 There are certain areas of the technical term we have for these are a rabble. Authenticity is one of them. We can discuss authenticity all day and then we'll finish that discussion. Piracy is one of the most important issues that we have to deal with as we're looking at these legacy databases. You can require lawyers not to put in social security numbers and you can find them and you can shame them. And you can have all sorts of rules and maybe going forward you can fix those kinds of things. But even if you're simply fixing things going forward, you have these legacy databases and in the law it's a presidential system. You need the archive. And as Tim O'Reilly alluded, when I put the congressional record, I made a copy from the GPO's site and I put it on the internet. And lo and behold there were 500,000 social security numbers in the congressional record published by the United States Senate. So these privacy issues are not just in court documents. They're not just some bankruptcy lawyer who doesn't care about his clients. This is a problem you're going to find at the local level, at the county level, at the state level and in tons of federal types of databases. So I'm really pleased that we've got two of the leading experts in this field. Chris used to work at Epic. And I think one of the leading electronic privacy information center has really carried the torch for privacy and electronic age for ages. He is now on the faculty of the University of California. Peter Nguyen is a deputy attorney. What's your official title? Assistant US Attorney. Assistant US Attorney in the Department of Justice and has been a prolific speaker on privacy issues for quite a while. Has quite a few scholarly papers on the issue. And so I'm going to turn it over to you folks. And we have about 50 minutes for this session. Carl and I are holding down the, we're wearing a suit and tie just to show that the tie still exists. Before I start, I need to say the usual disclaimer that the views that you're going to hear are not the official position of the United States Department of Justice. I think that would be obvious anyway. You know, I teach a privacy law class at the University of Washington and have done so for some time. And partly because I taught that class several years ago, I was asked to write a paper about privacy and the problem of access to court records. About the time when court records were starting to go online in just 2002-2003 period of time. And so I wrote the article and forgot about it. And then a couple of years later, Tom Bruce, who is with the Legal Information Institute at Cornell, some of whom probably many of you know and just stumbled across the article, Peter Martin stumbled over it and thought that I ought to be encouraged to do more. And then folks at the Department of Justice found out that I was doing more and I did more. So I'll be, I'm taking a detail from Seattle to Washington to work in what is called the Office of Legal Counsel on these issues. Sort of you're a tigger, you're the only one, so you don't have to be good. You know, I guess the point I want to make today is how difficult and complicated the problem is. Okay, we want court records to be open, we want court records to be transparent. As we know, that's important for the political feedback loop. It's important for the legitimacy of the system. Not only that things, I mean, it has to be perceived as fair, not just be fair for the system to work. It's important, by the way, that this stuff, which is the resolution of disputes, take place in a public forum. And the reason it's important that it take place in a public forum, because if it doesn't, people will tend to use self-help. I mean, even before we had what we call a rational judicial system, you know, where we've worked with rules and laws and the application of a lot of fact. Even when we had rituals or deals as a means of resolving disputes, it had to be in public. Because the point of a judicial system is that it's a nonviolent way of resolving disputes. The alternative is self-help, okay? That's always the case and that's why it has to be public. So, this stuff has to be in public for a lot of really good reasons. At the same time, there's a lot of sensitive information that goes into the judicial system. You know, and the sensitive information is critical for the truth-finding function of the judicial system. You know, people believe, and participants in the judicial system are not simply parties. We're talking about jurors. You know, we're talking about witnesses. We're talking about a lot of third parties whose information gets into the judicial system. And it's not simply individuals. You know, we have businesses whose information gets into the judicial system in terms of trade secrets or confidential business information. And we have governments, believe it or not, that are sitting on a lot of sensitive information, mostly pertaining to businesses and individuals. In tax returns is a good example, but there's 101 other examples of government sitting on a lot of sensitive information. A lot of that information will get into the judicial dispute resolution process. In addition, governments have their own special secrets, like, you know, the secret formula for making atomic bombs. And sometimes that gets into a judicial dispute resolution process. And what's really amazing about the system that we have is people are, generally speaking, voluntarily submitting that sensitive information to this judicial resolution process. And they're doing it without having to be thrown into jail and forced to turn it over. They're doing it voluntarily. So there's a level of comfort that people have that when they submit sensitive information to this system, it's not going to bite them in the butt. Okay, so the basic problem that we have is we want a transparent system that protects sensitive information. Okay? We want to have our cake. We want to eat it, too. Okay, now, in order to understand, before you sort of look at the nightmare of electronic information, you need to take a second and look at the world of paper. The wonderful thing about paper is it's hard to work with. You know, it's practically obscure is the magic word. And, you know, in the paper days, you could periodically get a document sealed, about maybe less than 1% of documents in the paper-based system was sealed. The rest of the stuff might as well have been sealed because nobody could get hold of it without standing in a line in the courthouse. You know, you finally get in line and you finally find the right file and you finally find what you want to look at. And the clerk says, well, the judge has it in his chamber. She can't see it. This is, I mean, generationally, that's the way it was when I graduated from