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11 September 2007
This appears to be aimed at Who's A Rat whosarat.com
[Federal Register: September 10, 2007 (Volume 72, Number 174)]
[Notices]
[Page 51659-51660]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se07-70]
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JUDICIAL CONFERENCE OF THE UNITED STATES
Committee on Court Administration and Case Management; Notice of
Request for Public Comment
AGENCY: Judicial Conference of the United States, Committee on Court
Administration and Case Management.
ACTION: Notice of request for public comment.
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SUMMARY: The Court Administration and Case Management Committee of the
Judicial Conference of the United States is seeking comment on the
attached document relating to the privacy and security implications of
public Internet access to plea agreements filed in federal court cases.
DATES: Comments will be accepted from September 10, 2007 through
October 26, 2007.
ADDRESSES: All comments should be received by 5 p.m. Eastern Daylight
Time, October 26, 2007. The electronic submission of comments is
highlly encouraged. Electronic comments may be submitted via e-mail to
privacycomments@ao.uscourts.gov. Comments may also be submitted by
regular mail to The Administrative Office of the United States Courts,
Court Administration Policy Staff, Attn: Privacy Comments, Suite 4-560,
One Columbus Circle, NE., Washington, DC 20544.
FOR FURTHER INFORMATION CONTACT: Abel J. Mattos, Chief, Court
Administration Policy Staff, Administrative Office of the United States
Courts, One Columbus Circle, NE., Washington, DC 20544, telephone (202)
502-1560, fax (202) 502-1022.
Dated: September 5, 2007.
Abel J. Mattos,
Chief, Court Administration Policy Staff.
Request for Comment on Privacy and Security Implications of Public
Access to Certain Electronic Criminal Case File Documents
The federal Judiciary is seeking comment on the privacy and
security implications related to electronic public access to certain
documents in criminal case files. The Court Administration and Case
Management Committee of the Judicial Conference of the United States is
studying these issues in order to develop policy guidance to the
federal courts.
Specifically, the Committee is interested in comments on a proposal
to restrict public Internet access to plea agreements in criminal
cases, which may contain information identifying defendants who are
cooperating with law enforcement investigations.
This request for public comment addresses two related
issues:
The privacy and security implications of public Internet
access to plea agreements filed in federl court cases; and
Potential policy alternatives.
Information on how to submit comments is contained at the end of
this document.
Electronic Public Access to Federal Court Case Files
Historically, most documents filed in federal courts are considered
to be public information. Over the last decade, the federal courts have
established an electronic case files system that allows public access
to court case files through the Internet. This transition from paper
case files to electronic files has transformed the way that case file
documents are used by attorneys, litigants, courts, and the public. In
the past, attorneys and parties were required to file case documents at
the courthouse. Likewise, the public was required to go to the
courthouse where a paper case file was maintained to review the file or
obtain a copy of a document from that court file. Now, electronic case
files allow anyone with an account with the Judiciary's Public access
to Court Electronic Records (PACER) system to view, print, or download
these documents via the Internet.
PACER is a Web-based system that provides access to both the
dockets (a list of all the documents in the case) and actual case file
documents. Individuals who seek a particular document or case file can
open a PACER account and obtain a login and password. Those who
register a valid credit card number will receive their account login
and password in minutes. Immediately after establishing an account, and
individual can access case files over the Internet. As established by
Congress, public access through PACER involves a fee. Currently, the
fee is $.08 per page of a case file document or report that is viewed,
downloaded, or printed. There is a fee cap of $2.40 for all documents
(excluding transcripts of court proceedings) that exceed 30 pages in
length. Additionally, no fee is owed by a PACER account holder until
charges of $10 are accrued in a calaendar year. Electronic case files
are also available for review, free of charge, at public computer
terminals at courthouses. Printouts from the public access terminals
cost $.10 per page.
Privacy and Security Implications of Electronic Criminal Case Files
Electronic case files bring significant benefits to the courts,
litigants, attorneys, and the public. There are also, however, personal
privacy and security implications of unlimited Internet access to court
case files, especially criminal case files. Many federal court case
files contain personal and sensitive information that litigants and
third parties may be compelled by law to disclose for adjudicatory
purposes.
