 Move on to our next panel now, which is the technical term. So there are certain areas of the technical term we have for these are a radical. Authenticity is one of them. We can discuss authenticity all day and never finish that discussion. Privacy 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 lots of 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 Act. 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 was And Epic, one of the leading electronic privacy information center, has really carried the torch for privacy of the electronic age for ages. He is now on the faculty of the University of California. Peter Witt is a deputy attorney, an 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. Yeah. Carl and I are holding down the, we're wearing a suit and tie just to show that suit and tie still exists. I got it. 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, 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 the Legal Information Institute at Cornell, some of whom probably many of you know it, 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 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. I'll be there. I guess the point I want to make today is how difficult and complicated the problem is. OK, 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 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. But even before we had what we call a rational judicial system, where we work 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. 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. And the sensitive information is critical for the truth-finding function of the judicial system. People believe, and participants in the judicial system are not simply parties. We're talking about jurors. 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. 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 governments 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 the secret formula for making atomic bombs. And sometimes that gets into a judicial dispute resolution process. So 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 in 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. So the basic problem that we have is we want a transparent system that protects sensitive information. We want to have our cave. We want to eat it, too. 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. It's practically obscure is the magic word. And 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 at the courthouse. 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. He can't see it. This is, I mean, generationally, that's the way it was when I graduated from law school in the 80s. OK, 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. And 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. 800 years later, we've kind of worked out this balance. The reason why I want 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. OK, 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, because they too, when they found out that I was like interested in this issue and you're triggered, suddenly you're helping them, whether you like it or not. An Article 3 judge calls you up and asks you to help you. You don't say no. But the thing about the federal system, before I start talking about the federal system, 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, I mean, a good example is, 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, and we have half the state. They just have a single county. They're doing 50,000 cases a year. So this gives you an idea about just how representative this sample is. Also, the federal courts don't do divorces, where you really, and you don't do juvenile cases. I mean, we do one juvenile case in 2000. 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 prosa. 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. And no site formation or clerk for judges. I mean, even when they do have lawyers, you're dealing with a different class. And you're dealing with people who aren't doing double backflips and have twists on the back of the law. All right, so federal system. The federal system had the benefit of being a guinea pig. It jumped into the deep end of the Soins Bowl before. Largely because nobody knew what they were doing. And so they went to the Pacer system. And it's called Pacer or ECF. 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. Winn, did you intend to file this pleading with this big list of social security numbers of your patients who are the subject of your life, of your enforcement procedure? I said, no, I didn't. And you would be in the clerk's office the next day or that afternoon 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. 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. I mean, 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 researchable. You have to have a credit card to get access and even if the opinions are free, you're going to be charged for the search. So there's a lot of dysfunctional aspects about the Pacer system. But 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 sensitive 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 I think you've got 20% of the Pacer system on a sort of controversial process where a lot of stuff was downloaded from a public site. And then he searched. He did an audit. I haven't 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 and pleadings, even though there was a rule that said thou shalt not do that. And it hit the radar screen of the judges when it was on The New York Times. And three weeks ago, I basically gave a talk to the judges. The judicial conference had 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 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. That's bad, bad idea. So when you get an issue tea up before them, they will make a rational decision. They are used to making decisions. And they are pretty good at making reasonably fair, articulate decisions. You may or may not agree with it, 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 the system, keep the information out of the system to start. Don't put social security numbers in your pleadings. Redact them if you have to. There's a second strategy, which is, of course, that's just like the old paper system. There's a second strategy as well, which is sealing. Just lock it out entirely. File it, but nobody can have access to it but the parties. 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, I mean, if I want to low 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 had Carl and a lot of people. I actually proposed 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 on 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 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 are criminal procedure, civil procedure, bankruptcy procedure, and appellate procedure. And all those four sets of federal rules have adopted this idea, which is for a clause, which is a much lower standard than for a compelling reason, which is the standard for sealing the document. For a clause just means you have to have a 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 administration, I'm sorry, social security and immigration cases are filed today. Particularly the administrative file, or these are appeals from the agency that is basically set graced 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 not going to, 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 is so damn obscure, nobody's tried it. But maybe the lawyers will try it and we'll see whether this operates as sort of a stopgap measure. I'm not sure. So these four, there are four strategies. There are, 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, so it's a 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 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 gonna get a paste or 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 with judges, most of whom don't file their own case, pleadings, they have their secretaries to them. The third area is technology. And technology, better technology can help, okay? And better understand you, 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. 