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A panel of federal judges appears to have struck the middle ground in a debate between open government advocates and privacy experts on the subject of electronic access to court documents. On Aug. 15, a 14-judge committee recommended that the Judicial Conference of the United States, the policy-making arm of the federal judiciary, allow documents in civil cases to “be made available electronically to the same extent that they are available at the courthouse.” The panel suggested several significant exceptions, however. Social Security case files should not be distributed electronically, the report said, and “personal data identifiers” such as Social Security numbers, birth dates, financial account numbers, and names of minor children should be modified or partially redacted. Criminal case files should also be kept off the Internet for now, the judges recommended, citing “safety and law enforcement risks” that could be created by such access. The panel urged the conference, headed by Chief Justice William Rehnquist and including judges from the 13 circuit courts, to revisit the issue of criminal case files within two years. Despite the calls for redactions and a ban on releasing criminal case files, some open government advocates were pleased with the judges’ report. “This is quite honestly better than I had hoped for,” said Lucy Dalglish of the Reporters Committee for the Freedom of the Press, who had said access to online documents should be treated exactly the same as if one saw them in a courthouse. Indeed, the federal judiciary has often been slow to embrace the Internet and open access. The Supreme Court, fearing hackers and unauthorized access to its computers, did not launch a Web site until April 2000. Also last year, the Internet news service APBnews.com had to sue the Judicial Conference before the judges would agree to provide redacted versions of their personal financial disclosure forms to be published on the APBnews site. Dalglish acknowledged that the spread of financial identity theft made redactions of Social Security numbers reasonable, although she urged that the redactions be partial, leaving the last four digits readable. Similarly, Dalglish said she did not understand why birth dates should be shielded, noting that such information helps news reporters distinguish between people with similar names. As for the recommended ban on releasing criminal case files, Dalglish said she was encouraged that the idea would be reconsidered. “This is a whole lot better than it could have been” added Kevin Goldberg of Washington, D.C.’s Cohn and Marks, who represents the American Society of Newspaper Editors. But Goldberg took issue with the report’s finding that criminal case files should not be released. The report said that information in criminal case files could be misused by defendants seeking information about other defendants who were cooperating with the government. Goldberg, though, notes that if a defendant or his lawyer is smart enough to check online for the files of other defendants, “what’s to keep them from going to the courthouse on their own?” When the Judicial Conference last year asked for public comment on the issue, privacy experts said they feared that widespread access to court filings could be easily abused, by embarrassing litigants or others mentioned in filings or by subjecting litigants who were about to reap financial awards to calls from marketers hawking investments. Christopher Wolf, who specializes in Internet privacy law at the D.C. office of New York’s Proskauer Rose, sounded pleased with some of the personal data protections suggested by the committee. “A balance needs to be struck between free access … and personal privacy,” he said. Despite the protections suggested, Wolf predicted that as courts move to put more documents into cyberspace, lawyers will more often ask judges to seal documents. The full Judicial Conference will consider the report and recommendations when it meets on Sept. 11 in Washington. Even if the conference adopts the subcommittee’s recommendations, federal courts would not be bound by it. However, courts tend to follow the recommendations of the conference. The Judicial Conference’s Committee on Court Administration and Case Management is chaired by Judge John Lungstrum of the U.S. District Court for the District of Kansas. Lungstrum also chaired the subcommittee that prepared the report. The full committee includes: D.C. District Judge Gladys Kessler, Judge Ilana Rovner of the 7th U.S Circuit Court of Appeals, Judge Sandra Lea Lynch of the 1st U.S. Circuit Court of Appeals, Chief Judge Harold Albritton III of the Middle District of Alabama, Chief Judge Allan Edgar of the Eastern District of Tennessee, Chief Judge Tom Lee of the Southern District of Mississippi, Chief Judge J. Rich Leonard of the U.S. Bankruptcy Court in the Eastern District of North Carolina, Chief Judge Terry Hatter Jr. of the Central District of California, Judge John George Koeltl of the Southern District of New York, Senior Judge Edmund Ludwig of the Eastern District of Pennsylvania, Judge John Tunheim of the District of Minnesota, Samuel Wilson of the Western District of Virginia, and Jerry Davis, a magistrate judge in the Northern District of Mississippi.

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