[long post (difficult issue)]

Public.Resource.Org recently posted 50 years of Courts of Appeals
decisions.  In addition to tarballs being used by a variety of non-
profit and for-profit groups to build legal information services, we
provide an "exploded tarball": a directory tree that you can browse.
The search engines have been aggressively crawling our site, and there
have been some results I wasn't expecting.

Court cases are public documents.  No one would argue that a Supreme
Court case should not be public.  But, as you walk down the court
system hierarchy, you start to reach edge cases.  About once a day, I
am contacted by somebody who wants me to "remove them from the
Internet" or otherwise make a case they were involved in disappear.

Some of these people get very distraught, and reach out broadly to get
the information removed from the net.  Although my email address is
fairly easy to find (on my home page, in the whois records, through
Google), we've had people send anguished or threatening notes to our
directors and to our landlord (which is O'Reilly Media and has
absolutely nothing to do with our release of public records).  We've
even had people threaten to file suit with Creative Commons (our data
is labeled CC-Zero) and even Boing Boing (which sometimes posts news
about our goings-on but had no idea why they received a take down
notice on a court case).

Because we know that the courts are not infallible, we pay attention
to each of these people.  I go read the case, send them email, and
sometimes talk to them on the phone. It is important to understand the
types of cases we've received, since I think it shows you why this
issue is so troublesome:

1. John Doe wrote to me that a friend was busted for cocaine at his
house.  Doe apparently wasn't charged, but because his name is unusual
he is upset that his daughter's friends will Google her and this will
come up.

2. Jane Doe sued a school district because her daughter allegedly had
behavior or psychiatric problems and the school, in her opinion, had
not provided adequate care. The case was dismissed because she had not
used the proper remedies available outside of court.  Her daughter is
all grown up now, has a Master's degree, and she finds this whole
episode embarrassing and not worthy of public comment.

3. A guy was involved in a wrongful death suit, got $1.2 million a
decade ago.  He is worried that his name and the amount on the net
means his family and he are now targets of identity theft or
kidnapping.

4. A controller for a company testified at the trial of his CEO, who
was accused of securities issues.  The controller is now a working CFO
and doesn't want his case public because it will hurt his career.

5. A financial adviser was convicted of defrauding an old lady of her
savings. It was well over a decade ago and he has paid his debt to
society.  He is worried about his employment prospects if people
Google him.

In our answers to people, we stress a few points.  First, these are
public records that have long been available on the commercial
services such as West and Lexis, what we refer to as "the rich man's
Google" (not to be confused with the Google rich men).  Second, we
emphasize that the courts are responsible for this information and
that removal of information is something only they can do.  Third, we
explain that we are no position to exercise editorial discretion over
which cases the public should see and which they do not see.

However, despite my strong belief in the necessity for government to
do a much better job of publishing public information, I find myself
in great distress when, on a daily basis, I deal with people who feel
that I am the cause of or have the solution to an issue that causes
them great pain.  If that person is a government bureaucrat or a
clueless corporate executive, I think that is a professional issue.
But, when that person was caught up in an arbitrary immigration
dragnet or otherwise got swept up in the American obsession with
litigation, I think this is an issue that we have to at least
acknowledge.

I've spent the last few weeks talking to a variety of privacy
advocates, legal information specialists, and others familiar with
these issues.  We feel confident at the Court of Appeals level that
publishing these decisions is the right thing to do.  But, we're not
as convinced that there is as strong a compelling public policy reason
for this information to necessarily shows up on Google.

Rather than decide on a case-by-case basis, we have instituted a
policy which explains that we will include a case in a robots.txt file
upon written request. We won't remove the case, and we make clear that
others might download the tarballs from us, from other free law sites,
or from the courts, so there is no guarantee that their case will not
show up in the future.  That policy is explained here:

     http://public.resource.org/court_cases.html

We are also takng a series of steps to understand the implications of
posting lower court decisions, particularly bankruptcy and district
court opinions, and are thinking hard about the issues involved in
posting dockets.  Your feedback and input is welcome.

Best regards,

Carl

Carl,

At Rutgers, we have been publishing NJ federal district court, state
appeals court, and administrative law decisions for some time.  As such,
we have been dealing with this same issue for some time.  The encounters
you relate are very familiar.  We have even had one person follow
through on a threat to go to court, and got a TRO (temporary restraining
order) from a sympathetic judge.  A completely indefensible ruling, but
they got it.  Others have spanned the range from threats to weeping.

We started out with the same policy you are adopting now. As I suspect
you already guess, this was not satisfactory.  The letters kept coming.

Eventually, we banned outside search engines from our documents
altogether.  Our search pages are all Googlable(?!), but not the cases.

Since doing this, we get very few contacts.  In fact, the only
complaints we have gotten since then were situations where a third party
linked to our document, and Google indexed their link.  We have always
been able to have the link, or Google's entry, removed.

The way we look at it, there are two different important goals in
publishing legal information. The more general goal is to take part in
guaranteeing the transparency of the courts, that transparency being
essential for a free society.  The second is to facilitate legal
research for all citizens.

In neither of these cases is the availability of our documents on Google
necessary.  In both situations, someone looking for "New Jersey
Administrative Law", for example, can put those terms into Google and
get our search page.  The entirety of our collection is then open to
them.  Yours too, for that matter. ;-)

The ones who are disadvantaged by our policy are looky-loos.  Even those
who are just looking for dirt, but who have some determination can and
will find what they want from us.

