RECAP the Law and Privacy Concerns

I recently published an article on RECAP, the Firefox extension that creates a public archive of federal court documents accessed from the PACER system and provided to PACER users without charge.  Many federal courts use the CM/ECF electronic records system to store and manage case records.  PACER is the fee for service system that provides public access to these records.  In my article I expressed concerns about the potential impact caused by republication, through RECAP, of this often embarrasing information our bankruptcy clients would almost uniformly like to put behind them quietly.  While the RECAP documents will be accessible to the public without charge, I have been told that they will not be indexed by search engines as I stated in my article.

Harlan Yu, one of the RECAP developers, provided me with some additional information about the RECAP system that sheds light on the public disclosure and privacy issues.  Below is a portion of his recent email.

• We’re interested in hearing more from bankruptcy attorneys about how to move forward with our project in light of the many privacy issues related to court filings.  The last thing we want to do is to harm individuals by publishing these documents, so we’re doing our best to try to balance privacy and transparency.  A few things we’re doing:
• The case filings and dockets we collect will not be indexable by Google or other web search engines.  This means that when your clients search for their own name on Google, no court documents in our collection should appear.  The documents are publicly available on the Internet Archive but only accessible if you can manually locate the court and case number you are interested in.
• We’re automatically scanning every document (as much as we can) for SSNs and withholding any documents that look like they might contain SSNs.  Other private data, such as names of minor children, are much more difficult for today’s technology to detect automatically– we’ll need attorneys to be vigilant about redaction when briefs are first filed.
• RECAP currently does not have the capability of uploading “first look” documents.  We’re exploring that possibility though since lots of new documents could be uploaded that way, but we want to first talk to more attorneys who use PACER to gain a better understanding of what the privacy implications might be.

Thank you Harlan for helping me provide some additional information to the public about this new and obviously helpful software.  I will now use it more frequently and with much less concern that its use may be causing injury to my clients.