law school in the 80s. Okay, so it goes online and, by the way, the problems now, as we are about to jump into an online system, the problems have people have experienced these problems in the past. I mean, there was a time when court records were on paper. Courts were basically oral institutions where people basically argued in the community and what was argued, it was argued, and that was that. And as soon as people started putting stuff on paper in the court system back in the 13th century when they invented ragged paper and people became moderately more literate, the reaction of the judicial system was shut it down. Nobody had access to the paper. And 800 years later we kind of worked out this balance. The reason why I wanted to use that as an example is I think 800 years from now will probably have the balance right. But in the meantime, we're just at the beginning of a fairly dramatic transformation in how this information is managed. Okay, now I've spent a lot of time working in the federal judicial system, both as a lawyer as well as working with the judicial conference. They too, when they found out that I was, like, interested in this issue and you're triggered suddenly, you know, you're helping them, whether you like it or not. You know, an Article 3 judge calls you up and asks you to help you. You don't say no. So, but the thing about the federal system, before I start talking about the federal system, is the, and this is definitely not the position of the Department of Justice. The federal system is kind of a boutique. You know, it's sort of, it's, I mean, a good example is, I mean, if I work in Seattle, we do less than 1,000 dispositions a year. I mean, you go over to King County, which is a smaller district. When we have half the state, they just have a single county. They're doing 50,000 cases a year. Okay, so this gives you an idea about just how representative this sample is. Okay, also the federal courts don't do divorces. You know, where you really, and you don't do juvenile cases. I mean, we would do one juvenile case in 2,000. And so, we're dealing with something that's a lot easier to manage than the states who are dealing with people who really are not at their best. And by the way, the other thing about the state system, I mean, Colorado is a good example. 85% of divorces in Colorado are prosaic. So they don't even have lawyers. And a lot of the cases that go through the state system do not have lawyers. They certainly don't have lawyers that dress really well. You know, and no site formation or clerk for judges. I mean, you're dealing, even when they do have lawyers, you're dealing with a different class. And you're dealing with people who aren't, you know, doing double backflips and half twists on the backflip at all. All right, so federal system. The federal system had the benefit of being the guinea pig. It jumped into the deep end of the swimming pool before. Largely because nobody knew what they were doing. And so they went to the Pacer system. And, oh, it's called Pacer or ECF court. It's a system where lawyers can file their own pleadings. They basically disappeared the people in the clerk's office who used to take care of that for you. But who also used to call you up when you file a pleading with social security numbers on it and say, Mr. Nguyen, did you intend to file, you know, this pleading with this big list of social security numbers of your patients who are the subject of your life, of your enforcement proceeding? No, I didn't. And, you know, you would be in the clerk's office the next day or that afternoon, you know, substituting. The clerk would let you substitute the paper and, boy, you would ever be nice to that clerk and come Thanksgiving or Christmas. They would always be getting something special because they had your back. Well, the Pacer system doesn't have your back, okay? The electronic system is not forgiving. And this is a problem in both, in two senses. One is, well, one is we do a pretty, excuse my friends, we do a pretty shitty job of getting the information out to the public in a way that's useful, okay? I mean, this is, this is, most of what today has been talking about is just how frustrating it is to get access to the actual court decisions or the briefs of the parties, the stuff that is legitimately a matter of public concern. They do a really bad job because the Pacer system is not Google searchable. You have to have a credit card to get access and even to get that, even if the opinions are free, you're going to be charged with search. So there's a lot of dysfunctional aspects about the Pacer system. The Pacer system, to some extent, is still kind of sort of practically obscure, kind of sort of. The other problem, of course, is that it does a really lousy job of identifying the sense of information and targeting it so it can be protected, all right? I mean, Carl is famous because he's really popular with the judges, let me tell you, because he, I think you got 20% of the Pacer system on a sort of controversial process where a lot of the stuff was downloaded from a public site. And then he searched, he did an audit. Heaven forbid that anyone would audit the system. But the audit showed that there are a lot of lawyers who basically were brain dead like me who were filing Social Security numbers in pleadings, even though there was a rule that said, thou shalt not do that, okay? And it hit the radar screen of the judges when it was on The New York Times. And I let, three weeks ago, I basically gave a talk to the judges. The Judicial Conference had sort of, they convened a bunch of committees to address the issue of are we doing this as well as we can, all right? So even though there are a bunch of, actually, not all white guys who are over 60. Some of them are white women who are over 60. Well, and I'm joking, but there are, but one of the things federal judges are comfortable doing is they're not the sort of person you're going to call up and lean on, all right? That's bad, bad idea. So when you get an issue T up before them, they will make a rational decision. They are used to making decisions and they're pretty good at making reasonably fair, articulate decisions. You may or may not agree, but they're comfortable in that role. So they're in the process of trying to decide whether they can do this better or not. Now, there are various strategies that we can adopt when we try to design a better system. One is we can keep this system, keep the information out of the system to start, right? Don't put Social Security numbers in your pleadings. Redact them if you have to, okay? There's a second strategy, which is, you know, of course that's just like the old paper system. There's a second strategy as well, which is seal it. Just lock it out