“Court Records and Data Privacy: Online or Over the Line?”

Slides:



Advertisements
Similar presentations
The United States, Privacy, and Data Protection Peter P. Swire Dutch Embassy Presentation January 19, 2001.
Advertisements

HIPAA In Relation to Other Federal Laws Professor Peter P. Swire Ohio State University Consultant, Morrison & Foerster LLP Glasser LegalWorks/HIPAA Conference.
Court Records and Data Privacy: Online or Over the Line? Professor Peter P. Swire Moritz College of Law The Ohio State University Judges Day 2005 October.
"Embedding Privacy in Federal Information Systems" Professor Peter P. Swire Ohio State University Consultant, Morrison & Foerster LLP MITRE Corp. Workshop.
Court Records and Data Privacy: Online or Over the Line? Professor Peter P. Swire Moritz College of Law The Ohio State University Judges Day November14,
Privacy in Court Records and County Records Professor Peter P. Swire The Ohio State University Center for American Progress NACo Legislative Conference.
The Role of the Federal Government in Privacy Policy Professor Peter P. Swire The Ohio State University Center for American Progress The Privacy Symposium,
Trustwrap: The Importance of Legal Rules to E-Commerce and Internet Privacy Professor Peter P. Swire Moritz College of Law The Ohio State University Enforcing.
Reflections on the White House Privacy Office Peter P. Swire Ohio State University Center for American Progress N.C. State Privacy Day January 29, 2008.
The Strategy of Using Security to Protect Privacy Peter P. Swire Ohio State University Consultant, Morrison & Foerster, LLP Data Protection Commissioner.
HIPAA Privacy Practices. Notice A copy of the current DMH Notice must be posted at each service site where persons seeking DMH services will be able to.
Access to Court Records Developments in New Zealand.
Confidentiality and HIPAA
Amber LaFountain Project Archivist - Private Practices, Public Health Center for the History of Medicine Francis A. Countway Library of Medicine Harvard.
A dialogue with FMUG: Sensitive Data & Filemaker MIT Policy and Data Classifications ** DRAFT ** Guidelines Feedback and Discussion Tim McGovern 2 June.
© 2007 Morrison & Foerster LLP All Rights Reserved Attorney Advertising The Global Law Firm for Israeli Companies Dispute Resolution in the United States.
Public Records Kevin Flanagan ECM Training Conference#dbwestECM Public Records “Let the people know the facts and the country will be safe” - Abraham.
Confidentiality of CRIMINAL COURT records
17th Annual ARMA Metro Maryland Spring Seminar Confidentiality, Access, and Use of Electronic Records.
BC Freedom of Information and Protection of Privacy Act
Introduction to Legal Process in the United States (1) Sources of law (2) Court system (3) Judicial process Alan R. Palmiter – Jan
JO807: Advanced Journalism Research JO807: Week 13 “Freedom of Information Act” and the WWW.
Data Classification & Privacy Inventory Workshop
Insights on the Legal Landscape for Data Privacy in Higher Education Rodney Petersen, J.D. Government Relations Officer and Security Task Force Coordinator.
PRIVACY: What does it mean?? Molly, Julia, Erin and Andrew Project.
Disclaimer This Presentation is provided “as is” without any express or implied warranty. This Presentation is for educational purposes only and does not.
Privacy and Access to Public Records: A Modest Proposal Sol Bermann Center for Interdisciplinary Law and Policy Studies Moritz College of Law The Ohio.
Quiz 2 - Review. Identity Theft and Fraud Identity theft and fraud are: – Characterized by criminal use of the victim's personal information such as a.
Career number 1. E- Discovery Professional  Electronic Discovery- Technology based Identifies, preserves and manages electronically stored information.
Finding Your Way around the Courthouse. Court Records Online – PACER - Public Access to Court Electronic Records – Case Management: CM/ECF – State Courts.
