First Amendment, access to court filings, criminal procedure, witness intimidation
Widespread electronic access to case files gives rise to security concerns previously unrealized in the era of paper records. As the United States Department of Justice noted, the emergence of a "cottage industry" of websites that republish court filings online for the purposes of witness intimidation, retaliation, and harassment poses "a grave risk of harm" to cooperating witnesses and defendants. Accordingly, the benefits associated with remote electronic availability and dissemination of judicial documents may come at a considerable cost. This Note describes the options that district courts within the Second Circuit could implement to mitigate these concerns. Part I of this Note outlines how electronic access to court filings has altered the traditional balance between disclosure and privacy, and addresses the concerns associated with providing electronic access to plea agreements. Part I also outlines the qualified rights of access to judicial documents under the common law and the First Amendment. Part II examines these qualified rights' constraint on the operation of proposals that would that would limit nonparty remote access to court documents. Part III argues that electronic access to court filings should be governed by the same standards which regulate access to paper filings, and that the proper inquiry is whether certain sensitive documents ought to be included in the public record at all. This Note concludes that Courts can best maintain the public's qualified rights of access to court filings based on process-oriented concerns, and simultaneously provide security to cooperators, by not filing plea agreements.
David L. Snyder,
Nonparty Remote Electronic Access to Plea Agreements in the Second Circuit,
35 Fordham Urb. L.J. 1263
Available at: https://ir.lawnet.fordham.edu/ulj/vol35/iss5/7