Sustaining Privacy and Open Justice in the Transition to Online Court Records: A Multidisciplinary Inquiry

Privacy and Security and Internet

Article Snapshot

Author(s)

Amanda Conley, Anupam Datta, Helen Nissenbaum and Divya Sharma

Source

Maryland Law Review, Vol. 71, No. 3, 2012

Summary

This article evaluates privacy issues and possible solutions for courts to transition from paper to digital records.

Policy Relevance

As courts transition to digital record keeping, access to these records can now be made available online with an unprecedented level of ease. However, with this new level of access comes addition of privacy concerns that may need to be addressed by policy makers going forward.

Main Points

  • Historically, court documents such as trial records, motions, and judicial decisions have been considered public records that can be viewed by any member of the public who is willing to make a trip down to the courthouse.
     
  • At present, many courts are now attempting to transition from their former paper files to digital records. In the process, courts have been struggling with the possible ramifications of allowing access to these records online, rather than in-person through the courthouse.
     
  • In determining the degree of online access to be provided, courts and policy makers need to consider two competing policy rationales: first, the need for open access to public records created by the judicial branch of government; and, second, the privacy concerns of individuals involved in litigation.
     
    • Open access to court records provides the benefit of allowing access to governmental procedure. This allows both the media and interested citizens to review court documents in order to ensure fair treatment both in individual cases and across gender, racial, and other class lines.
       
    • In contrast, court documents also contain substantial personal information about individuals involved in court proceedings. This raises substantial privacy concerns when these documents could be released to open access on the Internet in a searchable format.
       
  • One major privacy concern involves the use of court records by large data collection companies. These companies could process online data banks of court records in order to create databases of information to sell. While this already occurs to a limited extent, at present, companies must hire teams of data collectors to go down to the courthouse in order to obtain this type of information.
     
  • There are several possible solutions to these problems: first, courts could redact sensitive information from court documents prior to public access; second, courts could continue to allow un-redacted access only through in-person viewing at the courthouse; and, third, creating a differential access system that would grant different levels of access based on the requestor’s position and need.
     
  • At present, it is unclear which solution will either be adopted by the courts or which solution best balances the issues of privacy and access. Regardless, this issue deserves additional scrutiny as courts continue to transition into the digital age.
     

 

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