to whether certain documentation is presumed accessible as
a public record at all, a rule on electronic access cannot foreclose this determination by mandating
access in every instance.

On the other hand, we believe the references to two Supreme Court cases may be less helpful than
they appear. On pages 4 and 5 of the paper it is stated,

Despite the legal presumption that judicial records are open for public inspection, it is equally clear
that access rights are not absolute. The Supreme Court in Nixon v. Warner Communications
observed that:
[E]very court has supervisory power over its own records and files, and access has been denied
where court files might have become a vehicle for improper purposes. 435 U.S. at 596.

The Nixon court continued, however, in specifics not quoted in the paper:

For example, the common-law right of inspection has bowed before the power of a court to insure
that its records are not "used to gratify private spite or promote public scandal" through the
publication of "the painful and sometimes disgusting details of a divorce case." In re Caswell, 18 R.I.
835, 836, 29 A. 259 (1893). Accord, e. g., C. v. C., 320 A.2d 717, 723, 727 (Del.1974). See also
King v. King, 25 Wyo. 275, 168 P. 730 (1917). Similarly, courts have refused to permit their files
to serve as reservoirs of libelous statements for press consumption, Park v. Detroit Free Press Co.,
72 Mich. 560, 568, 40 N.W. 731, 734-735 (1888); see Cowley v. Pulsifer, 137 Mass. 392, 395
(1884) (per Holmes, J.); Munzer v. Blaisdell, 268 App.Div. 9, 11, 48 N.Y.S.2d 355, 356 (1944); see
also Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 158, 61 N.E.2d 5, 6 (1945), or as
sources of business information that might harm a litigant's competitive standing, see, e. g.,
Schmedding v. May, 85 Mich. 1, 5-6, 48 N.W. 201, 202 (1891); Flexmir, Inc. v. Herman, 40 A.2d
799, 800 (N.J.Ch.1945).

Of the nine cases cited, almost half are from the 19th Century and the average year of judgment is
1920. Whatever the evolution of the common law may have been since then, it should be fairly
obvious that it is no longer, if it ever was, typical for trial courts to seal records to preclude the
satisfaction of prurient, defamatory of competitively injurious purposes. On the contrary: with the
exception of privileged trade secrets, courts are seldom even asked to do so. In fact it is a
commonplace that one of the considerations any attorney will counsel as a factor in deciding whether
or how to litigate a potentially embarrassing divorce, defamation, privacy or business case is
precisely that the publicity consequences of a trial may well be more mortifying than a judicial
resolution of the problem—even if legally favorable—may be worth. Accordingly, while the
common law presumption of access to judicial records is not absolute, and is rebutted or qualified
by statute in a significant number of contexts, it is still a very robust presumption in practice.

The paper furthermore states:

In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749 (1989), a case involving a database of information summarized in a criminal "rap sheet," the
Supreme Court recognized a privacy interest in information that is publicly available through other
means, but is "practically obscure." The Court specifically noted: the vast difference between the
public records that might be found after a diligent search of courthouse files, county archives, and
local police stations throughout the country and a computerized summary located in a single
clearinghouse of information. 489 U.S. at 764.

In weighing the public interest in releasing personal information against the privacy interests of
individuals, the Court defined the public's interest as "shedding light on the conduct of any
Government agency or official," 489 U.S. at 773, rather than acquiring information about a particular
private citizen. The Court also noted "the fact that an event is not wholly private does not mean that
an individual has no interest in limiting disclosure or dissemination of the information." 489 U.S.
at 770.

The Reporters Committee case, of course, dealt with the Freedom of Information Act and access to
executive branch data, not access to court information. Its reference to "shedding light on the
conduct of any Government agency or official" simply derived from the court's interpretation of the
legislative purpose of the statute. It has nowhere been suggested that monitoring government in
general is an informing purpose of any presumption of access to court information. What is clear
is that the court believes that monitoring of criminal proceedings, in enabling speech and publication
about the judicial role in the criminal justice system, is a primary rationale for a First Amendment
presumption of access to court proceedings (see Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 575-78 (1980) and its progeny).

While the court has not extended the constitutional presumption to civil proceedings, the California
Supreme Court has effectively done so by concluding that a California statute's requirement that the
"sittings" of every court, other than those in family law matters, be open must be read in a manner
informed by the First Amendment presumption respecting criminal proceedings (see NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999)).

In summary, the Nixon case observes that the common law presumption of access to court
proceedings can be rebutted in appropriate circumstances—but that general proposition was not and
has not been controversial; and the Reporters Committee case dealt with administratively compiled
rap sheets derived in part from court records, and not with the original court records themselves.

Policy Alternatives

Civil Case Files

We urge the adoption of proposal 1, which states:

Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically.

