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To prevent identity theft and other criminal uses of data as more court documents go online, the policy-making arm of the federal courts has approved a plan that requires attorneys to delete selected personal data, including Social Security numbers, from both their paper and electronic filings. The 27-member U.S. Judicial Conference, headed by Chief Justice William Rehnquist and including circuit and district judges from around the country, voted to make federal criminal case files more widely available electronically. At the same time, it adopted rules to keep out personal information that traditionally has been contained in those criminal case files. Attorneys, not court clerks, are responsible for redacting the information, and may face sanctions for failure to do so. Under the new rules, personal facts long available on bond sheets, subpoenas, transcripts, and pleadings will be omitted, including Social Security numbers, names of minor children, birth dates, home addresses, and financial account numbers. The conference, which met in September, did not set an immediate compliance date, allowing the judges time to evaluate how best to implement the policy. The U.S. District Court for the District of Columbia has adopted this proposal by the Judicial Conference and has put into effect a program of mandatory electronic filing. However, as the conference directed, information in these specified categories is excluded from electronic filing under Local Rule 5.4(f). In September 2001, the judicial conference directed that all such data, except for home addresses, be omitted from civil, bankruptcy, and appellate case files, both paper and electronic. That policy goes into effect on Dec. 1, 2003, for bankruptcy courts. The Judicial Conference’s policies are a response to privacy and security concerns raised during the federal courts’ march toward “paperless” courthouses, with electronic-only access to civil, criminal, and bankruptcy case files. Those believed most at risk in criminal cases are victims, witnesses, and cooperating defendants. In the works for three years, the policy also addresses security requirements established in the federal E-Government Act enacted last year. First Amendment lawyers interviewed for this article were not aware of the Judicial Conference’s redaction policies. They say, however, that the court’s security prescription is harmful to the idea of open courts. “If it were limited to information such as Social Security numbers or bank account numbers, that would make some sense,” says Sam Terilli, managing partner at Ford & Harrison in Miami and former general counsel for the Miami Herald. “But names, addresses, dates of birth � that’s routine information and that’s the sort of information that ought to be available to the press or the public.” Terilli predicts that the new policy is “likely to be ineffective because much of that information can be found out by other means.” Still, concerns about potential criminal and privacy violations are mounting as private “data mining” companies express interest in gaining access to the Public Access to Court Electronic Records (PACER) database. Clarence Maddox, court administrator and clerk of court for U.S. District Court for the Southern District of Florida, says data-mining companies recently have approached his office about access to court records. “They said they want to do us a service by putting the court files in a searchable format,” Maddox says. Such formatting would make possible new, potentially troubling ways of exploiting system data. For example, a searchable database would allow every unsealed document in every case file to be examined in order to compile lists of names and addresses. Maddox did not identify the companies, but says access was not granted. A spokesman for Miami U.S. Attorney Marcos Jimenez declined to comment on the judicial conference’s records redaction policies. NO TIE TO IDENTITY THEFT The Southern District of Florida has been a national leader in putting court documents online. In the late 1990s, South Florida was the first federal court district to make both criminal and civil document images available to subscribers of the PACER tracking system, which gives subscribers access to federal court records. Each district and circuit court maintains its own database. They feature online docket information, but not all offer access yet to actual case documents. Federal court administration records show that more than 40,000 attorneys and others nationwide have filed documents via the Internet, and that more than 10 million cases are now in the U.S. courts’ electronic case management system. About 270,000 individuals and groups have subscribed to PACER; that number is up from 40,000 subscribers in 1998. Meanwhile, identity theft has become a major national problem, and it is getting bigger. Thieves assume the identity of others without their knowledge to obtain credit, steal money, lease cars, get jobs, or mislead the police. “If somebody steals my identity, that’s trouble for me,” says Brian Spector, chair of the Southern District’s Ad Hoc Committee on Rules and Procedures, which has studied the records redaction issue. “If someone takes my name and uses it to sneak into the country, that’s bad for everyone.” Spector is a partner at Kenny Nachwalter Seymour Arnold Critchlow & Spector in