Focusing public attention on emerging privacy and civil liberties issues

Privacy and Public Records

Top News

  • EPIC, Domestic Violence Advocates, seek to protect privacy in court records.In commentsto the District of Columbia Superior Court, EPIC's domestic violence and privacy projectand several DC domestic violence advocates recommended strong privacy protections for online court records. Domestic violence survivors face several risks from online court records. Data brokers mine these records to resell and build profiles on individuals. The 2005 Violence Against Women Act (VAWA)protects key domestic violence information. The comments recommend a policy that follows VAWA, respects well-established privacy principles, and still permits convenient online access. Individuals should have control over whether their records are placed online. Data brokers should be restricted from accessing records via legal and technical measures. Online record usage should be for limited uses and be accessible only via a password-based login system. (Oct 19.)
  • EPIC Comments on Private Data in Court Files.In commentsto the Florida Courts, EPIC recommended that court files be scrubbed of identifiers such as the Social Security Number, date of birth, and telephone number. EPIC argued that, "Court records are becoming the fodder for dossiers on Americans," and that commercial data brokers are eroding the privacy rights of individuals by pour data into court files. For more information, see EPIC's Public Recordsand Choicepoint Pages. (Feb. 28, 2006)
  • SSNs, Other Data Should Be Scrubbed from Court Files.In commentsto the federal judiciary, EPIC called for changes to procedural rulesto shield personal information in court files from commercial data brokers. Commercial data brokers employ stringers to harvest personal information from court files, and then resell the information. Court files are becoming the fuel for dossier-building on Americans, and courts must accept the responsibility for shielding data from misuse. (Feb. 15, 2006)
  • EPIC Comments on Privacy of PA Court Records.In comments(also available in pdf) to the Pennsylvania court system, EPIC urged records custodians to protect personal information contained within court records. Court records contain sensitive personal information, including Social Security numbers, and these records increasingly are being used to build dossiers on individuals. Any person may comment on the proposed public access policyuntil November 17, 2005. (Nov. 9, 2005)
  • FL Committee Recommends Regulation of Data Brokers.Florida's Committee on Privacy and Court Records has issued recommendationsto reduce the privacy risks posed by court records. The first recommendation, which passed unanimously, urges the Florida legislature and Congress to comprehensively regulate commercial data brokers. The group also recommended that the courts allow anonymous access to records, and that courts minimize the amount of information they collect from individuals. Many of these positions were recommended by EPIC(pdf) in a submission that showed that Florida's records policies made the State's citizens subject to extraordinary profiling by data brokers such as Choicepoint. For more information, see EPIC's Choicepointpages. (Aug. 18)
  • EPIC Recommends Protections for Public Records.In comments(pdf) to a committee formed by the Florida Supreme Court, EPIC recommended protections for personal information that appears in public records. EPIC advised that personal data in public records are being commodified for purposes unrelated to government oversight. (Oct. 29, 2004)

Introduction

Public records are materials that are open to inspection by any person. The definition of what records are public varies depending on state and federal law. The definition may include government contracts with businesses, birth, marriage, and death records, court files, arrest records, property ownership and tax information, minutes of meetings of government entities, driver's license information, occupational licenses, and Securities and Exchange Commission filings.

Many of these public records contain individuals' personal information. This personal information is required to be divulged when citizens interact with state or federal bureaucracies for the purpose of administering voting, public benefits, and privileges. However, once a record becomes public, there is generally no restriction on the purpose for which the personal information contained within the record is used. The availability of this information without restriction on use exposes individuals to risks and annoyances:

  • Public records information is used by commercial profilers for marketing and targeted advertising. Sometimes public records information is used by predatory businesses to target persons with credit or bankruptcy problems.
  • Public records are compiled by private entities and then sold back to government law enforcement agencies as detailed dossiers. These dossiers can contain errors that result in someone being falsely identified as a criminal. In several cases, individuals have lost their jobs based on false information in public records.
  • Government can use public records in order to discriminate against certain populations. For instance, during World War II, census records were used to facilitate the internment of Japanese Americans.
  • Public records may contain all the information necessary to perpetrate identity fraud.
  • "Pretexting," the practice of posing as another person in order to obtain financial records or other private information, is made possible by the availability of personal information in public records.
  • "Social forgiveness," the principle that over time a citizen's crimes are forgiven, is diminished. While individuals may petition a court to expunge a criminal record, if a notation of the crime exists in a private database, the individual may still be marked as a criminal by profiling companies or employers. This principle--that one can be born again in America and leave mistakes in the past--can be eliminated through a system that culls, categorizes, and commercializes human behaviors.

