“We don’t think it’s a foregone conclusion that the more public, the better,” said Hood in a talk at the Berkman Center for Internet & Society this week.
That’s both because of the legitimate privacy concerns of those whose records are being released and because the rise of open court records can make it more likely that there’ll be government blowback — returning once public records to the shadows. While journalists have long been on the side of increased government transparency — and the rise of data tools has opened up new venues for gathering information from previously impenetrable databases — Hood and Nissenbaum want people to be aware of unintended consequences.
The common law right of access to court documents allows the media to report on the courts, and news coverage of court proceedings are one set of checks and balances designed to keep the courts honest. Hood and Nissenbaum quoted the political philosopher Jeremy Bentham: “Publicity is the very soul of justice….It keeps the judge himself, while trying, under trial.”
With many court documents now digitized and publicly available on services like PACER — accessible to anyone willing to pay 10 cents a page — the idea of the public’s right of access has shifted. “It’s the difference between the practical obscurity of a paper record versus the ubiquity of an electronic record,” Hood said.
The increased surfacing of public records risks a counterbalancing response. When the Journal News decided to map the locations of gun permit holders in suburban New York, the response in some jurisdictions as far away as Louisiana was to make disclosure of permit data a crime. The rise of skeezy mugshot exploitation sites — which rely on public criminal records — has led to calls and in some cases legal attempts to reduce public access to crime information. The rise of online broadcast of police scanner traffic has pushed some to encrypt it and keep out the public.
RECAP, a project from Princeton’s Center for Information Technology Policy that takes court documents out from behind the Pacer.gov paywall, has found its mission curtailed by privacy concerns, which have led administrators to remove select documents from the site. “The ultimate result of that is that you may be able to access a document on Pacer that you can’t on RECAP,” Hood said.
The information that these sites use has always been publicly available — but available and accessible aren’t the same thing. “The information is the same, but it is radically altered by the novel ways in which it flows,” said Hood. “When documents are published online, there is more access but there is also more susceptibility for error…what is at stake is different — dramatically so.” Now, information used in even minor federal cases is searchable on the open web. Court documents published online are officially subject to privacy restrictions — Social Security numbers, some home addresses, and other sensitive pieces of information are supposed to be redacted — but mistakes are quite common.
“There seems to be less of both publicity and privacy,” Hood said. “There has been an increase in the use of blanket protective orders, and there also seems to be less privacy — it’s very easy to go onto Pacer and find someone’s bank statement if they’ve been in a bankruptcy case,” said Hood.
Historically, Hood explained, news organizations were the ones pushing for the right to access court documents, and the extent of access has fluctuated with the presiding court. Gannett lost a 1979 suit to observe the proceedings of a murder trial when the Supreme Court ruled that it was obligated to “minimize the effects of prejudicial pretrial publicity.” The same court reversed that decision the following year in Richmond Newspapers Inc. v. Virginia, finding that open access to court proceedings was “implicit in the guarantees of the First Amendment.” Another case, Nixon v. Warner Communications, established that the common law right to access is “not absolute,” and that it depends on the medium and aggregation.
The Internet has, unsurprisingly, complicated existing laws governing on public access. Nissenbaum is one of the authors of a paper in the Maryland Law Review addressing why online court records may increase violations of privacy. “The primary findings of that piece were just that there had been a quite radical alteration in the costs of the ways in which personal info flows as a consequence of this shift to online publication, versus a physical, local access system,” said Hood. “It’s quite a different experience to go to a court, and talk to a clerk, go through a metal detector, give your ID, to see a file and photocopy it, than it is to simply Google someone.”
Hood and Nissenbaum think we need “more granular rules” governing digital accessibility of court documents that might selectively remove sensitive information, while leaving the bulk of the contents open. “You can talk about privacy or publicity, and craft arguments that would suggest that documents should be open or closed. We really want to get beyond that binary, and think through whether or not you can develop technological tools that would enable both. The law is not that that clearly established,” said Hood.
For example, a movement toward adopting uniform LegalXML standards for the entry of court filings is a step in that direction; making documents machine-readable would make it easier to automatically redact sensitive information. The term here is contextual integrity — which rather than trying to view information access as an across-the-board issue instead tries to put it within the context of the information flows. As Nissenbaum’s paper puts it:
The theory of contextual integrity accounts for a right to privacy in personal information (that is, information about persons) in terms of appropriate flow. Instead of characterizing privacy as control over personal information, or as the limitation of access to information, it characterizes privacy as conformance with appropriate flows of information, in turn modeled by the theoretical construct of context-relative (or context-specific) informational norms. When information is captured or disseminated in ways that violate informational norms, privacy as contextual integrity is violated.
The theory is contextual because social contexts are taken as organizing principles of social life. As such, people act and interact not simply as individuals in an undifferentiated social world but as individuals in certain capacities in a plurality of distinct social realms. These realms, or contexts, are structured social settings characterized by distinct configurations of roles, activities and practices, purposes and values, and context-specific norms prescribing expected behaviors. Living in modern industrial societies, familiar contexts include healthcare, the marketplace, finance, politics, religion, education, friends, and home life.
Those different contexts can require different levels of access, and that means knowing more about what’s inside those documents. In practice, this might mean that journalists would access digital court documents the way they access public events — with a press pass. Hood envisioned that journalists could sign on to a court database with their press credentials, thereby agreeing to the court’s terms and conditions upon logging in. (And everyone gets to enjoy Round MCMDCXXIII of the “Who is a journalist?” debate.)
Apportioning access according to who is requesting it — and why it’s being requested — is a thorny proposition. Hood acknowledged that whether that would be constitutional is “an open question,” and it would certainly demand clear delineation of who is a journalist and who is not. Ultimately, digital court records are having much the same impact on the fourth estate as they are on the third. Now that so much information is available online, journalists have to be more discerning about what sensitive information is worth publishing. As Nissenbaum put it, contextual integrity would underscore the fact that “the press have certain professional values and we rely on the press to uphold those values.”
Image of the Supreme Court from the Boston Public Library used under a Creative Commons license.