WASHINGTON STATE ACCESS TO JUSTICE TECHNOLOGY PRINCIPLES: A PERSPECTIVE FOR JUSTICE SYSTEM PROFESSIONALS, THE

Justice System Journal, 2006 by Zorza, Richard, Horowitz, Donald J

It is therefore particularly important that such a general principle be the basis for the Grafting of appropriate, often detailed rules and sub-principles that should govern the intertwined issues of access and privacy, and that the Principle be both flexible enough to govern a wide range of circumstances and strong enough to protect crucial fundamental values that are often in competition.

Among the factors that influence the working out of such a balance are the types of information and users. Information that most closely relates to personhood requires the greatest protection. Personal information should be entitled to greater protection than the corporate or institutional users because our society understands that the core values of privacy are designed to protect individual autonomy, even though there may be certain, carefully defined and balanced exceptions to this general rule, such as trade secrets and patents.

Other factors that may affect the balance include:

* Possible harm resulting from the revelation of the information. When the risk of harm to the individual or society is particularly great, the need for protection from access is higher (e.g., information about health or victims of domestic violence).

* Risk of aggregation of data. When there is a particularly high risk that aggregation of data will lead to violations, even if release of the individual data is not particularly problematic, the need for protection is greater.

* Social value of access to the particular information. Where there is greater need for access to the data, then the balance shifts in favor of access.

Examples of such information might include preventing wrongdoing, protecting the public safety or public health, or increasing public oversight of government.

* Risk of hiding of wrongdoing. A particular danger arises when the justice system's acceptance of secrecy adds to the risk of continuing wrongdoing.

* Purposes to which information is to be put. As a general matter, the purposes to which information is to be put should play a major role in determining the appropriateness of access.

* Context. The general interests served by privacy and access in a particular situation must be considered.

It is essential to recognize that fears of personal information being made public by electronic access to court records are real and that such fear may deter people from seeking access to justice. The fundamental right of access to justice may be discouraged and chilled unless there is confidence that privacy and safety are given appropriate weight. Further, given the considerable dangers associated with aggregation of information, consideration should be given to particular protections against inappropriate aggregation, including conditions placed on the aggregation of information by those who have access to justice system information.

Because so much of technology happens "behind the scenes," buried in software and hardware, technology presents particular risks of nontransparency. For example, if recommendations for court outcomes are based on statistical predictions, then the algorithm for that prediction becomes a critical part of the system, and its transparency crucial. Similarly, if the most important information is color coded red, then the programming decision about what information is so coded, and when, becomes important and should be made explicit and public.