Today, public access to the courts means putting court information in the broadest possible bandwidth of mass communication. The trend toward electronic court files is just as irreversible and as essential for an efficient and effective system of criminal justice as global Internet communications and the World Wide Web have become to our nationÕs economy, culture and government. The Justice DepartmentÕs proposal to restrict full access to court records only to sheets of paper stored in the courthouse clerkÕs office is an anachronistic position that is out of step with our constitutional heritage and the times in which we live. The difference between access to court records on PACER and in the courthouse is the difference between the speed of light and the quill.

           

            The established law recognizes the presumption that documents filed in a court proceeding are made available for public scrutiny. This presumption of public access trumps any such categorical restriction on public access to plea agreements as is currently proposed and requires specific findings to be made in individual cases. On those occasions when the Sixth Amendment prevails over the First, it has been a court that decided the exception to the rule in the context of an individual case, not an administrative act based upon dubious assumptions and the broad brushstrokes of a general, preemptive censorship of part of the public court record.

 

            The contention is that the exclusion of all plea agreement content from PACER and the loss of all the legitimate benefits that information affords the public and the Bar is compelled by the assumption that cooperating defendants are possibly being put at risk.  The proposed blanket prohibition of all references to plea agreements in the PACER system would turn past precedent on its head. The presumption of general public access to plea agreements would become a policy of piecemeal denial of general access to specific court records whenever a suspicion is aroused that public access could have adverse consequences.  Mere supposition that public disclosure of plea agreements on PACER could possibly encourage criminal retaliation against witnesses in some cases results in the absolute debarment of all the peopleÕs right of access to an entire category of documents in all federal criminal court proceedings on PACER.

 

            By focusing upon the mere possibility that the presence of information about plea agreements on PACER could provide useful information to a person who might use it to retaliate, the advocates of this proposal exploit public fears and judicial concerns about crimes of retaliation with a proposal that deprives the public, news media, defendants and defense counsel of the public information to which they are entitled.

 

            The Justice DepartmentÕs remedy of preemptive exclusion also presumes every cooperating witness is at risk and every accused person who is not cooperating is a threat to those who are. Were that so, the number of cases of retaliation against cooperators would overwhelm the system. The fact is that such cases are rare.

 

            Putting a gag order on every reference to a plea agreement in a public case file on PACER wonÕt have any impact on the use of the Internet to exchange information about informants, as long as there are people using the Internet who want to share such information. Those who would commit criminal acts against cooperators do not find their motivation to commit this crime staring at screens of case documents on PACER. They commit such crimes because they are personally involved in the offenses under investigation and fear the consequences of exposure and conviction.

 

            A motivated retaliator is hardly deterred because he is unable to access a plea agreement on PACER. Typically, information about who is ŌsnitchingÕ is obtained by far more primitive means, such as fellow detaineesÕ paying attention to who was taken over to the courthouse or federal building and how frequently. It doesnÕt take Internet access for prisoners to communicate on jailhouse pipes or during recreational periods or to give or get word of a cooperator from a visitor.

They do not need a court website to tell them who is likely to testify against them. If we truly seek a deterrent effect, broadly defined, overly general, content prohibitions applied to a website like PACER are far less effective than actions taken against the individuals who communicate such information for unlawful purposes.

 

         Supporters of this proposal to bar plea agreements from the PACER system argue that the Internet is different, that its exponential expansion of the range of publication, when compared to the printed page, is more provocative and disruptive than the more familiar and traditional ways of archiving information. We do not have websites like www.whosarat.com because the Internet makes it easy to obtain information. We have whosarat.com because there was a large enough market for the products, information and gossip it sells to make someone money. Its customers will not exchange less gossip about what they know, or think they know, about cooperators and informers because of the suppression of plea information on PACER. Whosarat.comÕs sources for information are hardly limited to what is published on PACER, and the website doesnÕt require PACER content to sustain itself.

