Archive | Transparency

Privacy and Court Records: Online Access and the Loss of Practical Obscurity

By on January 30, 2015 in First Amendment, Internet, Privacy, Transparency

CourtRecrodsI’m excited to announce that Professor Anne Klinefelter and I received an award from the Berkeley Center for Law & Technology and Microsoft Corp. to study the extent of private and other sensitive information in court records.  The $43,000 award will go to the Center for Media Law and Policy and the Kathrine R. Everett Law Library at the UNC School of Law to support a team of researchers who will sample and code several hundred briefs and other filings from the North Carolina Supreme Court.

The United States has a long history of providing public trials and open access to court records, both of which are essential if the public is to have faith in the fairness of our courts and justice system.  Over the past two decades, courts across the country have been moving quickly to digitize their records and make them available online. Some courts are doing this work themselves, while others are relying on third parties, such as libraries and other archives, to make public access possible. All, however, are dealing with one central and unavoidable issue: privacy.

Court records contain a number of types of information that could be characterized as private, ranging from social security numbers to the names of minor children involved in sexual abuse. Little work has been done, however, to study how often this information appears in judicial records and the context in which it appears. The lack of empirical data hamstrings court personnel and other archivists who are attempting to balance privacy interests with the public’s right of access, as well as scholars looking to adapt privacy law and First Amendment doctrines to deal with the flood of public records going online.

This research will provide a first-of-its-kind empirical study of the frequency of sensitive and private information in court records.  Although we are hopeful that our study will be valuable to courts and other archivists, we do not plan to recommend that any specific information in these records be redacted. Instead, our aim is to catalog the kinds of sensitive information that are in these records and to examine the context in which the various types of private information appear.  This will help policymakers and judges better evaluate the potential harm to privacy interests that might arise from the disclosure of private information in court briefs and related records. An examination of term frequency and any discoveries that certain terms are likely to appear when others also appear, may also inform some normative arguments about the “harmfulness” of online access to court records.

This study will also add much needed detail to the term “private information” as it applies in the context of judicial records. Based on a review of the laws that apply to court records as well as other privacy laws and scholarship, we have identified more than 139 types of sensitive or private information that may exist in these records. It is very unlikely that all of these information types appear with equal frequency. Frequency of appearance may be correlated with case type (e.g., civil vs. criminal), document type (e.g., brief vs. appendix) or time period. This study will allow us to assess, for example, whether criminal cases tend to raise different privacy concerns from civil cases.

Our project was one of six proposals to receive awards from Berkeley and Microsoft. You can read the UNC School of Law’s announcement of the award here.

We will present the results of this research at the 2015 Berkeley Technology Law Journal Spring Symposium, “The Privacy, Security, Human Rights and Civil Rights Implications of Releasing Government Datasets,” on April 17.  Look for more posts about our study over the next few months.

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Public Records Online at open-nc.org

By on September 2, 2014 in Internet, Journalism, Transparency

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Many of us talk about the importance of public records, but Ryan Thornburg has moved beyond talking. He has found a way to make public records in North Carolina easily accessible to the media and the public. Thornburg, an associate professor in the UNC School of Journalism and Mass Communication, has created a project called Open N.C. It is an index of state, county, and local digital public records that are being used by journalists and others. Thornburg explains his project here: Tar Heel Talks — Data-Driven Journalism.

Making a cameo appearance in Thornburg’s video is David Ardia, co-director of the UNC Center for Media Law and Policy.

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Are Charter School Studies Giving Us The Full Picture?

By on August 23, 2014 in Transparency

deskAccording to a recent study by the University of Arkansas, charter schools are 40% more cost-effective than traditional public schools. But do we really have the full picture? It’s hard to know because charter schools don’t have to disclose the same information as traditional public schools.

The Arkansas study measured effectiveness by comparing students’ scores on National Assessment of Educational Progress (NAEP) exams with the amount of money spent on teaching particular subjects. The researchers found that for every $1000 invested per pupil, charter schools increased NAEP scores by 16-17 points more than traditional public schools.

Critics argue that the Arkansas study understates per-pupil expenditures because it does not account for district funding that helps pay for school lunches, transportation, special education, and other services. The study also fails to account for charter schools that are in buildings owned by traditional public schools at no or reduced cost. It’s difficult, however, to draw conclusions about the overall efficiency of charter schools without knowing exactly how much they spend.

In North Carolina, there has been a recent push to increase charter school transparency. On August 7, Gov. Pat McCrory signed Senate Bill 793, which requires charter schools to adhere to North Carolina public records and meeting laws. Still, unlike traditional public schools, N.C. charter schools aren’t required to share all spending information with the public. For example, the salaries of top charter school administrators do not have to be disclosed.

Ted Kolderie, a senior associate with education policy non-profit, Education Evolving, says that the Arkansas report falls into the category of advocacy research. There are stakeholders funding the research who have an interest in promoting charter schools. In addition to concerns about funding, he takes issue with the report’s dependence on NAEP scores alone to make determinations about school effectiveness. Bruce Baker, a professor of education policy at Rugers, has criticized The University of Arkansas’s research on charter schools in the past, stating that “it suffers from alarmingly vague documentation.”

