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Proposed Rule Change: FEDERAL PACER TO BE SHUT DOWN!

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  • dberlin@icioffshore.com
    Ladies and Genglemen: I would urge you and your fellow associates and partners to strongly protest the Government s newest initiative to close down access to
    Message 1 of 1 , Nov 10, 2000
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      Ladies and Genglemen:

      I would urge you and your fellow associates and partners to strongly protest
      the Government's newest initiative to close down access to Pacer and other
      Federal Court databases. This is yet another erosion of the public's right
      to gain access to open records that the Privacy special interests and their
      political machine are attempting to pressure the Courts to embrace.

      If this rule goes through, it will result in an enormous change on how
      lawyers can obtain information and the cost thereof. You will be back to
      having to hire investigators and paralegals all over the nation to hand-check
      court files.

      In short, lawyers will be once again practicing in the stone age and their
      clients will pick up the cost of this type of inefficient method of
      conducting very basic investigation. Once access to court records on a
      federal level are changed, the States will also begin to restrict data
      commerce on-line by attorneys, investigators, paralegals, etc. While they
      cannot shut down access to hard files at the Courthouse, one can only imagine
      the cost of hiring people to go to many court facilities to do a single
      check.

      Our experience has shown that "Request For Comments" is the first step that
      is used to narrow access, as was the case by the FTC when it commenced the
      eviseration of the banking, credit, and financial databases through its very
      narrow interpretation of recent law. (Now now being challanged in Federal
      Court in Washington DC; see IRSG, et al., vs. FTC, et. al.)

      See below:


      JUDICIAL CONFERENCE OF THE UNITED STATES

      Committee on Court Administration and Case Management,
      Subcommittee on Privacy and Electronic Access to Court Files; Notice
      of Request for Public Comment

      AGENCY: Judicial Conference of the United States, Committee on Court
      Administration and Case Management, Subcommittee on Privacy and
      Electronic Access to Court Files.

      ACTION: Notice of request for public comment.


      SUMMARY: The Court Administration and Case Management Committee of
      the Judicial Conference of the United States, through its Subcommittee on
      Privacy and Electronic Access to Case Files, is seeking comment on the
      attached document outlining policies under consideration to address issues of
      privacy and security concerns related to the electronic availability of court
      case files.

      DATES: Comments will be accepted from November 13, 2000 through
      January 26, 2001.

      ADDRESSES: All comments should be received by 5 p.m., January 26,
      2001. The electronic submission of comments is highly encouraged.
      Electronic comments may be submitted at www.privacy.uscourts.gov or
      via e-mail at Privacy__Policy__Comments@ ao.uscourts.gov. Comments
      may 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: November 1, 2000.
      Abel J. Mattos,
      Chief, Court Administration Policy Staff.


      Request for Comment on Privacy and Public Access to Electronic Case
      Files

      The federal judiciary is seeking comment on the privacy and security
      implications of providing electronic public access to court case
      files. The Judicial Conference of the United States is studying these
      issues in order to provide policy guidance to the federal courts.
      This request for public comment addresses several related issues: The
      judiciary's plans to provide electronic access to case files through
      the Internet; The privacy and security implications of public access
      to electronic case files; Potential policy alternatives and the
      appropriate scope of judicial branch action in this area. The
      judiciary is interested in comments that address any of the issues
      raised in this document, including whether it is appropriate for the
      judiciary to establish policy in this area. All comments should be
      received by 5 p.m. January 26, 2001 and must include the name,
      mailing address and phone 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. The electronic submission of
      comments is highly encouraged.

      Electronic comments may be submitted at www.privacy.uscourts.gov or
      via e-mail to Privacy__Policy__Comments@ ao.uscourts.gov. Comments
      may 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.


      Electronic Public Access to Federal Court Case Files

      The federal courts are moving swiftly to create electronic case files
      and to provide public access to those files through the Internet.
      This transition from paper files to electronic files is quickly
      transforming the way case file documents may be used by attorneys,
      litigants, courts, and the public. The creation of electronic case
      files means that the ability to obtain documents from a court case
      file will no longer depend on physical presence in the courthouse
      where a file is maintained. Increasingly, case files may be viewed,
      printed, or downloaded by anyone, at any time, through the Internet.

