 This is a technology conference in part, but we can't figure it out, so I'll go back to that. Also, particularly in view of that light on me, ironic that this is a privacy conference. Is this mic working? You're getting anything from me? Ah, okay. Good. These conferences have started, and this is, as you know, the eighth running of it, I believe, with an introduction from the folks that have organized it, particularly Bob Dayling, who's joining me in this one, Fred Letterer, who unfortunately can't join us today, and others. We try to set the stage a little bit for the two days that are coming, and we're going to try to do that with a little sort of overview of where we've come from, where we've gone, actually, what we think are some principles that have emerged over the many conferences. As the dean indicated, probably many of us who started in this conference, and of course the first time the question was, would you ever do it again, and then again, and then it became automatic. Maybe not quite automatic, but all of you indicated that we should continue to have it. We probably thought, well, you know, we'd tackle this subject for a few times. We'd figure it, master it, and the need for this would, as they used to say in the Soviet era, wither away. Now I have a quote which I happened to see the other day that, to me, sort of typifies where we are with this subject. It's from the Kennedy inaugural. It was about the small subject of the Cold War. All this will not be finished in the first 100 days, nor will it be finished in the first 1,000 days, nor in the life of this administration, nor even perhaps in our lifetime on this planet. Let us begin. There are times on this subject in which I kind of feel like that is that we're making a little bit of progress, but then technology overwhelms us with this latest little thing, whether it's Twitter or just the Internet, when we started and kind of overwhelms us, and we seem to go backwards on this subject, not forward. But we do think that some principles have come from this. So we're going to go through a few principles. If it seems like unnecessary reminiscing, remember we're only here for half an hour, and we'll get into more substances as we go along. And we do admit we made up this little list on the train on the way down here. So we've got seven of these, and I'm going to say a few words about them, and then Bob is or vice versa, and we may pick up these themes in the next couple of days, but we thought there were good themes to leave you with. And these are ones that probably wouldn't have been up in our first conference and maybe probably wouldn't have been up in our third or fourth conference, but have certainly emerged over the time with our conferences. Some of them may seem obvious today, but in perspective probably weren't so obvious over time. So let's start with the first of those, that there is a privacy interest in public records. There's always been a theory that if a record is public, it's public, and there's no such thing as a privacy interest in a public record, it's an oxymoron. But the confluence of three things, which is really what brought us here in the beginning, and as we've noticed at growth, the digital record, the internet, and data aggregation have clearly shown that despite the fact that we might otherwise label a record or information as public, indeed there are privacy interests in it. One of the things that always bothered me in the course of this conference and I used to comment on is that academics hadn't really gotten in the discussion to give us a good theoretical basis for some of the things we talked about. And I particularly was on this one. Now I think you will find good writings trying to understand the modern notion of privacy in relation to governmental information in particular. Let me recommend a new book by Professor Daniel Solove called Understanding Privacy in the Nice High Tech World. I downloaded it on my Kindle and read it on the way down. It has some particularly good insights on this point. Well picking up on that, and I hope my microphone works. I took a slightly different approach. I looked at the agendas from the first conference or two and sort of compared it to the agenda today. And I know that many of you were here in 2001 at the first conference. I think that conference, if it had a theme, I would call it theory. The world of access to court records was still largely a paper world. So all of those committees that had just started their attempts to develop policies and court rules were really talking theoretically because there weren't many records available on the Internet. I think now what we see is much more of a practical approach. You see in all of the panels at this conference implementation issues, practical problems related to providing electronic access to court records. So I see, as a ten year theme, a transition from theory to practice and picking up on what Justice Dually said, I think we also see that the theory is coming full circle. In 2001, if you said, I think there's a privacy interest in a public record. People, especially academics, would have looked at you a little with a raised eyebrow. But now you see writings that assert that legal theoretical writings which I find quite interesting. Transition back to Justice Dually for a few more comments and then I'll make a few more observations about the ten year retrospective. So on to the second point. Okay, we got over the hurdle. We now think there's a privacy interest in public records. But now we realize that's the only the first point. Now you've got to figure out, okay, if there is a privacy interest, what are you going to do about it? Here I think the most important challenge has been for us how to keep the court system to be a transparent, accountable system in our overall scheme of government so that it's transparent. The public can fully understand its actions. We don't take them in secret. We explain what we do. We can see what the inputs were for decision making in that system. But on the other hand, the people who are in the system, in their cases in the system, often not of their own free will. And other concerns about privacy or secrecy that were not fully disclosed, everything, the trade secrets maybe of a company or a lot of concern about cooperating witness agreements in the criminal side or whatever, aren't as