entirely. File it, but nobody can have access to it but the parties, right? There's a third strategy. A third strategy is allow anybody to file what they want to in the system, but make everybody promise when they access the information to only use it for the purposes having to do with the administration of justice. The idea is it's like the, I mean, Joel Reidenberg likes this idea, which is basically, yeah, it's given to the court for one purpose, but if somebody takes this information and uses it for a secondary purpose to embarrass somebody, and if I want to look at my neighbor's divorce records because I'm just curious, then I somehow violate their rights. That is a general idea that is, that I think we probably can have a productive conversation about it. Chris and I and Carl and a lot of people. I actually propose that idea in an article that I wrote there in the back. It's free for anybody who wants to swipe one of those paper copies. And I'm sort of leaning right now deciding that what I said in the article last year was just stupid, because I'm not sure it works. I mean, from a practical point of view as well as from a legal point of view, there's a lot of issues. The fourth strategy is a sort of intermediate strategy that I've proposed. It's actually been adopted by the judges, believe it or not, in the new federal rules of procedure and that federal rules of procedure, criminal procedure, civil procedure. A bankruptcy procedure and a pellet procedure. And all those four sets of federal rules have adopted this idea, which is for a cause, which is a much lower standard than for a compelling reason, which is the standard for sealing the document. For cause just means you have to have good reason. You can basically file something offline and you can get a judge's order to let you do it. That is the standard way in which social security and immigration cases are filed today. Particularly the administrative file, these are appeals from the agency that has basically said grace over somebody who says they're so sick or they're hurt so bad they can't work, for instance, in the social security context. The whole file is health records. And so the court said these people don't have those kinds of resources to go through and redact every other page or every page. We're just going to file it offline. And that's actually worked relatively well since, I mean, I don't know how long that will work well, but it's an option right now that you can just sort of have this intermediate level where you sort of reproduce practical obscurity by simply taking the document and filing it in a way where it's only accessible in an electronic form to the parties in the court. I don't know how that's going to work because the rule with substand obscure and nobody's tried it. But maybe lawyers will try it and we'll see whether this operates as sort of a stopgap measure. I'm not sure. So these are these four, there are four strategies. Within those four strategies there are three techniques, there are three tools in our toolbox. One are rules. And the judges and the lawyers are really good at making rules. And rules, you know, you sort of have this idea that thou shalt not file a social security number and that's the rule. You pass the rule and you put it in the civil rules and everyone's supposed to adhere to it. You can have better training so that the folks who are using the system are better trained to use it so they don't, you know, triple, you know, like let's take those 60-year-old white guys who are used to working in paper and let's make them, before they're going to get a pacer account have some training. Like let's license them, make them make a driver's license before we give them a license to drive a car. So that's the second technique. We can do a lot better training. The lawyers, we can do a lot better training. The judges, most of whom don't file their own case pleadings. They have their secretaries to it. The third area is technology. And technology, better technology can help. Okay? And better understanding of the technology can help. Pacer system is an appalling technology right now. The ECFC, you know, the electronic filing system is really a very, very, very cumbersome, not useful system. Ten years ago, it was the greatest thing since sliced bread. Okay? There are technologies that can help identify sensitive information that can be better used. This is just, I mean, I'm, you know, I'm in San Francisco I'm like preaching to the choir on that. So, but the judges who are on the judicial conference in the federal system, I mean, three weeks ago I had them lobby to get Ed Felton to come and talk to them. And it was like their jaws were dropping when Ed was talking because he was making stuff so clear and so easy in terms of what the technology can and can't do. So these people are trying to do the right thing. They just don't understand the technology. Okay? Lawyers generally are typically not technologically literate at least not in my generation. The younger generation of lawyers tend to be. So that's going to ultimately get better as more of us die off. So we have, we've got those three techniques. But what I'm actually arguing, and I've argued a lot is that those techniques alone are not going to be enough. To some extent, we have to have sort of a reconceptualization of what we're doing here. In the article I talk about this adversary system because the judges are used to resolving things when people are in fights, right? The whole point of the process is to resolve fights. So laws and rules get worked out in the context of resolving fights. What if nobody's fighting? What if the lawyer's going to court and have an agree order to seal a settlement even though it's a mass tort that's a matter of legitimate public concern? Well, the judge is going to sign that order nine times out of ten. Seattle Times has gone through and done audits which are now available because the stuff is online of the number of times ceiling orders were entered in compliance with the rules of ceiling which are fairly stringent. 