This approach would rely upon counsel and pro se litigants to protect their interests on a case-by-case
basis through motions to seal specific documents or motions to exclude specific documents from
electronic availability. It would also rely on judges' discretion to protect privacy and security
interests on a case-by-case basis through orders to seal or to exclude certain information from remote
electronic public access.

We find impracticable proposal 2, which states:

Define what documents should be included in the "public file" and, thereby, available to the public
either at the courthouse or electronically.

This option would treat paper and electronic access equally and assumes that specific sensitive
information would be excluded from public review or presumptively sealed. It assumes that the
entire public file would be available electronically without restriction and would promote uniformity
among district courts as to case file content. The challenge of this alternative is to define what
information should be included in the public file and what information does not need to be in the file
because it is not necessary to an understanding of the determination of the case or because it
implicates privacy and security interests.

The problem here is twofold. First, it amounts to a shrinkage of the accessible paper record to that
which is decided to be invariably innocuous on the Internet. Second, it assumes an invariant range
of information "necessary to an understanding of the determination of the case" as well as an
invariant range of information that "implicates
privacy and security interests." Third, it assumes that these fields do not overlap. To take the most
obvious example of why these assumptions are ill-founded, the determination of a civil action for
common law invasion of privacy by the publication of embarrassing private facts cannot be
understood without knowing the precise private facts disseminated, how and to whom and under
what circumstances they were disseminated, whose privacy was thereby allegedly invaded, what if
any defenses were argued, and by whom and in precisely what manner. If one looks at any published
appellate opinion dealing with such cases and starts subtracting the factual specifics, it becomes clear
that their absence disables understanding of the court's determination. Nor is this point confined to
privacy cases. At any trial, the judge uses rules of evidence to exclude that which must not be taken
into account by the jury. Appellate courts strive to include only those facts essential to their
conclusions. At either level, further redacting facts from the transcript or opinion runs a serious risk
of masking, blurring or misrepresenting the basis for the determination.

We find unsatisfactory proposal 3, which states:

Establish "levels of access" to certain electronic case file information.

This contemplates use of software with features to restrict electronic access to certain documents
either by the identity of the individual seeking access or the nature of the document to which access
is sought, or both. Judges, court staff, parties and counsel would have unlimited remote access to all
electronic case files.

This approach assumes that the complete electronic case file would be available for public review
at the courthouse, just as the entire paper file is available for inspection in person. It is important to
recognize that this approach would not limit how case files may be copied or disseminated once
obtained at the courthouse.

This approach gives the public no real benefit of the technology of remote access. It would not even
provide an on-line clue as to what cases are available for some kind of electronic scrutiny at the
courthouse. One would have to go there to make that discovery. Nor does it address whether or
how, at the courthouse, case files would be electronically indexed or searchable, or whether, as in
the California standard, one would have to already know party names or case numbers. Nor does
it address costs. Would the per page fee be closer to the Pacer rate or the current .50 as for paper
records? Dumbing down the system for anyone but those with a working stake in it seems a perverse
option.

We find unclear proposal 4, which states:

Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy
and security interests.

If what this means is reducing the range of accessible information in both paper and electronic form,
we have the same objection as in proposal 2, namely that it amounts to a reduction of the accessible
paper record to that which is decided to be invariably innocuous on the Internet. If all it means is
setting procedures for the court to deal with motions for sealing that are brought out of concern for
Internet access, then some new rules may be in order, so long as they do not simply codify broad and
conclusionary zones of "privacy" applicable to the record, irrespective of case particulars.

Criminal Case Files

We find unacceptable proposal 1, which states:

Do not provide electronic public access to criminal case files.

This approach advocates the position that the ECF component of the new CM/ECF system should
not be expanded to include criminal case files. Due to the very different nature of criminal case files,
there may be much less of a legitimate need to provide electronic access to these files. The files are
usually not that extensive and do not present the type of storage problems presented by civil files.
Prosecution and defense attorneys are usually located near the courthouse. Those with a true need
for the information can still access it at the courthouse. Further, any legitimate need for electronic
access to criminal case information is outweighed by safety and security concerns. The electronic
availability of criminal information would allow co-defendants to have easy access to information
regarding cooperation and other activities of defendants. This information could then be used to
intimidate and harass the defendant and the defendant's family. Additionally, the availability of
certain preliminary criminal information, such as warrants and indictments, could severely hamper
law enforcement and prosecution efforts.

This categorical preclusion of remote access is ironically inconsistent with the fact, noted above, that
the one sector of judicial activity which is constitutionally presumed open to the public is the
administration of criminal justice. The press, for example, covers the criminal side far more actively
and consistently than the civil side, and judicial accountability is, in the public's mind, far more a
concern for criminal than for civil justice. However skewed one may think this set of priorities, they
are and always have been realities.

We believe proposal 2 is unquestionably preferable. It states:

Provide limited electronic public access to criminal case files.

