Advocates for more restrictions often cite incidents where the use of court-collected information has led to fraudulent acts, identity theft, employment and credit problems, and the destruction of reputations. Such advocates assert that while much of the information courts collect may, in a certain technical sense, be factual, even honest, it frequently lacks integrity once it is disseminated. For example, one spouse in a divorce proceeding may make rather salacious allegations against the other spouse. It is factually correct to state that the first spouse filed an affidavit making certain allegations. But the key question quickly becomes one of whether the information disseminated by the courts has integrity (Carter, 1996). Is what has been asserted true? It may not be; but to have the unfounded allegations searchable and accessible on the Internet can do irreparable damage to the reputation of the accused spouse. Legitimate questions then arise as to the courts’ obligation to ensure that the information they disseminate has integrity.

Future Trends in Public Access: Court Information, Privacy, and Technology*

More and more, the public is demanding instant access to all sorts of information electronically. What are the responsibilities of courts in safeguarding sensitive, case-related data and in regulating the use of social media during court proceedings?

Hon. Paul H. Anderson
Justice, Supreme Court of Minnesota

Emerson's Any inquiry into future trends with respect to privacy, access to court information, and changing technology should bring to mind Ralph Waldo Emerson’s lament from more than 150 years ago. Emerson grew up with the promise of the better life the Industrial Revolution would bring. He initially thought technology would free mankind from poverty, servile labor, and the vagaries of pre-industrial life. But he became disillusioned when mankind lost control over its own destiny as industrialization presented a whole new raft of challenges and problems. Some things do not change. Our society is in the midst of the information/digital revolution, which also promises a better life. But this revolution has brought its own set of vexing challenges and problems, many of which affect the courts.

This article will attempt to identify some of these future challenges and problems with the hope that by identifying them, they will become less vexing. The discussion will start with a short review of the demise of the practical obscurity of court-collected information. It will then address some of the forces that are driving recent changes and how courts are reacting to this new reality. There will be a discussion of these reactions in the context of what courts have done and what the future may bring. Many of the observations are based on the author’s experience as a supreme court justice and as a participant in and organizer of several symposia dealing with this issue.

Practical Obscurity—The Not So Distant Past

Historically, the American judicial system has provided open access to court records on paper to any member of the public willing to travel to the courthouse. The policy behind open access is that if the people are to have trust and confidence in the judiciary, the legal and factual basis underlying any court decision must be subject to public scrutiny.1

Before the transition to electronic recordkeeping, it was often difficult, if not impractical, to access the information behind a court’s decision or build significant dossiers on individuals from publicly accessible paper records. There were too many potential sources, and the volume of paper information was often unwieldy. Further, the information was frequently located at different places. Sometimes, the custodian of the information would put another subjective limit on access, i.e., the person behind the counter would be less than cooperative in providing the requested information. Moreover, once the information was located, it had to be copied. Under these circumstances, it was often only the most diligent seeker of information who would discover what the court had in its possession. These limits on access became known as "practical obscurity."

Some people in the court system viewed practical obscurity as a virtue because it protected personal privacy in statewide compilations of information. Some commentators, in particular the news media and data compilers, saw practical obscurity as a problem to overcome, not a virtue. Others, like public defenders and community activists,2 saw it as an illusion that never really existed or something that in recent years had become significantly eroded.

Given the existence of practical obscurity and limited access to court information, little consideration was given to what information was put into a court file and what information was made accessible to the public (e.g., Social Security numbers, birth dates, bank account numbers, etc.). There was little concern that this information would be searched and used for any purpose other than proper court activity.

Personal computers, the Internet, and all the collateral consequences that followed from these innovations—such as laptops, notepads, cell phones, smart phones, Facebook, YouTube, Google, Wikipedia, and Twitter—have radically changed the information world we live in today. So have changes in our concept of privacy and our expectations with respect to information (see Johnson, 2010; Stone, 2010; "Social Network Users," 2011). The public not only expects easy access to information, but also expects it to be instantaneous, wherever one is located. This new paradigm has offered considerable efficiencies and cost-saving innovations for the courts, but it has also presented several new challenges.

Recent Trends—The Last Decade

To properly understand future trends, it is necessary to review what happened during the last decade. Many are familiar with the arcade game "Whac-a-Mole," where the player uses a mallet to hit a mole-like figure as it pops up; but just as one mole is whacked back into its hole, two or three other moles appear. The last decade has been like this for courts dealing with information. As courts spot and address a problem, two or three other problems pop up. There is little prospect that this scenario will change.