97% of the time they didn't comply with the rules. Why? Because nobody was fighting. If nobody fights, the judge signs the order. You don't have to comply with the law. You're agreed. Law is there to resolve disputes. So the same thing happens at the privacy side. That's a violation of the public's right to access. The same thing happens when the lawyers aren't representing the person whose private information is at stake. Do you think they're going to be focused on that? No, they aren't. And in fact, when they did the audit, when the judicial conference went through and looked at what Carl had already done in terms of the social security numbers, a majority of those cases involved people who weren't being, the socials were people who weren't being represented. That's obvious, right? If the system is there to resolve disputes, the people who aren't represented are going to be left in the lurch, right? So what are we really dealing with here? We're dealing with what economists call externalities, pollution, right? And in the 19th century, we used Doosan's doctrine to resolve pollution issues. It worked just fine in the 18th century. In the 19th century with industrialization, it stopped working so fine. In the 20th century, we set up administrative agencies to manage externalities caused by people who pollute, right? Sometimes you want to let people pollute, and sometimes you don't. It depends on a cost-benefit analysis, and somebody's got to focus, and now we have things called NEPA, and you do environmental impact statements, and the bottom line is you put everybody in the room before you make a significant decision about how we manage information. And you put everybody in the room, you get everybody to try to identify who's going to get hurt when we do this, and you muddle for it. That's what the states have been doing, by the way. They watched the federal system kind of jump into the swimming pool and start drowning, and they thought, well, maybe we should try to get all the stakeholders together in the room and let them talk. And Colorado just did that. And one of the things they did when they put everybody in the room is they stopped using paper. I mean, they stopped using the model of a document on paper, and instead started inputting the information separately so it could be managed more easily. That's the state where 85% of the people don't have lawyers. Maybe because they decide they don't need them. So that's something that I think the federal government was sort of being watched by everybody, but the states who really do have a much, much, much more difficult set of problems to solve here are learning, and they're talking to one another. And there is a dialogue going on. When you try to get the rules right and you try to get the technology right and you try to get the training programs right, it's contentious, okay? People fight, but that's okay. And at the end of the day, you get a better result when you get all that stuff on the table at the front end rather than the back end. The one... There's sort of one last issue just to talk about how important it is to get it right. And it's just an example. The rules of evidence, like, you know, if I'm a prosecutor and we run a search warrant without... or we don't have a search warrant, we just run a search without warrant from a guy's house and we find a ton of, say, cocaine in there. All right? No accident circumstances. We just suspected the guy was a drug dealer. He files a motion to suppress and it's going to be granted. The jury is not supposed to know about the fact that we went into the guy's house. We found a ton of cocaine. It has to do with the notion of due process. It has to do with Fourth Amendment rights. It has to do with a lot of questions about who we are as a people, right? We'd rather have a guilty person go free if it involves a government pushing somebody around in a way that violates their rights. Well, you know, juries, you know, they don't want to send this drug dealer out on the street again. A jury can now Google the motion to suppress if we put it online. Juries, by the way, are Googling defendants prior criminal records because it's online. Let me tell you something. A jury that knows that... this information is a prosecutor. I'll lose my bar card. If I point out to the jury, the guy has been convicted of a crime, particularly one very similar to the one I'm prosecuting for. You know, I wait for him to get up on the stand and then I pop the champagne corks. Then I can use it to impeach him, but otherwise I can't, right? Everybody knows this rule, but the jury doesn't care because they can find out that the guy has been convicted of exactly the same crime that he's been prosecuted for, right? And they don't even have to tell me. Now, jurors have always been told, don't read the newspapers, and we all know that jurors read the newspapers. But the jurors know the case better than the newspaper reporter, so they laugh. But juries are not supposed to know about stuff that's true, like the fact that we did find a ton of cocaine in a guy's house. There's a due process issue here if we get it wrong. Courts are information management machines. That's what they do. They manage information to direct the power of the government and issue these judgments. So these are all asked you to go and take the person's property or take their liberty or take their life. Knowledge is power. Information is power, and judges know that instinctively. And so it's important to get this balance right because it affects a lot of different things. Jeremy Bentham in the 18th century, late 18th century, early 19th century, argued strongly that the rules of evidence should be gotten rid of. This notion of the exclusionary rule was anathema to him because he figured the goal was to get the truth, right? Not to despair in this idea, this idea of rights he made fun of. And we can go to a Benthamite Panopticon in the law. We can simply say we're just going to get the truth and we don't care. But there are deep, deep issues about who we are as a people which are going to be implicated when we are no longer able to manage information to keep sensitive information away from certain people like jurors, or to prevent anybody. I mean, to allow individuals to control a sense of information in a meaningful way and then go into the system and get those new results. Let me just shut up because I've been going on a little too long. But that's the trick. I mean, you have to have the information public. We can do a much, much, much, much better job at getting the public. And we also have to protect the sense of information. It's easier said than done, but we need to model for it. So I'm normally the person at Berkeley who wears a suit and my colleagues are always complaining to me asking me to wear jeans. But I now have a little baby and I can't afford to wear any more suits. I just was in the bathroom and I realized I had two stains on this shirt. The other day I was at some it's a badge of honor. I had some convenience for something and the woman behind the camera was laughing at me and I couldn't quite understand it. When I got home I had a sock on me. So that's the reason why I'm dressing like a bum lately and I apologize to all of you for that. But I also wanted to thank Carl for including me in this wonderful program and for reaching out to me on some of these privacy issues that you have uncovered and trying to deal with quite conscientiously. I think you've