Information Flows in Online Court Records: Tailoring Rules for Transparency and Privacy (7/16)

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

Tuesday, July 16, 12:30pm ET, Berkman Center for Internet & Society, 23 Everett St. This event will be webcast live.

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.

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.

Sophie Hood is a research fellow in the Department of Media, Culture, and Communication and in the Information Law Institute at New York University. RSVP Required. more information on our website>

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