[Congressional Record Volume 149, Number 140 (Tuesday, October 7, 2003)]
[House]
[Pages H9221-H9223]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  E-GOVERNMENT ACT OF 2002 AMENDMENTS

  Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 1303) to Amend the E-Government Act of 2002 with respect 
to rulemaking authority of the Judicial Conference, as amended.
  The Clerk read as follows:

                               H.R. 1303

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. RULEMAKING AUTHORITY OF JUDICIAL CONFERENCE.

       Section 205(c) of the E-Government Act of 2002 (Public Law 
     107-347; 44 U.S.C. 3501 note) is amended by striking 
     paragraph (3) and inserting the following:
       ``(3) Privacy and security concerns.--
       ``(A)(i) The Supreme Court shall prescribe rules, in 
     accordance with sections 2072 and 2075 of title 28, United 
     States Code, to protect privacy and security concerns 
     relating to electronic filing of documents and the public 
     availability under this subsection of documents filed 
     electronically or converted to electronic form.
       ``(ii) Such rules shall provide to the extent practicable 
     for uniform treatment of privacy and security issues 
     throughout the Federal courts.
       ``(iii) Such rules shall take into consideration best 
     practices in Federal and State courts to protect private 
     information or otherwise maintain necessary information 
     security.
       ``(iv) Except as provided in clause (v), to the extent that 
     such rules provide for the redaction of certain categories of 
     information in order to protect privacy and security 
     concerns, such rules shall provide that a party that wishes 
     to file an otherwise proper document containing such 
     protected information may file an unredacted document under 
     seal, which shall be retained by the court as part of the 
     record, and which, at the discretion of the court and subject 
     to any applicable rules issued in accordance with chapter 131 
     of title 28, United States Code, shall be either in lieu of, 
     or in addition to, a redacted copy in the public file.
       ``(v) Such rules may require the use of appropriate 
     redacted identifiers in lieu of protected information 
     described in clause (iv) in any pleading, motion, or other 
     paper filed with the court (except with respect to a paper 
     that is an exhibit or other evidentiary matter, or with 
     respect to a reference list described in this subclause), or 
     in any written discovery response--
       ``(I) by authorizing the filing under seal, and permitting 
     the amendment as of right under seal, of a reference list 
     that--

       ``(aa) identifies each item of unredacted protected 
     information that the attorney or, if there is no attorney, 
     the party, certifies is relevant to the case; and
       ``(bb) specifies an appropriate redacted identifier that 
     uniquely corresponds to each item of unredacted protected 
     information listed; and

       ``(II) by providing that all references in the case to the 
     redacted identifiers in such reference list shall be 
     construed, without more, to refer to the corresponding 
     unredacted item of protected information.
       ``(B)(i) Subject to clause (ii), the Judicial Conference of 
     the United States may issue interim rules, and interpretive 
     statements relating to the application of such rules, which 
     conform to the requirements of this paragraph and which shall 
     cease to have effect upon the effective date of the rules 
     required under subparagraph (A).
       ``(ii) Pending issuance of the rules required under 
     subparagraph (A), any rule or order of any court, or of the 
     Judicial Conference, providing for the redaction of certain 
     categories of information in order to protect privacy and 
     security concerns arising from electronic filing or 
     electronic conversion shall comply with, and be construed in 
     conformity with, subparagraph (A)(iv).
       ``(C) Not later than 1 year after the rules prescribed 
     under subparagraph (A) take effect, and every 2 years 
     thereafter, the Judicial Conference shall submit to Congress 
     a report on the adequacy of those rules to protect privacy 
     and security.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Wisconsin (Mr. Sensenbrenner) and the gentlewoman from Texas (Ms. Eddie 
Bernice Johnson) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on H.R. 1303 currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, H.R. 1303 amends the E-Government Act to require the 
Judicial Conference of the United States to promulgate national rules 
to address privacy and security concerns relating to the electronic 
filing of court documents and the public availability of documents 
filed electronically.
  To the extent any rules provide for the redaction of certain 
information in order to protect privacy, this bill requires that the 
rules allow litigants to file and access unredacted documents under 
seal for evidentiary purposes in addition to a redacted version for 
public use.
  H.R. 1303 addresses the concerns of both the Department of Justice 
and the judiciary. The Department of Justice was concerned that the 
privacy policy of the Judicial Conference could impede the legal 
introduction into evidence of information it deemed necessary to prove 
the elements of certain cases, such as bank account numbers in a fraud 
prosecution. The judiciary was concerned that a privacy policy allowing 
parties to file unredacted and sealed documents and a redacted public 
version could result in confusion, error, privacy risks, and reduction 
in access to public documents. H.R. 1303 requires the enactment of 
national rules to protect privacy and security concerns. However, such 
rules permit the filing of one ``reference list,'' to be kept under 
seal, that would include a complete version of each personal data 
identifier and a corresponding partially redacted version of each 
identifier. Only the partially redacted version may be used in future 
filings.
  The bill encourages uniformity in all jurisdictions and empowers and 
Department of Justice to access the information necessary to prosecute 
crimes. The Judicial Conference will retain the authority to enact 
rules that comply with case law, provide the greatest public access to 
information possible, and protect the privacy of all participants in 
the Federal judicial system.
  This is a good bill and I urge my colleagues to support it.
  Mr. Speaker, I reserve the balance of my time.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield myself such 
time as I may consume.
  Mr. Speaker, I rise in support of H.R. 1303, and ask my colleagues to 
vote for it. H.R. 1303 will address serious concerns expressed by the 
U.S. courts about the E-Government Act of 2002. I believe the 
legislation will address these concerns while still serving the 
worthwhile purposes of the E-Government Act.
  In the wee hours of the last day of the 107th Congress, the House and 
Senate both passed the E-Government Act of 2002 by unanimous consent. 
The President later signed the act into law as Public Law 107-347.
  Section 205 of that legislation required the U.S. courts to establish 
and maintain Web sites containing a variety of information. Required 
information includes access to docket information for each case, access 
to the substance of all written opinions issued by the court, and 
access to documents filed with the courthouse in electronic form.
  The legislation wisely recognized that the public interests in access 
to court documents and the protection of privacy must be balanced. Many 
court

