Category Archives: transparency

Court-System Transparency

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Here’s a new law review article of note:

Lynn M. LoPucki, “Court-System Transparency,” 94 Iowa Law Review 481-538 (February 2009).

ABSTRACT: Over the past decade, the federal courts became the world’s most transparent court system by switching from paper to electronic filing, resolving daunting privacy problems, and posting their case files on the Internet. Now they are embarking on a second, equally important transformation–the use of relational forms from which court data can be extracted automatically. This Article describes the technology and seeks to project and evaluate the effects of that second transformation.

If it occurs, the second transformation would create millions of windows into the courts at virtually no cost to the government. Policymakers, litigants, and the public would be able to see and understand the patterns of judicial decisionmaking–who wins what and how often. That would provide policy makers the feedback needed to fine tune the system, lawyers the ability to predict the outcomes of their cases, and the public the ability to see what courts actually do. All could also see whether the precautions they take for supposed legal reasons are the right ones.

Opponents argue that court-record transparency (1) would expose parties and witnesses to the risk of identity theft and other harms, (2) would invade privacy by making previously-difficult-to-obtain public-record information about individuals readily available, and (3) would pressure judges in ways that deprive them of judicial independence. This Article argues that none of those objections is well-founded.

Selling the Law: The Business of Public Access to Court Records

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Stephen Schultze and Shubham Mukherjee – Selling the Law: The Business of Public Access to Court Records

“As government documents are increasingly digitized and put online, two orthogonal approaches to distributing these documents have developed. Under one approach, the documents are made easily and freely accessible. In others, the government retains or introduces barriers to access that are inspired by traditional physical access. When these barriers are fee-based, the government can inadvertently create downstream monopolies or architectures of control over public information. This problem is especially severe in the case of federal district court documents, which are available only via an outdated, fee-based, court-run system or from expensive aggregators like Lexis or Westlaw. Indeed, evidence indicates that the courts are using public access fees to subsidize other activities. If we are to be a nation of laws, citizens must have access to the law. The upfront cost of making court documents freely available is far outweighed by the long-term benefits to society. Widespread digitization combined with Internet connectivity has placed these benefits within reach. The courts must now address the task of revamping outmoded policies and funding structures in order to align their practice with this reality.”

http://citp.princeton.edu/events/lectures/stephen-schultze-and-shubham-mukherjee/?/

Video of Schultze and Mukherjee Lecture
http://citp.princeton.edu/wordpress/wp-content/uploads/2009/02/citp_200925.html

Source: Special Libraries Association San Andreas Chapter, Intersect Alert March 29, 2009

President Obama’s social-networking maven

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From a feature article in today’s San Jose Mercury News, “Obama’s Bay Area brain trust:”

Sonal Shah

Google.org

The White House hasn’t made it official, but Google.org’s Shah has e-mailed her work colleagues that she’s headed to the White House as director of social innovation and civic engagement. Easiest translation for her title: social-networking maven. Obama has often promised to make the inner workings of government, and his own White House, more transparent and interactive. Shah will be part of a team, including a chief information officer and still-to-be-named chief technology officer, charged with figuring out how to integrate Web 2.0 tools into a government digital network historically hobbled by massive bureaucracy. . . .  ”Tweets” from 1600 Pennsylvania Ave. could be coming soon.

Internet empowerment

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Good op-ed in today’s USA Today.  “Internet empowerment,” by Ellen S. Miller (co-founder of Sunlight Foundation).

Faith in government is rooted in transparency, and online resources are giving citizens an indispensible weapon in the arsenal of democracy.

. . .

To take advantage of the full power of the Internet, there are some simple things every agency should do. All data should be made available in formats that are open, searchable and “mashable.” That way, creative programmers can more easily create new ways of looking at things. For example, the EarmarkWatch.org map shows thousands of earmarks in the fiscal 2008 defense-appropriations bill layered over a map of the country.