This alternative would allow the general public access to some, but not all, documents routinely
contained in criminal files. Access to documents such as plea agreements, unexecuted warrants,
certain pre-indictment information and presentence reports would be restricted to parties, counsel,
essential court employees, and the judge.

But we would urge that records be excluded from on-line access only for that period of time when
dissemination would cause some demonstrable harm or where any access is precluded by statute or
not presumed in any form. Plea agreements, for example, have been held to be presumptively
accessible, at least eventually, and the burden of persuasion has been held to rest with the proponent
(see Oregonian Publishing Co. v. District Court, 920 F.2d 1462 (9th Cir. 1990)). The circuits are
split as to whether open warrant documents are even subject to the common law access presumption.
Presentence reports are presumed confidential under federal rules, but may be opened at least to
inspection, upon a proper showing (see U.S. v. Schlette, 842 F.2d 1574 (9th Cir. 1988)).

Bankruptcy Case Files

We see all four proposals as having some merit, but would amend two of them as indicated.

1. Seek an amendment to section 107 of the Bankruptcy Code.

Section 107 currently requires public access to all material filed with bankruptcy courts and gives
judges limited sealing authority. Recognized issues in this area would be addressed by amending this
provision as follows: 1) specifying that only "parties in interest" may obtain remote on-line access
to certain types of information; and (2) enhancing the 107(b) sealing provisions to clarify that judges
may provide protection from remote on-line disclosures based upon factually supported and clearly
articulated privacy and security concerns.

2. Require less information on petitions or schedules and statements filed in bankruptcy cases.

3. Restrict use of Social Security, credit card, and other account numbers to only the last four digits
to protect privacy and security interests.

4. Segregate certain sensitive information from the public file by collecting it on separate forms that
will be protected from unlimited public access and made available on-line only to the courts, the U.S.
Trustee, and to parties in interest.

Appellate Cases

We urge proposal 2, if it means that access (including remote access) restrictions could be imposed
only at the trial level, and could be removed upon a proper showing in the appellate court. We are
not sure what proposal 1 means. The proposals state:

1. Apply the same access rules to appellate courts that apply at the trial court level.

2. Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction in
the appellate court.

Summary

To the extent that a technological innovation is useful and widely adopted, it supports crime and
mischief as well as progress and productivity. Telephones facilitate any wrong that can be done by
communication, cars and freeways aid any menace to person or property that can be perfected by
rapid escape. Much of the discussion of the Internet, in both the popular press and more sober
journals, emphasizes its potential threats to privacy, decency and law-abiding behavior.

It is not surprising, then, that the prospect of making court records immediately (if not freely)
accessible to the world over the Internet gives many people pause for many reasons. It promises to
allow the press and public to search and sort and analyze and redistribute information about how the
courts are behaving—to begin to understand otherwise practically invisible drifts and tendencies in
how justice is done, and for whom, and to whom. It will allow the public to connect the dots and
trace patterns and relationships as never before.

But the very nature of the courts makes many especially nervous about how all this may be
electronically mined. Courts operate by very strictly channeling and cabining the flow of
information, and at the same time demand great quantities of absolutely candid, often humiliating,
sometimes defamatory, sometimes even economically or personally risky, disclosure.

We offer two suggestions overall. The first is imperative, Access to paper records must not be
contracted to achieve a level of disclosure "safe enough for the Internet." Rather than reducing the
public record entirely to achieve such a comfort level, on-line access proposals would be better
tabled.

The second suggestion reflects a respect for understandable anxieties, and it is that on-line access
can be piloted or subject to sun setting, or both. There need be nothing universal and irreversible
about the proposals so long as traditional paper access operates in the background. Implementation
can begin with cases filed on and after a date certain, and can pause after a set period to evaluate the
results and adjust the rules if need be. Implementation is not without cost, but the costs should be
nowhere near those of building and staffing physical installations like courthouses, and retrofitting
the system, if necessary, should be a correspondingly modest investment.

No 189
1/25/01
Judge James Starzynski
US Bankruptcy Court
Albequerque, NM
As you may gather from the response we are sending, we perceive that some of the suggestions
floating around would have a major impact on our use of ACE, including the possibility of us simply
having to shut ACE down altogether (in our court) depending on when and/or what the AO might
require. For example, even changes that some people would consider to be fairly minor could only
be accomplished by such major restructuring of parts of our system that we could not comply quickly
enough to be able to continue to use the system. And of course the fact is, as I have mentioned at
previous Department Head meetings, we have more and more people that rely on ACE for
information, filing, etc. and are very enthusiastic about doing so.

What lends a bit more urgency to this communication is that the American Bankruptcy Institute sent
out a bulletin today, saying that DOJ, OMB and some other federal agency -- but not AO -- has
conducted studies and found that the wealth of information available in bankruptcy files poses a
danger of identity fraud, etc., and that therefore they have concluded that access to BR files needs
to be curtailed. While that conclusion is probably correct (and that says nothing about the extent or
immediacy of the danger, only that [and I agree] there is some increased risk now that was not there
before this information was made available on line), a remedy decreed by the AO or anyone else
without our input could be a disaster, as I have suggested in the preceding paragraph.

