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Private Information in Public Court Filings

July 27, 2010 by

Court proceedings are supposed to be public. When they are public and easily accessible, citizens know the law and the courts are kept accountable. These are the principles that underpin RECAP, our project to help liberate federal court records from behind a pay-wall.

However, appropriate restrictions on public disclosure are equally critical to democracy-enhancing information management by the judiciary. Without protections on personal data, trade secrets, the addresses of cooperating witnesses, or other harmful information the courts would become a frightening place for many citizens in need of justice. Peter Winn has described this challenge in detail.

Thus, somewhat counter-intuitively, it is important to restrict some legal information in order to set the rest free. That is why our courts have a strong legacy of sealing cases when, on balance, their disclosure would do more harm to justice than good. When the risks don’t require the entire case to be sealed, portions of documents can be redacted. Federal Rule of Civil Procedure 5.2 and Federal Rule of Bankruptcy Procedure 9037 define these instances.

But what happens when mistakes are made or negligence occurs? This has been a largely unexplored area to date. In a 2005 bankruptcy case in the US District of South Carolina, Green Tree Servicing included the debtors’ social security numbers in a public filing. The document was made available via the courts’ electronic public access system (PACER) for viewing by anyone who was willing to pay the fee. The debtors filed suit in 2008 against Green Tree for disclosing their personal information counter to the rules I mentioned above, as well as the Gramm-Leach-Bliley Act, and other provisions. This was to be an interesting case, but (unfortunately for scholars and perhaps fortunately for the parties) they settled.

However, this was not the end of Green Tree’s entanglement with these provisions. In 2009 they were servicing another pair of debtors, and they likewise included their social security numbers in the filing. The debtors filed suit against Green Tree under similar reasoning. This time, the parties didn’t settle. In its opinion, the US Bankruptcy Court for the Southern District of Indiana dismissed all claims that were based on a private right of action against Green Tree, but left open the possibility that a contempt of court claim could prevail:

The Debtors have pled sufficient facts to state a claim for contempt under §105 for Greentree’s failure to comply with Rule 9037. The act of limiting access to [the document containing SSNs] may be a sufficient remedy under Rule 9037, and a finding of contempt would require that Greentree was aware of its violation of Rule 9037. […] Greentree has “inadvertently” failed to redact social security numbers on proofs of claim forms in at least one other case in which the debtors alleged a claim for contempt. See, In re Petty, No. 08-34375 HCD (Bankr. N. D. Ind. September 21, 2009). Whether the failure to redact here was coincidence or something else is not for the court to decide at this juncture. Nonetheless, the Debtors have pled sufficient facts to establish their claim for contempt under §105(a) due to Greentree’s failure to comply with Rule 9037 and thus, that count survives Greentree’s motion to dismiss and will proceed to trial. All other counts shall be dismissed.

The outcome appears to hinge largely on the “willfulness” of Green Tree. Given the 2005 South Carolina case, it seems evident that Green Tree should have been quite aware of the federal rules of procedure regarding redaction. It will interesting to see how the case turns out.

In the context of these recent cases, the 4th Circuit issued a decision yesterday on a related matter. In Ostergren v. Cuccinelli, the court ruled that a third-party who downloaded public records (“land records”) from government-provided web sites would not be liable for damages when republishing those records online — even if that third-party knew that the records contained private information such as social security numbers.

The facts of the case are quite interesting. Betty Ostergren, a pro-privacy advocate, had for many years tried to get the State of Virginia to implement and then to improve its automatic redaction technology for these records. Virginia was making some effort to do so, but evidently the various counties were not working as fast as she would like, leaving many documents unredacted. Indeed, the original legislation setting the redaction system into motion would have required the task to have been completed by July 1, 2010, but it didn’t go into effect because the General Assembly failed to appropriate the necessary funds. Ostergren decided that the only way to motivate the necessary attentiveness was to begin publishing land records with unredacted SSNs on her own web site. For maximum effect, she chose land records from known public officials.

Virginia enacted a statute designed to stop this type of behavior, and Virginia filed suit under that statute. The Electronic Privacy Information Center filed an amicus brief in support of Ostergren. The 4th Circuit delivered a double-whammy to Virginia: not only did it uphold the district court’s ruling that Ostergren’s site warranted First Amendment protection, it ruled that the protection should extend even further than the district court had ruled. This interpretation was made even easier for the court given the fact that she was posting the materials for the explicit purpose of drawing attention to the problem — it was disclosure, critique, and commentary via simple transparency. As the court noted:

Under Cox Broadcasting and its progeny, the First Amendment does not allow Virginia to punish Ostergren for posting its land records online without redacting SSNs when numerous clerks are doing precisely that.19

19 For the same reason, Virginia could not punish Ostergren for publishing a SSN-containing land record that had accidentally been overlooked during its imperfect redaction process—having a one to five percent error rate—unless Virginia had first corrected that error. Even then, we leave open whether under such circumstances the Due Process Clause would not preclude Virginia from enforcing section 59.1-443.2 without first giving Ostergren adequate notice that the error had been corrected.

