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John Soat
John Soat

IT Confidential: The Government Giveth And Taketh Away In Terms Of Privacy

The courts are finally overruling Internet access and getting practical about the obscurity of personal data contained in legal documents.

Webster's Collegiate Dictionary defines privacy as "the quality or state of being apart from company or observation." Consumer technology, the Internet, and popular culture, of course, are all in the process of redefining what privacy means in day-to-day life. So is the federal government.

One interesting, lesser-known definition of privacy is a concept referred to as "practical obscurity." The legal community uses the term in connection with the proliferation of court documents that, up until a little more than 10 years ago, were buried in the bowels of government buildings. Those documents relate to court cases, such as criminal prosecutions, bankruptcy proceedings, and divorce settlements, and contain a wealth--literally--of personal information, such as names, addresses, birth dates, Social Security numbers, financial account numbers, etc., etc.

Because that data used to be relatively difficult to access, requiring a researcher's paper-bound persistence and a certain amount of courthouse savvy, for all practical purposes the data contained therein was, well, obscured. It was something of a balancing act, the equilibrium between privacy and the public's right to know.

That is, until the advent of the Internet, and in particular the ongoing program now known as E-Government. In 1995, the federal judiciary created what is called the Case Management and Electronic Case Files, or CM/ECF, system, which now incorporates more than 27 million cases and is in use in 93% of federal courts: 90 district courts, 93 bankruptcy courts, the Court of International Trade, and the Court of Federal Claims.

CM/ECF is accessible over the Internet using the Public Access To Court Electronic Records program, at Public records can be viewed or downloaded for 8 cents a page, with a maximum cost per document of $2.40. So much for practical obscurity.

Except now, with a chorus of worried citizens' voices rising up over increasing incidents of identity theft and personal fraud, the government is interested in getting a little more practical about that obscurity. The Judicial Conference of the United States, the policy-making body for the courts, has adopted amended rules for storing court documents, effective December 2007. The new rules stipulate, among other things, that court documents, unless ordered otherwise, should include only year of birth (not month or day), minors' initials, and only the last four digits of Social Security numbers, taxpayer identification numbers, and financial-account numbers. In criminal cases, only the city and state of home addresses will be included. The new rules apply to both electronic and paper records.

On the other hand, there are new forms of practical obscurity, such as the obscurity of a single cell phone call or a single search request over the Internet, that the government is interested in making less obscure. Attorney General Alberto Gonzales testified before Congress last week that legislation should be passed, and soon, requiring ISPs to retain records of their network traffic for as long as two years, so prosecutors can access them to help in the fight against child pornography.

So what's a practical definition of privacy in the electronic age: balancing act, equilibrium, practical obscurity? It doesn't so much matter, as long as your definition is the same as mine. And the federal government's.

My definition: Just leave me the hell alone! Except for sending an industry tip, to [email protected], or 516-562-5326.

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