 

         Other Internet sources beyond the reach of CourtÕs prohibition could potentially supply more information about cooperation than does PACER.  Westlaw has its Court Express service by which the user can search terms within all federal court electronic documents across multiple jurisdictions. Google, Yahoo, Facebook and MySpace, topical blogs and listserves could all be used to the purpose of exchanging information about cooperating individuals and informants.

 

            The existence of a website like Ņwhosarat.comÓ should not be a catalyst for a change in federal judicial policy any more than seeking the abolition of the First Amendment would be sensible because the right of free speech is exercised by a few in offensive and provocative ways. Our laws and constitutional principles do not criminalize the ear that hears, or the eye that reads, but the hand that strikes. If we must remove all information that even hints at the prospect of a malicious use, what court information on PACER, or countless other government websites including the Justice DepartmentÕs, could withstand imaginative speculation about every possible scenario for its misuse?

 

            We are not presented with any new threat deserving drastic action merely because information about plea agreements is being distributed more broadly than before on the PACER website. Motivation to commit a criminal act is not aroused by information alone and, once aroused, is hardly limited to the contents of PACER for its fulfillment. Until there is some statistically credible correlation between public access to plea agreement information as a result of its publication on PACER and an increase in crimes of retaliation directly attributable to persons accessing PACER, the proposition that publication of plea agreements on PACER is a contributing factor in the incidence of retaliation against cooperating informants and defendants will remain only a theory linking Internet use to criminal causality in search of proof.

 

         The impact of the removal of plea agreement content from PACER would adversely impact criminal defense attorneys in the performance of their duties. They will not be able to use the technology of PACER to obtain the critical contextual and comparative information about the terms and conditions of all plea agreements of record in cases similar to their own. Losing what information PACER has provided to defense counsel about plea agreements is as equally detrimental in cases where there is not an agreement to cooperate as it is in cases where the terms of cooperation, and the prohibitions and conditions that a defense lawyerÕs client may face, are invaluable to the performance of defense counselÕs responsibilities.

 

         Accessing plea agreement information by personal visits to the court house or by phone calls to the clerkÕs office would waste many hours of time for lawyers and clerk personnel, the very inefficiency that motivated the establishment of PACER in the first place. The exclusion of plea bargains from PACER will handicap legal professionals far more than it will handicap those who use the Internet to share information about cooperating individuals.

 

         Even if the Administrative Office of the Courts were to restrict plea agreements from PACER, the primary effect would be to enrich court record research companies who would upload everything in the courthouse records that was excluded from PACER to their own commercial databases. The same content that would be barred from PACER would still become available through other websites, but only to those who can afford the higher price.

 

         If we shift our decision making process away from one that rationally weighs known costs only against known benefits in accordance with constitutional standards, then a mere anxiety becomes justification enough for restraint of public access. Once successful, that argument has a thousand uses. Restraint of select public court records, without a factual showing that the restraint would produce any results justifying the surrendering of a public right, sets a dangerous precedent because it encourages further untested justifications for restrictive policies that could further erode the publicÕs right of access to court records.

 

         In September 2003, the Judicial Conference adopted a privacy policy for court records that provided the same level of public access to electronic case files as exists for court records in the courthouse. That policy is well founded in good constitutional principle and good judgment. More appropriate deterrents are available to address concerns about retaliation against cooperating defendants than adopting an overly reactive proposal that stymies the legitimate uses and expansion of the PACER system, preempts the publicÕs right of broadest available access and offers only a small benefit that is vastly disproportional to its own negative consequences. The proposal under consideration does not seem to recognize the difference between the baby and the bath water.

 

         Our judicial system is capable of addressing the problems presented by open access to the judicial process without resorting to extreme measures. The proper forum for deciding whether to seal documents or otherwise limit the publicÕs access to them is the trial court. Only a court can make a case-by-case determination on the basis of specific findings rather than general assumptions.  Only a court can achieve creative, individual remedies that forge a proper balance between the right of public access, the rights of the accused, and public safety. The Committee on Court Administration and Case Management should reject the Executive Offices of the U.S. AttorneyÕs proposal and continue to include plea agreements not under seal on PACER.