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Article Excerpt
Introduction
I. Background A. The Rise of Electronic Access to Judicial Documents 1. The Demise of "Practical Obscurity" 2. The Judicial Conference of the United States: Policy on Privacy and Public Access to Electronic Case Files 3. Federal Rule of Criminal Procedure 49.1 4. Lingering Concerns of Nonparty Remote Electronic Access to Criminal Case Filings B. The Rights of Access to Judicial Documents 1. The Common Law Right of Access to Judicial Documents 2. The Constitutional Right of Access to Judicial Documents II. Competing Approaches to the Challenges Presented by PACER A. Public Is Public: Extend the Presumption of Access to the Digital Domain B. The Medium-Based Approach: Restrict Nonparties' Remote Electronic Access 1. Background 2. Recent Applications of the Medium-Based Approach C. The Exclusion Approach: Exclude Plea Agreements from the Public Record 1. First Amendment Right of Access Analysis 2. Common Law Right of Access Analysis III. Recommendation Conclusion Appendix: Survey of the Electronic Access Policies of the U.S. District Courts A. Survey Methodology B. Survey Results Table 1. Listing of common models of access to plea agreements and courts that apply these models
INTRODUCTION
Arrested for interstate drug trafficking in New Mexico, "Stewart" agreed to cooperate with authorities and testify against his codefendants. (1) The government filed Stewart's plea agreement with the court, and an electronic version became available for download on the Public Access to Court Electronic Records ("PACER") service. (2) Shortly thereafter, Stewart's PACER files were featured on whosarat.com, (3) a website that claims to have exposed the identities of more than 4,300 cooperating witnesses and 400 undercover agents. (4) In an effort to intimidate Stewart from testifying, his codefendants plastered the whosarat.com materials, which labeled Stewart a "rat and a snitch," (5) on utility poles and windshields in Stewart's neighborhood, and sent them by direct mail to residents in the area. (6) As a result, Stewart was forced to move to an undisclosed location, and the FBI opened an investigation into the matter. (7)
Such widespread electronic access to case files gives rise to security concerns previously unrealized in the era of paper records. As the United States Department of Justice noted, the emergence of a "cottage industry" of websites that republishes court filings online for the purposes of witness intimidation, retaliation, and harassment poses "a grave risk of harm" to cooperating witnesses and defendants. (8) Accordingly, the benefits associated with the remote electronic availability and dissemination of judicial documents may come at a considerable cost. (9)
This Note describes the options that district courts within the Second Circuit could implement sua sponte to mitigate these concerns. (10) For example, courts may adopt a local rule or protocol that curtails electronic access to plea agreements in response to the risks effectuated by PACER. This medium-based approach suffers from a number of practical and legal deficiencies, including the violation of Federal Rule of Criminal Procedure 49.1, which does not permit categorical protective orders. Alternatively, rather than modifying access rights depending upon the medium through which access is sought, courts may seek to prohibit all access to sensitive filings through categorical sealing measures. This approach is unworkable in the Second Circuit, which requires case-by-case determinations with respect to motions to seal. Finally, courts may choose to reconsider which documents ought to be maintained in the public record. This Note concludes that the last option is preferable due to its ability to withstand scrutiny under both the access doctrine and Federal Rule of Criminal Procedure 49.1.
Part I of this Note outlines how electronic access to court filings has altered the traditional balance between disclosure and privacy, and addresses the concerns associated with providing electronic access to plea agreements. Part I also outlines the qualified rights of access to judicial documents under the common law and the First Amendment. These qualified rights may constrain the operation of proposals that would limit nonparty remote access to court documents, a subject which is examined in Part II. Finally, Part III argues that electronic access to court filings should be governed by the same standards which regulate access to paper filings, and that the proper inquiry is whether certain sensitive documents ought to be included in the public record at all. More specifically, Part III recommends that plea agreements should not be filed with the court.
I. BACKGROUND
A. The Rise of Electronic Access to Judicial Documents
Part I.A.1 of this Note discusses the implementation of the PACER system, which permitted nonparties to access judicial documents electronically. Part I.A.1 also examines the security and privacy issues that may result from such access. Parts I.A.2 and I.A.3 outline the manners in which the Judicial Conference of the United States and the Federal Rules Committee, respectively, have responded to these issues. As Part I.A.4 discusses, however, a number of concerns remain prevalent. The remainder of the Note seeks to address the various policy alternatives that may mitigate these lingering concerns.
