Recently, I received a marketing piece from a state legislator touting the accomplishments of the General Assembly’s past session. Among other things, the legislator noted that he’d helped pass Senate Bill 935, which would shield certain court records related to peace or protective orders from the public, thus preventing children, friends, acquaintances and voyeurs from discovering another person’s marital difficulties through public venues.
At the time of this publication, the bill was still on the governor’s desk. He should veto the bill and send it back to the Assembly for necessary improvements.
While the bill may have a worthy objective, it exemplifies how legislators and bureaucrats are ill-equipped to solve many modern problems where technology has created new paradigms, even when there is a political will to do so. The bill ultimately would fail to protect privacy; it would likely add to the administrative burden shouldered by the court system and waste public funds as the government struggles to enforce a frivolous statute.
In brief, the bill would require the state, upon court order, to remove records related to peace or protective orders that are kept physically in a courthouse or digitally on a website. Courthouse records would be moved to a separate secure area away from persons who do not have a legitimate reason for access; online records would be purged from any website maintained by the Maryland Judiciary.
On the face of it, this sounds like good news for those who want to protect their personal affairs from the public eye, but in today’s environment, it is far easier to demand that records be shielded from view than it will be for the state to comply with the demand.
To begin with, it is important to acknowledge that paper court records are often digitized and made accessible online by service providers who work for the legal and/or publishing industry, if not the courts themselves. Once records are made available to the public online, one can safely assume that they can never be purged, shielded or otherwise sequestered. The availability of a record on the Internet for even a nanosecond creates the very real possibility that it will be captured by one of several Internet archiving mechanisms, such as www.archive.org or Google’s caching system.
The archive sites have made it possible for members of the public to read websites that have long since been taken down or altered by their owners. For those who want to erase content that could damage their reputations, such archiving sites pose a lifelong challenge.
As it does not acknowledge the challenge, S.B. 935 would fail to achieve its essential purpose. For instance, if a husband and wife are going through a divorce and have protective orders filed, the state, under the proposed law, would only shield records in its physical possession, or which are being displayed from a website that is under the state’s control. The legislation would not give the state authority to have the records purged from other digital venues that may have obtained them.
S.B. 935 is but one of many examples of the government struggling to check the Internet’s power to disseminate private information about citizens. The problem with such statutes is that they reflect a bygone era when publishing was a slower, paper-based business and more easily controlled. The measure’s authors have failed to realize that you can’t harness new technologies using the same old bridles that have worked in the past.
There used to be time for the legal process to expunge or shield records. Court records would be published or made accessible until the order to expunge was issued; in time, they would become increasingly inaccessible to the public; any newspapers, magazines or newsletters that contained the relevant private information would fall out of circulation.
In today’s world, however, once information becomes digitally available, replication happens almost instantly and it can be captured and preserved by numerous unknown parties in perpetuity.
If S.B. 935 becomes law, it will create a false expectation that the Maryland government can protect peace orders from voyeurism. Additionally, the statute would likely increase court congestion as citizens file suits demanding compliance, and would increase state costs as the government struggles to enforce a nearly unenforceable law.
The better approach would be for the state to stop making these sensitive court records available onsite and/or online in the first place. Given this country’s interest in making everything from the courts and their systems publicly available, this is not likely to happen. The alternative, and more difficult approach, is for the state to empower those citizens who have obtained an order to shield records, to take that order and use it to compel third-party entities like the Internet Archive to expunge the records in question. This will create jurisdictional issues, but the state has already leaped into this fray by passing, among other laws, its breach notification and unsolicited e-mail statutes.
In any case, until our legislators are more educated about how technology functions in the real world, the state’s best intentions will accomplish less than the General Assembly expects, and such bills will likely create more problems than they solve. One would hope that at some point before the Internet gets too far out of control, our legislators in Annapolis will take time to gain a fuller understanding of the technological challenges involved and pass laws that will be truly effective.