As a society, we need to reevaluate how the personally identifiable information contained within public records can be used. Clearly, a free society demands a robust right of access to public records in order to assure accountability of public officials and government. This robust right must facilitate citizen access to records, not just access to those with resources and expertise in obtaining government records. A system must be established that ensures legitimate uses--journalistic, historical, and educational--of public records while still preserving privacy protections for personal information.

Court Records

In Fall 2000, the Administrative Offices of the United States Courts (AOUSC) requested comments from the public on its plans to provide remote electronic access to federal court files. With few exceptions, courts files are considered public and there are no legal barriers to their dissemination or to the dissemination of the personal information within the files.

While court files always have been public, they were considered to enjoy "practical obscurity." That is, the records were stored in such an inaccessible fashion that only the determined and resourceful could obtain them. To this day, most records probably are stored at the local level on different types of media (paper, magnetic tape) and are indexed with varying degrees of accuracy and usefulness.

Court files contain a wealth of personal information. For instance, bankruptcy filings, which are required by statute to be public, contain personal identifiers and detailed information on the petitioner's assets. Civil case files may contain medical information and detailed information on spousal infidelity and abuse. Criminal case files may contain presentencing reports and the identity of officers and witnesses in criminal investigations.

The AOUSC recognized that remote electronic access to this information could result in invasions of privacy and in security risks to witnesses and litigants. Accordingly AOUSC requested comments from the public on civil, criminal and bankruptcy case files.

EPIC filed comments with AOUSC and testified to a committee of the Judicial Conference on the privacy issues implicated by remote electronic access to case files. The challenge was to formulate a scheme that guarantees robust access to public records while also preventing unwarranted invasions into the personal matters of litigants and witnesses. To reach this goal, EPIC commented that in the context of civil case files, personal identifiers should be redacted. In the context of criminal case files, sensitive information such as pre-indictment documents, presentence reports, plea agreements, and unexecuted warrants should not be available to the public. Last, in the context of bankruptcy files, EPIC commented that personal identifiers should be collected on a separate form that was not available to the public.

Overall, more than 250 comments were received by the AOUSC, and the body released a policy in September 2001 that included important provisions for the protection of personal information. These included the redaction of personal identifiers in civil and bankruptcy cases, a delay in providing remote electronic access to criminal files, and Social Security cases were excluded from electronic access.

The AOUSC recommendation on electronic access to case files only applies to the federal courts. The states have different laws and policies on what court files are public and the extent to which they are available electronically.

In 2002, the National Center for State Courts requested comments on a model policy for public access to court records. State court records are more likely to contain information that could be stigmatizing. Family court issues, mental health cases, and domestic abuse cases are all handled in state courts.

In April 2002, the New York State Court system created a committee to study public access to court records.

Voter Profiling

The government compels citizens to divulge certain information before participating in democratic processes. For instance, for purposes of voting registration, citizens have to provide their identity and address. Some districts also collect information on party affiliation. If a citizen donates over $200 to a candidate or political party, the citizen must provide name, address, and employment information under federal fundraising rules. This information is often in the public record, and may not be protected by use limitations or other Fair Information Practices.

This personal information often is used to build complex profiles of citizens and their likely voting behaviors. Aristotle, a company that creates voter profiling software, sells databases of voter information that includes name, address, phone number, donation history, and party affiliation. The company also sells tools to track voter correspondence with elected officials.

Public Records and Law Enforcement

A number of commercial profilers sell public records information to government law enforcement agencies. An April 13, 2001 article in the Wall Street Journal reported that profiling company ChoicePoint provided personal information to at least thirty-five government agencies. EPIC has filed a series of Freedom of Information Act requests to determine the nature and amount of information sold to government. To date, EPIC has determined that ChoicePoint has several multi-million dollar contracts with law enforcement agencies to sell personal data. In addition, Experian, a credit reporting agency, sells personal information to government agencies for law enforcement purposes.

