[Federal Register Volume 72, Number 174 (Monday, September 10, 2007)]
[Notices]
[Pages 51659-51660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4415]


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JUDICIAL CONFERENCE OF THE UNITED STATES


Committee on Court Administration and Case Management; Notice of 
Request for Public Comment

AGENCY: Judicial Conference of the United States, Committee on Court 
Administration and Case Management.

ACTION: Notice of request for public comment.

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SUMMARY: The Court Administration and Case Management Committee of the 
Judicial Conference of the United States is seeking comment on the 
attached document relating to the privacy and security implications of 
public Internet access to plea agreements filed in federal court cases.

DATES: Comments will be accepted from September 10, 2007 through 
October 26, 2007.

ADDRESSES: All comments should be received by 5 p.m. Eastern Daylight 
Time, October 26, 2007. The electronic submission of comments is 
highlly encouraged. Electronic comments may be submitted via e-mail to 
[email protected]. Comments may also be submitted by 
regular mail to The Administrative Office of the United States Courts, 
Court Administration Policy Staff, Attn: Privacy Comments, Suite 4-560, 
One Columbus Circle, NE., Washington, DC 20544.

FOR FURTHER INFORMATION CONTACT: Abel J. Mattos, Chief, Court 
Administration Policy Staff, Administrative Office of the United States 
Courts, One Columbus Circle, NE., Washington, DC 20544, telephone (202) 
502-1560, fax (202) 502-1022.

    Dated: September 5, 2007.
Abel J. Mattos,
Chief, Court Administration Policy Staff.

Request for Comment on Privacy and Security Implications of Public 
Access to Certain Electronic Criminal Case File Documents

    The federal Judiciary is seeking comment on the privacy and 
security implications related to electronic public access to certain 
documents in criminal case files. The Court Administration and Case 
Management Committee of the Judicial Conference of the United States is 
studying these issues in order to develop policy guidance to the 
federal courts.
    Specifically, the Committee is interested in comments on a proposal 
to restrict public Internet access to plea agreements in criminal 
cases, which may contain information identifying defendants who are 
cooperating with law enforcement investigations.
     This request for public comment addresses two related 
issues:
     The privacy and security implications of public Internet 
access to plea agreements filed in federl court cases; and
     Potential policy alternatives.
    Information on how to submit comments is contained at the end of 
this document.

Electronic Public Access to Federal Court Case Files

    Historically, most documents filed in federal courts are considered 
to be public information. Over the last decade, the federal courts have 
established an electronic case files system that allows public access 
to court case files through the Internet. This transition from paper 
case files to electronic files has transformed the way that case file 
documents are used by attorneys, litigants, courts, and the public. In 
the past, attorneys and parties were required to file case documents at 
the courthouse. Likewise, the public was required to go to the 
courthouse where a paper case file was maintained to review the file or 
obtain a copy of a document from that court file. Now, electronic case 
files allow anyone with an account with the Judiciary's Public access 
to Court Electronic Records (PACER) system to view, print, or download 
these documents via the Internet.
    PACER is a Web-based system that provides access to both the 
dockets (a list of all the documents in the case) and actual case file 
documents. Individuals who seek a particular document or case file can 
open a PACER account and obtain a login and password. Those who 
register a valid credit card number will receive their account login 
and password in minutes. Immediately after establishing an account, and 
individual can access case files over the Internet. As established by 
Congress, public access through PACER involves a fee. Currently, the 
fee is $.08 per page of a case file document or report that is viewed, 
downloaded, or printed. There is a fee cap of $2.40 for all documents 
(excluding transcripts of court proceedings) that exceed 30 pages in 
length. Additionally, no fee is owed by a PACER account holder until 
charges of $10 are accrued in a calaendar year. Electronic case files 
are also available for review, free of charge, at public computer 
terminals at courthouses. Printouts from the public access terminals 
cost $.10 per page.

