Report on the Adequacy of Privacy Rules Prescribed 

Under the E-Government Act of 2002 

PREPARED FOR THE 

U.S. SENATE AND HOUSE OF REPRESENTATIVES 

JUDICIAL CONFERENCE OF THE UNITED STATES 

April 2009 
REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 

ON THE 

ADEQUACY OF PRIVACY RULES PRESCRIBED 

UNDER THE E-GOVERNMENT ACT OF 2002 

April 2009 

This report is transmitted in accordance with the E-Government Act of2002 (pub. L. 

No. 107-347). Section 205(c)(3)(C) of the Act directs the Judicial Conference periodically 

to report to Congress on the "adequacy" of rules prescribed by the Supreme Court to protect 

privacy and security concerns relating to electronic filings. 

In accordance with the E-Government Act, the Federal Rules of Appellate, 

Bankruptcy, Civil, and Criminal Procedure were amended effective December I, 2007, 1 to 

prevent dissemination of personal identifier information in documents filed in federal courts. 

The amended rules were proposed after years of study under the Rules Enabling Act 

rulemaking process, including open committee meetings and public hearings. The amended 

rules generally require that federal court filings be available electronically to the same extent 

they are available at the courthouse; provided that certain personal identifier information, 

including social security numbers, are redacted from those filings by the attorney or the party 

making the filing. Certain categories of filings are not publicly accessible by remote 

electronic means because these filings generally have extensive personal information, 

including identifiers. For good cause in specific cases, the court may order more extensive 

redaction or restrict internet access to designated confidential or sensitive information. 

Documents can be filed electronically with the court under the federal judiciary's Case 

ManagementlElectronic Case Files (CMlECF) system. That system has only very recently 

become fully operational in 94 district courts and 93 bankruptcy courts. Though expected 

soon, CMlECF is yet to become operational in all 13 courts of appeals. During the phase of 

moving from paper filings to electronic filings, the Judicial Conference has carefully 

monitored how the privacy policy and rules are working in practice. With more courts and 

litigants daily acquiring experience with nationwide electronic filing, new issues are 

emerging that require a careful examination of how to balance privacy interests with ensuring 

public access to court filings. Two issues, in particular, have drawn attention. One involves 

court filings that do not have social security numbers redacted as required. The second 

1 Fed. R.App. P. 25(a)(5); Fed. R. Banle P. 9037; Fed. R. Civ. P. 5.2; and Fed. R. 

Crim. P. 49.1. 

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involves cooperation agreements retrieved from criminal case filings and posted on the 

internet. In response, the Judicial Conference is systematically reviewing the federal privacy 

rules, the policy, and their implementation to determine whether the rules should be amended 

and how to make implementation more effective. 

Genesis of Judiciary Policy on Privacy 

Over a decade ago - before electronic filing was adopted in the federal district and 

bankruptcy courts and well before enactment of the E-Government Act of2002 - the Judicial 

Conference began developing a policy to protect private information in electronic case files 

while maintaining public access to court filings. The Judicial Conference privacy policy 

became effective in September 2001. The judiciary-wide privacy policy requires that court 

filings must be available electronically to the same extent that they are available at the 

courthouse, provided that certain personal identifiers are redacted from those filings by the 

attorney or the party making the filing. The personal identifiers that must be redacted include 

the first five digits of a social security number, fmancial account numbers, the name of a 

minor, the date of a person's birth, and the home address in a criminal case. These redaction 

requirements were incorporated into the Federal Rules amendments promulgated in 

December 2007 after the public notice and comment period prescribed under the Rules 

Enabling Act. These rules, which also address other privacy protection issues, meet the 

requirements of the E-Government of2002. 

The 2007 privacy rules put the responsibility forredacting personal identifiers in court 

filings on the litigants and lawyers who generate and file the documents. The litigants and 

lawyers are in the best position to know if such information is in the filings and, if so, where. 

Making litigants and lawyers responsible to redact such information has the added benefit 

of restraining them from including such information in the first place. Requiring court staff 

unilaterally to modify pleadings, briefs, transcripts, or other documents that are filed in court 

was seen to be impractical and potentially compromising the neutral role the court must play. 

For these reasons, the rules clearly impose the redaction responsibility on the filing party. 