So here is a lawyer's conclusion:  it is essential for these materials
to be "reasonably available" to the public.  A good working definition
of "reasonably available" is that someone looking for a court will be
able to find it, and then see the decisions that court has made.

In the past, there was some de facto insulation from the public eye that
litigants enjoyed, based on the relative unavailability of court
documents.  Despite what some will say, I do believe there is some
social utility in that insulation.

More important, there is also the danger that too ubiquitous
availability of the kind of personal information that comes out in court
opinions may result in policies that really do endanger the transparency
of the courts and the ability of the public to research.

As a practical matter, we have found our policy to be a very workable
compromise.

John

--
_________________________________________
John P. Joergensen
Librarian II/Assoc. Prof.
Rutgers University School of Law - Camden
jjo...@camden.rutgers.edu
________________________________________

Carl:

We too have had this problem over many years, of course, though in our
case it is somewhat mitigated by the fact that there is a lot less
collateral damage in Supreme Court opinions.  Our counterparts at
AustLII found themselves on the front page of the Sydney morning paper
for a week back in the mid-90's over similar issues.  Though I have
the exact reservations, trepidations, and sympathies that both you and
John do, we have chosen a rather hard line on this-- namely, that
public records are indeed public and that decisions about what should
and should not be public are a matter for vigorous public debate.  And
while I do appreciate that John (in particular) is doing a good job of
recreating the "practical obscurity" that paper records have, I am not
sure that we should do so in the absence of clear policies from the
courts.

The reason for our position is simply that I do not feel that
publishers should take these policies on themselves, nor should they
let the courts off the hook.  I am not comfortable with wide-open
court records, but I am equally uncomfortable with the idea that four
guys in Sydney, unelected  and unappointed by anybody, are deciding
what privacy policy is for public records of public judgments in
Australia.  No doubt they make good choices.  But that is a choice in
which the government and the courts, as agents of the public, should
be guided by transparent public discussion and debate.

That's something that has happened in many venues -- New York State
did a particularly good job of balancing competing concerns, but many
other jurisdictions have as well.  It has not happened at the Federal
level.  And while my sympathies are very much with those who have
suffered from this kind of exposure, and not with the 'looky-loos',  I
think that courts should act and that we should not relieve them of
their obligation to do so.

Best,
Thomas R. Bruce
Director, Legal Information Institute
Cornell Law School
http://www.law.cornell.edu/

The conflict between open records for which openness depends on a
visit to the courthouse perhaps a thousand miles away, and records
that can be found via any search engine or specialized compiler, is
well understood. Zillow.com has taught us that we have no secrets. A
neighbor needs very little new knowledge to master PACER and get all
your bankruptcy documents for 8 cents a page. And republish them on
his own Web site if he feels like it (some have done so, in connection
with particular issues such as the Lloyd's securities-fraud caes).

As DNA gets collected and rights are compromised without recourse by
via the collection of relatives' DNA; as CCTV collects license plate
numbers and facial images -- just to give a couple of examples --
people have to get used to what was, heretofore, invasion of privacy.
Especially where the privacy invaded was not a legal, but a practical,
"right".

Today's Washington Post carries an article on the persistence of
conviction record and reputation for those unjustly convicted int he
first place
http://tinyurl.com/66w6m8
In the olden days, one could head West to the frontier and perhaps
escape a reputation. Now Google follows you. The prejudice of Anglo-
American culture against ID cards is dated, passé. And, hey, if you
live in Derby Line VT or Rock Island QC you can't visit the public
library without one, or a passport: the national frontier goes down
the center of the reading room.
http://en.wikipedia.org/wiki/Haskell_Free_Library_and_Opera_House
The point is that we no longer -- especially since 9/11 and such other
innovations as the sexual predator registers -- enjoy much in the way
of effective privacy rights. Even failure to pay taxes can get on on a
public name-and-shame Web page. Library fines can get you a black mark
on your credit report--itself available easily enough to any curious
person. Recourse against the Press for claims of libel is (by
comparison to European, and especially English norms, anyway) greatly
circumscribed.

The wikileaks.org litigation and the practical immunity of
thepiratebay.org have proved the futility of litigating privacy and
intellectual property rights where there are foreign hosting and
mirror sites. And "rogue" serach engines that do not honor  "do not
list" commands.

My name is Valentino Spataro, I manage some databases in Italy.

Privacy concerns are very strong in Italy.

On my sites I have 3 sections on ricercagiuridica.com:

1) cases manually chosen,
2) cases (abstracts) from italian supreme court (corte di Cassazione)
3) cases from Constitutional Court

for each of these, we do in these way:

1) we manually delete every personal data. If something is related to
a building, even the street.
We can do because there are not too many relevant cases

2) we use only abstracts, and leave supreme court manage pdf (image of
paper)

3) Constitutional Court publishes the full text, but when I use it i
automatically remove every name.

The italian law applies protection to human beings and to farms. We
should refer a case only with numbers, but this doesn't happen (I
simplify, if you need more infos I'm here).

In the first years the same email arrived to me from people asking to
delete, or from people trying to make money ...

So there is the need to let people ask for removing their names, and
for me it's better to turn off caching from search engines.

But I think we should consider a way to remove names automatically AND
manually, inserting new names in a black list for automatically
substitute names.

The names can be replaced to the original for certified users, but I
understand this can create other difficulties.

So I have no a solution, but I agree to the concern of other people in
this group.

Please to meet you,

Spataro
IusOnDemand.eu