 You're watching FJTN, the federal judicial television network. Federal courts have a long tradition of providing public access to case files. Until recently, these files were available only in paper form and from the courthouse where a case is filed. This gave these public records what has usually been called practical obscurity. But new technology in the many courts using imaging and electronic case filing means the end of practical obscurity. Now these records are available to anyone with a computer and modem anywhere in the world at any time, day or night. Such unfettered access can cause problems. Some information, such as social security numbers or bank account or credit card numbers, can be accessed and used by thieves in what has come to be known as identity theft. Unlimited electronic access may raise problems in other areas too, such as law enforcement, physical security of cooperating defendants or victims, trade secrets of companies in commercial litigation, and preventing jurors from seeing the contents of pleadings during trials and deliberation. In 1999, the Judicial Conference's Court Administration and Case Management Committee formed a subcommittee on privacy and public access to examine whether these new technologies might require new policies addressing both access and privacy implications. To better understand this issue, the Federal Judicial Center recently invited three bankruptcy court judges to discuss their points of view. Chief Judge J. Rich Leonard of the Eastern District of North Carolina, a member of the Court Administration and Case Management Committee, Chief Judge Dennis D. O'Brien of the District of Minnesota, and Judge Michael J. Kaplan of the Western District of New York. They spoke with David Combe of the FJC. Judge Leonard, let's start with what types of cases raise the most urgent questions about privacy and court records? To the extent that I have concerns now, they primarily arise from our consumer cases. We require a great deal of personal information, what's come to be known as personal identifiers in these days of identity theft. We can go social security numbers, addresses, account numbers, bank accounts, property descriptions that, if they fall into the wrong hands, could cause actual harm to one of our litigants. And you also have people because of their individual statuses in our cases who need more privacy protection than others. The ex-spouse, who was trying to keep her identity secret from an abusing ex-husband as an example often used, or someone with a chronic disease who doesn't want their employer to necessarily know that they have this problem. But if he saw the list of medical creditors would instantly know it. Judge O'Brien, what do you think are the one or two most important concerns about privacy and court records? I think it's important that we understand and acknowledge that once case file information becomes part of the public record, it is no longer personal information and is no longer private property. It is a public resource. I think the focus of the discussion should be with respect to that type of information, whether it should be public records information at all. It's inappropriate. It's unfairly discriminatory. And I believe it's counterproductive to the missions of the court. And I believe in the end it would be ill-received by the public to continue to maintain and label information and records as public records. And then for the courts to begin proscribing and controlling and limiting and determining what parts of the public record ought to be disseminated generally and what ought to be withheld and disseminated to a select group of people. How about you, Judge Kaplan? What do you think are the one or two most important concerns about this? It's not being addressed at this time where it ought to be addressed. In my view, it ought to be addressed in legislation. The fact that courts are being permitted at this time to adopt their own policy guidelines and their own philosophies about the issue that Judge O'Brien has addressed is, to me, a matter of the greatest concern. But I think that the role of the courts should be to preserve the court as a haven for the resolution of disputes. As the number of bankruptcy cases goes up, the number of criminal cases goes up, the number of civil cases goes up, more and more people find that people who never did anything wrong to anyone find that their names and information about their lives are being dragged into federal court cases. And as we become more and more concerned about the uses of our private information by the private sector, I don't think that government should be in the business, but courts in particular should be in the business of being part of that problem by broadcasting or publishing this information. Judge O'Brien, what is your response to what Judge Kaplan has said? I mean, how do you respond to his statement that there are uninterested parties who don't deserve or want to have this private and very personal information available publicly? Well, I don't think that there is any such thing as an uninterested party or uninterested parties with respect to public records case file information. It's important for essentially everyone connected with or having an interest in a bankruptcy case to have available to him or her or it, the kinds of information that are found in these public records. There's a need to know the financial dealings of a debtor pre-petition. There's a need to know and an interest in knowing the various creditor relationships that a debtor has entered into. Finally, though, and more generally, there's that public interest. By statute, the public records information in bankruptcy cases must be maintained and made available to any member of the public for inspection without charge. That is a statutory mandate. I do not dispute the importance of the public being able to satisfy itself that courts are doing their jobs, that we are doing our jobs, that cases are being administered appropriately, properly, and that the public's money is being well spent. But for that purpose, we do not necessarily need to have the names and social security numbers and addresses of the various people who were involved in the case. The people who want names, addresses, phone numbers, and so