The continuing maturation of the digital age has created an environment where most court systems maintain all or part of their information electronically. When these electronic records are properly compiled and maintained with well-defined data fields, searching for and retrieving data is often as simple as pushing the appropriate button on a computer. Moreover, this database can be remotely available in a searchable format to anyone. Given this new electronic access, most activity by courts during the last decade has centered on how they should (1) align their traditional policy—open access tempered by practical obscurity—with the new capability of providing remote access to searchable records and (2) enact rules and regulations to deal with this new reality.

Initially, two approaches emerged: the "complete-access" approach, which provides remote Internet access to all court information that had traditionally been available at the courthouse on paper, or the "go-slow" approach, which only provides limited remote internet access. Proponents of the complete-access approach assert that if the courts are truly committed to open access, any failure to put all court information on the Internet is hypocritical because it restricts the public’s legitimate right to have access to public information. Further, they argue that, in the future, all court records will be available electronically at the courthouse, so why not start doing it right in the first place? But it is important to note the complete-access approach has led to frequent complaints from citizens about the improper use of information made available on the Internet. These complaints sometimes led to changes in court policy.3

Proponents of the go-slow approach argue that until electronic access systems become more sophisticated, much harm can be caused to innocent citizens. They assert that courts must see that this harm is minimized. Minnesota has adopted a "go-slow," limited-access approach where only a limited amount of court information is available on the Internet, but all other traditionally available court records are accessible at the courthouse in both paper and electronic formats. New requests for access are dealt with as they arise. While there has been relatively little dispute about implementation of the go-slow rules, courts like Minnesota that follow this approach continue to be criticized, particularly by the news media, for improperly denying access to public information (see Recommendations of the Minnesota Supreme Court Advisory Committee, 2004; hereafter, Minnesota Recommendations, 2004).

As more problems with access arise, practices and procedures implemented under the two alternative approaches have evolved, and an interesting trend has developed. The divide between the two approaches has narrowed. Some of the problems addressed that have led to this narrowing include personal identifiers, unproven criminal allegations, criminal records, race data and disparate impacts on communities of color, family-law records, and inquiries by data harvesters. For example, the debate involving what part, if any, of personal identifiers should be used and whether birth dates should be accessible has led to a general consensus for limits on access to personal identifiers. Here, the discussion about birth dates has been particularly sensitive in the criminal area, because members of the news media claim that birth dates are essential for them to identify the right person accused of a crime. This issue can be particularly important in a state like Minnesota where many citizens have similar or identical surnames, like Anderson, Carlson, or Johnson.

Race is another example of an area where there has been much discussion, particularly with respect to criminal records. In Minnesota there is credible information that persons of color are more likely to be stopped by the police and charged with an offense. But after being charged, there is a higher dismissal rate for persons of color than for other segments of society (Minnesota Recommendations, 2004: 20, notes 22 and 26). This is sometimes referred to as the "we will sort it out at the courthouse" approach. Concerns have been raised about disparate impacts on persons of color when criminal information regarding such arrests is made available on the Internet and the potential harm to those persons when they seek employment or attempt to rent an apartment.

The compilation and use of bulk records received considerable attention during the last decade. Bulk records refer to compiled records such as a database containing some or all of the elements of an online computer system. Courts have historically maintained such databases for analytical purposes. Data-warehouse technology has made this data more accessible. This increased accessibility has also forced courts to address the issue of what data will be compiled in bulk form and what bulk data, if any, should be made available to data harvesters or on the Internet. Courts have also dealt with whether they can or should profit from the sale of bulk data. These will continue to be evolving issues facing the courts.

Other issues include information on jurors and witnesses, access to a court reporter’s electronic records, responsibility for correcting inaccuracies in court records, vital statistics records, expungement of criminal records, and remedies and liability for rules violations. A parallel concern is what legislation should be enacted to help meet these new challenges. There is a general consensus that state legislatures, like the courts, are behind the curve when it comes to regulating the use and abuse of information on the Internet. Coordination of efforts between courts and other branches of government to regulate data will undoubtedly continue into the current decade.

Future Trends—What Next

As courts look to the future, there are many uncertainties, but at least one thing is for certain—courts will continue to play "Whac-a-Mole" with information and privacy issues. The pace at which new issues will pop up will not abate; rather, it is likely to accelerate.4 Courts are not likely to get ahead of the curve any time soon. The more realistic objective will be to keep up with the curve or at least not fall too far behind it.

