Court leaders probe privacy concerns and Internet

Issue February 2003 By Lynne Feibelmann

How the courts and lawyers can maintain the privacy of individuals and court records while court operations move into the Internet era was a hotly debated topic at a Saturday Bench/Bar Forum at Annual Conference 2003.

The panel of judges and attorneys argued the merits and implications of a policy statement drafted by justices of the Supreme Judicial Court recently concerning the manner in which and the amount of court case information that should be posted on the Web.

Anthony R. Nesi, associate justice of the Bristol County Probate and Family Court, said the Jan. 8 policy statement, must draw a clear line between making information public to lawyers and the rest of the world. "Only in the past two years 50 percent of domestic relations cases were made public," he said.

The policy draft excludes certain categories from the Trial Court Web site, but provides the public with electronic access to the docket and calendar information.

U.S. District Court Judge Nancy Gertner said the system needs a gatekeeper. "Information is being launched in a way that it never was before," Gertner said. "Documents appear in the media and in your neighbor's laptop. We're learning the implications."

To demonstrate just how accessible information is on the Web, John DiNatale, senior partner of the DiNatale Detective Agency, searched for information on panelist Rudolph Kass, retired justice of the Massachusetts Appeals Court serving on recall, who agreed to participate in the demonstration. DiNatale was able to easily find personal details of the judge's life, including his place of birth, traffic violations and mortgage statements.

As a result of the prevalence of online information, many panelists agreed, applying jurisdictional jurisprudence to cyberspace has become a new legal realm.

Richard Owens, assistant general counsel for litigation with Boston Verizon Legal Department, said the courts are applying the effects test, which involves impact on the individual, and the sliding-scale test, which examines interactivity for online cases.

"If it's just a posting, it loses personal jurisdiction," he said.