Carl Malamud’s campaign and his many Stanford Law School friends

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From Washington Internet Daily, “Agencies,” March 02, 2009 Monday, Vol. 10 No. 39:

. . . Carl Malamud, pushing state legislatures to renounce any claimed copyright interests in legal codes and make them freely available as searchable databases (WID June 20 p7), has support from big names in free-culture and open-government circles. They include [SLS professor] Larry Lessig, founder of Creative Commons, tech publisher Tim O’Reilly, Internet Archive founder Brewster Kahle, Electronic Frontier Foundation lawyer [SLS alumnus and lecturer] Fred von Lohmann, Columbia University law professor Tim Wu and University of California at Berkeley law professor Pamela Samuelson. Malamud’s model, described on his campaign site at YesWeScan.org, is Augustus Giegengack. The printer campaigned his way to becoming U.S. Public Printer by getting endorsement letters from Rotary Clubs and hand-delivering them to the Franklin Roosevelt White House. Malamud said the GPO should lead the effort to make all U.S. primary legal materials available online, create more materials for the public domain that can be re- mixed by users, “reboot” the .gov domain by “installing a cloud” and upgrading its video
capabilities, and work more closely with libraries.

Carl is our hero.  And we (as in librarians) are his.  Carl has been a guest speaker at our Advanced Legal Research class and has made many comments about the role of law librarians in liberating legal information, and he spoke at last summer’s AALL meeting in Portland too.

Joe Lieberman seeks Pacer Probe

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Senate Committee on Homeland Security and Government Affairs
February 27, 2009  
 
LIEBERMAN SEEKS INFORMATION ON FEDERAL COURT COMPLIANCE WITH TRANSPARENCY, PRIVACY REQUIREMENTS 
 
WASHINGTON - Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., Friday sent the following letter to the policy-making body of the Federal Court system requesting proper compliance with the E-Government Act of 2002 on transparency and privacy issues as they relate to court documents:

February 27, 2009

The Honorable Lee H. Rosenthal
Chair, Committee on Rules of Practice and Procedure
Judicial Conference of the United States
Washington, D.C. 20544

Dear Judge Rosenthal:

I am writing to inquire if the Court is complying with two key provisions of the E-Government Act of 2002 (P.L. 107-347) which were designed to increase public access to court records and protect the privacy of individuals’  personal information contained in those records.

As you know, court documents are electronically released through the Public Access to Court Electronic Records (PACER) system, which currently charges $.08 a page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts “may, to the extent necessary” instead of “shall” charge fees “for access to information available through automatic data processing equipment.”

The goal of this provision, as was clearly stated in the Committee report that accompanied the Senate version of the E-Government Act, was to increase free public access to these records. As the report stated: “[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. … Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.”

Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system.

In addition I have concerns that not enough has been done to protect personal information contained in publicly available court filings, potentially violating another provision of the E-Government Act. A recent investigation by Carl Malamud of the non-profit Public.Resource.org found numerous examples of personal data not being redacted in these records. Given the sensitivity of this information and the potential for indentify theft or worse, I would like the court to review the steps they take to ensure this information is protected and report to the Committee on how this provision has been implemented as we work to increase public access to court records.

I thank you in advance for your time and I look forward to your response.

Sincerely,

Joseph I. Lieberman
Chairman

Complexity, Information Overload and Online Deliberation

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“Complexity, Information Overload and Online Deliberation”