been extraordinarily careful and thoughtful about some of the problems that you run into in trying to bring more transparency to these systems to make them more usable. Peter Winn's article is definitely worth checking out because I think you were summing this up at the end. He points out pretty clearly that we're the courts and we're the actors in the court want privacy. They get it. They can't even focus on it and you get it. And a lot of what we are dealing with in the privacy world generally is the problem of externalities. People who are perhaps not even party to the suit for some reason their information is in it or people who are disempowered in the system their information is in the system and people who are more powerful want to keep it public for reasons. Another kind of interesting point you made was the idea, will lawyers try these different rules? That's a really interesting point. One of my students just completed a survey of the rules in all 50 states of how to file a court case with a synonym. And one of the reasons why we worked on this article was that we found that many of the lawyers who were doing privacy court cases did not know the option was available to them. And they might have read I've actually, some of them I talked to they didn't realize like Jane Roe of Roe vs. Wade they didn't realize that there was a synonym and I think if you look at that case of a court on its own substituted Roe or other district of Texas used to practice it was not a movement of parties as I understand it it was the judge and so will the lawyers try it while we kind of know that these remedies are available and because so many privacy suits happen in state court we thought we'd write the state survey and that should be coming up this fall. So I wanted to throw out some thoughts about this issue generally and one thing to think about and considering the public records problem or the court records problem so there's many different types of government records that are subject to different rules and even where there are very strong rules there are still massive problems. One area to look at in particular is let's say the Drivers' Privacy Protection Act so federal law now limits how department of motor vehicles can limit the release of personal information about individuals. It came about because among other things there was a woman stabbed to death by a stalker here in California whose location was determined by a private investigator with access to the DMV actually almost all the victims are women you know women driving down the street and someone says oh she's pretty and writes down her license plate and can go buy her home address for like a dollar that was also available an available practice back then and then the anti-abortion activists would sit outside clinics write down license plate numbers and figure out the home addresses of individuals this all led in particular California senators to push for a very strong law limiting the disclosure of driver records and one of the reasons why that law could come about is that advocates could show their problem existed they could go get audit logs they could go find out that it was the private investigator who showed up at the DMV and checked out the personal information about the victim etc that could drive the documentation of the problem drove the legislative intervention and one of the problems we have in public records is that there's no way to prove there's a problem so we can speculate about stalking we can speculate about identity theft I actually doubt there's a lot of identity theft going on through public records but for a different reason but we ultimately cannot link the problem back to the architecture that we have in court records but even where you do prove that there's a problem and you pass a statute lots of interesting things happen in that process when you look at the Drivers' Privacy Protection Act for instance it protects your record at the DMV but it does not protect records outside the DMV so when you walk to the rental car company and you give them your driver's license and in fact a lot of them do and then they send it to a cooperative database run by a company called Choice Point and so they literally scan it and they lift your picture all the data off of it now is that a violation of the Drivers' Privacy Protection Act? no courts look at that and say that's not another vehicle record number one number two, you voluntarily did that you voluntarily surrendered your license to that company you see the same problem of swiping if you go to a bar or buy alcohol in most states the company that you're buying alcohol from can swipe your license and keep all the data that is in the track and then when you go to the airport and you notice that your car is greatly illuminated when you pull into the parking lot that's because of doing a plate wrapping mission wouldn't it make sense to sell that data? why wouldn't you sell that data? it's out the side of DPVA a lot of people would pay a lot of money for it so one challenge is that even when you enter a command and control type regulatory regime people still find ways to get around collection restraints another big challenge one has in this area is unmasking the type of liberal ends that are presented as liberal arguments okay so this is kind of a confusing way of saying that the people who are most interested in creating big brother in the US and I'm not kidding about that they think it's a normative good to have a big brother system are going to come in under the mantle of the First Amendment and transparent government to get access to personal information in government records so the kind of the original purpose of a lot of these records is to oversee the government but they will come in using that language in order to get personal information out of those out of those coffers so you have kind of a circular lobbying where on one hand the various companies that are very good at getting data out of the government will say we don't implicate privacy by our practices because we only collect public records and they go to the next office and they say this will secrete numbers they should be in the public record so they enlarge the scope of the public record and then argue that the enlargement it'll longer covers anything that's private and you can see this in a lot of different articulations of the strategy one example is that in a model legislation proposed by data companies they want to make it so that a company cannot be liable for ever disclosing information in a public record that sounds reasonable but it also means that if a newspaper chooses to publish a birth announcement that includes your mother's maiden name your date of birth there cannot if your bank later needs that information