Do we really want anyone to have free online access to court files?

Court documents are public. You can go down to any courthouse and examine the files from any case you want. But there has been no smooth transition to making those documents publicly available on the internet. That may be changing, though I’m not entirely sure I agree with the majority of commentators on the subject that making those documents freely available to anyone with an internet connection is a good thing.

As explained by the Wall Street Journal, “Digital records of court filings, briefs and transcripts sit behind paywalls like Lexis and Westlaw.” Lawyers, non-profits, and researchers can use PACER to access all documents filed in the federal courts, but PACER has 2 significant defects: (1) it costs 8 cents per page to download any document (an amount that can add up rapidly to access a sufficient amount of material to make sense of any given document), and (2) you cannot search the system by keyword.

As the WSJ puts it: That’s right: In 2009, judicial records in the U.S. are essentially unsearchable.” But last week, a team from Princeton’s Center for Information Technology Policy unveiled a Firefox add-on that promises over time to make all those documents filed in federal courts freely available and word searchable:

They whipped up a sleek little add-on to the popular Firefox Internet browser called RECAP (PACER spelled backward). Legit users of the federal court system download it. Then each time they drop eight pennies, it deposits a copy of the page in the free Internet archive. This data joins other poached information, all of which is formatted, relabeled and made searchable—the kind of customer service government tends to skimp on. Users can even see what has already been liberated while within the government system, a stylish and subversive touch. This week, as RECAP picked up speed, various court offices got skittish and began sending out emails acknowledging the project’s legality, but “strongly discouraging” its use anyway.

I’m as great an advocate of government (and corporate) transparency as almost anyone, but I can’t help but be troubled by the possibility that someday all the files in every court in the land will be word searchable and accessible to anyone with an internet connection. It’s one thing to go to a courthouse (or even through many free online sites) to access the papers filed by the parties to a particular lawsuit. Courts are public institutions, and the fact their documents have always been and continue to be accessible to anyone (willing to visit the courthouse where those papers are filed) has been fundamental to the greatness of our judicial system.

But papers filed in court do not necessarily state facts. Think of what friends of yours have been falsely and outrageously accused of in bitter business and divorce cases. Think of all the ridiculously frivolous lawsuits “tort reformers” are always screaming about. Think about how often the report of a filing of a lawsuit, which sets forth allegations that are merely allegations, not assertions of proven fact, are reported and read as fact. Do you really want anyone with an internet connection to be able to search the files of all the courts in the land for your name, pull up the documents from that case, and set forth on their website what some witness has stated without regard to the larger context of the court case that might reveal the witnesses lack of credibility, hostility, limited knowledge, subjectivity, or sheer misapprehension?

Just one example of the sort of problems free access to court records could create was described by Charlotte Watson, Executivec Director for the New York State Office for the Prevention of Domestic Violence in a public hearing held by the New York State Commission on Public Access to Court Records. Ms. Watson testified as follows (at pages 82 and following of the transcript of the entire hearing (pdf):

Ms. Watson: What we innocently put on the “Web” a few years ago is now being used in ways we never considered, including invasive crimes such as identity theft. We’ve heard horror stories of how stalking victims were tracked and harmed through information posted and available to all for good or bad intent. We’ve all seen those annoying pop-up adds on our computers, advertising the ability to find literally, anyone. As a domestic violence advocate with more than 27 years in the field, and one concerned about privacy in general, those ads, and the open, easy access to so much personal information in what we term the “information age” are truly frightening.

Nowhere is this more of a concern than when considering the safety and security of victims of domestic violence, sexual assault and stalking. We know that domestic violence is pervasive, on-going, life-changing reality for millions of women and children in this country, and stalking is an integral part of the dynamic of domestic violence.

Domestic violence victims know all too well their abusers will use any means to control and terrify them and keep them from escaping. It is not unusual for a batterer to monitor the odometer on a victim’s car, record the victim’s phone calls, or use hidden cameras. Imagine what it would be like to have a Global Positioning Satellite unit attached to your car and monitored constantly by someone in authority over you. This is the daily reality of many victims of domestic violence with the state of technology today.

What will tomorrow hold? It’s extremely difficulty and often dangerous for battered women to escape their abusers. Many find it necessary to flee the area entirely in hope of

finding safety. Those who are able to get away live with the extreme fear of being found by their abuser. A losing battle for approximately 1,100 U.S. women each year who were murdered by their intimate partners after fleeing, as well as, countless others who are re-assaulted.

There have been many attempts to help victims find safety. . . . Unfortunately, at the same time we are recognizing the needs of domestic violence victims, the trend toward “open government” and access to information has become an easy, affordable and valuable weapon for abusers.