10 years ago, it was the greatest thing some sliced bread, okay? There are technologies that can help identify sensitive information that can be better used. Is it just, I mean, I'm in San Francisco and like reaching 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 to 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 gonna ultimately get better if 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 gonna 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 a lawyer's going to court and have an agreed order to seal a settlement, even though it's a mass tort that's a matter of legitimate public concern? Well, the judge is gonna sign that order, nine times out of 10. 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 and theory 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 gonna be focused on that? No, they aren't. 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. Okay? That's obvious, right? If the system is there to resolve disputes, the people who aren't represented are gonna 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 nuisance doctrine to resolve pollution issues. We didn't, 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 wanna 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 it, NEPA and you do environmental impact statements. And you basically, 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 and get everybody to try to identify who's gonna get hurt when we do this. And you muddle through. That's what the states have been doing, by the way. They watch 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. 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 or the front end rather than the back end. 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 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 a warrant of a guy's house and we find a ton of, say, cocaine in there. All right? No exceeding circumstances. We just suspected the guy was a drug dealer. He files a motion to suppress and it's gonna 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 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 wanna 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, 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 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 you, 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 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 the guy's house. There's a due process issue here if we get it wrong. Courts, art, information, management, machines, that's what they do. They manage information to direct the power of the government. And issue these judgments, that either I'll ask 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, the 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, juror, the goal was to get the truth, right, not to be despairing his idea, this idea of rights he made fun of. But, you know, and we can go to a Benthamite Panopticon in the law. We can simply say, we're just gonna 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 sensitive information in a meaningful way and then go into the system to get those future results. Let me just shut up because I've been going on a little too long. That's the trick. I mean, we have to have the information in public. We can do a much, much, much, much better job at getting the public. And we also have to protect the sensitive information. It's easier said than done, but we need to level through. 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 went, 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. 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 where are the courts and where are the actors in the court want privacy, they get it, they can't. You focus on it, 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 of 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 suit in it. 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've read, I actually, some of them I talked to, they didn't realize it was Jane Roe of Roe vs. Wade. They didn't realize it was Jane Roe of Roe. And I think if you look at that case in a court on its own, substituted Roe, or the District of Texas, so it was practice. So it was not a movement of parties, as I understand it. It was the judge. It was the judge. And so will lawyers try it? Well, they gotta 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 out this fall. So I wanted to throw out some thoughts about this issue generally. One thing to think about and considering the public records problem or the court records problem, 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 personal, 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 the investigator with access to the DMV. There, actually almost all the victims are women, 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 that a 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, et cetera. 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, a lot 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, they are free to scan it. 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 and 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 a rental vehicle record. Number one. Number two, you voluntarily did that. You voluntarily surrendered your license to that company. You see the same problem with swiping. If you go to a bar or you 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 it into the parking lot, that's because you're doing not a plate recognition. Wouldn't it make sense to sell that data? Why wouldn't you sell that data? It's out the side of DPPA. There's a lot of people who pay you a lot of money for it. So one challenge is that even when you enter a kind of command and control type regulatory regime, people still find ways to get around collection of restraints. Another big challenge one has in this area is unmasking the type of the liberal ends that are presented as liberal arguments. 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 Big Brother system are gonna come in under the mantle of the First Amendment and transparent government to get access to personal information in government records. So 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, personal information 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 was the screening numbers, they should be in the public record. So they enlarge the scope of the public record and then argue that the enlargement no 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 the model legislation proposed by data companies, they want to make it so that a company cannot be liable for ever disclosing the information in a public record. Now that sounds reasonable, okay? But it also means that the newspaper chooses to publish a birth announcement that includes your mother's maiden name and your date of birth. That is a public record. There cannot, if your bank later leases 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? Not sure if that rule all would have predicted that. And then it would, everyone's social security number would be in the public record, et cetera. 