there can be no right of action it also means that if I wanted to do something pretty perverse I could create a newspaper and just publish everyone's social security number right I'm not sure if federal law would bring that and then it would everyone's social security number would be in the public record etc let me try to move on kind of quickly in the background of all these challenges there's a greater there's a growing number of people who want to recategorize information that people that is not considered private right now as private so the home address Peter and I were talking about home address yesterday that's actually a piece of information that is becoming sensitive in a strange way California law now allows many public officials to call up and say don't sell my home address anymore if you're a police officer if you're a judge, prosecutor legislator etc you can shield your home address and a lot of that is being driven I think by a problem that Peter mentioned the problem is self-help we have kind of a growing factionalization in the US where more and more people are dealing with political problems by showing up at your house and you can't kind of know if you're going to be in the category of people who are going to be visited just an example at Berkeley if you're an animal rights researcher that's the new kind of category of person who has to think carefully about their home address because a researcher at Santa Cruz House was burned down by an animal rights activist and another family home so both on the left and the right we're seeing this kind of basically use of public directories to show people's homes and you can't kind of foresee if you're ever going to be in a category of person who's going to be a victim of that type of activism so with all this said there are great examples of government data that can be used to look at what the government is doing instead of what its citizens are doing one example is David Burnham's Transactional Records Access Clearing House any of you have heard of that it's known as TRAC wonderful service it tracks what the government actually does it's pretty incredible if you subscribe to their email list you'll see that the Department of Justice will say that they're doing this or that and David Burnham will say actually they're not really doing that they might be saying that they're doing that but they're doing it in such a way that it's not really accomplishing the end the most recent one is identity theft identity theft prosecutions up when you dig under it's really just prosecutions of undocumented workers and financial fraudsters so there are examples of where this data can be leveraged to look at what the government is doing without kind of creating a panopticon of what individuals are doing many of the solutions in this area can create really strange outcomes Peter mentioned some of them there are some privacy advocates who are suggesting let's just publish all social security numbers and the problem the problem we have in the social security world is it's used as both the password and an identifier so if we publish them all perhaps they'd stop doing that and perhaps we could remove some of the harm from inadvertent disclosures of the SSN on the range of solutions you hear arguments like that I explained some of the problems with kind of a command and control regulatory approach somewhere in the middle you might say let's limit the presence of unique identifiers in public records that creates an interesting problem in itself because then you can't disambiguate citizens and a related problem in this field is it's now becoming just as jurors can kind of do a background check on the plight of a potential development defendant employers can do kind of a fly by night background check by using a search engine and if you can't disambiguate one Peter Wynn from another you might think that this Peter Wynn is the whatever someone who's been arrested or convicted of something maybe Peter Wynn that filed a lawsuit against his employer three or four years ago and so we have this interesting loophole in our background check law that allows employers to do self background checks in an unregulated fashion but if you hire someone you have to follow all sorts of rules so we're in this strange position now where it's become very easy to do a self background check but even if you have a name strange as mine there are three crystal finagals in the US you could very easily see that disambiguation problem finally let me let me just mention that one of the kind of strange outcomes of all this data out there is is that I think governments could start to think that they are creating a strategic disadvantage for their own citizens by making it so transparent so if you live in a state like Florida which is posting most shots of people who are merely arrested you're basically creating a great database of people who are going to have problems getting jobs ever and they're going to have problems getting jobs relative to people in other states at the University of California our UCPD our police department they actually publish the full text of their activity log meaning that students that they arrest ends up on the internet even if I call in let's say noise violation on Peter it will say noise violation regarding Peter Wynn and complainant Chris Wittman wouldn't you like to google that and come see me sometime? yeah and I would hope that institutions would realize that in the long run, in the short run it might be pretty rewarding to punish these people this way but in the long run UC is going to suffer from such a policy there's two things that are going on I don't want to interrupt but there's one of the things when Carl identified violations of the rules of the federal system you weren't supposed to file social security numbers and you sent letters I think to each clerk or each chief judge in the individual districts where you found the violations what was interesting what happened at that point the lawyers that had filed those pleadings were immediately contacted by the clerks and then they took steps to remedy the problem by correcting the pleadings and offending the pleadings were taken offline and so forth so I don't think it's as simple as to say it's more public information will necessarily hurt privacy under certain circumstances you can have a feedback loop when more public information will enhance privacy okay because if the system, an adversary system is not identifying the violations of privacy for people who aren't really being represented whether it's the public or individuals who don't have lawyers in the system which is where the problems a lot of the problems show up then having public auditable databases could potentially be part of the solution of the privacy