Thus, we have an intriguing reversal of the principle I set out above (that it is important to restrict some legal information in order to set the rest free). In this case, it was important to (hopefully temporarily) make more visible the very type of information that ultimately needed to be restricted.

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Announcing the CITP Visitors for 2010-2011

July 26, 2010 by

We are delighted to announce the CITP visiting scholars, practitioners, and collaborators for the 2010-2011 academic year. The diverse group of leading thinkers represents CITP’s highly interdisciplinary interests. We are looking forward to their work at the center, and welcome them to the family. The short list is below, but you can see more description on the announcement page.

  • Ronaldo Lemos, Fundação Getulio Vargas Law School
  • Fengming Liu, Microsoft
  • Frank Pasquale, Seton Hall
  • Wendy Seltzer, Berkman Center
  • Susan Crawford, Cardozo Law School
  • Alex Halderman, University of Michigan
  • Joe Hall, UC Berkeley School of Information
  • Ron Hedges, Former Federal Magistrate Judge
  • Adrian Hong, Pegasus Project
  • Rebecca MacKinnon, New America Foundation
  • Philip Napoli, Fordham
  • W. Russell Neuman, University of Michigan
  • Steven Roosa, Reed Smith


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A Good Day for Email Privacy: A Court Takes Back its Earlier, Bad Ruling in Rehberg v. Paulk

July 16, 2010 by

In March, the U.S. Court of Appeals for the Eleventh Circuit, the court that sets federal law for Alabama, Florida, and Georgia, ruled in an opinion in a case called Rehberg v. Paulk that people lacked a reasonable expectation of privacy in the content of email messages stored with an email provider. This meant that the police in those three states were free to ignore the Fourth Amendment when obtaining email messages from a provider. In this case, the plaintiff alleged that the District Attorney had used a sham subpoena to trick a provider to hand over the plaintiff’s email messages. The Court ruled that the DA was allowed to do this, consistent with the Constitution.

I am happy to report that today, the Court vacated the opinion and replaced it with a much more carefully reasoned, nuanced opinion.

Most importantly, the Eleventh Circuit no longer holds that “A person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party.” nor that “Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information.” These bad statements of law have effectively been erased from the court reporters.

This is a great victory for Internet privacy, although it could have been even better. The Court no longer strips email messages of protection, but it didn’t go further and affirmatively hold that email users possess a Fourth Amendment right to privacy in email. Instead, the Court ruled that even if such a right exists, it wasn’t “clearly established,” at the time the District Attorney acted, which means the plaintiff can’t continue to pursue this claim.

I am personally invested in this case because I authored a brief asking the Court to reverse its earlier bad ruling. I am glad the Court agreed with us and thank all of the other law professors who signed the brief: Susan Brenner, Susan Freiwald, Stephen Henderson, Jennifer Lynch, Deirdre Mulligan, Joel Reidenberg, Jason Schultz, Chris Slobogin, and Dan Solove. Thanks also to my incredibly hard-working and talented research assistants, Nicole Freiss and Devin Looijien.

Updated: The EFF (which represents the plaintiff) is much more disappointed in the amended opinion than I. They make a lot of good points, but I prefer to see the glass half-full.

Filed Under: National Security & Surveillance, Privacy & Security Tagged With: ,

My Experiment with "Digital Drugs"

July 16, 2010 by

The latest scare meme is “digital drugs” or “i-dosing”, in which kids listen to audio tracks that supposedly induce altered mental states. Concerned adults fear that these “digital drugs” may be a gateway to harder (i.e., actual) drugs. Rumors are circulating among some kids: “I heard it was like some weird demons and stuff through an iPod“. In a way, it’s a perfect storm of scare memes, involving (1) “drugs”, (2) the Internet, and (3) kids listening to freaky music.

When I heard about these “digital drugs”, I naturally had to try them, in the interest of science.

(All joking aside, I only did this because I knew it was safe and legal. I don’t like to mess with my brain. I rely on my brain to make my living. Without my brain, I’d be … a zombie, I guess.)

