Berkman Luncheon Series >

jul
16
2013

Information Flows in Online Court Records: Tailoring Rules for Transparency and Privacy

Sophie Hood and Helen Nissenbaum, Information Law Institute at NYU

July 16, 12:30pm ET
Berkman Center for Internet & Society, 23 Everett St, 2nd Floor
This event is at capacity. The event will be recorded. (Please note that we are *not* webcasting today's discussion).

Open access to judicial records is one of the hallmarks of United States courts.  Although not absolute, there has long been a presumption that anyone may access court records.  Prior to the adoption of electronic records, however, most records were left in "practical obscurity," limiting the dissemination, availability, searchability, and resistance to erasure of the information within those records.  As in other contexts, the adoption of information technology has provoked various responses: on the one side, open-access advocates urge increased access and free flow; on the other, privacy advocates urge increased restraint and protection.  We aim not to weigh in on this debate, but to explore whether new information technologies might be deployed to enhance both transparency and privacy.

As a model for structuring tailored rules, we propose context-relative informational norms, defined in the theory of contextual integrity. These prescribe information flows on the basis of actors (sender, recipient, subject), information type, and transmission principles. Although entrenched informational norms serve as defaults, novel flows – e.g., those enabled by digital technologies – can trump these if they are more effective at serving the ends, purposes, and values of a context in question. “Old” media did not realistically allow for rules with this many variables, but electronic media, through such means as tagging and indexing, can support more nuance.  Detailed permissions specifying not only “open” or “seal”, for example, but specifying which parts are open, to whom, and under what conditions, with an eye to promoting ends, purposes, and values, need not diminish transparency – indeed, they may even increase it – even as they protect privacy robustly. As proof of concept, we are designing an empirical study of RECAP, the archive of federal court records “freed” from PACER, in which selected records will be marked up to make them more flexibly available to granular, machine-implementable rules of flow. 

About Sophie Hood

Sophie Hood is a research fellow in the Department of Media, Culture, and Communication and in the Information Law Institute at New York University. Her work examines issues at the intersection of new media technologies and adjudication. Her most recent research focuses on privacy and publicity in online court records. She is also studying how the publication of court opinions affects data-driven legal research, lawyering, and even the path of the common law. Sophie has previously studied the effect of new technologies on the media industry at Harvard Business School. She graduated from Williams College with a B.A. in Comparative Literature and received her J.D. from Yale Law School. After law school, Sophie served as a law clerk to the Honorable Sidney R. Thomas of the U.S. Court of Appeals for the Ninth Circuit.

About Helen Nissenbaum

Helen Nissenbaum is Professor of Media, Culture and Communication, and Computer Science, at New York University, where she is also Director of the Information Law Institute. Her areas of expertise span social, ethical, and political implications of information technology and digital media. Nissenbaum's research publications have appeared in journals of philosophy, politics, law, media studies, information studies, and computer science. She has written and edited four books, including Privacy in Context: Technology, Policy, and the Integrity of Social Life, which was published in 2010 by Stanford University Press. The National Science Foundation, Air Force Office of Scientific Research, Ford Foundation, U.S. Department of Homeland Security, and the U.S. Department of Health and Human Services Office of the National Coordinator have supported her work on privacy, trust online, and security, as well as several studies of values embodied in computer system design, including search engines, digital games, facial recognition technology, and health information systems.

Nissenbaum holds a Ph.D. in philosophy from Stanford University and a B.A. (Hons) from the University of the Witwatersrand. Before joining the faculty at NYU, she served as Associate Director of the Center for Human Values at Princeton University.