CDT POLICY POST Volume 8, Number 16, August 26, 2002

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY

CONTENTS:

(1) State Court Records Go Online, Posing Conflict between Access and Privacy

(2) Guidance to Courts is Slowly Becoming Available

(1) STATE COURT RECORDS GO ONLINE, POSING CONFLICT BETWEEN ACCESS AND PRIVACY

Increasingly, state and county courts are turning to the Internet as a tool to handle caseloads and to open judicial proceedings to the public. More and more courts are using the Internet for case management, online filing of documents, and public access to records.

The trend represents a quantum leap in the openness and thus the accountability of the judicial branch at the local level where most cases arise. However, as state courts put more information online, they are contending with difficult and yet unresolved issues of cost, equity, and especially privacy.

While these issues arise generally in most e-government efforts, they are especially acute in the judiciary's move from paper to electronic systems, given the amount of sensitive financial, medical and other personal information often found in court pleadings.

CDT explored these issues in a report issued last week. "A Quiet Revolution in the Courts: Electronic Access to State Court Records" also provides contact information and links to court records systems online. The report, building on an earlier study done a year ago by the Maryland Advisory Committee on Access to Court Records, documents the rapid pace of change in the online records landscape. Just in the past year, CDT found, court systems in 32 states have reviewed, revised or changed their online records policies .

The full CDT report is available at: http://www.cdt.org/publications/020821courtrecords.shtml

An excellent story by D. Ian Hopper of the Associated Press, with views of state court officials, is available at: http://www.miami.com/mld/miami/news/politics/3909964.htm

(2) GUIDANCE TO COURTS IS SLOWLY BECOMING AVAILABLE

Neither the federal government nor state governments have any settled policy for putting court records online. However, a variety of national organizations have begun to study how courts can implement electronic access systems while safeguarding privacy.

• One project, carried out with the participation of state court judges and administrators, has drafted a "Model Written Policy for Access to Court Records" and "Guidelines for Policy Development by State Courts." These and related materials can be found at http://www.courtaccess.org/modelpolicy . A final version of the Guidelines is supposed to be released in October.
• The National Consortium for Justice Information and Statistics (SEARCH), in conjunction with the Department of Justice's Bureau of Justice Statistics (BJS), has also examined the issue of privacy and electronic access to court records. In addition to issuing several studies on privacy and court records, SEARCH and BJS sponsored the National Task Force on Privacy, Technology and Criminal Justice Information http://www.ojp.usdoj.gov/bjs/abstract/rntfptcj.htm.
• At the federal level, the Department of Justice's Office of Justice Programs (OJP) has issued three excellent guides on justice information systems: Public Access Guide for Justice Information Systems, Privacy Impact Assessment for Justice Information Systems, and Privacy Design Principles for an Integrated Justice System. (CDT took part in some of the meetings leading to the drafting of these documents.) These guides and related materials are indexed at http://it.ojp.gov/sub_topic.jsp?pa=1&SUB_TOPIC_ID=STI-00202&MAIN_TOPIC_ID=MTI-00221&show=yes:
• Beth Givens of the Privacy Rights Clearinghouse outlined some of her recommendations on how to protect privacy in court records in a paper that she prepared for the Computers, Freedom and Privacy Conference this year: http://www.cfp2002.org/proceedings/proceedings/givens.pdf

CDT will continue to monitor these issue and is interested in working with state officials and other interested parties in developing balanced solutions that maximize the values of government accountability, equity and privacy.

Detailed information about online civil liberties issues may be found at http://www.cdt.org/.

This document may be redistributed freely in full or linked to http://www.cdt.org/publications/pp_8.16.shtml.

Excerpts may be re-posted with prior permission of ari@cdt.org

Policy Post 8.16 Copyright 2002 Center for Democracy and Technology