As the debate over whether charter schools or public schools perform better continues, the studies that attempt to come up with an answer are being heavily scrutinized. Transparency laws requiring charter schools to disclose more information will help people determine if there is really substance behind the claims in these studies.

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Statehouse media coverage declines

By on July 29, 2014 in Journalism, Transparency

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According to a recent Pew Research Center report, the number of reporters covering their statehouses has dropped 35% over the past decade. The study found a loss of 164 full-time statehouse reporters across the nation and more than two-thirds of U.S. newspapers without a statehouse reporter at all. Given the media’s role as watchdog for the government, this should be cause for public concern.

With fewer full-time journalists devoted to covering legislative matters at the state level, many journalists, legislative leaders, and industry observers fear that the public will not be kept informed of important policy decisions that will affect their daily lives. Part-time coverage, while valuable, may result in journalists missing critical stories or context that comes from being stationed at statehouses full-time. This could impact their ability to hold state politicians accountable.

Non-traditional outlets and state officials have attempted to fill the “reduction in coverage.” However, it does not make up for the numbers of jobs lost or alleviate concerns about the inherent bias of a state covering its own activities.

Daily Tar Heel reporter, Amanda Albright, sees the shrinking statehouse press corps as a call to action. In her article titled “A silver lining in Pew’s statehouse press report,” she encourages college journalists to step up and provide valuable oversight of state government. According to the Pew report, college students already make up 14 percent of all state capitol reporters.

Looking at Pew’s state-by-state data, N.C. has 47 statehouse reporters, 18 of which are full-time. While this is far from the lowest numbers in the country (South Dakota only has 2 full-time state house reporters), N.C. could still use more “watchdogs” based on the state’s population, the length of its legislative sessions, and arguably the average number of bills introduced at the statehouse.

The North Carolina General Assembly has taken action on over 400 bills this short session and will continue to tackle important issues such as the state budget until they adjourn. Their decisions will affect the lives of nearly 10 million North Carolinians. It is critical that the public be informed.

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Students Presenting at AEJMC Conference in August 2014

By on June 4, 2014 in Copyright, First Amendment, Internet, Journalism, Transparency

AEJMC LogoThree Carolina students have had media law research papers accepted by the Law and Policy Division of the Association for Education in Journalism and Mass Communication (AEJMC) for presentation at the group’s annual conference in Montreal in August.  Congratulations!

These are the authors, theory paper titles, and their paper abstracts:

Kevin Delaney, a student in the dual-degree program earning a J.D. and a master’s in mass communication, wrote “Rube Goldberg-Like Contrivances and Broadcasting:  The Litigation Challenging Aereo.”

Abstract:  The broadcast industry has been abuzz over Aereo, a company that streams broadcast content without a license over the Internet to subscribers.  The nation’s broadcasters have sought to enjoin Aereo by arguing that Aereo’s service violates their right under the Copyright Act of 1976 to perform works publicly.  This paper explores Aereo’s service in the context of the public performance right and offers an argument for how courts should interpret the public performance right.

Kylah Hedding, a Roy H. Park Fellow and Ph.D. student in the UNC School of Journalism and Mass Communication, wrote “Does Access to Environmental Information have a Critical Problem?:  Interpretation of FOIA’s Exemption 4 after the Critical Mass III Decision.” This paper won a prize for being the second best student paper in the Law and Policy Division.

Abstract: The Environmental Protection Agency (EPA) is one of the top agencies to invoke Exemption 4 when denying FOIA requests, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” However, the exemption provides no definitions for these key terms, which has been problematic for federal agencies and forced the federal appeals courts to define them. The first major case to establish an Exemption 4 precedent was National Parks v. Morton decided by the District of Columbia Circuit in 1974. The second major case, which either clarified or overturned this precedent, depending on which legal scholar is writing about it, was Critical Mass v. NRC decided in 1992 by the same federal appeals court. This paper examines how Critical Mass v. NRC has influenced the interpretation of Exemption 4 by the federal appeals courts.

Brooks Fuller, another Roy H. Park Fellow and PhD. student in the J-School, wrote “Evaluating Intent in True Threats Cases:  The Importance of Context in Analyzing Threatening Internet Messages.”

Abstract:  Following the Supreme Court’s most recent ruling on the true threats doctrine, Virginia v. Black (2003), significant conflict emerged among the federal circuit courts. The primary issue is whether an objective or subjective standard should apply to statutes that criminalize threats.  Speakers’ use of social networking websites and Internet forums for the purposes of posting violent and intimidating communications raises significant questions regarding the posture of the true threats doctrine and its application to modern modes of communication.  This paper utilizes legal research methods to examine federal courts’ treatment of Internet threats and highlights aspects of Internet speech that are particularly problematic for the doctrine.  Ultimately, this paper calls for the Supreme Court to revisit the true threats doctrine in light of significant inconsistency among the circuits regarding the impact of the Internet on recipients of threatening communications.
Papers for this national competition are double-blind reviewed, and student papers compete for acceptance on equal footing with faculty and co-authored papers.

All these paper were written for media law classes in the Journalism School.

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