fully transparent. So how do we make one transparent and not particularly the other? So the inquiry, the fact that we know there is a privacy interest is only our starting point. How do we balance that privacy interest against the need for the transparency of the system? And I would say over the course of this conference in its eight runnings probably that's been the biggest subject that we have tackled in various ways. I'll let you keep moving. Okay. Then we come to one that I think is again also relatively obvious but it sort of grows on you over time which is, wow, this is a technology problem. Is technology here our enemy or is technology our friend? And of course what we encounter is that it's always both. It's always the problem that got us here but it's always the ability to have transparency in the judicial system that comes from the new technologies that we've got. But wow, if it's a friend, why does it keep biting us? Why do we go in the world now of, we thought we were in the world of just records now where you know when everything goes on in courts that's one of my points coming off and now we're into tweets and now we're into people with all sorts of technological devices in our courtrooms who are doing all sorts of interesting new things which is one of our panel going to be this time. So we have to be in the awareness though that the technology that gets us into it if we understand how it did it the technology we hope will get us out of these problems. And again looking at the agendas over the years I would say my key observation on technology is that we have always had the hope that the technologists would help the policy makers figure out how to implement the policies and I think that the technologists are doing a fine job but it's interesting to me to see that at every single conference we have a panel with a name along the lines of the first one which was using technology to assist in implementing policy goals. That's what we called it in 2001. The name is not dissimilar here in 2010 yet in 2010 we have a little caveat to the title and it says but why don't courts use the technology. So I find that very sort of disconcerting in a way because I think that the folks the judges and the court administrators who develop the rules and the policies have always believed that technology would be a tool to help and it is but it hasn't maybe lived up to its promise yet. I have high hopes for that. Okay next is one of my favorites over the years which is our irresistible attraction to practical obscurity or substitute a more understandable term. That term came from a United States Supreme Court decision to explain how our public court records are not really so public because they were impossible in their paper form to find and the term was practical obscurity. We've turned it into what I call intentional inconvenience and we have this sort of attraction to it as a policy device I'd probably say a crutch to get us out of situations in which we want to say that something is public but we don't actually want it to be very public. Maybe a public to just the few people who happen to find their way down to the courthouse. Of course if you go through history we thought the automobile was a horseless carriage because we always compared everything to what was before and practical obscurity was never really a policy it was the effect of lack of technology not really a considered policy and presumably at some point we will work ourselves out of this device for intentional inconvenience but amazingly after all these years we seem to still go back to it regularly in order to find our way out of sticky problems. And I would agree with that observation and add a few things to it. I see as a common theme over a decade what I'll call the search for the holy grail of the policy that works for everyone. Every court committee that starts the effort is looking for the model. The model policy that will work that will balance access that will protect privacy and you saw it at the first conference in 2001 we had the folks from the COSCA Conference of State Chief Justices get up and talk about their model policy and then of course that took off and some courts followed it and some courts went their own way. But here in 2010 I don't think any there is any convergence on the perfect policy but what I do see is what Justice Dooley is observing. Any place you look you see the intentional or unintentional reinvention of practical obscurity in some form and to me it doesn't matter what your court says if your court says we have an open access policy peel the onion just a little bit and you will probably find that sure we have open records except and look at the accept clause and see if the accept might swallow the open rule. In Minnesota for example and unless I'm mistaken all the court generated records are open but anything not generated by the court is not quite open. You know you need to go find it at a courthouse or you need to go look for it the old fashioned way. In the federal courts which I work for we profess open access but not to some of the most sensitive information we hold which is information in social security cases information in immigration cases so you'll find that theme running through the court policies nationwide I think. In California they take yet a different approach they'll have whole case types that are simply not available electronically and then other case types which one can have remotely for any location. So we don't see a one size fits all approach to access and privacy policy but there is a common theme and I think the common theme is openness with a fairly big asterisk attached to that. Okay. Last on this page and we're getting to the end there is no stopping E everything. Now I think in the world of Dean described at which we might have thought she would come to the solution to all these problems that we thought of course that we knew where technology would go. We always think it'll go where it is today and we can think about these problems in relation to where technology is today and what always happens is that that's not true. Technology comes up with a new E everything that raises all sorts of problems and just as we're moving ahead in understanding the problems of the technology of today it becomes passe and the technology of the future gives you something else and now we know I think there