A Journal of Law and Policy for the Information Society, 2009

OREN PEREZ, Bar-Ilan University – Faculty of Law

This article explores the influence of information overload on online democratic processes. The study of this problematic is motivated by the increasing importance of the doctrine of transparency, by the central role of the paradigm of informed citizenship in contemporary political thought, and by the empirical observation that the modern citizen is exposed to increasing amounts of political data. To explore this question, the article develops a rigorous understanding of the concept of information overload in the democratic context. The article argues, drawing on empirical studies which highlight the adverse psychological impacts of cognitive overload, that this problematic can undermine the capacity of the Internet to reinvigorate democratic praxis. It considers two different responses to this threat. The first questions the seriousness of this threat by re-conceptualizing democracy as a ‘low-information’ practice. This ‘shallow’ understanding of democracy emphasizes the role of heuristics and political intermediaries in modern democratic life. While acknowledging the important role of heuristics and political intermediaries, the article questions the capacity of this narrative to provide a coherent account of legitimate democratic governance. The article proceeds to consider an alternative, technological-oriented response to the problem of information overload. This approach highlights the capacity of new technological innovations to resolve the information overload problematic by reducing the cognitive burden associated with web-based political action. The article uses a concrete case study – the advanced online participatory framework offered by TransLink, the South Coast British Columbia Transportation Authority – to highlight how the information overload problem is manifested in an actual political context. The article concludes by exploring the blind-spots of these different technological innovations. It considers in this context the role of a new class of political players-techno-political intermediaries – and discusses their potential influence on the democratic process. This discussion points to certain deficiencies in the current doctrine of transparency (and the paradigm of the ‘informed citizen’ underlying it), which is insensitive both to the cognitive limitations of the average citizen and to the increasingly important (but hidden) role of techno-political intermediaries in the political process as it draws increasingly on online tools.

Source:  LSN Law & Positive Political Theory Vol. 4 No. 27,  12/11/2008

Malamud quoted in Washington Post

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Our friend Carl Malamud is quoted in today’s Washington Post:

Bill Would End FOIA Shield for Smithsonian
Sen. Grassley Says Goal Is Greater Openness

By James V. Grimaldi and Jacqueline Trescott
Washington Post Staff Writers
Saturday, July 19, 2008; C01

A longtime critic of the Smithsonian Institution introduced legislation in the U.S. Senate this week that would wipe out the national museum complex’s exemption from the Freedom of Information Act and the Sunshine Act.

. . .

Carl Malamud, who founded Media.org, which advocates for disclosure of public records, said his experience filing FOIAs concerning the institution shows the policy leaves “too much arbitrary discretion” to Smithsonian administrators. “Grassley’s bill would clarify that the Smithsonian belongs to all of us,” he said, “and is not some private institution which can do as it will.”

. . .

OpenAustralia.org goes live

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Our alumnus Matt Asay’s blog The Open Road is a blog that matters to us and yesterday he added an item of special interest:  Open Sourcing Australia:  OpenAustralia.org goes live.

It seems reasonable to suggest that no nation should cede its sovereignty to any private, commercial interest. . . .

. . .

Larry Lessig argues that “code is law,” meaning that the very software we use to construct the Internet, intranets, etc. has a powerful effect on what is actually possible through these communication media.. . .

It is therefore important that Australia opted for open-source software in capturing the mind and history of its parliament. This is what sovereign nations do. Or, at least, it’s what they should do.

 

I just took a look at the Australian site.  It is a model.  I was impressed by everything and thought that this current awareness service was especially impressive:

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More on ELS: Judicial Transparency in an Age of Prediction

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“Judicial Transparency in an Age of Prediction“

U of Chicago, Public Law Working Paper No. 216

ADAM SAMAHA, University of Chicago – Law School


The Empirical Legal Studies (ELS) movement is making strides toward understanding judicial behavior, and ELS models could become the foundation for more accurate prediction of judicial decisions. This essay raises two questions associated with this development. First, what would an age of predictable judicial behavior look like? Second, would satisfying the informational needs of ELS prediction models also exhaust the demands for “judicial transparency”? My conclusions are that a state of predictable judicial behavior, if somehow stable, would leave almost no litigation to observe; and that a prediction-oriented information policy would nearly meet the demands of today’s transparency advocates. One shortfall involves the intrinsic/consumption value of adjudication for intellectuals and others. A prediction-oriented policy would not meet that demand and could even thwart its satisfaction which presents an unappreciated normative choice for information policy.

 

Source: LSN: University of Chicago Law School, Public Law & Legal Theory, Vol. 10 No. 6,  06/10/2008