forth are not there trying to determine whether the courts are properly accounting for the trust. Those are entities that wanna sell information or to acquire information as a byproduct of the fact that people came to the courts for redress of disputes. If the concern is social security numbers, names, and addresses, then the question that I think ought to be asked, discussed, addressed, and determined is should names, addresses, social security numbers be part of the public record? Not should this part of the public record be available here but not there. But do you agree that we could remove or mask a number of the public identifiers that we require now without doing any great harm to the integrity of the process or the information that the participants need in order to participate in the case? The type of information that the federal courts deal in is not the kind of information for the most part that is susceptible to a structured data environment. That is to say it doesn't come in in terms of names, addresses, numbers, financial accounts and whatnot, and it's not stored in unique fields where switches can turn on and off access to that information. Much of this information going beyond a social security number or an address, much of this information comes in pleadings, it comes in briefs, it comes in affidavits, and some of it comes in what we call electronic text format, some comes in image format. It would be extremely difficult technology, technologically, but also very time consuming to go in and extract the information wherever it might be found in those environments that are not structured data environments. I don't disagree with you at all, Judge O'Brien, about the fact that the debate needs to be over the issue of what should be public information in a file and what should not be public information in a file. But assuming that identifiers, such as social security numbers addresses, have to be part of a file, and they very much may well have to be part of a file, it's certainly in bankruptcy cases and maybe in other cases as well. Role in government in the past historically over purveyors of information, of private information about people has been to regulate that use. Shouldn't we be standing back and saying let's regulate, not we, the courts, but shouldn't Congress be stepping back and saying let's regulate that use the way we regulate the use of credit information under the Fair Credit Reporting Act? And I don't disagree with that, it's really not our primary business to determine what is and what is not what should or what should not be public records. I think that those decisions are made elsewhere. I think that the federal courts have a mission and a mandate to protect the integrity, to preserve and to make available that which is the public resource of the public records. It would not be a good thing even if it were legitimately within the business of the courts and the judges and the clerks to do so for the courts to get into that because the problem here is that every interest in a case probably has a good argument for keeping information with respect to that party or interest or individual from the public. Creditors might not necessarily want the public to know that they had any relationship with the debtor at all, much less what the terms of the transaction or the contract or whatever is. Debtors certainly don't want their social security numbers public, they don't want their bank accounts public, they don't want their credit cards public, they don't want, there's no end to what a debtor would not want public. But at what point does one begin to deal with this? What we end up with I think trying to develop standards is slipping into this big black hole where a case can be made for everything and nothing. Courts ought not to be making these decisions on their own. I don't believe that we should be saying as courts adopt various sorts of internet technological ways of disseminating case information to be making these profound decisions that you're referring to. These decisions should be debated over on Capitol Hill a few blocks away from here. Judge Leonard, how do you see this issue? What's more important, privacy or access? I think it's a bit of a red herring to set one up on one side and one on the others if the two can never be reconciled because I think what we're trying to do is reconcile the two. I start from the proposition that if you're in a democracy and you commit disputes to a public fora, there's some loss of privacy, there's some embarrassment that just comes from doing that. And that's what we tolerate in the way that we decide disputes in this society. I think we have to figure out ways to protect those sensitive personal data that can be taken, perloined and used. Past that, I wouldn't be so concerned and I think it can be done on the other. And if you can do that, then I'm as much a fan of access as Judge O'Brien because I've been in a court now for three years where every document is instantly available 24 hours a day, seven days a week, anywhere in the world to anyone. It's changed the way I work. It's changed the way my lawyers work. It's minimized the burden on the clerk's office remarkably. I mean the phone rings much less than it ever did before because you can get accurate information about any aspect of a case, about any calendaring activity without calling us. You can just go and look. I also take some comfort from the fact that we have begun in the last year even though we weren't so good at it before to password protect and modestly charge for all of this information because I think if you do reading about access to internet sites, you find that that is some deterrent. If you want to collect information about what's happening in terms of consumer bankruptcy filings, go out to the courts and dig the information up. What's happening now is that technology is luring us into a situation in which we're doing this because we can and I think the important point which is really we don't disagree on is that we need to stop and ask ourselves whether we should. I think we have to put the brakes on this until there has been and we have to bear in mind that the people I'm worried about, the people who have never done any harm to anyone and by the way, as we know, it's no crime