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Calibrating Public Access to Personal Information in Legal Databases: Anonymity and 6 Degrees of Google Clicking

posted by:Alana Maurushat // 11:59 PM // July 10, 2007 // ID TRAIL MIX

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Hi, I’m Alana. I’m a techno-luddite who confesses to rarely participating (well writing at least) in weblists, chatrooms or blogs. In the fall of 2006 I felt compelled, however, to respond to a posting in the closed list server, cyberprof. The posting in question concerned public access to personal information found in a legal database known as projectposner. Projectposner is a database developed by Tim Wu and Stuart Sierra containing many influential judgements of the late American Judge Richard A. Posner. One such judgment referred to a sexual harassment case where the plaintiff was fired for allegedly refusing to have sex with her boss. The plaintiff (who shall remain anonymous) requested the removal of her name (or the entire case) from a judgement found in projectposner. This request for removal triggered a long debate amongst cyberprof colleagues as to the scope of anonymity (and pseudonymity) with regards to online public access to court records.

Privacy was seen as important but absolute privacy was neither seen as desirable nor possible. Some argued that there was already an appropriate mechanism in place, namely a protective order to remove all references to a party’s name during the course of litigation. The ability to remain anonymous in court proceedings is at the discretion of the judge residing in the matter (at least it is in the United States). It was argued that protective orders are better made as a matter of public policy by judges rather than disclosure decisions done on an ad hoc (or post hoc) basis by individual website owners. Some further argued that there was no objectively significant invasion of privacy in the case at hand. There were references to star chambers, decreasing access to case reports, and the social utility of online searching.

Others, including myself, expressed concerns of the personal, psychological and social effects about public accessibility about sensitive personal information. We noted the lack of education with regards to accessibility of online judicial opinions and court files. We noted any legal obligations requiring website operations to edit and censor information. We even looked at psychological motivation to access and stalk former victims of sex crimes, as well as those of employers wishing to gain access to potential employees.

As lawyers we did a good job debating the legal and policy elements of the situation. As moral agents or ethicists we failed badly. We failed to consider those most vulnerable to the consequences of access to court records – women and children. We failed to consider the privacy invasion from a subjective perspective. And we failed to consider the consequences of 6 degrees of Google clicking.

This situation is not about appropriate court issued protective orders and the ability to access court records online. It is about the ability with a single “I feel lucky” click to have unfettered and unnecessary personal information outside of the scope of the original intended search. It is about using Google ethically (I like Googlethics). It is about what I call 6 degrees of Google clicking.

Similar to our dilemma, consider the following hypotheticals:

1) You are a university student taking a literature course from Professor Woolengala. You wish to see a list of some of her publications and you are, in general, a bit of a nosy parker. In short, you google your professor. The first result produced is a link to a legal database with a judgment where your professor was the victim of a sexual harassment suit which occurred 12 years ago. Within two clicks, you have retrieved and are reading this personal and sensitive information.
2) You are a partner at the law firm McQuarey Nightrum. You wish to hire a new associate. You ask your assistant to conduct a personal background check of all candidates. This includes a search on Google. Your Google search indicates that a candidate was a plaintiff in a workplace harassment suit, as well as a plaintiff in an insurance suit to obtain additional refunds for radiology treatment (3 clicks). Based on this information, you do not shortlist the candidate.

There is an appalling lack of education amongst Google users and website owners on the extent of google search-ability. There are only too many online privacy blunders illustrating this point. Sensitive information of corrupt Hong Kong police finding their way to subdirectories on the Internet (many linked to organized crime). Ongoing police investigations files in Japan again finding their way to subfiles on the Internet. All searchable through Google. All avoidable with the use of FTP protocol, or robot exclusion protocol which does not allow Google’s webspiders to retrieve information from a website – none of these protocols were used by professional IT security experts.