Current issues will continue to evolve even as new issues arise. Of these issues, the use and misuse of social media is definitely the largest elephant in the room when it comes to future trends in managing court information. Social media is everywhere and has become a fact of life for civil society worldwide, involving many actors—regular citizens, activists, NGOs, telecommunications firms, software providers, and governments (Shirky, 2011). It is not only in the local courthouse but has played a major role in organizing and promoting social unrest and governmental upheaval in places like Iran, Tunisia, and Egypt (see "Twitter 1, CNN 0," 2009; McManus, 2011; Cafferty, 2011).

Today social media is omnipresent in our society, yet less than a decade ago it was hardly visible. Facebook, YouTube, and Twitter are all recent innovations. Less than four years ago, Twitter handled fewer than 5,000 tweets a day; it now processes well over 50,000,000 tweets per day and its use is increasing (Beaumont, 2010). Facebook was not launched until the year 2004 and now has more than 600,000,000 active users worldwide.

Reactions by courts worldwide to the sudden challenges posed by social media have been mixed. The Scottish High Court in Glasgow indicated that it would allow tweets by journalists from the courtroom in a high-profile criminal case if the journalists provided a contemporaneous, fair, and accurate account of what was going on (Campsie, 2011). But in a high-profile murder case in Canada, the defendant’s attorneys argued that rules must be established for tweeting in the courtroom because its use resulted in "crude, unnecessary, misplaced" and "lurid" comments being broadcast about the criminal proceedings (MacLoed, 2011). In Minnesota we have had judges report that witnesses have attempted to either e-mail or tweet plaintiffs and defendants while still on the witness stand. Reuters reports that a high-school librarian may face criminal charges for conducting online research while she was a juror in a capital murder case (Grow, 2011).

Several court cases have resulted in mistrials or reversals because of the misuse of social media. In West Virginia a conviction for felony sexual abuse was reversed after the court learned that two jury members had looked up the profile of one of the alleged victims on Myspace, and then shared this information with other jurors (State v. Cecil, 2007). In Maryland, a first-degree murder conviction was overturned when the court learned that jurors had consulted Wikipedia for certain definitions.5 There are several other cases where courts have had to deal with similar issues.6 This use of social media and the Internet is a threat to the jury trial system, which depends upon juries receiving information in a disciplined setting where the court can oversee the proceedings so that only information relevant to the case is presented to the jury. New rules, regulations, protocols, and jury instructions will need to be developed to address the use of social media and the Internet in the courthouse.

Alternative media in MinnesotaThe use of social media by attorneys will require regulations to preserve ethical standards and the integrity of court proceedings. Montana’s bar association recently issued standards for the proper use of social networking by attorneys.7 While the Montana standards are quite general, they send the message that common sense applies when attorneys use a social network. The bottom line on social media is that courts facing its pervasive use must provide guidelines for its use and penalties for its misuse not only for attorneys, but also for judges and court staff (Mauro, 2010; Social Networking Law Blog, 2009).

E-filing, e-charging, and uniform citations are also harbingers of more change. E-filing puts court information into an electronic format when an action is commenced. E-charging does the same for criminal-charging information. Minnesota’s approval of a uniform criminal citation form will result in all law-enforcement agencies using the same citation form.8 This uniform citation form will allow violations to be processed quickly and lead to a more efficient way to pay fines. But it will also create a uniform electronic format where more criminal information will be retrievable at the push of a button.

Increasingly tight budgets will force courts to use technology more often and more efficiently to preserve scarce resources. Interactive television will see more use as a cost-saving innovation, but courts will need to establish rules for dealing with the information recorded during these proceedings. The expanded use of electronic court reporting will also raise additional information-access issues. Court proceedings are being recorded electronically, but many of the electronic recording devices used are so sensitive that nearly all conversations in the courtroom, even discussions between attorneys and clients, are sometimes inadvertently recorded. Minnesota recently faced inquiries from the news media as to what constitutes the official court record when such recordings exist. Some have asserted that everything that has been recorded is part of the record and should be accessible.9

Another emerging issue is who has the primary responsibility for serving as the gatekeeper for sensitive or confidential information. In Minnesota, the obligation to redact this information is placed on the attorneys, but there are still continuing problems with compliance.10 One interesting nuance is compliance by pro se litigants. The expectation was that it would be difficult to get pro se litigants to comply with the rules. But, much to court administration’s surprise, pro se litigants have paid close attention to redaction instructions.11

There is a growing tendency by some courts to exercise much more control over what will be accepted for filing. Courts have traditionally been the repository for almost all litigation-related information. But with the realization that with electronic information comes more responsibility and some unintended consequences, many courts have decided they will no longer accept certain types of information.12 This is especially true with respect to discovery information. There undoubtedly will be continuing developments in this area, especially as another new reality is dealt with—who has the responsibility for preserving, and how do we preserve, electronic information?

