At the moment, there are 107 messages in the inbox.
It's not my personal inbox, because I make a concerted effort to keep this mailbox separate. The mailbox in question belongs to PlainSite, a legal information service I started as a side-project three years ago to help explain the 2008 financial crisis. On average, PlainSite receives between five and twenty requests on a daily basis from assorted internet strangers I have never met or heard of.
Some of the strangers who send in requests are polite. Some are most certainly not. More than a few are colorful characters. A small minority are lawyers or search engine optimization workers operating on behalf of law firms. All have been caught up in a paradigm shift that they do not understand, and that no one will fully explain to them. None seem to understand the position that I am in, because until a few years ago, I'm fairly certain that no one had really been in it before.
It comes down to this: I am now a judge. I was not elected, nor was I appointed, nor am I strictly a volunteer. I am not a lawyer, and I do not have a J.D., though I did spend some months at a law school. I have no legally binding power. Nonetheless, it seems very clear that I am filling a judicial role, and what's more, to a certain extent, the internet is my court. The vast majority of "motions" filed read about as clearly and contain roughly as much insight as YouTube comments. Most don't even reference a particular case number or name; forcing the requestor to choose a case on the PlainSite Contact Us page often results in wildly incorrect information.
Like the United States Court of Appeals for the Federal Circuit, which decides upon matters only related to patents, the pseudo-court I run is a specialized kind of court with a narrow purpose (and no actual authority). My court exists to evaluate privacy requests for a single private web site. At this point, every type of person ranging from poor minorities to rich executive vice-presidents has sent in a request at one point or another asking to have their particular case removed from PlainSite, and preferably according to many requests, if I can manage it, "the internet."
From these requests, one quickly discerns that the average person's understanding of the legal system is astoundingly lacking. On top of that, few understand how databases work. Many suspect that their cases appeared on-line as the result of some sort of foul play. I have been accused by a requestor in Florida of falling under the spell of a Haitian witch, on account of PlainSite hosting a case, and then my responding to the request about it. "This is simple and you need to control yourself and not let a Haitian witch with diabetes do witchcraft to put words in your mouth and tell you what to email me. I live in Florida and you live in California, this has no purpose for you," the requestor wrote. Of course, I have also been threatened countless times with lawsuits for defamation, even on occasion by lawyers, who eventually realize that a defamation lawsuit based on court records would effectively stop right at the courthouse door.
It's an understandable desire not to have one's name in the spotlight for being tied up in litigation. I myself have my name associated with a number of lawsuits, so it's an issue I've spent some time considering. While I am perfectly comfortable being known for the cases that I have filed, I am also lucky in a number of ways. Excluding counter-claims, I or my company is always the plaintiff. I have nothing I wish to hide. For me, it's actually in my interest to have information about my cases accessible as widely as possible.
For the recent college graduate arrested for a DUI on federal land, that is not necessarily true. The same goes for a former bank executive who was accused of fraud twenty years ago, or a private person who managed a disputed trust for a deceased relative. Nor do minority immigrants brave enough to sue their employers over discriminatory employment practices get as much leeway in the job market as white Americans who have been in the United States for generations. These are just a few examples, of course, not including bar fight victims, Department of Homeland Security workers, and a former Commissioner of the NBA.
Afer doing some research of my own, I realized that there existed very little precedent to guide me in how to make decisions about the various requests coming in. Actual judges evaluating motions to seal rarely cite any detailed reasoning beyond the general principle that case documents are court records in the public domain. For example, in the Ninth Circuit (which covers California and much of the western United States) there's Foltz v. State Farm Mut. Auto. Ins. Co., 331 F. 3d 1122 (9th Cir. 2003) (describing "strong presumption in favor of public access" to court records), and then there's Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) ("Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’") But I wanted more than "general;" I wanted specifics.
The proper way to rule on privacy in some cases seemed obvious: convicted bank robbers and sexual predators should not get to unilaterally prioritize their personal privacy over the real public interest in their crimes. Nor should public officials accused of wrongdoing, and especially police officers. Other situations were less clear. Should a private person who owed another $100,000, but had not declared bankruptcy, be entitled to have her case removed from search engines? How might the decision impact the next person looking to do business with her?
From the start, I decided not to actually delete information from the PlainSite database without a court order instructing as much. Instead, I decided to instruct search engines such as Google and Bing to suppress links to particular PlainSite pages, even if those cases could still be found by searching PlainSite directly. Eventually, I decided to write up a serious "privacy policy" for PlainSite—not the kind of boilerplate nonsense that most sites have, but one that actually addresses these issues. So far, it's worked out quite well. One way to measure success in this context is with the following fact: despite its existence in a thicket of legal issues and attorney records, and repeated threats, PlainSite has never actually been sued.
Celebration would be premature, however.
In many of these cases, there's no right answer, and there's no way to know what the future will bring. There is even something of a global debate over what Europe has deemed the "right to be forgotten," unsurprisingly stemming from a dispute over debt records in Spain. In the United States, there is no such right, and in fact the First Amendment to the United States Constitution champions the ability of anyone to re-publish anything in the public domain. A few requestors currently residing in Europe have consequently found themselves in the middle of an international legal paradox since PlainSite is based in the United States and is not subject to European Union law, even if Google is when doing business in Europe.
Requestors who do not get their way are often frustrated at the suggestion that they can still petition their respective judge or court for a motion sealing their case. Much like every court process, the process can be expensive (though a lawyer isn't necessarily required) and relatively slow. Nonetheless, there is no better solution because even if information is removed from PlainSite, so long as it is still accessible at the root source, it is inevitable that other sites will come along at some point and find it.
This gets to the real problem: that courts, and the lawyers who are designated as "officers" of courts, do not understand the new, interconnected context in which they operate. Judges seem to believe that court databases such as PACER (on the federal level) will never be freely available. But much of PACER already is open to the public, with more coming on-line every day, and the trend is only going to grow in the direction of transparency, and increasingly quickly at that. What is needed is a radical re-structuring of the way courts evaluate information privacy, and far better education for litigants. Most of the plaintiffs who write into PlainSite are shocked and offended that "their" information has been made public. Few understand the trade-off of privacy for justice, let alone the value of precedent in the legal system, which requires access to information.
Meanwhile, the requests keep coming in, some reasonable, and some absurd. If I take too long to address them, angry requestors occasionally begin sending e-mail to my personal accounts, or send faxes, or call fifty-six times in a single evening. Once, someone actually appeared at my front door. Now, each request generates an auto-reply informing the requestor that PlainSite has limited staffing and a thirty- to sixty-day backlog.
As a result, I do not envy judges. I certainly don't want to be one. Their work is difficult and not particularly rewarding, at least in any direct sense. On the other hand, their stubborn refusal to adopt new technologies clearly results in a far higher workload for themselves—and for other organizations that have sprung up to handle the fallout from their obstuse inability to recognize the digital world in which they function. It would be trivially easy for the courts to automate all kinds of requests. Yet so long as the legal profession thrives on the ineffiency of the status quo, it does not seem likely that such automation will be coming any time soon. And for that reason, the internet will continue to have me and an assortment of other software developers at various legal technology ventures doing the work of government—because for now, nobody else is.
