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Washington-As court records increasingly become fodder for data brokers and others collecting information, the federal judiciary is moving into a new phase of implementing privacy protections for court filings. A public comment period ended just over a week ago for proposed changes in federal civil, criminal, bankruptcy and appellate rules. The changes were designed to conform to the E-Government Act of 2002, which directed the federal courts to provide electronic public access to court records and to establish rules to protect the privacy and security of personal information. As some of the comments show, the judiciary faces a tough balancing act in granting public access and ensuring privacy: Stripping an individual’s date of birth from federal criminal court records will hamper background searches for employers and landlords, warns the National Association of Professional Background Screeners. Years of birth and minors’ names should remain public in federal court records because they are of legitimate interest to journalists investigating abuse or wrongdoing, contends The Reporters Committee for Freedom of the Press. In addition to Social Security numbers and dates of birth, home addresses, telephone numbers and mother’s maiden names should be redacted because they are used by the credit industry to “authenticate” individuals for new accounts, and their availability exposes individuals to identity theft, says the Electronic Privacy Information Center. State courts, too, are experimenting with ways to protect personal information, said Peter A. Winn, an assistant U.S. attorney in Seattle who teaches privacy law part time at the University of Washington School of Law and who filed comments on the proposed rule changes. “There’s a broader range of experimentation going on at the state court level than at the federal court level,” said Winn. “But the federal courts, to an extent, got out the door first because they had the PACER [electronic access] system in place.” At the same time, information security breaches in the last year or two by such commercial data brokers as ChoicePoint and LexisNexis have spurred some in Congress to push legislation to regulate their activities and impose additional protections for consumers. In the U.S. House of Representatives, Bill H.R. 4127-the Data Accountability and Trust Act-is gaining traction, according to legislative watchers. But some data brokers are lobbying for an exemption in the bill for information contained in public records, said Chris Hoofnagle, director of the Electronic Privacy Information Center’s San Francisco office. “The data brokers are banking on the courts and government to pour personal information into the public record so that it can be sold with no privacy protections,” he said. The Judicial Conference of the United States, the policymaking arm of the federal judiciary, adopted a privacy policy for court records in 2000, noted John Rabiej, chief of the Rules Committee support office at the Administrative Office of the U.S. Courts. But the E-Government Act requires the judiciary to draft rules to protect personal information, hence the proposed changes that, along with the public comments, now go to their respective rules advisory committees for review. The proposed rule changes make attorneys the “front line” in protecting sensitive information in court filings, said Winn, because Congress, in enacting the E-Government Act, failed to appropriate any money to the judiciary for privacy-enhancing technology. “We’ve got this antiquated information system here-PACER-and it wasn’t designed with these kinds of problems in mind,” said Winn. The really good lawyers will focus on the privacy concerns of their clients, he added, but the reality is that most lawyers won’t because “we’re all used to having our papers locked up in filing cabinets.” The proposed rules, he said, take some of the onus off attorneys by creating a presumption that certain data should not be placed in the court record, such as Social Security and tax-identification numbers, names of minor children, birth dates and financial account numbers. They also allow courts to order redaction of additional private information and to enter protective orders limiting remote electronic access to certain records to the parties and their attorneys alone, with public access only “at the courthouse.” The latter approach is proposed for Social Security and immigration cases. While limiting electronic access and permitting at-the-courthouse access in some cases may appear to balance competing interests, it really creates a loophole for sophisticated data aggregators who have the resources to visit courthouses and scan paper records, which then are made “electronic,” said Hoofnagle. And it blocks “socially beneficial use of the courts’ files” by journalists, scholars and others, wrote Public Citizen Litigation Group, The Reporters Committee and others. H.R. 4127 addresses some concerns by establishing notification procedures for breaches of information security by those who own or possess personal information in electronic form, and by giving the Federal Trade Commission authority to regulate data brokers. Representative Jan Schakowsky, D-Ill., ranking member of the House Energy and Commerce Committee’s subcommittee on commerce, trade and consumer protection, has been involved in strengthening the bill, which was reported out of the subcommittee to the full committee in November on a partisan vote. It still needs much work, according to Schakowsky’s staff and others. She believes the bill’s trigger for notifying consumers of data breaches is set too high, requiring a significant risk of unauthorized access. Said Hoofnagle: “[T]he courts are doing the rational thing in pushing the responsibility off of clerks and on to litigants . . . .This issue is being battled in every state and sometimes in counties within states. And the data brokers are always at the table.”

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