UNC School of Law professors David Ardia and Anne Klinefelter have received a $43,000 award from the Berkeley Center for Law & Technology and Microsoft Corp. for seminal research on an emerging privacy concern: sensitive information contained in court records.
As courts nationwide digitize records for online public access, questions have surfaced about the balance between the public’s right to know and the release of sensitive information.
“The move to online access to these records opens a Pandora’s box,” says Ardia, co-director of UNC’s Center for Media Law and Policy and assistant professor of law.
The United States has a long history of providing open and public trials, which Ardia notes are essential “for the public to have faith in the fairness in our courts.” However, with the advent of online publishing of court records, there is an active debate going on about whether some information in court records should be redacted when the records are posted online in order to protect the privacy of individuals.
“Our research will provide a first-of-its-kind empirical study of the frequency of sensitive and private information in court records,” Ardia says. “Our work will be valuable to courts around the country and to libraries and other archivists doing this digitization.”
The privacy issue is relevant to UNC’s Kathrine R. Everett Law Library, which is in the midst of a project to digitize copies of briefs submitted to the North Carolina Supreme Court before the process became electronic. These materials are regularly consulted by North Carolina lawyers, so the library has plans to post them online for easier access. There’s no clear guidance about whether or how libraries should redact sensitive information that could cause harm to people identified in records.
“Like many modern activities, digitization of older court records occupies a space in the law that is unclear, particularly because privacy law in the United States is piecemeal and evolving fairly slowly,” says Klinefelter, UNC Law Library director and associate law professor.
For help, Klinefelter is consulting North Carolina laws about identity theft and state Supreme Court rules regarding electronic filing of court briefs, and exploring the option of redaction. “We’re still working on our final approach to balancing access and privacy,” she says.
Court records can contain a lot of sensitive information: Social Security numbers, names of rape and child abuse victims, credit card and bank account numbers, health-related data such as HIV status and more.
Even information that may seem mundane could cause harm if it is combined with other online information. About a dozen law students will help Ardia and Klinefelter search for 125 different types of data that could be contained in court records, including information about sexual history, financial accounts, student records, video rental history and borrowed library books, all of which receive protection under various federal and state privacy laws.
Abuse of the records could lead to identify theft, compromised financial information, discrimination based on health or disability, and stigma for crime victims.
“The expectation is that Google will crawl these records,” Ardia says. “As barriers to access go down … the potential for privacy harms increases.”
The lack of guidelines about disclosure complicates the matter. Their research will inform policy decisions about balancing the public’s right to know and privacy concerns, and may help court officials and archivists establish redaction protocols.
“Part of why this work is so important is that, regarding the harms that come from disclosure of private and sensitive information, we are grasping in the dark as a society. We stumble into harms that people didn’t anticipate, and then we reactively try to protect that information,” Ardia says. “A study like ours is an effort to be proactive, to see what is coming down the road as court records become digitized and available to the public.”
Ardia and Klinefelter stress that their project is not about elevating privacy over public access.
“The challenge we face is how to ensure public access in an age when everything is going online. To do that, we need to have a better sense of what is in these records so that we can carefully consider the tradeoffs that come from different forms of online access,” Ardia says. “This is very much a topic that’s a national conversation.”
The UNC project was one of six proposals to receive awards. The results will be presented at the 2015 Berkeley Technology Law Journal Spring Symposium, “The Privacy, Security, Human Rights and Civil Rights Implications of Releasing Government Datasets.”
-January 21, 2015