problem as well what you get is complex counterintuitive information when you set up an information feedback loop likewise Chris is saying individual we don't like the word panopticon but the panopticon effect is precisely the effect that should take place with respect to government information because the citizens want people like me thinking what is being watched so we'll behave right that's what Bentham said in fact Bentham's panopticon was initially parliamentary proceedings in England were confidential and Bentham single-handedly led the charge to get parliamentary debates where you could talk about them in public in the newspaper information is a really complex animal a good example is so whozorat.com is a website that isn't both data it's a wiki site where people are basically just uploading information about cooperating code credits and undercover law enforcement officers largely to encourage self-help in prisons or to prevent people who might be about to buy some dope or sell some dope to an undercover law officer the second is when that website became a concern for the judges they started taking plea agreements offline because a lot of the information about the cooperating code defendants activities would come up in their sentencing process it's a plea agreement and a factual resume that the defendant who is going to be sentenced is provided to allow the prosecution of these other individuals but if that is up online in a convenient way the guy is going to get whacked in prison so what the response was to take that and just not file it so the really interesting thing about how the sentence was adjudicated was in the plea agreement but you don't see the plea agreement in the public record anymore you have to make a FOIA request to the US Attorney's Office to get it now that is a terrible solution I mean this is really not DOJ a policy but the plea agreement is what we need to make sure the judges and the prosecutors are behaving themselves and are not getting sweet deals to the alderman suck that's what has to be that's a critical judicial record that needs to be in the public domain alright these simple things what's going to happen as more and more stories happen is they're going to pull stuff offline so it will no longer be subject to public oversight and that's going to be a tragedy so we have to come up with a better information management structure then either don't file it or let everything go on because there will be consequences that are going to be negative Chris also said rules don't solve problems he's absolutely right we have terrific rules we got this rule that I thought was terrific anyway and nobody's using it it's not something that existed in the paper world so people aren't comfortable trying it out so they don't the habits of a generation taking two or three generations to change in terms of behavior is probably the biggest problem here the and then the issue that I think is from a legal point of view probably the most interesting maybe it also won't matter is this notion of downstream controls I argue that maybe the PACER website should have a site license you can only use this for legitimate purposes and you shouldn't use it to whack people and I thought why don't we at least say that I'll defend the constitutionality of that site license but Carl really and Dave Schultz and a couple of other people just beat the living stuffings out of me because the practical problems of doing that are just mind boggling the idea of the idea of taking anybody who accesses information on a site at the PACER system or any portal system and saying well you have to adhere to the Fair Credit Reporting Act maybe we could do that with both data users like Westlaw and Lexus at least maybe with corrected the social security numbers that inadvertently got filed and pleading and they've gone in and downloaded it all and it's up in their system they probably should clean it up too but I don't think that that alone is just having rules sort of creating downstream responsibility even if it's restricted to data miners or bulk data users I think you can defend it legally but as a practical problem I don't necessarily think it's going to solve all the issues but I think we just need to keep an open mind about various solutions and by the way there's this really interesting rule that you ought to try by the way I'm fully in favor of the anti-wacking Eula I think that's a great answer any questions can we hold for 30 seconds and then we'll do a 5 minute wrap up and then after that we're simply going to do closing comments and then we'll be done, we'll get you out of here at 3 o'clock I've learned that this 10 a.m. to 3 p.m. schedule seems to work pretty well if you try to do more than that that's just too much material for one day yeah well while he's going we're live oh we're live there are extra copies of the paper version of the article I did in the back anybody who wants them can have them it's sort of a catalog of the problems and it's I'm convinced that I'm wrong about some of that stuff but it does identify a lot of the issues so I'm very sympathetic to your example of the motion to suppress the illegal search and jurors using Google or whatever to find out about information that they've been told that they ought not be looking for that does strike me a real due process problem and counts against public access to that sort of information so I started thinking about well how can we deal with this the first thing that comes to mind is well you could do a temporary seal on information like that for the length of the litigation and you know try to keep it out of the public eye until it's no longer harmful and then you release it but that's not going to solve the repeat offender problem that you raised and so I start spending through a couple other ideas and eventually what I get to is look we have to accept that our system of justice has numerous ways in which it depends on people following rules and you can't design around the people who are determined to violate those rules and so maybe that means judges should give even stern warnings to jurors and say and maybe even explain the rationale not just say don't go home and read about this a cursory prepared statement or something but try to really in a compelling way say this is fundamental to our system of justice and here's why and so I'm instructing you in the strongest terms possible that you're not allowed to do this and maybe it will work and maybe it won't but it's the best we can do and we rely on people following rules in a dozen other ways in our system of justice and so there it is I agree with you I think that the answer is going to you're going to find the answer in things that are far simpler than we think the answer can be found obviously