As advocates for victims of crime, however, we do recognize the need to find ways to increase the accountability of systems, including the courts, in their responses and decisions. It’s vital that these interests are balanced against victim safety and the privacy of users of our court process. In the effort to increase accountabilities, the court must be mindful of even the appearance of culpability, should granting easy access to information result in harm to a victim.

It should never be the case that potential consumers of the courts must weigh the need for safety through court intervention against the need for privacy and anonymity

which may also impact safety. In light of these concerns, I will outline a number of recommendations regarding open access to court information. . . . The negative implications include, as has been mentioned:

A chilling effect on victims who are considering using the court for legal relief. While we applaud the fact that family court and matrimonial records will not be subject to open access, I must emphasize that under current law, criminal court is the only court in which many victims may seek relief. Consider, for example, a victim who’s being abused or stalked by a boyfriend. To obtain an order of protection, that victim will have to disclose significant personal information and potentially embarrassing details about the abuse in criminal court. Under the Conference of Chief Justices and the Conference of State Court Administrators Guidelines, this information would readily be accessible by the public and the offender. It’s not a leap to say the victims will be reluctant to pursue an order of protection under these circumstances. Is it fair to ask a victim to sacrifice her privacy for the safety she’s entitled to under the law?

Imagine the heyday the pornography and smut industry will have with such easy access to crime scene photos of horribly violent rapes and homicides. Imagine the websurfer who accidentally opens a porn site or the errant adolescent going to sneak a peak only to discover the crime scene photo of his naked mother lying in a pool of blood. At what point would the balace tip from accountability at this point to culpability? At what price? Who and how would these decisions be made as to where to draw the line?

There are safety risks for crime victims and witnesses. As I noted earlier, abusers often track and monitor their victims as a means of maintaining control. These behaviors typically increase when a victim leaves the abuser. Whenever a victim becomes involved with the court system, whether voluntarily, as a result of mandatory arrest or pro-prosecution policies or for some other reason, precious information about her location, status, current name, phone numbers and other circumstances is disclosed. Such disclosure is a major concern for my agency and victim advocates across the state. We know that abusers will access this information and use it every way possible to stalk, threaten, assault or kill the victim and maybe her children.

This can be a problem even when the victim is using the court system for something unrelated to domestic violence. For example, if these involved in a motor vehicle accident resulting in legal action and the information, includinging simply the location of the Court is posted on the Internet, her address would be posted making it all too easy for her abuser to find her. Perhaps she relocates to escape the abuser and later becomes the beneficiary of a probated estate. As a result, identifying information could be posted creating similar safety risks. Ironically, if the victim is seeking a legal name change, even this information could be posted on the Web, making her efforts at anonymity fruitless.

It’s important to note she may not be a victim at the time of her interaction with the court on the myriad of non-domestic violence related actions that could bring her to court. After one date with a stalker, she would be vulnerable to his gaining valuable information about her that could lead to her demise. There’s an increased opportunity for identity theft. Destroying the victim’s credit and reputation is a tactic already used by batterers. Open public court records will only increase the opportunity for accessing and misusing personal information.

We’re concerned about the secondary uses of the information. Information stored by the courts will most certainly be used for purposes that move far from the original public policy intent of governmental accountability. It will be gleaned and sifted and compiled along with other information to create entirely new databases that can be misused and misinterpreted. Once the information is gathered for another database, it can never be taken back or corrected. In domestic violence cases, false or misleading information could be deliberately planted by the batterer in spurious legal filings that include slanderous material against the victim which are then posted on the Web for all to see and use.

Internet access could undermine the victim in custody proceedings. Seeking custody is one of the most powerful tactics used by abusers to access control their victims. Abusers will use every means available to discredit the victim and prolong a custody battle. The proposed guidelines actually aid abusers in this process. Open public access to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon we the court. This poses serious ramifications for victims who ultimately leave their abusers and seek custody. Economic survival or the abusers threats or false promises often compel victims to minimize or deny the events or later recant earlier statements of abuse that form the basis of a criminal prosecution. The fact that such records from a criminal proceeding and many civil proceedings will be within easy grasp of an abuser in a subsequent custody proceeding essentially re-victimizes the victim, rewards the abuser’s use of coercive tactics and facilitates the abuser’s use of custody as a weapon of control.

MR. ABRAMS: It seems to me that a good part of what you’re saying would apply to public access, regardless of whether there’s an Internet or not. When you say that “open public access — on page five — to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon by the court.” The fact is that now, without an Internet — before we had an Internet, there was open public access to court information, regardless of whether the information was relied upon by the court. Does your office favor limiting access to the information itself, regardless of whether it’s going on

the Internet?

MS. WATSON: Our concern is the same one expressed many times today; that’s the cheap, easy affordable part of it. You can actually be sitting in your bedroom, walk over to your computer and find the information. It’s very different from having to go down to the courthouse and go through the records and find the information, being able to sit in California, sit on your computer, pull up your victim, your target’s information on a court record in New York.