The future will most likely see increasing efforts to integrate interagency information systems. Some of the forces driving this integration will be the policies that promote a paperless society (i.e., e-filing and e-charging), better technology, pressure for smaller and more efficient government, and tight budgets. Historically, most government agencies had their own proprietary information system. Communication between these systems was like talking to someone who spoke a foreign language. During the last decade there have been significant efforts to break down these communication barriers. Interagency cooperation between law enforcement and the courts is on the front line of these efforts.

But interagency integration of information has raised its own set of particular problems. Many of these problems are technological, but one major policy issue is identifying which entity will be responsible for the information. Who is to be the custodian of the information, and more important, who will be held accountable when something goes wrong? In Minnesota, one law-enforcement agency viewed itself as a mere conduit for much of its information and the courts or other law-enforcement agencies as the accountable custodians. Courts should continue efforts to establish greater interagency integration of information, but this cooperation should go hand-in-hand with the development of rules and protocols as to who is the appropriate responsible party, i.e., the courts, law enforcement, or probation services. In the future, courts may, on certain occasions, conclude that it is more prudent to reject front-line responsibility for information that has traditionally been in their custody.

As part of the movement into the digital age, more and more court systems have initiated imaging projects where they convert their paper files into an electronic format. These projects have also led to some information management problems. One problem is the allocation of already scarce resources to redacting sensitive and confidential information from documents that were filed when little or no attention was paid to protecting this type of information.

Courts will continue to wrestle with how they handle bulk data—key issues are what will be made generally available, what will not be made available, and what, if any, bulk information will be made available for a fee. Tight budgets may drive courts to charge a fee for providing bulk data, which brings up another question: What is an appropriate fee?13

Uncertainty is sure to plague the regulation of genetic information in the court’s possession. Genetic information is frequently used in paternity suits and criminal cases. This information can be valuable to third parties. Law enforcement may want to use the information in investigations, and the information may be valuable to health-insurance companies and employers. Even with the clarification added by the Genetic Information Nondiscrimination Act, the rights of third parties to the genetic information of others is still unclear, and courts will need to be careful how they keep and disseminate such information (Atkins, 2010).

Metadata, sometimes referred to as metatags, will likely present a problem for courts. All courts that release information need to be aware that electronic documents may include embedded metadata that reveal information beyond that which is intended to be released. This metadata can be in documents that are either submitted to the court or internally generated. It can include such information as who drafted the document; when and by whom the document was modified; what deletions were made; and why specific changes were made to the document. Release of this metadata can have many unintended consequences, e.g., disclosing how the holding in a court decision evolved. A federal district court has recently held that metadata fields are an integral part of public records. It is inevitable that courts must develop practices and protocols for controlling or managing the use and dissemination of metadata.14

The courts will face several other problems and dilemmas when dealing with information. Evolving attitudes toward privacy, information integrity, and the emerging role of alternative media are other issues that will continue to confront the courts and society. In any case, the reader should by now have a firm grasp on the significance and enormity of this issue. Courts are definitely in the midst of the information/digital revolution, but they have only a limited concept as to what future challenges they will face. Thus, the future is filled with uncertainty, but, as Law Professor John W. Reed has said, with uncertainty comes optimism: "uncertainty about the future necessarily means that the future is not foreordained and that it remains to be affected by what you and I do—that we have a role to play in determining the shape of that future" (Reed, 2009: 7).

As court systems look to the future, they should be optimistic about their ability to shape that future. To return to Emerson, even if "things are in the saddle and [appear] to ride mankind," court systems can and should be right there in the saddle with them. Undoubtedly, it will be an eventful and exciting ride. Judges, court administrators, technology experts, and attorneys will all play a role in determining the shape of this future. But if those who work in and with the court system remained engaged, have sufficient resources, and do their jobs well, most if not all of the pending challenges can be overcome.