Presentation on theme: "Court Records and Data Privacy: Online or Over the Line? Professor Peter P. Swire Moritz College of Law The Ohio State University Judges Day November14,"— Presentation transcript:
Court Records and Data Privacy: Online or Over the Line? Professor Peter P. Swire Moritz College of Law The Ohio State University Judges Day November14, 2002
Overview n My background n Legal background on court openness and privacy n Federal bankruptcy and privacy study n Other legal considerations n Conclusion
I. My Background n Clerk in the 2d Circuit, n Law Professor since 1990 – First Internet law article 1992 – Editor, Cyberspace Law Abstracts – Brookings book & other privacy writings – See n Ohio State since 1996 – Now direct new Washington, D.C. summer program
Chief Counselor for Privacy n Office of Management & Budget, 1999 to early 2001 – HIPAA medical privacy rule – GLB financial privacy law & rule – Chair, White House Working Group on how to update wiretap & surveillance laws – Safe Harbor with European Union – Government records, including study on privacy & bankruptcy records
Background on Public Records n History of both legal openness and significant, practical obscurity n History of legal openness – 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)
Legal Openness n 6th Cir. Trial court must set forth substantial reasons for denying access to its records, U.S. v. Beckham, 789 F.2d 401(1986) n 5th Cir. While other circuits have held there is a strong presumption in favor of the publics common law right of access to judicial records, we have refused to assign a particular weight to the right. SEC v. Van Waeyenberghe, 990 F. 2d 845 (1993)
Legal Openness & Discovery n Presumption of access stronger for filed than non-filed documents n Less clear on documents filed in connection with discovery n Some courts find no right to access to discovery documents submitted in connection with discovery motions, Anderson v. Cryovac, Inc. 805 F.2d 1 (1st Cir. 1986)
Legal Openness & 1st Am. n 1st Amendment right to attend criminal trials, to guarantee freedoms such as speech & press, Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) n No Supreme Court ruling on 1st Amendment right of access to civil trials or court documents n McVeigh case & denial of press requests for sealed documents, 119 F.3d 806 (1997)
Privacy Limits on Access n Even where presumption of openness, courts may restrict access: – Every 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 Nixon v. Warner Communications.
Practical Obscurity n US DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) n Recognized privacy interest in rap sheets & other information publicly available but practically obscure n Court 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
Accountability & Privacy n In Reporters Committee, in FOIA setting, the Court defined the public interest as shedding light on the conduct of any Government agency or official, not acquiring information about a particular private citizen n 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
II. Federal Bankruptcy Study n Released January 19, 2001 n Bankruptcy as a federal system n Then pending proposal to put all bankruptcy records on-line, with Internet access n Sensitive data – SSNs – Bank account numbers and balances – Credit card numbers – These are targets for thieves
Goals to Achieve n Fair and efficient administration of bankruptcy system n Needs of the parties in interest n Accountability to the public n Balance with privacy interests, especially for sensitive information n Fit with GLB and other relevant laws
Recommendation 1 n Public access to core information n Core information includes fact an individual has filed, type of bankruptcy proceeding, identities of parties in interest
Recommendation 2 n No general public access to sensitive information n SSNs, credit card numbers, loan accounts, dates of birth, bank account numbers n Schedules should be removed from public record that show detailed profiles of personal spending habits and debtors medical information n Care for non-filing spouses and others data
Recommendation 3 n Parties in interest should have access to much non-public information n This is important for exercising their rights and responsibilities n However, general re-use and re-disclosure limits for purposes unrelated to administering bankruptcy cases n E.g., dont create database for resale gathered from parties in interest
Recommendation 4 n Incorporate Fair Information Principles – Notice – Consent for unrelated uses n Data available, though, for certain government uses – Access by the debtors – Data security and integrity – Accountability
IV. Other Law n Intersection with other law n Protective orders – Longstanding judicial practice, upon proper motion – Trade secret cases – Many settlement agreements – Move from retail protective orders to more wholesale approach for categories of cases?
Other law n Gramm-Leach-Bliley Act of 1999 – Title V on financial privacy – Notice to individual of how financial records will be handled – Opt-out choice by individual before it goes to 3rd party – This same data can easily be disclosed in court records – To what extent should courts disclose data that other law says is private?
Other law n HIPAA medical privacy rule in force April, 2003 n Sec. 512(d) -- judicial & administrative proceedings n Covered entities can only disclose medical records as permitted n 1st option -- notice to the individual and opportunity to object
Other law -- HIPAA n 2d option -- qualified protective order – Covered entity must seek agreement that the other party will keep data confidential – Records used only for the proceeding – Must be returned or destroyed after that n HIPAA does not apply directly to courts n But, strong national policy that privacy protection should be built into judicial and administrative proceedings
V. Concluding Thoughts n There is no status quo n Previous legal regime of substantial openness n Previous practical regime of obscurity and lower privacy risk n What will be the courts approach to possibility that all court records easily searchable?
Some suggestions n The shift to electronic records, electronic filing, and Internet access is the natural time to examine these issues n Do a privacy impact assessment, or create a process, to create a better new system that meets all of the relevant goals n Consult with other courts n Resources are listed in your materials
Concluding Thoughts n Should the price of filing for bankruptcy be disclosure of your current bank account? n Should the price of filing for disability be Internet access to your lifetime medical records? n What rules are appropriate for information about minors and non-parties?
Conclusion n These issues deserve your attention n There are ways to build systems that achieve accountability, effective administration and privacy. n Its up to you to help build them.