is no stopping it. It's everywhere, it's everything. Assume universal transparency of everything and talk about how you're going to respond to that as a policy matter. And I would rephrase that by saying the internet complicates everything. In 2001 the internet was a totally different animal. The internet was just the place that the courts could put the records if they wanted to and very few courts had any records on the internet so the discussion as I mentioned was largely theoretical. In 2010 you see the agenda features entire panels on challenges related to the new internet to the web 2.0 internet. We see panels on new media and how the new media are playing out in the courts and in the court rooms. Tomorrow we'll see a panel about the federal court public access system and all of the new challenges and new initiatives that the federal courts are putting forth in terms of public access and we also have a panel on selective access to court records which is of course related to the tools that the internet can provide. The title of this conference has pretty much always been from the beginning a conference on privacy and public access to court records and over time that's become a misleading and too narrow a definition of the subject. This is kind of a corollary of the e-everything and the internet growth as Bob says. This is no longer a conference only on court records. This is a conference on anything that happens in the judicial system because it's all becoming transparent. One of the ways and only one of the ways we miss Fred the letter at this conference is going in the last couple of conferences he's attended, panels on the in-court activities and records and how those are becoming more and more transparent to the world. The giving of evidence and the appearance of lawyers or jury selection or whatever which is not fully reflected necessarily in the records and now we're going a step further in this conference with the panel and Bob just referred to the folks who are tweeting from our courtrooms and providing a new kinds of transparency within the judicial system. So it's about all the information in the system. It is no longer about court records only and maybe over time court records will be the little part of it. But nonetheless I would stress that the record whatever it may be is still very important to define because that's the starting point for the policies and the rules that all of you are so intimately involved with. You see this thing repeating over and over again where a court starts in terms of what is in the record can often determine where a court ends up in terms of how to provide access to it. And so over the decade there have you have seen efforts to take bits of information and move it around perhaps make it part of the record officially perhaps take things out of the record here and there. The panel tomorrow on selective access to court records will get into that to some extent. But in several states for example there's been an attempt to ask parties and litigants and attorneys to put certain information in places like sensitive information forms is a term often used. Put that information in a place where the court can then segregate it and not provide access to it and so in effect take information out of the record as a policy goal to protect privacy. And I think that's a recurring theme and something that we've seen develop over the ten years of this conference. And finally on this if we ever ever ever figure out how to get the policy right we still have amazing problems in implementing whatever policy we come up with. Most of us in the states and in the federal government have by now by some rule or device prohibited the display of social security numbers in public access to court records. And so we all have policies that says that shouldn't go out and then study after study after study looks at our records and finds social security numbers all over them. And we're clearly not yet able to implement that policy in a way to assure at least 100 percent we're not going to have them. We did have the last time of the time before Tom Clark presented us the improvements that are happening in redaction technology we have some opportunities to get better and better but we still on this one at the point in which we can say we can declare victory as an implementation matter to whatever the policy is and that is of course just one small policy among the many many many that we've enacted in this particular area. This is a time in which I get to point out that one of the great strengths of this conference has been a joint federal state policy and many states have come certainly a majority by now but I would say an overwhelming majority of the states have come to this. There is an opportunity to exchange views and approaches and every time I come to this conference I come back with four or five things that somebody has come up with that I wouldn't have thought of that were great no ideas. Of course I always leave with the tweak that all the innovation in this area has come from the states. Well I don't want to comment on that well you know wait for our federal, my federal colleagues can talk about that but I did just want to add one note about the conference as a whole before we end and I don't know Justice Duhl if you have more substance but if this is your first time here I want you to know we would want you to know everyone here wants you to know this is not a talking head sort of conference this is a working conference everybody is an expert here participation is what makes it work and hopefully this setting will be conducive to that so I think the panelists will agree or the moderators I hope will agree that we're looking for interruptions you know we're looking for questions we're looking for the dialogue that is important to speak up and with that I think we'll launch into our let me just leave you with one thought this is sort of our ruminations about the conference and where we are and where we've come from and a little bit of where we're going as we said we did it on the train on the way down from DC if any of you particularly liked it and would like to join this kind of dialogue or thought it was terrible and would like to correct us there will be a next conference a next train down from DC and you're welcome to join us thank you so we'll just move right into the first panel then