Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained instead of enabling greater public understanding.
There is a growing body of scholarship considering the privacy implications of electronic access, but the literature has not yet addressed these issues from the perspective of the criminal justice system. This Article begins to fill that gap by focusing on the skittish responses of prosecutors and courts to the expanding availability of information that had always been public but was traditionally hard to obtain. Such evasion is particularly troubling in the context of cooperation, an important law enforcement tool that is essentially unregulated and susceptible to capricious application. The Article proposes an approach that pairs limitations on online access with systematic disclosure of detailed plea and cooperation agreements in their factual context, with identifying data redacted. This proposal would protect privacy and security, while enabling the public and press to engage in genuine government oversight.
In Martin Scorsese's film The Departed,1 crime boss Frank Costello, played by Jack Nicholson, learns that there is a rat in his crew - someone who is gathering evidence against him for the police. In order to uncover the rat's identity, Costello gathers his men in a bar, orders them to write down their full names and social security numbers, and then hand delivers the information to his own mole in the police force for him to look up their records.
He needn't have gone to so much trouble. The federal courts' electronic public access program, known as PACER, now permits anyone to access case documents and docket information instantly over the Internet.2 It is not even necessary to know the case file number; a convenient indexing system allows one to search through criminal cases in every district court in the nation by defendant name.3 In The Departed, the rat is actually an undercover cop named Billy Costigan. But if Costigan had been a cooperating defendant instead - an individual who pleads guilty and agrees to assist in the investigation or prosecution of former criminal accomplices in exchange for sentencing consideration - the crime boss could have done his own checking from his laptop.4
This This innovation has transformed the traditional model of court access. Federal court records have always been open to public inspection,5 but in practice the records were available only to those with the time and resources to travel to the clerk's office of the district court to consult individual case files.6 Committed to paper, locked in filing cabinets, court records were maintained in a state of "practical obscurity."7
The public's newfound ability to summon up any criminal case, even a closed one, with the click of a mouse would appear to be an unmitigated victory for the right of popular access to government information. We value openness in our public institutions - our right as citizens "to be informed about 'what [our] government is up to,' "8 because it helps us understand how these institutions work, appreciate what they do, and maintain a sense of control over them. In judicial proceedings, openness has long been recognized as helping to check the abuse of governmental power, promote the informed discussion of public affairs, and enhance public confidence in the system. …