Privacy, Open Access, and the Law

Since we started putting court cases on the interwebs, first with Project Posner and then with AltLaw, we’ve had the occasional angry email from someone who Googles himself/herself and finds a court case from 20 years ago that reveals embarrassing and career-damaging facts.  They usually want the page taken down.

Now, sometimes I’m sympathetic with the people making these requests — sexual harassment plaintiffs, asylum-seekers, and so on.  Other times, I’m not — usually when the person writing to us was convicted of sexual harassment, fraud, etc.

We’ve canvassed for opinions on what we should do.  The responses generally fall into 3 categories:

  1. Lawyers say: Tough, it’s public record.  Without public case law the American legal system would cease to function.  Only the courts can (and do) decide to anonymize a case.
  2. Techies say: Tough, information wants to be free.  If you don’t like what the web says about you, make your own web site to tell your side of the story.
  3. Others say: I don’t know.  It’s wrong to censor public records, but it’s also wrong to make people suffer for something that happened 20 years ago.

There are also suggested solutions:

  1. Refuse to take anything down.  Don’t answer the phone.
  2. Anonymize names in “sensitive” cases.  Provide a protected link to a non-censored version.  The problem is, cases are routinely identified by the names of the parties.  If you take out the names, you don’t know what case it is anymore.
  3. Block search engines from the entire site, either with robots.txt or free registration.  And say goodbye to 50% of our traffic.
  4. Refuse to modify or take down cases, but block individual cases in robots.txt on request.

Our current policy is #4.  But is that good enough?  For the appeals and supreme court cases we currently host, probably.  But we hope to expand AltLaw to every U.S. court, down to the state level.  What happens when we start hosting, say, bankruptcy court decisions?

This gets into bigger questions of open access versus individual privacy.  We’re not the only ones struggling with the issue — our friends at Justia and have similar problems.  Ultimately, it’s a question for society at large.  Perhaps, as legal research on the web expands, courts will develop stricter standards for how they publish cases containing sensitive information.  But legal institutions are extremely resistant — and slow — to change.  The web of free legal information is growing fast — in the eight months since AltLaw launched, at least three commercial competitors have appeared.