Helen Nissenbaum, Amanda Conley, Anupam Datta, Divya Sharma, The Obligation of Courts to Post Records Online: A Multidisciplinary Study
Comment by: Michael Traynor
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112573
Workshop draft abstract:
On the face of it, what could be complicated about placing public court records online? After all, courts are obliged to make these records publicly available—shouldn’t they do so as effectively and efficiently as possible, offering a digitized collection on the Web? Indeed, the advent of PACER for the Federal Court System suggests that the matter has been settled. Yet at state and local levels around the country, where some of the records richest in personal information are found, privacy concerns have brought this controversial prospect to the fore. Courts continue to grapple with it drafting new administrative rules and looking for guidance in constitutional, legislative, and common law sources, legal scholarship, as well as their own past practices and those of peer institutions.
The paper I am proposing for PLSC 2011 will report on findings of a collaborative project with Amanda Conley, Anupam Datta, and Divya Sharma on the normative question of placing court records online. Drawing on notable work by legal scholars Grayson Barber, Natalie Gomez-Velez, Daniel Solove, and Peter Winn, among others, and focusing on state civil courts, our project asks whether courts have an obligation to post on the Web, for open and unconditional access, records that traditionally have been made available in hard copy from court houses or electronically via local terminals. Guided by the framework of contextual integrity, we map, in detail, the differences in flow afforded by online placement and in so doing, make precise what others have attempted to capture with terms such as “hyper-dissemination” and “practical obscurity”. For the normative analysis, we compare local and online of dissemination in terms of how well they serve values, ends, and purposes attributed to courts, such as dispute resolution, justice and fairness, and accountability.
We reach the surprising (though tentative) conclusion that although courts in free and democratic societies are obliged to provide open access to records of court proceedings and outcomes, this obligation—both online and off—does not necessarily extend to all information that is presently included in these records. This means either that a great deal of personal information could be excised from records without violence to courts’ purposes, or there are reasons driving current practices that have not fully been acknowledged. Both alternatives are in critical need of further exploration.