[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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