      Electronic files are being created in two ways. Many courts are
      creating electronic images of all paper documents that are filed, in
      effect converting paper files to electronic files. Other courts are
      receiving court filings over the Internet directly from attorneys, so
      that the ``original'' file is no longer a paper file but rather a
      collection of the electronic documents filed by the attorneys and the
      court. Over the next few years electronic filing, as opposed to
      making images of paper documents, will become more common as most
      federal courts begin to implement a new case management system,
      called Case Management/Electronic Case Files (or ``CM/ECF''). That
      system gives each court the option to create electronic case files by
      allowing lawyers and parties to file their documents over the
      Internet.

      The courts plan to provide public access to electronic
      files, both at the courthouse and beyond the courthouse, through the
      Internet. The primary method to obtain access will be through Public
      Access to Court Electronic Records (or ``PACER''), which is a web-
      based system that will contain both the dockets (a list of the
      documents filed in the case) and the actual case file documents.
      Individuals who seek a particular document or case file will need to
      open a PACER account and obtain a login and password. After obtaining
      these, an individual may access case files--whether those files were
      created by imaging paper files or through CM/ECF--over the Internet.

      Public access through PACER will involve a fee of $.07 per page of a
      case file document or docket viewed, downloaded or printed. This
      compares favorably to the current $.50 per page photocopy charge.
      Electronic case files also will be available at public computer
      terminals at courthouses free of charge.

      Potential Privacy and Security Implications of Electronic Case Files

      Electronic case files promise significant benefits for the courts,
      litigants, attorneys, and the public. There is increasing awareness,
      however, of the personal privacy implications of unlimited Internet
      access to court case files. In the court community, some have begun
      to suggest that case files--long presumed to be open for public
      inspection and copying unless sealed by court order--contain private
      or sensitive information that should be protected from unlimited
      public disclosure and dissemination in the new electronic
      environment.

      Others maintain that electronic case files should be
      treated the same as paper files in terms of public access and that
      existing court practices are adequate to protect privacy interests.
      Federal court case files contain personal and sensitive information
      that litigants and third parties often are compelled by law to
      disclose for adjudicatory purposes. Bankruptcy debtors, for example,
      must divulge intimate details of their financial affairs for review
      by the case trustee, creditors, and the judge. Civil case files may
      contain medical records, personnel files, proprietary information,
      tax returns, and other sensitive information. Criminal files may
      contain arrest warrants, plea agreements, and other information that
      raise law enforcement and security concerns.


      Recognizing the need to review judiciary public access policies in
      the context of new technology, the Judicial Conference is considering
      privacy and access issues in order to provide guidance to the courts.
      The Judicial Conference has not reached any conclusions on these
      issues, and this request for public comment is intended as part of
      the Conference's ongoing study. 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 (1978), and United
      States Department of Justice v. Reporters Committee for Freedom of
      the Press, 489 U.S. 749 (1989). These issues are discussed in more
      detail in an Administrative Office staff paper, ``Privacy and Access
      to Electronic Case Files in the Federal Courts,'' available on the
      Internet at www.uscourts.gov/privacyn.pdf.


      The Role of the Federal Judiciary

      The judiciary recognizes that concern about privacy and access to
      public records is not limited to the judicial branch. There is a
      broader public debate about the privacy and security implications of
      information technology. Congress has already responded to some of
      these concerns by passing laws that are designed to shield sensitive
      personal information from unwarranted disclosure. These laws, and
      numerous pending legislative proposals, address information such as
      banking records and other personal financial information, medical
      records, tax returns, and Social Security numbers.

      The executive branch is also concerned about implications of electronic public
      access to private information. Most recently, the President directed
      the Office of Management and Budget, the Department of Justice, and
      the Department of Treasury to conduct a study on privacy and security
      issues associated with consumer bankruptcy filings. Accordingly, the
      judiciary is interested in receiving comment on the appropriate scope
      of judicial branch action, if any, on the broad issue of access to
      public court records, and the corresponding need to balance access
      issues against competing concerns such as personal privacy and security.


      Policy Alternatives on Electronic Public Access to Federal Court
      Case Files

      Regardless of what entity addresses the issues of privacy and
      electronic access to case files, the effort must be made to balance
      access and privacy interests in making decisions about the public
      disclosure and dissemination of case files. The policy options
      outlined below are intended to promote consistent policies and
      practices in the federal courts and to ensure that similar
      protections and electronic access presumptions apply, regardless of
      which federal court is the custodian of a particular case file. One
      or more of the policy options for each type of case file may be
      recommended to the Judicial Conference for its consideration. Some,
      but not all of the options are mutually exclusive.