No. 190
1/25/01
San Antonio, TX
It is my opinion that, given the concerns of practical obscurity balanced against public access, as well
as the perceived and real abuse of greater openness, there must be a balance cast between the
competing rights. One possible balance, if it could withstand constitutional scrutiny (as perhaps
protecting the [limited] right to privacy may be considered important enough to impose limited
protections), would be to create classifications of information/documents, such that those within a
certain class would be quasi-protected, at least in an electronic database accessible to the greater
public created by the internet. In other words, a class 'A' document, one for example with the most
private of information (i.e. settlement agreements/divorce decrees...), might be shielded or screened
depending on who is requesting the document. Lawyers might be required to either obtain a
password based on their bar number, police and government agents based on some other
identification number. In any case, there is no question there are competing interests and rights
involved. As such, it seems to me there is no question that a balanced approach, one far more gray
than black and white will be required to satisfy this need for balance.

No. 191
1/25/01
R. Daniel Lyons, Esq.
Downers Grove, IL.
All files that are not sealed should be open for inspection both at the courthouse and electronically
without cost to the public. Any censoring of this information or any imposition of costs upon such
information will lead to a situation where the public to one extent or other is deprived of the ability
to review judicial documents. Judicial documents kept in secret and judicial censoring of public
information is a very bad precedent to set, as is imposition of fees to view these documents. Simply
add an extra charge for the filing fee or obtain more tax money from the Congress to implement
electronic file access.

No. 192
1/26/01
Margaret Gay
US Bankruptcy Court
Albuquerque, NM
We have reviewed the documents posted at www.privacy.uscourts.gov and wish to provide feedback
from our court as a whole before the Judicial Conference reviews this complicated issue.

The federal courts in New Mexico have been providing case information to the public through the
Internet since 1995. This includes pdf images of the documents themselves. As the number of
documents on the Internet has increased, we have seen reductions in the number of phone calls we
receive in the clerk's office, the number of copy requests we receive and the number of case files we
must pull to obtain case information for interested parties. Additionally, our system integrates with
an electronic noticing program. Electronic noticing has significantly decreased the number of paper
copies we must process and distribute locally. There is no question that electronic access to court
records has provided a substantial savings both in terms of dollars and man hours. The customer
service benefit has also been significant.

During the last six years, our court has never received a complaint about the publication of court
records on the Internet. We have not been made aware of any harm caused by the release of these
records electronically. We realize that forfeiture of privacy is a very real problem and have
continually considered the many facets of this issue while embarking on our electronic filing
initiative. In the end, we have continually concluded that the benefits of electronic access have
outweighed the potential costs.

We ask that the Judicial Conference consider the following points when formulating
recommendations and issuing guidelines to the court on electronic document access:

We feel it is imperative that the Judicial Conference and the AO formulate any policies on this issue
in conjunction with the courts. Only individual courts can sufficiently assess the practical effect of
policy determinations at a level of detail sufficient to avoid unintended consequences. We have
reviewed the bankruptcy case file policy options suggested on the web site. We feel that
implementation of any of these options could have serious unintended ramifications on court
operations. These options would require substantial changes to local procedures, reprogramming
of automated systems and new requirements for our trustees and practitioners. If any of these
options was implemented too quickly, our court would be unable to gather the financial and
personnel resources required to respond and we would have to discontinue the availability of our
program until we were able to comply. The local impact would be devastating. This does not mean
that we advocate that courts do nothing. It does mean that any solution must be sent to the courts
for comment and consideration before implementation to insure that it is locally feasible.

Use and availability of social security numbers is now widespread. We feel that efforts to curb
publishing of social security numbers are simply futile. Meanwhile, many of our customers benefit
from the publication of social security numbers. We have many instances in our database where
different individuals have the same first, last, and even middle names. Without the use of the social
security number, it would be extremely difficult to distinguish between these people. The social
security number is the most accurate means of insuring that you are looking at information on the
correct individual in question.

Proposals to attempt to segregate "sensitive" material necessarily involve changes in procedures
which may seem, at first, to be inconsequential. The reality, though, is that such an approach would
significantly increase the time necessary to process every single case and thus would carry with it
substantial resource need implications. Further, certain proposals, such as making some elements
of a case file available for inspection only by a few parties in interest, introduce multiple levels of
complexity and put the intake clerk on the line to make decisions about access to "public"
information. For example, if the standard for access was established to be parties listed as creditors
by the debtor and parties who had entered an appearance in a case, a creditor who was owed money
by the debtor but whom the debtor had not listed would not be given access to the file. Additionally,
as indicated above, the creation of such a dichotomy in the paper world would require creation of
a similar infrastructure in the electronic access world, which has the potential to require complete
re-creation of our systems for electronic access to information. This dichotomy also raises questions
about long-term file archiving and destruction standards and procedures.

