The decision to halt online access to federal court papers is
By Barb Palser
Barb Palser (firstname.lastname@example.org), AJR's new-media columnist, is vice president, account management, with Internet Broadcasting.
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
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
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
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
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.