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 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 data brokers and say, don't sell my home address anymore. You're a police officer, if you're a judge, prosecutor, legislator, et cetera. You can shield your home address. And a lot of that is being driven, I think by a problem that Peter mentioned, the problem of 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 gonna be in the category of people who are gonna 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's house was burned down by an animal rights activist and another family was attacked in their home. So both on the left and the right, we're seeing this kind of, basically the 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 gonna 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 Clearinghouse. Any of you have heard of that? It's known as TRAC. Okay, 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, sorry, but the Department of Justice will say that they're doing this or that. And David Burnham will say, you know, actually they're not really doing that. Or 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. Picky, picky, picky. I mean, the most recent one is identity theft. You know, identity theft prosecutions up when you dig under, it's really just prosecutions of undocumented workers, not financial fraudsters. So there are examples of where government data can be, 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 private privacy advocates who are suggesting let's just publish all social security numbers. And the problem we have in social security world is it's used as both the password and it identified by makes it's used as both. So if we publish them all, perhaps they'd stop doing that. Perhaps we could remove some of the harm from any burden disclosures of the SSN. That's, I mean, 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, well 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 fly of a potential 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 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 mind, or three Crystal Fnogels in the US, you could very easily see the disambiguation problem. Finally, 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, you know, mug shots of people who are merely arrested, you're basically creating a great database of people who are gonna have problems getting jobs forever. And they're gonna have problems getting jobs relative to people in other states. At University of California, our UCPD, our police department, they actually publish the full text of their activity law. 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 complaint in Crystal Fnogels. Would you like to Google that and come see me sometime? A little self help. 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, you see it's gonna suffer from such a policy. Well, the other, there's two things that are going on. I don't wanna interrupt, but there's, one of the things, when Carl identified violations of the rules in the federal system that 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 is what happened at that point is the lawyers that had filed those complaints were immediately contacted by the clerks, and then they took steps to remedy the problem by correcting the pleadings and offending the pleadings for taking 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 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, okay? So this is a complex, what you get is complex, counterintuitive information back 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 that we're always 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, okay? So information is a really complex animal. A good example is, okay, so who'saract.com is a website that isn't bulk data. It's a wiki site where people are basically just uploading information about cooperating co-dependence and undercover law enforcement officers, largely to encourage self-help in prisons or to prevent people who might be about to buy some dope from it or sell some dope to an undercover law officer. What happened is, when that website became a concern for the judges, they started taking plea agreements offline, so because a lot of the information about the cooperating co-dependence activities would come up in their sentencing process, the sentencing plea, it's a plea agreement and a factual resume, the factual resume would largely summarize the assistance that the defendant, who's gonna be sentenced, has provided that it'll allow the prosecution of these other individuals. Well, if that is up online in a convenient way, the guy's gonna get whacked in prison, okay? So what the response was to take that and just not file it, okay? 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 U.S. Attorney's Office to get it, okay? Now, that is a terrible solution. I mean, this is really not DOJ, the 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's son, right? That's what has to be, that's a critical judicial record that needs to be in the public domain, all right? So these simple things, I mean, what's gonna happen as more and more horror stories happen is they're gonna pull stuff offline so it will no longer be subject to public oversight and that's gonna be a tragedy. So we have to come up with a better information and in the structure, then either don't file it or let everything go online because there will be consequences that are gonna 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 because it's just not, it's not something that exists in the paper world so people aren't comfortable trying it out. So they don't, okay? The habits of a generation take two or three generations to change in terms of behavior and behavior is probably the biggest problem here. And then the issue that I think is from a legal point of view, probably the most interesting maybe it ultimately won't matter is the social of downstream controls. I argued that maybe the PACER website should have a site license that says you should only use this for legitimate purposes and you shouldn't use it to like whack people, right? And I thought, well, 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 down, I mean, the idea of taking anybody who accesses information on a site, on a PACER system or any court system and saying, well, you'd have to adhere to the Fair Credit Reporting Act. Maybe we could do that with both data users like Westlaw and Lexis, at least maybe with they, if we've 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 gonna, just having rules sort of creating downstream responsibility, even if it's restricted to data miners or both data users. I don't think that's, I think you defend it legally, but as a practical problem, I don't necessarily think it's gonna 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 to get rid of. By the way, I'm fully in favor of the anti-wacking ULI, I think that's a great answer. Any questions? We've talked to each other for 30 seconds. Thank you, I just take another. We'll do a five minute wrap up and then after that we're simply gonna do closing comments and then we'll be done. We'll get you out of here at three o'clock.