In January 2002, EPIC filed suit in Federal District Court to compel agencies to respond to the FOIA request for documents on ChoicePoint and Experian.

Profiling data is sometimes abused by law enforcement agents. In January 2001, a 12-year veteran of the Drug Enforcement Agency, Emilio Calatayud, was charged with selling personal information from police databases. Calatayud made thousands of dollars by selling the personal information to private investigators from the National Crime Information Center (NCIC), California Law Enforcement Telecommunications System (CLETS), and the Narcotics and Dangerous Drug Information System (NDDIS) databases. On the first day of this trial in February 2002, the DEA agent skipped bail and is at large.

In January 2002, a New York Jury awarded $450,000 in damages to an individual who lost a job opportunity because his profile contained a false criminal conviction. In that case, the judge found that ChoicePoint either intentionally maintained substandard procedures for verifying accuracy of data or should have known that its procedures were substandard under the Fair Credit Reporting Act. Obabueki v. IBM, 145 F. Supp. 2d 371 (2002).

In April 2002, private-sector profilers met to discuss how they could compile consumer information for terrorist risk profiling and sell it to the government. That meeting, organized by the Center for Information Policy Leadership (CIPL), was attended by a number of companies that are attempting to sell their marketing products for anti-terrorism purposes.

In May 2002, FBI agents Lynn Wingate and Jeffrey Royer were indicted on fraud charges relating to use of government databases. The FBI agents allegedly used their access to agency databases to provide information on companies for stock manipulation purposes. One agent allegedly searched the NCIC database and used information contained within it to smear a company executive and lower stock prices. Both allegedly used confidential FBI databases to monitor government investigations of the other stock manipulators.

News

Resources on Public Records

  • Daniel J. Solove, Access and Aggregation: Public Records, Privacy, and the Constitution, 86 Minnesota Law Review 6 (2002).
  • Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy(MS Word Format), 53 Stanford Law Review 1393 (2001).
  • Jeff Hatch-Miller, Question of Privacy, Governing Magazine, February 1, 2001. Representative Hatch-Miller is a Republican in the Arizona House. He has provided a framework for protecting public records that includes Fair Information Practices (FIPs).
  • Mary Jo Obee & William C. Plouffe, Jr., Privacy in the Federal Bankruptcy Courts, 14 Notre Dame Journal of Ethics and Public Policy 1011 (2000).
  • Roger Clarke, Privacy and 'Public Registers,' May 11, 1997. In this article, Professor Clarke argues that public records should not be treated differently than other files containing personal information.
  • Robert Gellman, Public Records: Access, Privacy, and Public Policy, April 21, 1995.
  • Erik Larson, The Naked Consumer: How Our Private Lives Become Public Commodities, Henry Holt (1992).
  • Oscar Gandy, The Panoptic Sort: A Political Economy of Personal Information,1993.
  • Robert Ellis Smith, Ben Franklin's Web Site: Privacy and Curiosity From Plymouth Rock To the Internet, 2000.

Selected Cases

  • Los Angeles Police Department v. United Reporting Publishing Corp ., 528 U.S. 32 (1999). In LAPD, the Court denied a First Amendment challenge to a statute that limited commercial access to arrest records. The statute allowed public access to the records for scholarly, journalistic, political, and governmental purposes.
  • Los Angeles Times v. County of Los Angeles , 956 F. Supp. 1530 (C.D. Cal. 1996). In Los Angeles Times, Los Angeles County has created a system that provided public access to civil case information. The LA Times newspaper sought free access to the system, claiming that charging for access violated the First Amendment. The court held that the system did not comprise court records and that the First Amendment had not been violated.
  • Nixon v. Warner Communications, Inc ., 435 U.S. 589 (1978). Nixonrecognized the common law right to access court case files. The Court held that the right was limited where "court files might have become a vehicle for improper purposes."
  • Whalen v. Roe , 429 U.S. 589 (1977). Whalenrecognizes an individual interest in avoiding disclosure of personal matters. In that case, citizens challenged a record-keeping system where a database was maintained of individuals who had prescriptions to addictive drugs. The Court held that the collection of such data carried with it a responsibility to avoid unwarranted disclosures.
  • Cowley v. Pulsifer, 137 Mass. 392, 394 (1882). In Cowley, Justice Holmes wrote that access to court records ensures: "that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.