Employee Law Module What you need to do to protect credit history and the documents that you will need for employment. The information in this module comes.
Freedom of the Press Extra, Extra! Freedom of the Press Guaranteed under the 1 st amendment Why is freedom of the press important? To prevent tyranny.
Chapter 4 “Television News: A Handbook for Reporting, Shooting, Editing & Producing”
Newsgathering: Access to Meetings & Records. Access and the First Amendment How has the U.S. Supreme Court responded to claims that the First Amendment.
Researching the Law from the Newsroom SLA 2004 Annual Conference June 9, 2004.
“Privacy and the Future of Justice Statistics” Peter P. Swire Chief Counselor for Privacy OMB/OIRA National Conf.on Privacy, Technology & Criminal Justice.
Online Access to Court Records: Some Observations on Privacy Blair Stewart Assistant Commissioner Office of the Privacy Commissioner Contribution to The.
HIPAA Michigan Cancer Registrars Association 2005 Annual Educational Conference Sandy Routhier.
PRIVACY IN COMPUTING BY: Engin and Will. WHY IS PRIVACY IMPORTANT? They can use your computer to attack others (money, revenge) They can use your computer.
Wisconsin Judicial Conference November 11, 2015
HIPAA BASIC TRAINING MODULE 1C – Overview (For staff who do not generally create Protected Health Information) Anderson Health Information Systems, Inc.
Patient Confidentiality and Electronic Medical Records Ann J. Olsen, MBA, MA Information Security Officer and Director, Information Management Planning.
United States District Court for the District of Utah Welcome to ECF Attorney Training. Please make sure you have picked up all materials located at the.
Creating Evidence Cards. Selecting Useful Material While reading source material, mark the text that you believe will serve as strong evidence during.
20 Oct., 1999 UAF Computing & Networking Policies1 Reasons for policies Who makes & enforces them Overview of issues based on common questions Your responsibilities.
U.S. District Court District of Minnesota Immigration Litigation in Federal Court January 30, 2015 Procedural Requirements in U.S. District Court.
Mass Media Law 18 th Edition Don Pember Clay Calvert Chapter 12 Free Press–Fair Trial: Closed Judicial Proceedings McGraw-Hill/Irwin © 2013 McGraw-Hill.
1 Law, Ethical Impacts, and Internet Security. 2 Legal Issues vs. Ethical Issues Ethics — the branch of philosophy that deals with what is considered.
PROTECTING YOUR CREDIT PG NAME, TEACHER AND DATE.
FOIA Processing and Privacy Awareness at NOAA Prepared by Mark H. Graff NOAA FOIA Officer OCIO/GPD (301)
The Medical College of Georgia HIPAA Privacy Rule Orientation.
Privacy, Confidentiality, and the Best Interest of the State Richard Pearce-Moses Director of Digital Government Information Arizona State Library, Archives.
Introduction to Legal Process in the United States (1) Sources of law (2) Court system (3) Judicial process.
HIPAA Training Workshop #3 Individual Rights Kaye L. Rankin Rankin Healthcare Consultants, Inc.
Sensitive Data Redaction
Protection of CONSUMER information
Digital Citizenship Middle School
What is HIPAA? HIPAA stands for “Health Insurance Portability & Accountability Act” It was an Act of Congress passed into law in HEALTH INSURANCE.
HIPAA Administrative Simplification
Public Access to Administrative Proceedings
North Carolina Law Review Symposium
Component 4: Introduction to Information and Computer Science Unit 2: Internet and the World Wide Web Lecture 4 This material was developed by Oregon.
Protecting Your Credit
Army FOIA/Privacy/Records Management Course
Let’s Begin w/ the Basics
Protecting Yourself from Fraud including Identity Theft
U.S. Intelligence Oversight Reforms & the Cloud Act
Judicial Powers of Case Management
SDASBO Conference April 24, 2019
Litigation Ammunition CLE
Presentation transcript:

“Court Records and Data Privacy: Online or Over the Line?” Professor Peter P. Swire The Ohio State University Consultant, Morrison & Foerster, LLP ARMA Conference November 16, 2005

Overview Legal background on court openness and privacy From 2000 to the present Special categories of data and cases Other thorny issues Conclusion

I. Background on Court Openness History of both legal openness and significant, practical obscurity History of legal openness Common law right “to inspect and copy public records and documents, including judicial records and documents” Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)

Legal Openness & 1st Am. 1st Amendment right to attend criminal trials, to guarantee freedoms such as speech & press, Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) No Supreme Court ruling on 1st Amendment right of access to civil trials or court documents McVeigh case & denial of press requests for sealed documents, 119 F.3d 806 (1997)

Privacy Limits on Access Even where presumption of openness, courts may restrict access: “Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes” Nixon v. Warner Communications.

Practical Obscurity US DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) Recognized privacy interest in rap sheets & other information publicly available but “practically obscure” Court noted “the vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information”

II. Federal Bankruptcy Study Released January 19, 2001 by U.S. OMB, DOJ, Treasury Bankruptcy as a federal system Then-pending proposal to put all bankruptcy records on-line, with Internet access To many, seemed a natural next part of e-Government

Bankruptcy Study Our basic point: Should all those bank account numbers and balances be put onto the Internet? Paper world Few thieves would go to courthouse to look up a bankruptcy file Electronic world If hundreds of thousands of files a year are online, accessible from home, would organized crime attack?

From Bankruptcy to Today Biggest area of consensus for limits as put court records online: SSNs Bank account numbers and balances Credit card numbers These are targets for identity theft Administrative Office of US Courts – 2001 20 states with policies posted Courtroom 21 conferences & web site

III. Approaches to Access Online Some systems (counties in Ohio?): Entirely open; same for paper and online Protective orders available in a single case Some systems & categories of data: E.g., bank account numbers Some systems & categories of cases: E.g., juvenile

Categories of Data SSNs, financial account numbers The “keys” that let a thief get into a person’s assets Large consensus that court system should not facilitate theft Disputes largely about technical means to redact – by clerks, litigants?

Categories of Data Confidential business information Medical records Trade secrets, etc., often subject to protective orders on case-by-case, perhaps category Medical records Sensitive data HIPAA and rules for closing medical records used in litigation (“qualified protective orders”) On the other hand, accountability and openness argue for public scrutiny for malpractice, products liability, etc.

Categories of Cases Federal courts: Social Security disability Confidential administrative record Contain many psychiatric/medical records Harm to individual vs. accountability/openness Not included in PACER (federal online system) Access provided at the courthouse itself

Categories of Cases Juvenile and family court Incredible diversity in local and state rules Current federal discussion for immigration cases Other categories discussed in the state reports

Some Thorny Issues Stage of litigation: If go online, which records? Discovery Motions (and attachments) Court proceedings

Thorny Issues When records become electronic, should they all be accessible on the Internet? Press wants full access Time-consuming to drive to the courthouse Reporting is less timely Courthouse closes, but news cycle doesn’t Still, access only at courthouse may be good solution for some sensitive materials SSDI – motions and summary on Internet

Thorny Issue The future of protective orders What burden to get the order? For what sorts of cases and data? How, if at all, change for the online world? See Sedona Conference Guidelines

V. Concluding Thoughts Previous legal regime of substantial openness Previous practical regime of obscurity and lower privacy risk What should be the courts’ approach to possibility that all court records easily searchable?

Some suggestions The shift to electronic records, electronic filing, and Internet access is the natural time to examine these issues Do a privacy impact assessment, or create a process, to create a better new system that meets all of the relevant goals

Finally Current debate natinally about these issues Openness for press, accountability, and knowledge of citizenry Caution for privacy, security, and confidential business information That debate can draw on the experience of the federal and other state systems An important topic now, where you can contribute