I downloaded a “digital drug” track, donned good headphones, lay down on my bed, closed my eyes, blanked my mind, and pressed “play”. What I heard was a kind of droning noise, accompanied by a soft background hiss. It was not unlike the sound of a turboprop airplane during post-takeoff ascent, with two droning engines and the soft hiss of a ventilation fan. This went on for about fifteen minutes, with the drone changing pitch every now and then. That was it.

Did this alter my consciousness? Not really. If anything, fifteen minutes of partial sensory deprivation (eyes closed, hearing nothing but droning and hissing) might have put me in a mild meditative state, but frankly I could have reached that state more easily without the infernal droning, just by lying still and blanking my mind.

Afterward I did some web surfing to try to figure out why people think these sounds might affect the brain. To the extent there is any science at all behind “digital drugs”, it involves playing sounds of slightly different frequencies into your two ears, thereby supposedly setting up a low-frequency oscillation in the auditory centers of your brain, which will supposedly interact with your brain waves that operate at a very similar frequency. This theory could be hooey for all I know, but it sounds kind of science-ish so somebody might believe it. I can tell you for sure that it didn’t work on me.

So, kids: don’t do digital drugs. They’re a waste of time. And if you don’t turn down the volume, you might actually damage your hearing.

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Bilski and the Value of Experimentation

July 15, 2010 by

The Supreme Court’s long-awaited decision in Bilski v. Kappos brought closure to this particular patent prosecution, but not much clarity to the questions surrounding business method patents. The Court upheld the Federal Circuit’s conclusion that the claimed “procedure for instructing buyers and sellers how to protect against the risk of price fluctuations in a discrete section of the economy” was unpatentable, but threw out the “machine-or-transformation” test the lower court had used. In its place, the Court’s majority gave us a set of “clues” which future applicants, Sherlock Holmes-like, must use to discern the boundaries separating patentable processes from unpatentable “abstract ideas.”

The Court missed an opportunity to throw out “business method” patents, where a great many of these abstract ideas are currently claimed, and failed to address the abstraction of many software patents. Instead, Justice Kennedy’s majority seemed to go out of its way to avoid deciding even the questions presented, simultaneously appealing to the new technological demands of the “Information Age”

As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals.

and yet re-ups the uncertainty on the same page:

It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection.

The Court’s opinion dismisses the Federal Circuit’s brighter line test for “machine-or-transformation” in favor of hand-waving standards: a series of “clues,” “tools” and “guideposts” toward the unpatentable “abstract ideas.” While Kennedy notes that “This Age puts the possibility of innovation in the hands of more people,” his opinion leaves all of those people with new burdens of uncertainty — whether they seek patents or reject patent’s exclusivity but risk running into the patents of others. No wonder Justice Stevens, who concurs in the rejection of Bilski’s application but would have thrown business method patents out with it, calls the whole thing “less than pellucid.”

The one thing the meandering makes clear is that while the Supreme Court doesn’t like the Federal Circuit’s test (despite the Federal Circuit’s attempt to derive it from prior Supreme Court precedents), neither do the Supremes want to propose a new test of their own. The decision, like prior patent cases to reach the Supreme Court, points to larger structural problems: the lack of a diverse proving-ground for patent cases.

Since 1982, patent cases, unlike most other cases in our federal system, have all been appealed to one court, United States Court of Appeals for the Federal Circuit. Thus while copyright appeals, for example, are heard in the circuit court for the district in which they originate (one of twelve regional circuits), all patent appeals are funneled to the Federal Circuit. And while its judges may be persuaded by other circuits’ opinions, one circuit is not bound to follow its fellows, and may “split” on legal questions. Consolidation in the Federal Circuit deprives the Supreme Court of such “circuit splits” in patent law. At most, it may have dissents from the Federal Circuit’s panel or en banc decision. If it doesn’t like the test of the Federal Circuit, the Supreme Court has no other appellate court to which to turn.

Circuit splits are good for judicial decisionmaking. They permit experimentation and dialogue around difficult points of law. (The Supreme Court hears fewer than 5% of the cases appealed to it, but is twice as likely to take cases presenting inter-circuit splits.) Like the states in the federal system, multiple circuits provide a “laboratory [to] try novel social and economic experiments.” Diverse judges examining the same law, as presented in differing circumstances, can analyze it from different angles (and differing policy perspectives). The Supreme Court considering an issue ripened by the analysis of several courts is more likely to find a test it can support, less likely to have to craft one from scratch or abjure the task. At the cost of temporary non-uniformity, we may get empirical evidence toward better interpretation.

At a time when “harmonization” is pushed as justification for treaties(and a uniform ratcheting-up of intellectual property regimes), the Bilski opinion suggests again that uniformity is overrated, especially if it’s uniform murk.

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