Miami. A recent study by the Federal Judicial Center, the education and research agency for the federal courts, however, found no evidence that the availability of federal court records online has triggered any security issues for persons involved in criminal cases. “The bottom line is that no one has been harmed by it,” says David Sellers, a spokesman for the Administrative Office of the U.S. Courts in Washington. BURDEN ON LAWYERS In South Florida, Chief U.S. District Judge William Zloch, who sits in Fort Lauderdale, authorized e-filing for all civil and criminal cases in a Sept. 23 order that took effect immediately. The court first began accepting electronic filings on a limited basis in August 2002. Since the judicial conference established the redaction policy for civil cases last year, court officials in South Florida and elsewhere have studied how best to implement the policy in their jurisdictions. “It’s coming. It’s not here, yet,” says Southern District Clerk Maddox. “There are some real practical and operational problems.” “We’re getting everything ready to be prepared to comply,” says U.S. Bankruptcy Court Clerk Karen Eddy in Miami, whose office does not yet offer document images online but could by next summer. Eddy says bankruptcy court forms, both paper and electronic, are being changed to omit the information, including Social Security numbers. But the court will collect and keep written affidavits containing that information. Those paper records will not be available to anyone other than court officials, but creditors still will receive the Social Security number of a debtor at the outset of a case to allow for verification of identity, she says. At the U.S. Court of Appeals for the 11th Circuit in Atlanta, implementation means that attorneys who need to file protected personal data soon will be required to file two versions of their pleadings with the court. The redacted copy will be available for public inspection, while the version containing the personal data will be for judges’ eyes only, says 11th Circuit Court Clerk Thomas Kahn. The burden of complying with the judicial conference’s directive was put on practicing lawyers, not clerks. A report prepared for the conference last May explained why. “Clerks’ offices have neither the personnel nor the training and experience to redact each filed document,” the report said. Combing through hundreds or thousands of pages of documents and transcripts to locate and destroy all references to forbidden facts would seem to present a formidable challenge to attorneys. But Spector says lawyers already routinely do that when protective orders are outstanding in a case. “There is some degree of burden,” he says. “The question is whether it is unduly burdensome, and I don’t think so.” It’s unclear what the South Florida district might do to lawyers who fail to comply, Spector says. In the Middle District of Georgia, however, this warning recently was posted: “Counsel and the parties are cautioned that failure to redact personal identifiers and/or the inclusion of irrelevant personal information in a pleading or exhibit filed with the court may subject them to the full disciplinary and remedial power of the court, including sanctions.” WANT TO REDACT MORE There are indications that the judicial conference wants even more personal data withheld from online federal court records. For example, a recently posted notice on the PACER online site for the Middle District of Georgia urges filers to “exercise caution when filing documents that contain the following: personal identifying numbers, such as driver’s license numbers; medical records, treatments and diagnosis; employment history; individual financial information; and proprietary or trade secret information.” “They want to redact more,” says one defense attorney familiar with the Judicial Conference’s policy who didn’t want to be named. Thomas Julin, a media attorney and partner at Hunton & Williams in Miami, expressed a mixed reaction to the judicial conference’s new redaction policies. He says there has been pressure to take court documents off the Internet and PACER. The judicial conference’s new policy, he says, “is a good thing if it’s used to preserve access to records that would otherwise be sealed. I do have a concern, though, that this is going too far, that it may be stripping from the public record important information.” While court officials move to seal off certain data in court records, market forces are moving in the opposite direction. Kahn, clerk of the 11th Circuit, says there’s growing interest from private corporations in disseminating information contained in court files. The Stamford, Conn.-based Thomson Corp., publisher of Westlaw, is trying to put court briefs online for active cases, not just closed cases, Kahn says. “They’d like to get them early, but the only way now is to pay for a copy and scan it in themselves.” All this could lead to new logistical and legal worries for attorneys. Spector says it’s possible that lawyers could be held liable if someone is injured or killed as a result of their failure to omit personal references from court filings. “We’re really traveling on fertile ground here,” he says. Dan Christensen is a staff writer at the Miami Daily Business Review, a newspaper affiliated with Legal Times and where this article first appeared.

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