The Committee Notes accompanying the rules state: "The clerk is not required to review 

documents filed with the court for compliance with this rule. The responsibility to redact 

filings rests with counsel and the party or non-party making the filing.,,2 The courts have 

made great efforts to ensure that filers are fully aware of their responsibility to redact 

personal identifiers. Those efforts continue. 

2 Fed. R. Civ. P. 5.2 (Committee Note). 

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Reported Incidences of Social Security Numbers in Court Filings 

Despite the efforts to maintain personal identifier information private, such 

information has reportedly appeared in court filings. The Judicial Conference is undertaking 

a comprehensive examination of this problem. The Conference's Rules Committees' Privacy 

Subcommittee, which developed and proposed the 2007 privacy rules, is examining how the 

rules have worked in practice, what issues have emerged since they took effect on 

December 1,2007, and why personal identifier information continues to appear in some court 

filings. The Privacy Subcommittee, which includes representatives from the Advisory Rules 

Committees as well as the Court Administration and Case Management Committee, will 

review empirical data; the experiences of lawyers, court staff, and judges with electronic 

court filings; the software programs developed by some district and bankruptcy courts to 

assist in redacting personal identifier information; and other steps taken by different courts 

to increase compliance with the privacy rules. 

While this work is going on, the judiciary is taking immediate steps to address the 

redaction problem. Court personnel have been trained in administering the privacy policy 

and rules; additional training is taking place. On February 23,2009, the Administrative 

Office issued a written reminder to all Clerks of Court about the importance of having 

personal identifiers redacted from documents before they are filed and of the need to remind 

filers of their redaction obligations. Court clerks were directed to use a variety of court 

communications, such as newsletters, listserves, continuing legal education programs, and 

notifications on web sites administered directly by the courts, to reach as many filers as 

possible, as effectively as possible. Plans are underway to modify the ,national CM/ECF 

system to include an additional notice reminding filers of their redaction obligation. In 

addition, all the courts have been asked to provide information on their experience with the 

privacy policy and rules. Early responses have included some promising approaches that the 

Privacy Subcommittee will consider for possible national adoption. 

The Privacy Subcommittee does not underestimate the difficulty or complexity of the 

problems. Court filings can be voluminous. Some cases involve hundreds or even thousands 

of pages of administrative or state-court paper records that cannot be electronically searched. 

Redacting personal identifier information in certain criminal proceedings may interfere with 

legitimate law enforcement prosecutions. Erroneously redacting information can affect the 

integrity of a court record. The propriety of court staff changing papers filed in private civil 

litigation is an ongoing concern. Internet access to court filings present other privacy and 

security issues besides the redaction of social security numbers and include whether alien 

registration numbers should be added to the list of personal identifiers that must be redacted. 

These issues need to be studied as well. The resolution of these issues will involve important 

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policy decisions that require careful and comprehensive consideration and input from the 

bench, bar, and public. 

Emergence of Web Sites Containing Sensitive Criminal-Case Information 

The Judicial Conference also has been studying the implications of web sites such as 

www.whosarat.com. whose purpose is to publicly identify undercover law enforcement 

officers, informants, and defendants who cooperate with law enforcement. A small number 

of the posted documents on this web site are based on information recovered from federal 

criminal case files. 

In its study, the Judicial Conference noted that several district courts have developed 

ways to address the problem of web sites posting cooperation agreements retrieved from 

federal court filings. The Conference declined to adopt these approaches on a national basis, 

in part because of concerns that variations in circuit case law raised significant obstacles. 

Instead, the Conference advised courts to consider adopting local policies and provided them 

with guidance and examples of local policies already adopted by other courts, while 

emphasizing that such policies should promote legitimate public access to the greatest extent 

possible. The Conference continues to monitor the development of local policies and to 

study whether a national solution is feasible and practical. 

Conclusions 

Though the federal privacy rules took effect more than one year ago, the electronic 

filing system employed by the courts did not become fully operational until very recently. 

It is expected that new issues and questions about the administration and operation of the 

privacy rules will emerge as more litigants, lawyers, and court personnel become familiar 

with electronic filings. Two serious issues and several other less pressing issues have already 

been identified. As discussed above, the Judicial Conference has taken steps to address 

them. The Conference will continue to monitor the courts' experiences with electronic 

filings to identify any potential new problems and determine what additional measures should 

be taken to address them. 

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