What if FTP or robot exclusion protocol had been used in projectposner? It would still be possible to retrieve the decision from the actual website but the judgment would not be searchable with Google. This would, theoretically, better limit the ability for those to find and use personal information in an unnecessary and unfettered matter (Google search/click for online legal databases, click on database selected, type in party name and click, click on judgment(s) – at least 4 degrees of Google clicking). For this reason, many free online legal databases such as those found in worldlii.org are not searchable with Google. Of course, this also hinders legitimate and efficient searching methods. Google is popular because it works well. There is a middle ground. The same robot text can be used to retrieve access to a website but not to a deeplink. In other words, you may be directed to projectposner but then have to perform an internal search once within the website. More beneficial, of course, would be in the ability to dissociate website ranking so that a result with personal information would not appear in the first page of results. These small technical specifications could have reduced some of the ethical (and legal) dilemmas of online access to court information, but they could not, of course, have avoided altogether many of the issues.

There is no quick answer to this issue but I for one, would like to see a policy of 6 degrees of Google clicking. In the game of 6 degrees people try to link actors to movies starring Kevin Spacey. The object of the game is to make the link with as minimal degrees as possible with a maximum link of 6. The reverse for online searching of personal information found in legal databases may be good policy. Requiring 6 degrees of Google clicking would provide a stronger incentive for those with genuine vested interest in obtaining personal information while reducing unnecessary and unfettered access.

I haven’t nearly begun to explore the many important and deserving ethical issues presented in accessing online information in legal databases. It is an act requiring fine calibration. I invite your input.

Alana Maurushat, B.A. (University of Calgary), B.C.L.(McGill), LL.B. (McGill), LL.M. with Concentration in Law and Technology (University of Ottawa), PhD Candidate (University of New South Wales). The author is Acting Academic Director of the Cyberspace Law and Policy Centre, sessional lecturer, and PhD candidate at the Faculty of Law at the University of New South Wales, Australia. Prior to moving to Sydney, she was an Assistant Professor and Deputy Director of the LLM in Information Technology and Intellectual Property at the University of Hong Kong’s Faculty of Law. She has taught in summer programs for the University of Santa Clara, Duke University, and has been invited to teach at the Université de Nantes this coming year. Her current research is focused on technical, ethical and legal dimensions of computer malware building on past research projects which addressed the impact of surveillance technologies on free expression and privacy. She currently teaches Advanced Legal Research.

Comments

Hi Alana - thanks for the thoughtful post. One correction, however, is that the "six degrees of separation" game involves Kevin Bacon, not Kevin Spacey. See http://en.wikipedia.org/wiki/Six_Degrees_of_Kevin_Bacon

Posted by: Michael Zimmer at July 10, 2007 08:36 PM

Hi. Thanks for the discussion/info. Although i myself am still not convinced of the actual damage of the fact others could potentially find all kind of info about anybody (i am regularly discussing this issue with others, and haven't heard arguments that are concrete enough for me (sorry for my English, i'm Dutch ;-)), your story had me think: why not by default have search-engines NOT crawl websites. Instead of needing a robot.txt to state you DON'T want the site to be crawled, need a robot. txt you DO. So a website is not crawled, and as a site-owner you need to think of and act for having your site indexed... My 2 cents ;-).

Posted by: Raoul Teeuwen at July 11, 2007 09:19 AM

The "late" Judge Posner? Not so - he's alive and well.

Posted by: Anon at July 12, 2007 06:52 PM

It is amazing what one's brain will do. I have been playing the 6 degrees of separation game for years on end and, of course, know that it involves Kevin Bacon. The mind plays tricks. I guess my slip-up has revealed my preference for Kevin Spacey.

Comments on opting in to robot.txt as opposed are interesting though I am not convinced of this as a solution. This certainly is the approach to spam and other privacy related matters in some European jurisdictions. But opting in may fundamentally change the nature of the Internet (implied license versus implied exclusion - at least that is how some of look at it).

My 1.8 cents (Aussie dollar not worth as much as the Canadian)... Alana

Posted by: Alana at July 20, 2007 02:20 PM

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