if you one good rule is I think one good rule of the judicial conference is a rule of historian proposed which was sort of obvious if anybody thought about it whenever you file a seal or report seals a document there ought to be a time limit on it because there's no information that's so sensitive that at some point it continues to be sensitive forever so a good example would be the information that's involved in an electronic surveillance I get a T3 order from a court I'm listening to a drug dealer well the information is no longer going to be that sensitive once we've tried the case obviously because at that point it's been disclosed to the person who's most interested in it likewise but there should never be anything filed where it's under seal forever another good example where it's even simpler is maybe stir our warnings with juries we help one thing that I've done I try a lot of healthcare fraud cases and in those healthcare fraud cases I'm dealing with a lot of medical records because that's just part of the evidence the patients are the victims in many instances so we're going to be talking about what happened in the court the physician's office I'm prosecuting the physician that's the subject of the thing well you can redact everything with a really really complicated expensive process or you have a rule but you know what works perfectly well is you have the judge give the jury an instruction at the beginning of the trial ladies and gentlemen we're going to be actually looking at and part of the evidence in this case involves people's health records I think you need to realize that you only want to be using that information for purposes of your adjudication here today likewise the same instruction is given to the public who's watching legally it doesn't control anything but as a practical matter newspapers even now even though they're legally entitled to report the names of rape victims they don't because social norms take over so I think that the recognition that you know the norms of who we are as a people can in fact supplement the law in a really important way and that's going to be an aspect of information management that I think we in our litigious world often forget I think Brian your comment brings up I think we should point it out more explicitly the best privacy rules change the incentives I think if you look at for instance the free breach notification laws the genius of them is they don't tell individuals how to secure data they simply say if you mess up and you spill data you're going to pay through this disclosure so it really shapes incentives greatly I've found that in particular with data aggregation companies they can figure out ways around any rule no matter how careful you are they find out ways of doing it and they will trick people into providing information etc changing the incentive model it's got to be part of the solution I would actually second that point you may ask what helped fix some of the privacy issues in our federal courts and it really wasn't the New York Times article and it wasn't the Senate investigation I'm convinced that mattered the most was the judge who fined the lawyer several thousand dollars for filing social security numbers and word has gotten out in the bar that if you file at least in that jurisdiction it's going to cost you a lot of money if you screw up and I think that makes a real difference that we care about that thank you very much so we have a few minutes left and I really just want to open it up to see if anybody has any closing comments or things they want to say about today we've got about 20 minutes so does anybody have any comments they'd like to make Tim Sam? I would say something about the privacy issues I think more than whether it's a social security number or a driver's license number it's the fact that it's their name getting out there when they're involved in litigation so most people have very few documents about themselves online and maybe when Charles has lots of them but most normal citizens they're not in the news all the time they're pretty much private lives and the courts are one places where you get your name out there along with interesting stories attached to your name because you're involved in middle litigation and it's extremely confrontational it's something which is often painful in both ways and what happens is this information gets out there and pretty soon that's the only thing you find out about this person on Google and it has nothing to do with whether someone is going to steal their identity or anything else it's just that this is it because they don't know how to protect their reputation online in any other way in many people they don't even know this information about them so I think the courts look through privacy issues beyond just sort of here's sort of data aggregation that might be done by choice points from these other companies it's how do they want if the stuff that gets out and indexed by Google around the internet how does that impact these individuals if I can see many people maybe not calling lawsuits for employment cases because they're afraid to have your name attached to an employment discrimination case even if they're totally sluggish and methodical just every other employer won't mind and so it probably impacts their choices as well so that's the one thing I want to throw out nothing just a different way of looking at privacy which might be totally open in terms of what the legalities are but it really impacts the people's lives I just wanted to make a comment in the way of my test about government openness technology and it's kind of how I found out about this movement before Carl invited me but I think that one of the most important things of activism of this type is to make sure that everyone knows about it because they have to hear it over and over again to realize what a good idea it is to get primary source materials building codes etc online for free and the way to do that is to if you're on Facebook post a status update about being there if you're part of newsletters or listservs to do that if you go to religious services to tell people about it because people have to hear something over and over to realize how good it is I mean part of my advocacy is around I don't want to see it take two or three generations to change because I think that the way we're headed we're going to crumble under our own weight so we can make change that one faster and the way to do it is to talk to people about it anybody else? Roberna? Mr. Bering? Any closing comments? Well thank you everybody for coming we'll have video up online probably by this weekend is a rough cut and then in a month or so we'll have a nice edited version of this workshop available so thank you very much for coming