Although privacy advocates applaud the decision to exclude five categories of personal information, others worry that it diminishes the public's right to know.

01:00 AM EDT on Monday, October 17, 2005

By EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- The other day, federal prosecutors issued a news release saying a Fall River man and a Providence man had been indicted on cocaine-trafficking charges.

The unusual thing was that the release did not provide the ages or addresses of the two men. A footnote explained: "At the direction of court officials, the U.S. Attorney's Office no longer includes in federal court records a defendant's age or address."

While the cases of Jorge L. Collazo and Angel A. Huertas might soon be forgotten, that footnote reflected a nationwide change in federal court policy. For the first time, federal courts are making criminal case files available online, and at the same time they're telling lawyers and litigants not to put five categories of personal information into those files, whether the documents are filed in paper form or electronically.

The new policy calls for limiting:

Social Security numbers to the last four digits.

Financial account numbers to the last four digits.

The names of minor children to the initials.

Dates of birth to the year.

Home addresses to the city/town and state.

Privacy advocates are hailing the new policy as a way to combat identity theft, saying there's too much personal information available in online court records.

But journalism organizations are decrying parts of the policy, saying that home addresses and dates of birth are needed to precisely identify who is being charged with crimes and that there are other ways to combat identity theft.

Beth Givens, director of the Privacy Rights Clearinghouse, based in San Diego, was asked during a phone interview Thursday about the policy and the extent of identity theft, and at one point someone in her office interrupted, asking, "Beth, do you want me to call the police and file a report?"

Givens told the woman to call the police and then explained that someone had just opened a United Parcel Service account in the name of the Privacy Rights Clearinghouse and fraudulently charged $2,000 in shipping costs. So, yes, she said, identity theft is prevalent.

Givens said dates of birth can be an element of identity theft. "You'll be asked for your date of birth and mother's maiden name if applying for credit," she said.

Givens also praised the policy of keeping full addresses out of federal criminal files. "For many people, home addresses are a very sensitive piece of information," she said, citing doctors, teachers, police officers and judges.

Linda Lotridge Levin, chairwoman of the University of Rhode Island journalism department, was asked about the new court policy Thursday, right after teaching a media law class that deals with libel and privacy.

"I stressed that when you go into public records, make absolutely sure you get as much identifying information as possible -- their name, middle initial, address -- so there's never a question of who it is you are writing about," Levin said.

Ages and addresses are some of the most basic bits of information available to identify a person, Levin said. And, she said, "We are not talking about stories where someone gets a medal for bravery. We are talking about stories where people have been indicted or found guilty and they are going to the Big House."

It's not just an issue for journalists, Levin said. Putting less-precise information online about defendants could lead members of the public to jump to the wrong conclusions, she said. "Then we're getting into the realm of slander where someone says: Did you know your neighbor Joe Blow was indicted or found guilty? And it turns out it's not that Joe Blow." In Rhode Island, many big families contain different people with the same first and last names, she added.

Levin says the public has a vital interest in knowing the exact identity and location of criminals, whether they're drug dealers, robbers or child molesters. "I want to know if it's in my neighborhood," she said. "Should I get an alarm or a guard dog? Do I want my kids playing outside?"

Levin said the court policy was just the latest example of the federal government cutting off access to information that used to be available in public records. "We are in danger of becoming a closed society," she said, "and that frightens me."

The Judicial Conference of the United States -- which includes the Supreme Court's chief justice and the chief judge in each judicial district -- has been developing the policy over the past five years.

In September 2001, the Judicial Conference decided to allow public electronic access to files in civil and bankruptcy cases -- but not criminal cases. The policy told lawyers and litigants not to file full Social Security numbers, full bank-account numbers, full names of minors and full dates of birth.

In September 2003, the Judicial Conference decided to expand electronic public access to criminal-case files, pending new guidelines. When approved in March 2004, those guidelines included the same four limits as in civil cases while adding the requirement that filings not include full home addresses. "This additional redaction in criminal cases is to protect the home addresses of witnesses, victims, law enforcement officers and others involved in criminal cases," court officials stated.

The policy guidelines said that anyone who wanted to include these "personal data identifiers" could file that information under seal, and the court might then require that a redacted version be placed in the public file.

The policy guidelines also told lawyers to "exercise caution" and consider a motion to seal information in nine other categories: personal identifying numbers, such as driver's license numbers; medical records; employment history; individual financial information; trade-secret information; information regarding someone's cooperation with the government; information regarding the victim of any criminal activity; national security information; and sensitive security information.

David A. DiMarzio, clerk for the U.S. District Court, Providence, said Rhode Island was among the last batch of district courts to get the case-management/electronic case-filing system, which went online here June 1, and lawyers are still getting used to the new system and policies.

"A lot of times they give us information we don't require," DiMarzio said. "We are trying to educate the bar, because unless it's absolutely necessary, it could set up their clients for big problems."

DiMarzio said, "Nothing has changed as to what's public or what's not public. The idea of the policy is to discourage attorneys from using personal identifiers at all, so we don't have to worry when posting documents."

DiMarzio said the court never told federal prosecutors they couldn't include home addresses or ages in news releases. "They may decide to adopt that policy, but what we in the courts are looking at is what's put in electronic format as a court file," he said.

Gregg Leslie, legal defense director at The Reporters Committee for Freedom of the Press, based in Arlington, Va., said, "Prosecutors want to take the path of least resistance. So they stop releasing that information to anyone rather than making a more thoughtful decision that although the information isn't required in court documents, there are still legitimate reasons to release it."

But Thomas M. Connell, spokesman for the U.S. Attorney's office in Rhode Island, said, "It is a longstanding policy of the U.S. Attorney's office to release only information that appears in the public record, and if because of electronic filing, the courts are discouraging us from including dates of birth and street addresses in documents accompanying indictments, then I have no public record to cite."

Connell said, "We are working on a way to try to properly identify defendants so that other people are not unfairly implicated." He said the office hoped to begin releasing the year that defendants were born.

The big battle over this policy took place in 2000 and 2001, when 242 groups or individuals submitted written comments to federal court officials.

Leslie, of the Reporters Committee, said that many of the policy changes that came out of that process made sense, such as not filing full credit-card and bank-account numbers. But, he said, "they overstepped by saying, 'Let's throw out other information -- like home addresses and dates of birth.' "

While online records are expanding public access, Leslie said, "there has also been a backlash so that privacy concerns are given greater weight and in a sense too much importance. It's like we are institutionalizing paranoia."

Leslie argued that the solution to identity theft was to hold financial institutions more accountable. "The only reason identity theft is a problem is because companies are willing to lend money based on a few quick identifiers, [such as] Social Security numbers and mother's maiden name," he said.

In 2001, The Reporters Committee joined other media organizations in arguing that if information in court files was abused, "A solution is to allow those who have been harmed by abuse to sue civilly under existing privacy torts, or to prosecute offenders under the existing statutes that criminalize stalking, misuse of credit information, and similar laws."

The Privacy Rights Clearinghouse and the Electronic Frontier Foundation also submitted written comments in 2001, estimating that there were 700,000 victims of identity theft in 2000. "Social Security numbers, credit-card numbers, loan-account numbers, dates of birth and bank-account numbers represent a gold mine to dishonest individuals, as well as the rising number of organized criminal enterprises and gangs that specialize in systematic identity theft," the groups wrote.

The groups said they recognized the convenience of electronic filing and the principle of public access to court proceedings. But they said they "believe the potential for both intangible invasions of privacy by those who have no need to know and more tangible harms such as identity theft outweigh reliance on a system that provides full access to court records electronically."