1. The Demise of "Practical Obscurity"
Prior to the implementation of systems permitting remote electronic access to judicial documents, the public's ability to inspect court records depended on physical presence at the courthouse. (11) The inherent limitations of paper recordkeeping thus rendered public court filings "practically obscure." (12) The transaction costs of document retrieval served as disincentives to pursuing access, since records acquisition involved traveling to the court, waiting in line at the clerk's office, filling out the necessary paperwork and paying the applicable photocopying charges. (13) Even if an individual were not deterred by these inconveniences, the disorganized and often un-indexed nature of records themselves constituted a barrier to access. Paper documents were not infrequently "lost, disassembled, or misfiled," (14) and were susceptible to a natural process of decay (15) that further limited the opportunity for public access. This "practical obscurity" often insulated litigants and third parties, whose personal information (16) appeared in court filings, from harm that could result from the misuse of such information. (17) Accordingly, litigating in federal court did not seriously threaten the security or privacy of most people despite the qualified right of access to court filings. (18)
Technological innovation eroded this "practical obscurity" safeguard. (19) In 2002, the federal judiciary began to implement the Case Management/Electronic Case Files ("CM/ECF") system, (20) which allows litigants to file pleadings, motions and petitions over the Internet, and permits courts to maintain case documents in electronic form. (21) As of August 2007, over thirty-one million cases throughout the country are on CM/ECF systems; ninety-nine percent of the federal courts currently use these systems. (22) CM/ECF also provides courts with the ability to make judicial documents accessible to the public. (23) Remote electronic access is available through the PACER service, which allows users to obtain docket information and judicial records from federal appellate, district and bankruptcy courts via the Internet. (24) PACER facilitates the research process through its U.S. Party/Case Index feature, which permits nationwide searches to determine whether a party is involved in federal litigation. (25) Anyone with an Internet-equipped computer may access PACER from anywhere in the world, at any time, at a cost of eight cents per page downloaded. (26) The federal judiciary's adoption of CM/ECF and PACER has thus eliminated the shield of practical obscurity from what previously were "nominally" public court files. (27)
While CM/ECF and PACER have numerous benefits, (28) the Supreme Court has recognized the troubling aspects of state-sponsored computerized information storage. In United States Department of Justice v. Reporters Committee for Freedom of the Press, a Freedom of Information Act case, (29) the Court noted that there is a "vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations, and a computerized summary located in a single clearinghouse of information." (30) In Whalen v. Roe, the Court elaborated on the harmful possibilities that such a computerized clearinghouse creates. (31) In that case, physicians and patients challenged a state law requiring that prescriptions for dangerous medicines be disclosed and retained electronically by the state for five years. (32) Although the Court determined that the law at issue was a reasonable exercise of the state's police power, it nonetheless emphasized the risks associated with computerized data collection. (33) The Court explained that
[w]e are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. (34)
In a concurring opinion, Justice Brennan explained that the central storage and accessibility of electronic data "vastly increase[s] the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology." (35)
The Court's early discussions about the potentially harmful effects of technology on the adjudicatory process remain relevant following the implementation of PACER. In this era of remote electronic access to judicial documents, the "danger of mischief is serious." (36) The prospect of unlimited electronic dissemination of sensitive information contained in case files implicates privacy and security concerns in a variety of contexts. For example, the online availability of tax returns and medical or employment records--which case files often contain--may facilitate identity theft, (37) stalking, harassment and violence toward victims. (38) These security and privacy issues give rise to a new chapter in the access versus closure debate.
2. The Judicial Conference of the United States: Policy on Privacy and Public Access to Electronic Case Files
In response to the foregoing issues, the Judicial Conference of the United States (39) ("Conference") undertook to develop a privacy policy for public access to electronic case files. (40) The Conference formed a Privacy Subcommittee ("Subcommittee") under the Committee on Court Administration and Case Management ("CACM") to develop a nationwide federal court electronic access privacy policy. (41) Based on public comments and information from academics, judges, court clerks and government agencies, the Subcommittee recommended a policy that the Conference adopted in September 2001. (42)
The 2001 Report addressed civil, criminal, bankruptcy and appellate case files separately. The Conference determined that, in civil cases, documents should be made available online to the same extent that they are available at the courthouse, with two exceptions: Social Security case files should not be accessible electronically, and personal identifiers (43) should be partially redacted depending on whether the particular document is filed electronically or at the courthouse. (44) Two main policy concerns underlie this "public is public" approach. First, the Conference sought to "level the geographic playing field" by facilitating access to court documents for attorneys not located in geographic proximity to the courthouse. (45) Second, the Conference sought to discourage the development of a "cottage industry" of data re-sellers who, if remote access were restricted, would travel to the courthouse, copy the files at issue, publish the information on a website and profit by charging access fees. (46)