      Civil Case Files

      1. Maintain the presumption that all filed documents that are not
      sealed are available both at the courthouse and electronically. This
      approach would rely upon counsel and pro se litigants to protect
      their interests on a case-by-case basis through motions to seal
      specific documents or motions to exclude specific documents from
      electronic availability. It would also rely on judges' discretion to
      protect privacy and security interests on a case-by-case basis
      through orders to seal or to exclude certain information from remote
      electronic public access.

      2. Define what documents should be included in the ``public file''
      and, thereby, available to the public either at the courthouse or
      electronically. This option would treat paper and electronic access
      equally and assumes that specific sensitive information would be
      excluded from public review or presumptively sealed. It assumes that
      the entire public file would be available electronically without
      restriction and would promote uniformity among district courts as to
      case file content. The challenge of this alternative is to define
      what information should be included in the public file and what
      information does not need to be in the file because it is not
      necessary to an understanding of the determination of the case or
      because it implicates privacy and security interests.

      3. Establish ``levels of access'' to certain electronic case file
      information. This contemplates use of software with features to
      restrict electronic access to certain documents either by the
      identity of the individual seeking access or the nature of the
      document to which access is sought, or both. Judges, court staff,
      parties and counsel would have unlimited remote access to all
      electronic case files. This approach assumes that the complete
      electronic case file would be available for public review at the
      courthouse, just as the entire paper file is available for inspection
      in person. It is important to recognize that this approach would not
      limit how case files may be copied or disseminated once obtained at
      the courthouse.

      4. Seek an amendment to one or more of the Federal Rules of Civil
      Procedure to account for privacy and security interests.


      Criminal Case Files


      1. Do not provide electronic public access to criminal case files.
      This approach advocates the position that the ECF component of the
      new CM/ECF system should not be expanded to include criminal case
      files. Due to the very different nature of criminal case files, there
      may be much less of a legitimate need to provide electronic access to
      these files. The files are usually not that extensive and do not
      present the type of storage problems presented by civil files.
      Prosecution and defense attorneys are usually located near the
      courthouse. Those with a true need for the information can still
      access it at the courthouse. Further, any legitimate need for
      electronic access to criminal case information is outweighed by
      safety and security concerns. The electronic availability of criminal
      information would allow co-defendants to have easy access to
      information regarding cooperation and other activities of defendants.
      This information could then be used to intimidate and harass the
      defendant and the defendant's family. Additionally, the availability
      of certain preliminary criminal information, such as warrants and
      indictments, could severely hamper law enforcement and prosecution
      efforts.

      2. Provide limited electronic public access to criminal case files.
      This alternative would allow the general public access to some, but
      not all, documents routinely contained in criminal files. Access to
      documents such as plea agreements, unexecuted warrants, certain pre-
      indictment information and presentence reports would be restricted to
      parties, counsel, essential court employees, and the judge.

      Bankruptcy Case Files

      1. Seek an amendment to section 107 of the Bankruptcy Code. Section
      107 currently requires public access to all material filed with
      bankruptcy courts and gives judges limited sealing authority.
      Recognized issues in this area would be addressed by amending this
      provision as follows: (1) Specifying that only ``parties in
      interest'' may obtain access to certain types of information; and (2)
      enhancing the 107(b) sealing provisions to clarify that judges may
      provide protection from disclosures based upon privacy and security
      concerns.

      2. Require less information on petitions or schedules and statements
      filed in bankruptcy cases.

      3. Restrict use of Social Security, credit card, and other account numbers to
      only the last four digits toprotect privacy and security interests.

      4. Segregate certain sensitive information from the public file by collecting
      it on separate forms that will be protected from unlimited public access and
      made available only to the courts, the U.S. Trustee, and to parties in
      interest.

      Appellate Cases


      1. Apply the same access rules to appellate courts that apply at
      the trial court level.

      2. Treat any document that is sealed or subject to public access
      restrictions at the trial court level with the same
      protections at the appellate level unless and until a party
      challenges the restriction in the appellate court.
      [FR Doc. 00-28671 Filed 11-7-00; 8:45 am]




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