publicpunishmentI use Facebook. I blog. I am a registered member of various online services, as well as several offline ones. Google, Facebook, several IT forums, credit card companies, my bank, and my employer (to name a few) can develop a fairly good picture of what I do and where I go on a regular basis. They can predict what I can, and likely will, do. While these issues are important, and I continue to write about them, for this post I want to attend to public documents. Specifically, I want to think about the implications of making legal decisions and court transcripts publicly accessible to anyone with an Internet connection.

Welcome to Law, Online

As mentioned I use Google. I also use a series of other search engines, as I’m sure many others do. Some are specialized for journal articles, others for books to borrow, yet others for books to buy, and so on. Sometimes, when I’m bored, I also search for law cases to read up on (yes, I realize that makes it sound like I have too much time on my hands. It’s for research purposes, really!). Members of the Canadian public can request access to judgments that have been made in a Canadian court; while it may cost the first person to request the transcript a few dollars, subsequent visitors will face negligible costs where costs are imposed at all. Digitized judgments are increasingly placed online for major search engines index and which members of the public can access them at any time. This is done in accordance with precedent – citizens have always been able to read transcripts of court cases by visiting the court where the judgment is kept, finding the documents, and sitting down and reading them. The digitization of such documents (the argument goes) is just a natural extension of past systems of public use.

Transcendental Formula of Public Right

In his essay ‘Perpetual Peace a Philosophical Sketch’, Immanuel Kant wrote that “[a]ll actions affecting the rights of other human beings are wrong if their maxim is not compatible with their being made public”( Political Essays, 126). As rational actors, citizens evaluate laws’ rightness or wrongness by independently evaluating whether they accord with reason – citizens must be able to accept laws on the basis of public reason alone – but to judge law they must know of it. On the basis of this formula, it follows that communication cannot be limited so as to prevent law from being made public. To accept law as a rational imposition, one that citizens can recognize themselves as the rational authors and addressees of, the law’s prescriptions must be compatible with being made public.

Of course, when Kant was writing this he (presumably) was addressing the issue of secret courts – citizens had to be able to read court proceedings and attend trials. I’m not entirely certain that his formula is in practically in line with the digitisation and dissemination of court documents. Now, in saying ‘practically in line’, I’m not making the broader claim that digitisation of court documents isn’t in line with at least a strict and comprehensive reading of his formula (comprehensive meaning encompassing all legal decisions), but that were his formula followed that individuals experience significant harms. I’m uncertain, however, whether those harms are sufficient to warrant a modification of the formula or (more likely) a need to attend to the formula in greater depth.

Have You Ever Done Anything Wrong? Let Me Check . . .

Govt-files.com is just one place where you can search to learn about prospective, well, anyones. Personal data searching sites give you the opportunity to learn about an intimate partner, a business associate, a long-lost relative, your professor, or the neighbour you dislike next door, and is reasonably cheap. After paying your admission fee, you can gain access to the following information:

Results include: full legal name, address searches, residential and cell phone numbers, old addresses, date of birth, reverse phone number searches, reverse record searches, background checks, court records, criminal files, public records, civil files, reverse email searches, arrest records, criminal indictments, felonies, federal and state records, personal records, private records, government files, sentencing files, warrants, identity theft records, correctional files, attorney records, small claims court records, prison records, federal records, driving history, DWU / DUI records, missing persons, mug shots, genealogy records, real estate records, court filings, county records, credit reports, business information, corporate filings and much more.

Govt-files.com, recognizing that people might be a little uncomfortable about others having access to this much information about them write:

It is important that people are allowed to know one’s background for safety and security. You can legally investigate; job applicants, tenant applicants, co-workers, neighbors, police officers, friends, family, credential verification, criminal records, court records, credit reports, home and cell phone numbers, addresses, driving records, small and large business, even yourself. This is all totally legal. It is crucial with today’s security threats that each and every person has the right to know and has the ability to access any public information about anyone. You will be shocked by the volumes of information that are accessible online. (Source; boldface not in original text.)

While I doubt that Kant would have necessarily agreed with the statement that others must know about you for safety and security, or that it is crucial that everyone have a ‘right’ to know and have access to information about anyone, the process by which companies develop these digital portfolios is facilitated with the explosion of personal-data rich databases. Included in these databases can be legal cases that you have been involved in, and which have had their proceedings subsequently digitised. With regards to legal cases, this means that citizens can learn about the justice system from the comfort of their own home, enabling them to examine and critically appraise whether they recognize themselves as the plausible authors and addressees of law, right?

I’m not entirely sure that is the case. Notwithstanding the fact that most citizens (myself included) would likely be baffled by the references to precedent, particular case law, and legal jargon, since most citizens are in fact unaware of the majority of the legal code I don’t think that awareness of particular cases would necessarily enable them to see themselves in the making of law. At the very least, I don’t think that the number of people who would benefit from reading cases like this outweighs the potential harm that accompanies what I’m calling a voyeristic-legal-intentions. Legal-voyeurs can see if the woman next door really has officially left her husband by checking to see if they are divorced. Moreover, they can see if their first girlfriend is still with that ‘loser’ she married after dumping you!

The Point of Transparency vs. the Right of Relative Anonymity

Historically it was a pain in the ass to aggregate disparate court documents from a vast geographical area. While the case documents were public the need to actually move to where the files were located, decipher the clerk’s script, and transcribe/photocopy the documents reduced individuals’ ability to misuse documents in a manner that intentionally invades on others’ basic rights to privacy. This analogue-hindrance system is coming undone in the digital era, when public records are placed online in the spirit of public transparency and accountability. I want to refrain from making a strong claim that such transparency is a bad thing (or, for that matter, that is is necessarily a good thing), but do want to claim that modern conceptions of transparency and public accountability are infringing on what have historically been understood as basic rights to privacy. Whereas moving away from your hometown and settling in another province was once a valid method of escaping your past and starting over again, your neighbour and employer can now check to see what colour your past really is. This kind of voyeristic-invasion is typically justified using comments resembling Govt-files.com’s statements about having a right to know your neighbour, but a classical accounting of rights sees them as required to harmonise citizens’ freedom in political environments. In the latter (loosely defined) case rights are intended to minimally infringe on one’s natural freedom, whereas in the former’s case rights are intended to maximally allow others insight into how your substantive engagements of those freedoms.

Rights to privacy are not a zero-sum game; enhancing privacy does not necessarily come at a loss to security or vice-versa. What is needed is a comprehensive privacy theory that can recognise new shifts in technological structures, content distribution methods, and relationships between public transparency and private retention of content. While envisioning such a theory is becoming a cottage industry of sorts, the real challenge is developing any such theory so that it is logically coherent and remains applicable cross-nationally without unnecessarily imposing colonising principles or theories – privacy theories that are developed must arise naturally from existing legal principles that nation-states operate using.