The 2001 Report recommended the prohibition of remote electronic access to criminal case files, with the understanding that the Conference would revisit the issue within two years. (47) The Conference determined that the safety and law enforcement risks of providing electronic access to criminal files outweighed the benefits (48) of access. The 2001 Report warned that information in criminal case filings could "very easily be used to intimidate, harass, and possibly harm victims, defendants and their families." (49) Further, the Conference found that remote electronic access to criminal case files could "increase the risk of unauthorized public access to pre-indictment information, such as unexecuted arrest warrants and search warrants." (50) Such access could "severely hamper" law enforcement investigations and pose a "significant" safety risk to law enforcement officials. (51) The Conference also advised that sealing documents containing sensitive information would "not adequately address the problem, since the mere fact that a document is sealed signals probable defendant cooperation and covert law enforcement initiatives." (52)
Pursuant to the 2001 Report's recommendation for further study of the issue in the criminal context, the Conference established a pilot project allowing eleven courts to provide remote electronic access to criminal case files. (53) The two-year study found no instances of harm resulting from remote public access. (54) Moreover, when judges were asked about restrictions on access to criminal documents, 57% of the district judges and 56% of the magistrate judges responded that there should be unlimited remote public access to non-sealed criminal case documents. (55)
The results of the pilot program led the Conference to conclude that the benefits of remote public electronic access to criminal case files outweighed the potential risks of harm. (56) In 2003, the Conference amended its policy to provide that criminal filings be made available electronically to the same extent as at the courthouse, with the requirement that personal identifiers be partially redacted. (57) Under the amended policy, criminal case filings are treated in much the same way as civil documents; fliers must redact portions of certain personal information prior to filing. (58) However, due to security and law enforcement issues associated with criminal cases, the Conference provided that certain documents, including cooperation agreements, should not be included in the public case file at all. (59) These documents should thus be unavailable to the public, both at the courthouse and via remote electronic access. (60) The Conference further emphasized that courts maintain the discretion to seal any document or case file sua sponte. (61)
3. Federal Rule of Criminal Procedure 49.1
The E-Government Act of 2002, (62) enacted after the Conference determined its initial policy on electronic access, requires that the Supreme Court adopt rules "to protect privacy and security concerns relating to [the] electronic filing of documents and the public availability ... of documents filed electronically." (63) In order to implement this privacy provision in the criminal context, the Committee on Rules of Practice and Procedure drafted Federal Rule of Criminal Procedure 49.1, which derived from the 2001 Report's "public is public" policy. (64) The Rule became effective December 1, 2007. (65) Entitled "Privacy Protection for Filings Made with the Court," the Rule contains, in pertinent part, the following guidelines:
(A) REDACTED FILINGS. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, a financial-account number, or the home address of an individual, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials;
(4) the last four digits of the financial-account number; and
(5) the city and state of the home address.
(D) FILINGS MADE UNDER SEAL. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.
(E) PROTECTIVE ORDERS. For good cause, the court may by order in a case:
(1) require redaction of additional information; (66) or
(2) limit or prohibit a nonparty's remote electronic access to a document filed with the court. (67)
The Rule's provisions for filing under seal and issuing protective orders require the application of differing standards. For example, pursuant to subdivision (e), (68) courts shall issue protective orders only on a case-by-case basis. (69) The Advisory Committee modeled the "good cause" requirement of subdivision (e) on the "flexible" standard for the issuance of protective orders set forth in Federal Rule of Civil Procedure 26(c), which employs the phrase "[f]or good cause shown." (70) Thus, the implementation of a local rule that broadly prohibits a nonparty's remote electronic access to certain documents filed with the court would violate the Rule's requirement for case-by-case determinations. Such a local rule would be invalidated under Federal Rule of Criminal Procedure 57, which requires that local rules be consistent with federal rules adopted under 28 U.S.C. [section] 2072. (71)
Although subdivision (e) establishes a nationwide standard for protective orders, subdivision (d) does not purport to do the same for sealing court filings. The rule-makers determined that the standard for sealing is well established by case law, and that the lack of uniformity among the circuits would preclude the adoption of any single standard in Rule 49.1(d). (72) The Committee Note to Rule 49.1 explains that the requirement in subdivision (e) for case-by-case determinations is not intended to affect the limitations on sealing that are already applicable pursuant to circuit law. (73) Thus, if a particular circuit calls for sealing on a case-by-case basis, so too does Rule 49.1(d). However, circuits that permit across-the-board sealing would not be in violation of the Rule; blanket sealing of documents such as motions for downward departure for substantial assistance and cooperation agreements may be accommodated under the sealing provision of subdivision (d). (74) AS the Committee Note reflects, sealed documents are not included in the case file, and thus are inaccessible to the public, both at the courthouse and via remote electronic access. (75)
4. Lingering Concerns of Nonparty Remote Electronic Access to Criminal Case Filings
In November...
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