Disappearing Documents   

The decision to halt online access to federal court papers is surprisingly understandable.

Public information goes up, public information goes down. Just as government finally wakes up to the Web, just as journalists and others learn to use it, documents disappear from official domains. This fall two events highlighted the importance – and challenges – of pushing the concept of "public access" to its fullest extent. One was an impromptu sweep of military information on the Web. The other was a carefully considered judicial recommendation that found some court records unfit for the Internet.

After September 11, government organizations like the Nuclear Regulatory Commission, Environmental Protection Agency and U.S. Office of Pipeline Safety began ripping maps, coordinates and emergency response plans from their sites. Several watchdog organizations, portals and news sites voluntarily removed information from their pages as well.

Like stockpiling gas masks, sweeping the Web was more placebo than prevention. In theory it could raise a speed bump for would-be attackers seeking security data in obvious places ("Let them work for it," one scientist told the Associated Press). But it wouldn't stop them. Probably the most significant result was to discourage reporters from writing about how easy it is to find sensitive government information on the Web.

So far, no one is complaining that Americans can't access the coordinates of our nuclear reactors at nrc.gov. The sacrifice is small; the interest of national security is great.

What troubles me is that this disparity between the paper record and the electronic record might be accepted as standard procedure. At a time when the Internet holds so much potential to make government truly accessible, each omission should be weighed carefully.

On September 19 the U.S. Judicial Conference, the body that sets federal court policy, decided that federal criminal case filings will no longer be available on the Internet. Previously some jurisdictions had elected to post criminal, civil and bankruptcy records through a registration-based Web service called PACER – Public Access to Court Electronic Records.

Before you start grumbling (as I first did) about anachronistic judges who don't grasp what the Web means for reporters and other citizens, read the full text of their recommendation at www.uscourts.gov/Press_Releases/att81501.pdf.

If criminal filings were offered on PACER, anyone with a registered account could access (and republish) pre-indictment documents, unexecuted search warrants and information about individuals who testify against co-defendants. Even sealing select documents could be telling, since one could deduce that closed records are hiding something. These documents will still be available on paper at courthouses, but the Judicial Conference agreed that misuse would be much easier online. (Note the recurring theme.)

The group acknowledged that experience might prove otherwise and promised to revisit the matter within two years. It also held that Social Security cases should be omitted from PACER, since they are seldom useful to others and contain detailed personal information.

The rest of the decision is surprisingly progressive and promising: It supports a "public is public" policy for civil cases, holding that all filings (excluding Social Security cases) should be available on PACER, in all jurisdictions. The aim is to level the geographic playing field for attorneys, litigants and the general public – and also to discourage a potential "cottage industry" of information traffickers who make and sell electronic reproductions of paper documents.

It recommends that certain "personal identifiers" such as Social Security numbers be deleted or disguised on electronic and paper records. The glorious revelation here is that safety and privacy risks need to be addressed in all mediums, not just the Internet. Finally, it advises that all parties to a civil case be informed that unsealed records could end up online.

The Judicial Conference's decision looks good on paper. It starts with the premise that the Internet is the fairest and most efficient vessel of public information available. Whole categories of documents are only excluded in extreme circumstances, subject to future review. When less restrictive means are available (such as user authentication), they are employed.

I still believe that public should mean public, no matter the medium. "Let them work for it" sounds like a shoddy stopgap solution, not a reliable way to promote security or public access.

But many government entities – national and local – have yet to catch up with the digital age, let alone the Internet age. The leap from file cabinets to Web servers is more than a technical challenge; it requires a deep commitment to the spirit of public access and an inventory of what we keep in the public domain, and why.