Privacy and Security Implications of Electronic Criminal Case Files

    Electronic case files bring significant benefits to the courts, 
litigants, attorneys, and the public. There are also, however, personal 
privacy and security implications of unlimited Internet access to court 
case files, especially criminal case files. Many federal court case 
files contain personal and sensitive information that litigants and 
third parties may be compelled by law to disclose for adjudicatory 
purposes.
    The Judiciary has a long tradition--rooted in both constitutional 
and common law principles--of open access to public court records. 
Accordingly, all case file documents, unless sealed or otherwise 
subject to restricted access by statute or federal rule, have 
traditionally been available for public inspection and copying. The 
Supreme Court has recognized, however, that access rights are not 
absolute, and that technology may affect the balance between access 
rights and privacy and security interests. See Nixon v. Warner 
Communications, Inc., 435 U.S. 589

[[Page 51660]]

(1978) and United States Department of Justice v. Reporters Committee 
for Freedom of the Press, 489 U.S. 749 (1989).
    In September 2003, the Judicial Conference adopted a privacy policy 
for criminal case files that included providing the same level of 
public access to electronic case files as it has provided to paper case 
files. It did so, in part, based on the results of a pilot project 
completed earlier that year. The pilot project allowed public Internet 
access to criminal case files in ten district courts and one court of 
appeals for two years. A report on the pilot project by the Federal 
Judicial Center found that there were no significant reports of misuse 
of criminal case documents, nor were there any reports of harm stemming 
from the availability of these documents via public Internet access. 
Nonetheless, individual courts may have chosen a more restrictive 
approach to public Internet access to these documents.
    Both the 2003 policy and pending Federal Rules of Procedure 
regarding privacy in court filings prescribed by the Supreme Court in 
April 2007 \1\ require that certain limited information be redacted or 
truncated in filings with the court, including: Social Security and 
financial account numbers, dates of birth, names of minor children, 
and, in criminal cases, home addresses. In addition, the pending 
Federal Rules allow courts to seal documents or limit public Internet 
access to documents on a case-by-case basis, if good cause is shown. 
See Pending FR Crim. P. 49.1(e).
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    \1\ Absent action by Congress to reject, modify, or defer them, 
the rules will go into effect on December 1, 2007.
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Request To Limit Access to Certain Documents in Federal Court Criminal 
Case Files

    The Department of Justice has asked the Judicial Conference to 
restrict public Internet access to a specific type of document: Plea 
agreements in criminal cases, which may disclose the fact that the 
defendant in the case is cooperating or has cooperated with law 
enforcement investigations. The ease with which the public is able to 
both retrieve federal court case information from electronic case files 
and redistribute it electronically through the Internet has raised 
concerns about whether the Judiciary's policy of allowing access to all 
unsealed plea agreements provides a sufficient measure of safety for 
those defendants cooperating with law enforcement. Certain private 
parties or organizations have compiled lists setting forth names, 
locations, and descriptions of alleged cooperating witnesses and have 
posted them on the Internet. Some have expressed concern that wide 
dissemination of this information may facilitate or encourage 
retaliation and/or witness intimidation.
    The Judiciary is requesting comment on its policy of providing 
public Internet access to all non-sealed plea agreements in electronic 
criminal case files (described further below). This policy has been in 
effect since November 2004, but only came into play in any particular 
local court level when that court adopted an electronic case files 
system, typically at some point between 2005-2007. To assist it in 
considering the issue, the Judiciary welcomes comments on this policy, 
including, but not limited to, the question of whether the policy 
should be changed to prohibit public Internet access to plea agreements 
or other documents in the criminal case files that identify a person 
cooperating with law enforcement. These plea agreements and documents 
would still be available for public inspection at the courthouse. 
Additionally, the Judiciary seeks comments on how it could otherwise 
meet the need to balance access issues against competing concerns such 
as privacy and personal security.

How To Submit Comments

    All comments should be received by October 26, 2007 and must 
include the name, organization (if any), mailing address, and telephone 
number of the commentator. All comments should also include an e-mail 
address and a fax number, where available, as well as an indication of 
whether the commentator is interested in participating in a public 
hearing, if one is held. The public should be advised that it may not 
be possible to honor all requests to speak at any such hearing. Any 
such hearing may be recorded for broadcast.
    The electronic submission of comments is highly encouraged. 
Electronic comments may be submitted by e-mail to 
[email protected]. Comments may be submitted through the 
U.S. Postal Service to The Administrative Office of the United States 
Courts, Court Administration Policy Staff, Attn: Privacy Comments, 
Suite 4-560, One Columbus Circle, NE., Washington, DC 20544.

[FR Doc. 07-4415 Filed 9-7-07; 8:45 am]
BILLING CODE 2210-55-M