to be poor either. So that can include people who file bankruptcy but all of the people I'm worried about have no voice. It's a constituency without advocates, without representatives, except us and that's why I don't think we should be the actors in the process. I think for the federal courts to remain a viable, robust institution in this new century, the federal courts are going to have to do business in and along with the ordinary course modes of business in the broader community in which it serves. I think the federal courts are moving in this direction because the federal courts have no choice. The federal courts can no more afford not to conduct business in the electronic records environment and the internet area than at one time it could have afforded to reject the telephone. Simply because it had the telegraph. There are forces at work here in the broader community that impact very seriously and substantially the federal court as an institution. The public will demand that the public have ready, convenient, cost-efficient access to the public record. And today, that's electronic access and that's the internet venue and without that, I believe that the federal court as an institution stands to become marginalized in our society. It seems to me that we have to recognize that almost anything we do in this area may well have very unintentional social consequences. We may have a situation in which we never learn of a particular pernicious instance of the dissemination of case information over the internet, but what scholars may find 15 years down the road is that some people stop co-signing car loans for their co-workers on the assembly line because they were afraid that it would get them on a somebody's sucker list if their co-worker ended up in a bankruptcy case. Or that doctors decided no longer to extend credit to people in their practice because doctors then show up with amounts of the debts that they were willing to extend to their patient as a creditor in a bankruptcy case. There may be, I'm not saying there is, I'm not a scholar on those kinds of issues, but I fear that anything that we do that chills the willingness of people to be named as a party and interest in a federal case, someone who's done nothing wrong and maybe has done something very helpful for people, is going to have adverse social consequences. Judge Leonard, what are the main problems and challenges for the subcommittee on privacy and public access as the subcommittee examines these issues and works to make recommendations to the judicial conference? I spent approaching 25 years in the federal courts and I've been on a lot of committees and I've never quite seen one with as thorny a set of issues and as heartfelt opinions on all sides as this one. A couple of categories of problems. One is it just seems to be a moving target constantly. Public perception is changing. Five years ago, I dare say no one in America would have listed electronic privacy as one of their primary problems and according to an article this morning 86% of Americans now think that misuse of the electronic data pertaining to them is a serious problem in their lives. So we have a seriously changing public perception that we're dealing with here and the other issue is I think we're coming to realize that within the federal courts there doesn't seem to be a one solution fits all and we may have to go through a period of time where we have different solutions for different kinds of cases. Bankruptcy is unique because of the kinds of information we require. Most civil litigation doesn't require that level of specificity of personal information so perhaps we can rely on traditional methods to protect privacy there. Criminal cases are an entirely different matter. There are prosecutors who will assert that if you put all the criminal cases out on the internet sophisticated defendants can tell who a cooperating defendant is and begin to take inappropriate steps. So we're grappling... Inappropriate steps means it can cause people's lives. That's right. And it can mean that someone's lying in wait for marshals to come deliver a warrant. Nonetheless, we're plowing ahead. We have listened to all the experts we can assemble and we are trying to be as thoughtful and careful as we can understanding that we may not have an instant solution that satisfies everyone. But we have to take steps. Otherwise, we are going to vulcanize this issue where all the district courts, all the appellate courts, all the bankruptcy courts are going to have their own local rules written or unwritten about electronic dissemination. That's happening in other areas where there were not federal rules in play. I think that's a bad idea. So you think the likely result of this will be some nationwide policy? I hope so. It may not be instantly, but I do think within the next year or two there will be some nationwide policy. Implementing that, though, can be complicated, too. Some of these things can be done by federal rules that the courts, we ourselves, control. Others really do take change in congressional legislation. In civil cases in the district court, for the most part, a far, far less volume of information is coming in and automatically being placed in the file. Under the federal as a civil procedure, pleadings are to be filed, certain other things are to be filed, but the vast majority of other things that come in, largely the district judge will decide whether it should be part of the file or not. The bankruptcy court code, on the other hand, as Judge O'Brien and Judge Leonard have said, is very, very different. Anything that comes in over the counter with that case number on it ends up in the file. And so I think that, as Judge Leonard suggested, it may be the traditional protections for non-voluntary participants, involuntary participants in civil processes. There may be a way to protect them. Criminal, of course, as he said, is a whole different matter. Very dangerous matter, particularly dangerous matter. Bankruptcy, however, is where I think the real problem is going to lie. But it's also, I think, the place where we have the best chance of the national rule. So much of what we reveal is because of the forms that we ourselves require, and we have control over that. But we're going to need some