The benefits of electronic access to full and complete case records far outweigh the potential for
misuse of this data as well as the cost that would be required to implement additional privacy
safeguards.

No. 193
1/26/01
New York Times, Co.
New York, NY
The New York Times Company is grateful for the opportunity to submit its comments on the
implications of providing electronic access to court files. The Company publishes The New York
Times, The Boston Globe, 15 regional newspapers and a national magazine, and it operates eight
television stations.

We commend the Judicial Conference for seeking comments on these important issues. We believe
that the transition to electronic case files represents a dramatic and wholly positive change. The
practical importance of the change cannot be overstated, and in most cases it is entirely
uncontroversial. A paper copy of a document filed in court (1) requires a trip to the courthouse to
inspect or copy, (2) is available for such inspection and copying by one person at a time, (3) is
available only during business hours, (4) may be archived in a warehouse only years after it is filed,
(5) may be in use at trial or in chambers, (6) typically can be copied only by very patient people with
vast amounts of pocket change on antiquated photocopying machines and (7) must be manually
searched for relevant information by, generally, uninformed agents for the parties actually seeking
the information. Electronic records solve all of these problems. We applaud the judiciary for its
efforts in this area.

The request for comments and the accompanying staff paper entitled "Privacy and .Access to
Electronic Case Files in the Federal Courts" suggest that in a limited number of ;areas restrictions
may be placed on electronic access where no restrictions exist as to the :paper records. We view
these suggestions as unwise, unwarranted and constitutionally suspect.

It may well be that information is currently available in paper documents filed in court that ought to
be withheld from public scrutiny. There are adequate measures available for litigants and others to
request the sealing of such information, although the standard is, properly, a difficult one to meet.
It may also be that thought should be given to systemic reform of what information should be
required of litigants.

What seems to us quite impermissible, as a matter of fairness and of constitutional law, is either of
the two kinds of discriminatory access discussed in the staff paper: (1) discrimination between those
seeking access to paper records versus those seeking access to electronic records and (2)
discrimination among those seeking access to electronic records based on status.

Indeed, the very notion that, because of the opportunity to disseminate judicial records through the
new technologies, access to records should become less public and more shielded is ironic and
antithetical to the very advantages which the public can gain from the Internet. It undermines the
progress which electric records represent if their use results in a diminution of records available to
the public.

The Supreme Court's rationale, in the watershed case of Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555 (1980), for the presumption of public access to courtrooms and court files applies equally
to the benefits of making court records more easily accessible to the public. Thus,

ready public access to court documents promotes more discussion and understanding of the judicial
system. 448 U.S. at 571-73, 577, n.12

ready public access gives greater assurance "that the proceedings were conducted fairly to all
concerned," 448 U.S. at 569-70, and serves as a check on corrupt practices by exposing the judicial
process to broader public scrutiny. 448 U.S. at 570.

ready public access to statements made in court documents even about ostensibly "private" matters
can prevent perjury and other abuses. 448 U.S. at 569 (openness "discourage[s] perjury, the
misconduct of participants, and decisions based on secret bias or partiality").

Newspapers study and report not only on litigations about government, but, as important, on cases
involving large national and local companies and on trends involving private, individual disputes.
In short, newspapers consider the whole panoply of litigations that make up our reporting on the
judicial system. What is truly private in covering public filings in cases which are newsworthy and
demonstrate trends in the judicial system is itself almost impossible to distinguish. But even were
the privacy interests at issue more susceptible to definition and segregation, there is simply no
adequate justification for the two sets of proposed discrimination.

If access is the good thing that the Supreme Court and First Amendment scholars say it is, it becomes
an even better thing if the press and public can exercise their access rights as a practical matter. To
allow complete access to paper files only would represent powerful discrimination in favor of those
with the means to send agents to courthouses -- the clients of private investigators and major news
organizations come to mind. Such discrimination against ordinary citizens interested in the workings
of the judicial branch or in monitoring the conduct and substance of litigations strikes us as
unacceptable.

It should be borne in mind, too, that any regulation aimed at electronic files may in relatively short
order amount to regulation of all court files, as paper records may well disappear entirely in our
lifetimes -- again achieving the opposite result of the advantages to public access which the new
technology offers.

The second proposed discrimination, based on status, is even more problematic. The request for
comments outlines a distinction between permitting complete remote electronic access to judges,
court staff, parties and counsel on the one hand and no such access to anyone else. This proposal runs
afoul of both the First and Fourteenth Amendments.

