This could bring a wide disparity of results where more sophisticated counsel automatically request sealing all the time. It is difficult to understand why cases in the given area of law would not simply be sealed as a matter of law. In the second, a party may file a motion asking a case to be sealed and a judge will make a determination, exactly as is done now, but with the added consideration of the global exposure of the Internet as a possible reason to permit the sealing. Judges tend to recoil from this as placing a new and possibly very onerous burden on their already crowded dockets. No doubt courts will struggle for some years to come to terms with the implications of placing court records on the Internet.
Technology now offers a solution to that problem.
Having studied, lectured, and written about this subject for the last two years, the authors have reached only tentative conclusions, which are subject to constant refinement as technology evolves and new legal issues are raised. In all other areas, the current right to request that individual documents be sealed would be maintained, but with the additional consideration by the court of the implication of global access. It is worth noting, as the courts struggle with this, that there is a fairly clear though often overlooked line between the right of access to court records involving the process of government and the right of access to an individual's private records. While we certainly want sunshine in government, this does not necessarily demand that the privacy of an individual's life be sacrificed to achieve this goal. Public embarrassment over dirty linen aired in public is often cited as an undesirable result of open access, but this is the very least of our problems.