NCISS TREASURER TESTIFIES IN WASHINGTON
By Eddy McClain

 


There is an old joke that the difference between God and a Federal Judge is
that God knows he's not a Federal Judge.  But Brian McGuinness, also an NCISS
Legislative Committee member, was not deterred when appearing before a panel
of seven such judges and an attorney, assembled from all parts of the
country.  Brian, who is president  of McGuinness & Associates of Miami, and a
past president of the Florida Association of Licensed Investigators, carried
our message to the Subcommittee on Privacy and Electronic Access to Case
Files, with the able backup of  NCISS lobbyist Larry Sabbath.

The panel, a wing of the Committee on Court Administration and Case
Management of the Judicial Conference of the U.S., invited NCISS to
participate with a cross section of national representatives of the legal,
press, commerce, government and privacy advocate communities, on Friday,
March 16, 2001.  The invitation followed the submission of a position paper
by NCISS on January 12, 2001.

In his opening remarks, Judge Lungstrum explained the purpose of the hearing
was to help determine policy on electronic access to court files in view of
the privacy loss issue. It is evident that the panel is wrestling with how to
better serve the interests of our citizens by taking advantage of
technological developments while at the same time recognizing the privacy
issues that are raised by full electronic access.  Following the opinions
NCISS expressed in its position paper, McGuinness acknowledged that we
recognize the "expectation of practical obscurity that will be eroded through
the development of electronic case files."  In other words, broadcasting
files over the Internet is different from reviewing the file at the
courthouse and we have to admit, could lead to abuses.  The primary concern
of NCISS is that the attention to privacy issues could lead to restriction of
access at the courthouse, as was proposed in Maryland recently.  This fear
was assuaged by Judge Lungstrum when he stated that some form of the current
PACER system of docket information as well as access to files at the
courthouse, would be continued.

Though the format allowed judges to interrupt at will, which precluded the
reading of a lengthy statement, McGuinness was able to explain, and the
judges seemed to understand, that private investigators are an important
integral part of the civil and criminal justice systems.

It seems likely that there will have to be some means of controlling
unlimited electronic access to files and that parties in interest will have
that ability which is the prime benefit of this streamlining.  The question
is, who else will have access.  McGuinness explained our position which is
that if attorneys who are not representing parties in interest are allowed
electronic access, then private investigators should be allowed access.  He
noted that we favor some form of registration or subscription such as is done
in the current PACER system.  There are many security issues, particularly
with regard to criminal files, and Brian McGuinness was able to let the panel
know NCISS does not favor complete, unfettered access to anyone in the world
with a computer.

It is evident, from comments by the panel, that they are concerned about
access to identifying information which could be used for identity theft or
other crimes, particularly from bankruptcy files. Charlotte Hardnett, Acting
General Counsel for the Social Security Administration, testified that SSA
has concerns about privacy of medical and mental health records as well as
access to the consumer's social security number.  Fortunately, the panel
seemed to understand that some form of positive identifier is necessary to
conducting a proper investigation in any matter, though McGuinness reports he
feels they will limit access to social security identifiers.

The Newspaper Association of America, represented by John Sturm, said they
represent 2,000 newspapers and favor unrestricted electronic access to all
files, 24 hours a day.  It was evident by the grilling that followed that the
panel is concerned about privacy and security in spite of the public interest
expressed by the press.

It seems evident, as recommended by the Department of Justice testimony, that
caution is indicated in approaching this issue and the Subcommittee is likely
to take all issues and interests into consideration.  This Subcommittee will
submit their recommendations to four other committees for review this summer.
 Then, in September, the results of those deliberations will be submitted to
the Judicial Conference which is chaired by Supreme Court Justice William
Rehnquist.   Our thanks to Brian McGuinness for sitting in the hot seat and
the NCISS Legislative Committee including Brian who put in untold hours of
preparation on our written submission which led to our invitation to testify.