help with 107. I think it's going to have to be amended to give us the authority in an individual case to do a balancing, taking privacy into consideration as an express measure. I think also that there's another factor that's going to be affecting this, and perhaps profoundly over the next couple of years. We've got a rollout that is about to come under way of an entirely new electronic records case management system that will be disseminated to all of the bankruptcy courts over the next three years as a part of which... C-M-F, C-M-E-C-F. Electronic case filing capabilities will be there. Now, what's going to happen with respect to those courts that get into electronic filing? The official court records will be designated as the electronic records. When we talk about trying to separate out which of the public records information should be available on an internet venue and which should be available at the courthouse, in order to get that public electronic record at the courthouse, people are going to have to come down and line up at the counter to look at the computer to do what they're prohibited from doing down the street in their office, in their home, or whatever. Now, if somebody thinks that that is going to be a viable way to control the dissemination of information, first of all, it won't be for the reasons we talked about because that information is going to get out there anyway. But I don't think any clerk in the country would accept as a solution or a resolution to have 100 computers at the counter or to have somebody there to supervise or to allow people to come in, take a number, stand in line, and view the public records. Well, but clerks and judges are going to have to accept whatever the law is, and the three of us and everybody else involved in the federal judiciary is going to apply whatever law we're given. If it turns out that it's going to take 100 computer terminals in a clerk's office to deal with these issues and to maintain essentially what has been the historical way of accessing court information, then that's what's going to have to be done. This has been the subject of heated discussions in the Privacy Subcommittee, and I think the more we've thought about it, the more we've come to your conclusion that history is just going to run over us on that issue, that this distinction that makes no sense any longer of having an electronic file at the courthouse have one thing in it and an electronic file a block away have another, and you have to walk a block to get the real file, that it just doesn't stand the light of day and takes us back to where we started, which is we're going to have to deal with the hard issue of what's the public record and that's the public record. Right now you have rules that in mega bankruptcy cases among other situations permit the clerk's office to take an original document and under contract send it over to a photocopy service and to say to all the public, if you want a copy of that document, get it from our contract photocopy service. Why can't we do that and let the private sector disseminate the information because as you say they're going to do it anyway, even if they have to come to the clerk's office and dig it out they're going to do it anyway, you do it and we'll regulate its use. We'll make sure that if there are requests that we have suitable privacy act notifications if that's what it takes to anyone who files a proof of claim form, that they know that the name and address and the dollar amount they put on there may be used in this fashion and the information from which we don't have privacy act releases we won't give over. Any other topics about privacy and public access that any of you would like to make any other comments? There is a growing sense that I have which we talk so negatively about access and privacy that this may turn out to be the greatest democratization of the federal courts that we've ever seen. I'm seeing in my district all sorts of ways in which it's leveling the playing field and making my court more accessible. Proximity of the courthouse doesn't matter anymore. The lawyer who put his office right next door and for years had a market that no one else could bother has had that market power destroyed because the lawyer 300 miles away has the very same access to the documents, has the same access to file as the lawyer next door. It's frankly less in lawyer control of their clients because many of our sophisticated clients now are not completely dependent on their lawyers to get all of the information filtered through them about what's going on in their case. They go on our web page and they read the file in their case and they ask their lawyers about what's going on. So I think there are all sorts of good things that are coming out of this that in our haste to make sure we don't infringe on anyone's legitimate rights, we need to keep an eye on them because it's an exciting new day. I think that much of what we're seeing, an angst that we're seeing here is the natural process of undergoing what will prove to be a profound cultural change in the way we think, the way we do business and in the world in which we live. This is not unique to the federal courts. It's not unique to American society. This is global and it's profound. It is truly profound. And so I think that these things will shake out and will take care of themselves. I think one thing we're going to find is that the sacrosanctis of the social security number in a matter of a few years is going to be ancient history. Ancient history. I think the important thing is to focus on the role of government in that process and to bear in mind that we are the people that we serve. And I think that we ought not to view ourselves as being a business in competition with the private sector. I want my government to be concerned about protecting my interests, my rights, and to let the private sector worry about itself and to make sure that what is going on out there is fair and just and that the courts are maintained as a safe haven. Thank you. Thank you, Judge Kaplan. Judge O'Brien. Judge Leonard. Thank you, David. We're really grateful, extremely grateful for your participation today. You've given us a lot of good information about this difficult but also very timely topic. Thank you.