[[Page H9222]]

documents contain a variety of personal information, including bank 
account numbers, tax returns, and home addresses. Unrestricted Internet 
access to all court documents in their entirety might, therefore, 
seriously compromise the privacy of certain individuals.
  In acknowledgment of these serious privacy concerns, section 205 
requires the U.S. Supreme Court to prescribe rules ``to protect privacy 
and security concerns relating to electronic filing of documents and 
the public availability under this subsection of documents filed 
electronically.'' The Supreme Court is required to submit its 
prescribed rules to Congress, and the prescribed rules would be adopted 
if Congress failed to act to amend or reject them within 6 months.
  Section 205 also further dictates the substance of the rules that the 
U.S. Supreme Court must prescribe. Most relevant to the legislation 
before us, section 205 requires that the privacy rules adopted by the 
courts allow parties to file unredacted versions of court documents 
under seal.

                              {time}  1415

  This language addressed Justice Department concerns that the privacy 
rules could impede the introduction into evidence of information it 
deemed necessary to prove the elements of certain cases.
  Because of the last-minute nature of the E-Government Act, neither 
the Committee on the Judiciary nor the U.S. Courts had adequate 
opportunity to review the final text of Section 205 before passage. 
Having now reviewed and reflected on Section 205, the Committee on the 
Judiciary had some concerns about the language. It is those concerns 
that H.R. 1303 addresses today.
  In allowing parties to file both redacted and sealed, unredacted sets 
of court documents, the U.S. courts believe Section 205 creates 
needless potential for confusion and error. In particular, the Courts 
assert Section 205 will needlessly complicate the process of making 
appropriate versions of documents available to juries and to the 
public, and for certifying appropriate versions of the documents for 
purposes of appeal.
  These concerns have been addressed in the legislation before us 
today. H.R. 1303 addresses the concerns of the courts, while 
accomplishing the objectives of the Department of Justice. In fact, 
H.R. 1303 as adopted by the Committee on the Judiciary represents a 
negotiated compromise between the Department of Justice and the U.S. 
courts.
  H.R. 1303 requires the courts to prescribe rules that allow parties 
to file a reference list with the court. This reference list would 
include both a complete and partially-redacted version of each personal 
data identifier. The redacted version would be used in lieu of, and be 
construed to refer to, the complete version in subsequent filings in 
the case. The list, which would be maintained under seal, would, 
therefore, serve as a type of key.
  This approach resolves the concerns of the courts by eliminating the 
need to file two versions of a court document. It meets the needs of 
the Department of Justice by allowing for the filing of unredacted 
identifiers where necessary to accomplish the elements of a case.
  In conclusion, Mr. Speaker, I believe this legislation is a 
proportionate cure for a previously-overlooked defect in the E-
Government Act of 2002. Therefore, I ask my colleagues to support this 
legislation today.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume 
to the gentleman from Texas (Mr. Smith) who is the chairman of the 
Subcommittee on Courts, the Internet, and Intellectual Property of the 
Committee on the Judiciary.
  Mr. SMITH of Texas. Mr. Speaker, I thank the gentleman from Wisconsin 
(Mr. Sensenbrenner), the chairman of the Committee on the Judiciary, 
for yielding me time.
  Mr. Speaker, the E-Government Act I introduced improves the 
information management of the Federal Government by authorizing 
upgrades to enhance systems management, information technology, and 
security. It also includes provisions that ensure greater citizen 
access to Federal Government information.
  Section 205 of the Act instructs the Federal courts to establish and 
maintain a Web site with information such as courthouse locations, 
relevant telephone numbers, court rules, docket listings, written 
opinions, and case filings.
  In addition, it requires the Judicial Conference to prescribe rules 
to protect privacy and security concerns relating to electronic filing 
of documents and the public availability of documents filed 
electronically.
  After the Subcommittee on Courts, the Internet, and Intellectual 