It is a flat violation of the First Amendment for the government to pick and choose who may obtain
access to information unless the discrimination is necessary to advance a compelling government
interest. See, e.g., Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) (First Amendment prohibits
court from "selectively excluding" newspaper from access to discovery materials made available to
health officials and a competitor).

Such government discrimination violates the Fourteenth Amendment's equal
protection clause as well. See, e.g., McCoy v. Providence Journal Co., 190 F.2d 760, 765 (1st
Cir. 1951) (city's denial of access to tax records to one party while allowing it to a competitor
"constitutes a denial of equal protection of the laws"); Donrey Media Group v. Ikeda, 959 F.
Supp. 1280, 1286 (D. Haw. 1996) (access to government records cannot be selectively
administered consistent with equal protection).

Nor is the proposed discrimination based on status a practical way to achieve the asserted goal of
preventing dissemination of private material. There would -- and without case-by-case court
intervention, there could -- be no restriction on redissemination of that material by anyone entitled
to remote access. It is not unusual even today to see Web sites devoted to archives of a litigation
involving the site's creator.

The notion that the right way to protect sensitive material is to entrust it to litigation adversaries but
to deny general remote electronic access seems a very uneasy fit between the asserted goal and the
means chosen to reach it. And it seems to presume that those who might somehow cause trouble with
"private" facts garnered from electronic records would not bother seeking the same information by
a trip to the courthouse where the documents are readily available -- also a very speculative
assumption.
Of course, parties might be forbidden from such redissemination in appropriate cases. Seattle Times
Co. v. Rhinehart, 467 U.S. 20 (1984). But if there is to be court intervention in any event, a
case-by-case approach to every aspect of these issues is warranted.

The staff paper relies heavily for both sets of proposed discrimination on United States Department
of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). That case does
contain language contrasting "hard-to-obtain information" with "a computerized summary located
in a single clearinghouse of information." 489 U.S. at 764. That sounds apt. But the case involved
the application of the Freedom of Information Law's exemption for "unwarranted invasion of
personal privacy" to FBI "rap sheets."

The case thus did not involve (1) law governing the judicial branch (2) judicial :records or (3)
records available in paper form anywhere. The executive branch generally has no obligation to
disclose anything at all, and the public's access rights to executive branch information are governed
not by the Constitution and the common law but by porous and shifting legislation. The
presumptions concerning judicial records are entirely different and are rooted in the First
Amendment and a tradition of access that preceded the founding of our nation.

The plaintiffs in the Reporters Committee case made the argument that because bits and pieces of
the information they sought were available in public files, all information in all FBI rap sheets should
be made public. That is the argument the Supreme Court addressed in the passages quoted in the
staff paper. The Court had nothing to say about the situation here, where the very documents at issue
are judicial documents that are publicly available in their entirety, but only in paper form.

Among the topics on which comment was sought were "the appropriate scope of judicial branch
action in this area" and "whether it is appropriate for the judiciary to establish policy in this area."
We submit that current law and practice is entirely adequate, and that current rules should apply
equally to courthouse files whether stored in a clerk's office or in a computer. As Justice Brandeis
once said of the Supreme Court, "the most important thing we do is not doing." Bickel, The Least
Dangerous Branch, 71 (1962). Not doing is what the judicial branch should be doing here.

No. 194
1/26/01
Alice N. Lucan, Esq.
The Daily News, Memphis, TN
Washington, DC
I write to register my client's request to be invited to testify, should a hearing be held on the issue of
electronic access to federal court records. My client's perspective on access to federal court records
will be of value to the Administrative Office, as a commercial user providing electronic database
information to end users.

I have the privilege of representing The Daily News of Memphis, a legal notice publication, and, as
such, is a publisher with a long history in dealing with public notice issues. The Daily News of
Memphis was founded in 1886, and it has now been owned and operated by the same Memphis
family for four generations. In addition to publishing a daily legal newspaper, for the past four years
the company has enhanced its legal notice function by offering subscriber access, for a fee, to
criminal disposition records over the Internet. We now provide subscribers with access to criminal
disposition information in 22 states and we are preparing more court record data to go on-line. We
believe we have the largest such database in the country.

Nearly all of the Daily News business comes from large employment and tenant screening companies
whose use of the data is limited by statutes. Lawyers, private investigators, and law enforcement
agencies comprise another segment of our customer base. We believe it is a public service for the
prospective employer to learn whether someone about to be hired to handle money has any criminal
convictions. A school board should be able to check teacher applicants for a criminal background.
The mother seeking someone to care for her children should be able to find out easily whether the
applications she sees are sent by anyone who has a criminal conviction for sexual crimes. There
are myriad other legal and useful purposes for a public database with access to federal criminal
convictions.

At the point when specific proposals are made proposing changes (or not) to the PACER system, or
to the concept of providing public access to criminal disposition records, The Daily News would like
to have the opportunity to provide testimony and/or comment. At this point, we mean merely to
make ourselves known and to endorse the comments submitted on behalf of the National Newspaper
Association and the Reporters' Committee for Freedom of the Press. Thank you very kindly for your
attention to this request.