The Judiciary has a long tradition--rooted in both constitutional
and common law principles--of open access to public court records.
Accordingly, all case file documents, unless sealed or otherwise
subject to restricted access by statute or federal rule, have
traditionally been available for public inspection and copying. The
Supreme Court has recognized, however, that access rights are not
absolute, and that technology may affect the balance between access
rights and privacy and security interests. See Nixon v. Warner
Communications, Inc., 435 U.S. 589
[[Page 51660]]
(1978) and United States Department of Justice v. Reporters Committee
for Freedom of the Press, 489 U.S. 749 (1989).
In September 2003, the Judicial Conference adopted a privacy policy
for criminal case files that included providing the same level of
public access to electronic case files as it has provided to paper case
files. It did so, in part, based on the results of a pilot project
completed earlier that year. The pilot project allowed public Internet
access to criminal case files in ten district courts and one court of
appeals for two years. A report on the pilot project by the Federal
Judicial Center found that there were no significant reports of misuse
of criminal case documents, nor were there any reports of harm stemming
from the availability of these documents via public Internet access.
Nonetheless, individual courts may have chosen a more restrictive
approach to public Internet access to these documents.
Both the 2003 policy and pending Federal Rules of Procedure
regarding privacy in court filings prescribed by the Supreme Court in
April 2007 \1\ require that certain limited information be redacted or
truncated in filings with the court, including: Social Security and
financial account numbers, dates of birth, names of minor children,
and, in criminal cases, home addresses. In addition, the pending
Federal Rules allow courts to seal documents or limit public Internet
access to documents on a case-by-case basis, if good cause is shown.
See Pending FR Crim. P. 49.1(e).
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\1\ Absent action by Congress to reject, modify, or defer them,
the rules will go into effect on December 1, 2007.
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Request To Limit Access to Certain Documents in Federal Court Criminal
Case Files
The Department of Justice has asked the Judicial Conference to
restrict public Internet access to a specific type of document: Plea
agreements in criminal cases, which may disclose the fact that the
defendant in the case is cooperating or has cooperated with law
enforcement investigations. The ease with which the public is able to
both retrieve federal court case information from electronic case files
and redistribute it electronically through the Internet has raised
concerns about whether the Judiciary's policy of allowing access to all
unsealed plea agreements provides a sufficient measure of safety for
those defendants cooperating with law enforcement. Certain private
parties or organizations have compiled lists setting forth names,
locations, and descriptions of alleged cooperating witnesses and have
posted them on the Internet. Some have expressed concern that wide
dissemination of this information may facilitate or encourage
retaliation and/or witness intimidation.
The Judiciary is requesting comment on its policy of providing
public Internet access to all non-sealed plea agreements in electronic
criminal case files (described further below). This policy has been in
effect since November 2004, but only came into play in any particular
local court level when that court adopted an electronic case files
system, typically at some point between 2005-2007. To assist it in
considering the issue, the Judiciary welcomes comments on this policy,
including, but not limited to, the question of whether the policy
should be changed to prohibit public Internet access to plea agreements
or other documents in the criminal case files that identify a person
cooperating with law enforcement. These plea agreements and documents
would still be available for public inspection at the courthouse.
Additionally, the Judiciary seeks comments on how it could otherwise
meet the need to balance access issues against competing concerns such
as privacy and personal security.
How To Submit Comments
All comments should be received by October 26, 2007 and must
include the name, organization (if any), mailing address, and telephone
number of the commentator. All comments should also include an e-mail
address and a fax number, where available, as well as an indication of
whether the commentator is interested in participating in a public
hearing, if one is held. The public should be advised that it may not
be possible to honor all requests to speak at any such hearing. Any
such hearing may be recorded for broadcast.
The electronic submission of comments is highly encouraged.
Electronic comments may be submitted by e-mail to
privacycomments@ao.uscourts.gov. Comments may be submitted through the
U.S. Postal Service to The Administrative Office of the United States
Courts, Court Administration Policy Staff, Attn: Privacy Comments,
Suite 4-560, One Columbus Circle, NE., Washington, DC 20544.
[FR Doc. 07-4415 Filed 9-7-07; 8:45 am]
BILLING CODE 2210-55-M