Property marked up H.R. 1303, the Department of Justice raised concerns 
that under H.R. 1303, the Judicial Conference could adopt rules that 
might prevent the Department from using certain information necessary 
to prosecute cases, such as credit card numbers in a fraud prosecution.
  At the Committee on the Judiciary markup of H.R. 1303, I offered an 
amendment in the nature of a substitute that addressed the concerns of 
both the Department of Justice and the Judiciary.
  H.R. 1303 will protect privacy of Federal litigants, provide for 
public access to information, limit party error, and ensure the 
introduction of evidence necessary for the prosecution of certain 
cases.
  Mr. Speaker, H.R. 1303 is a good bill, and I urge my colleagues to 
support it.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in support of H.R. 1303 
which will amend Section 205 of the existing and codified ``E-
Government Act.'' The operative language of the bill with the Amendment 
offered by Representative Howard L. Berman and adopted by the Judiciary 
Committee will restore order to the electronic infrastructure that 
serves the federal court system.
  The primary goals of the ``E-Government Act,'' namely to (1) improve 
the ``information management'' of the Federal Government by authorizing 
upgrades to improve systems management, information technology, and 
security, and (2) to insure greater citizen access to Federal 
Government information serve the interest of the public by way of 
making the government's electronic infrastructure more ``user friendly 
and useful overall. However, in light of the import of the existing 
codified language of the relevant provision, Section 205 of the E-
Government Act,'' namely the hortatory ``shall'' reveals a problem that 
is addressed by H.R. 1303:

       ``[t]he Judicial Conference of the United States shall 
     prescribe rules . . . to protect privacy and security 
     concerns relating to electronic filing of documents and the 
     public availability under this subsection of documents filed 
     electronically.''

  While the overt intent of the hortatory language suggests a 
legislative benefit to the public and to the electronic infrastructure, 
by implication, the provision waters down the discretion of the Federal 
Courts to determine the sealability of court documents as well as 
restrict public access to certain case information.
  In the wake of 9/11 and the mounting death toll that is ever-
escalating even in the aftermath of war, it is vital that we keep our 
secure information secure and less vulnerable to negligent or abusive 
acts, as the net effect could lead to larger problems. Allowing carte 
blanche access to certain court electronic court documents allowing the 
manipulation of the sealability of those documents is a disaster 
waiting to happen. The type of crimes to be controlled by the bill 
introduced in the Subcommittee on Crime, Terrorism, and Homeland 
Security, namely H.R. 1678, the ``Anti-Hoax Terrorism Act of 2003'' 
could create an administrative nightmare for the federal court system. 
The cost, time, and energy expenditure that could come about absent the 
protections of H.R. 1303 would only make our government even more 
vulnerable to real terrorist attacks. As a Member of the Select 
Committee on Homeland Security, I am particularly interested in 
preventing terrorism hoaxes and holding criminal transgressors 
accountable. Allowing parties access to freely manipulate certain 
electronic litigation documents will lead to severe administrative 
backlog and the concomitant vulnerability of other areas of our 
critical infrastructure. Problems never stop where they begin. Homeland 
security funds and resources are both scarce and precious. During my 
work on the Select Committee on Homeland Security, I have spoken with 
numerous fire departments, police departments, hazardous materials 
teams, and other first responders across the country that are not 
receiving the funding, equipment, and other resources they need to 
adequately protect their communities.
  Mr. Speaker, for the reasons set forth above, I support H.R. 1303, 
the ``E-Government Act of 2003'' and thank you for this opportunity to 
consider it.

[[Page H9223]]

  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I have no further 
request for time, and I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Hefley). The question is on the motion 
offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that the 
House suspend the rules and pass the bill, H.R. 1303, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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