No. 195
1/26/01
Bruce R. Hulme
Assoc. of Licensed Detectives of New York
New York, NY
The Associated Licensed Detectives of New York State, Inc. (ALDONYS) founded in 1950,
represents the 3,000 licensed private investigators and security companies in New York State.

ALDONYS opposes restrictions that would deny public access to both civil and criminal court files,
other than those documents that have been previously sealed by the Court. However, we recognize
that files that are placed in an electronic medium allowing access from locations distant from the
courthouse or the repository of the physical record might warrant some reasonable restrictions.

There is a vast difference in physically appearing to inspect a court file after filling out requisition
forms under the watchful eye of a record clerk when given a file for review versus accessing
electronic files on the worldwide web from anywhere in the world for any purpose and with complete
anonymity.

If the courts wish to join the trendy stampede by government to place everything on a web site,
consideration should be give to implementing a PACER type system. Such a system might require
identification of the requester through the establishment of an online account for those individuals
and entities that have legitimate lawful purposes to seek the contents of electronic court files.

Consideration should at a minimum be given to allowing attorneys, paralegals and licensed
investigators and security professionals that routinely review court files continued access. Litigants,
insurance companies and various businesses can also demonstrate legitimate reasons to electronic
access.

We wish to emphasize that the duties of licensed private investigators and security firms in New
York have been held to be quasi law enforcement in nature. As a part of the administration of justice
they should be permitted continued access to court files irrespective of any restrictions that might
be placed upon the general public's access.

The undersigned has in the past testified before the Federal Trade Commission and the House
Banking and Finance Committee and New York State Legislative Committees and Commissions
regarding privacy issues on behalf of the private investigation and security industries.

Thank you for considering our concerns on this issue. Please contact us at 800.475.1399 if we can
be of further assistance to you in this matter.

No. 196
1/26/01
Laura R. Handman
Chair, Media Law Committee
Arts, Entertainment and Sports Law Section
District of Columbia Bar
Washington, DC
The Arts, Entertainment & Sports Law Section of the District of Columbia Bar respectfully submits
these comments to urge the Judicial Conference to develop electronic access policies that maximize
the ability of the public to obtain copies of judicial records over the Internet. The Comments were
prepared by the Media Law Committee, which includes attorneys who routinely represent reporters
and news organizations in news gathering matters. We therefore have a keen understanding of the
importance of keeping judicial files open and accessible and an appreciation for the enhanced
possibilities for journalistic excellence that would accompany improved electronic dissemination of
court records. The work that goes on in our nation's courts is of vital significance to all citizens, and
it should receive more, not less, attention. The Judicial Conference should therefore press forward
with policies to encourage the broadest possible distribution of court files and materials.

We realize that the Conference is only in the early stages of formulating policy in this area and thus
does not yet have a particular proposal to put forward for comment. Of the various "scenarios"
envisioned by the Conference in its Request for Comment, however, the Media Law Committee
endorses the continuation of the judiciary's present case-by-case approach to determining whether
any portion of a judicial file should be sealed. Under this framework, court records are presumptively
open, and any litigant or third-party may apply for a protective order in order to shield particular
pleadings or other materials from public view. The ad-hoc
balancing between First Amendment and common law rights of access with the legitimate privacy
interests of litigants and third-parties is the most appropriate way to reconcile the presumption of
openness with the case where privacy concerns require special solicitude.

The Media Law Committee is aware of the more detailed analysis submitted to the Conference by
the Newspaper Association of America ("NAA"), The Washington Post, Gannett Satellite
information Network, Inc., Dow Jones & Company and other news organizations. We write
separately to emphasize our commitment, as lawyers who often represent news organizations seeking
access to court records, to maintaining transparency in the judicial system. We identify three key
issues for the Judicial Conference to consider in devising its electronic access policy:

1. Legal Considerations

Included in the Request for Comment is a short description of the current state of access law
prepared by the Office of Judges Programs. This recital of leading cases and authorities establishes
that under the common law and/or the First Amendment a presumption exists in favor of access to
judicial records. As the NAA letter explains, there is some conflict within
the federal circuits as to the "nature and strength" of this presumption and what sort of showing is
required to defeat it. Because the Judicial Conference is not at this time presenting a single, detailed
policy option for comment, there are not any specific proscriptions to "test" under these
common law and constitutional access principles. But we urge that any Judicial Conference policy
that would have the effect of curtailing public access to court docket sheets and files on a wholesale
basis would raise serious legal questions.

2. Public Policy Considerations

On the public policy front, one need do no more than point to Justice Burger's memorable phrase in
Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980) - "People in an open society do not
demand infallibility from their institutions, but it is difficult for them to accept what they are
prohibited from observing" - to highlight that the vitality of any democracy depends on the
transparency of its public institutions. Open court records serve to educate the citizenry on the
mechanics of our system of laws, thus creating a well-informed electorate
and inspiring confidence in the impartial administration of justice. Because most members of the
public are not able to routinely visit their local courthouses, the press's role is to function as the
people's surrogate and monitor what transpires inside, from criminal trials to civil suits to
bankruptcy proceedings. Access to court files is essential in order to provide the public an informed
means of evaluating the basis for judicial action. The free press is the institution that transmits
information from courtroom to family room. Limiting access to otherwise public files based on the
mode of storage, the means of access or the status of the individual seeking it, would be impractical
and without sound policy basis.

3. Journalistic Considerations

Media organizations consistently rely on court records as source material for news reports. Some
of the most prized reportage in recent memory, to be sure, is contained in the NAA's list of news
stories derived from judicial records. Journalists who cover the courts draw upon such records to
assist them in both deadline reporting as well as longer, more in-depth investigations. Access to
court records improves the all-around quality and accuracy of news journalism, values which the
Judicial Conference is committed to fostering. Better access assures better accuracy. Electronic
files, which can quickly survey a large pool of data, allows reporting that would otherwise be
impossible whether it is reporting on patterns and practices of police forces, comparisons of
sentencing burdens, recurring problems in product liability cases, trends in law enforcement, or
otherwise undisclosed criminal histories of public figures or public officials. For this additional
reason, both the federal judiciary and news organizations have a common interest in the construction
a wide-spread system of electronic dissemination of court records.

We look forward to further opportunities to offer our comments and recommend that there be a
public hearing, as the Judicial Conference develops its policy regarding access to electronic files.

*The views expressed above represent only those of the Arts, Entertainment and Sports Law Section of the District of
Columbia Bar and not those of the D.C. Bar or its Board of Governors. The comments were prepared by Laura R.
Handman of Davis Wright Tremaine LLP, Chair of the Media Law Committee, and Mark Bailen and Bruce Brown of
Baker & Hostetler LLP.

No. 197
1/26/01
Rene P. Milman
General Counsel
Newspaper Association of America

COMMENTS OF THE NEWSPAPER ASSOCIATION OF AMERICA, THE WASHINGTON
POST COMPANY, GANNETT SATELLITE INFORMATION NETWORK, INC., THE DALLAS
MORNING NEWS CO., COX ENTERPRISES, INC., PHILADELPHIA NEWSPAPERS, INC.,
DOW JONES & COMPANY, INC.,TRIBUNE COMPANY, THE MCCLATCHY COMPANY,
FREEDOM COMMUNICATIONS, INC., THE HEARST CORPORATION,
THE AMERICAN SOCIETY OF NEWSPAPER EDITORS, THE COPLEY PRESS, INC.,
CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION ON PRIVACY AND PUBLIC
ACCESS TO ELECTRONIC CASE FILES

These comments are submitted by the Newspaper Association of America (NAA), a nonprofit
organization representing the interests of more than 2,000 newspapers in the United States and
Canada. Most NAA members are daily newspapers, accounting for 87% of the U.S. daily newspaper
circulation. One of the NAA's missions is to advance newspapers' interests in public policy matters,
including access to court records.

These comments also are submitted on behalf of the following newspaper publishers and
associations:

       · The Washington Post Company, which publishes The Washington Post, with a daily
       circulation of over 809,000 and a Sunday circulation of over 1.1 million.
       · Gannett Satellite Information Network, Inc., which publishes USA TODAY, the
       nation's largest-selling daily newspaper, with a circulation of approximately 2.3 million.
       USA TODAY is available in 60 countries worldwide.
       · The Dallas Morning News Co., which publishes The Dallas Morning News, with a
       daily circulation of 520,157 and a Sunday circulation of 785,758.
       · Cox Enterprises, Inc., which publishes The Atlanta Journal and Constitution and
       through subsidiary Cox Newspapers, Inc. publishes 17 other daily and 25 weekly
       newspapers with a combined circulation of over 1.5 million.
       · Philadelphia Newspapers, Inc., a wholly owned subsidiary of Knight-Ridder, Inc.,
       which publishes two daily newspapers. The Philadelphia Inquirer has a daily circulation
       of more than 400,000 and a Sunday circulation of about 800,000. The Philadelphia Daily
       News has a daily circulation of more than 150,000.
       · Dow Jones & Company, Inc., which publishes inter alia The Wall Street Journal
       newspaper and its international and interactive editions, Barron's magazine and other
       periodicals, a number of electronic news wires, and, through its Ottaway Newspapers,
       Inc. subsidiary, a number of daily and weekly community newspapers.
       · Tribune Company, which through its publishing, broadcasting, and interactive
       operations, publishes eleven marke