Nonparty Remote Electronic Access to Plea Agreements in the Second Circuit

Introduction I. Background A. The Rise of Electronic Access to Judicial Documents 1. The Demise of "Practical Obscurity" 2. The Judicial Conference of the United States: Policy on Privacy and Public Access to Electronic Case Files 3. Federal Rule of Criminal Procedure 49.1 4. Lingering Concerns of Nonparty Remote Electronic Access to Criminal Case Filings B. The Rights of Access to Judicial Documents 1. The Common Law Right of Access to Judicial Documents 2. The Constitutional Right of Access to Judicial Documents II. Competing Approaches to the Challenges Presented by PACER A. Public Is Public: Extend the Presumption of Access to the Digital Domain B. The Medium-Based Approach: Restrict Nonparties' Remote Electronic Access 1. Background 2. Recent Applications of the Medium-Based Approach C. The Exclusion Approach: Exclude Plea Agreements from the Public Record 1. First Amendment Right of Access Analysis 2. Common Law Right of Access Analysis III. Recommendation Conclusion Appendix: Survey of the Electronic Access Policies of the U.S. District Courts A. Survey Methodology B. Survey Results Table 1. Listing of common models of access to plea agreements and courts that apply these models INTRODUCTION Arrested for interstate drug trafficking in New Mexico, "Stewart" agreed to cooperate with authorities and testify against his codefendants. (1) The government filed Stewart's plea agreement with the court, and an electronic version became available for download on the Public Access to Court Electronic Records ("PACER") service. (2) Shortly thereafter, Stewart's PACER files were featured on whosarat.com, (3) a website that claims to have exposed the identities of more than 4,300 cooperating witnesses and 400 undercover agents. (4) In an effort to intimidate Stewart from testifying, his codefendants plastered the whosarat.com materials, which labeled Stewart a "rat and a snitch," (5) on utility poles and windshields in Stewart's neighborhood, and sent them by direct mail to residents in the area. (6) As a result, Stewart was forced to move to an undisclosed location, and the FBI opened an investigation into the matter. (7) Such 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 republishes court filings online for the purposes of witness intimidation, retaliation, and harassment poses "a grave risk of harm" to cooperating witnesses and defendants. (8) Accordingly, the benefits associated with the remote electronic availability and dissemination of judicial documents may come at a considerable cost. (9) This Note describes the options that district courts within the Second Circuit could implement sua sponte to mitigate these concerns. (10) For example, courts may adopt a local rule or protocol that curtails electronic access to plea agreements in response to the risks effectuated by PACER. This medium-based approach suffers from a number of practical and legal deficiencies, including the violation of Federal Rule of Criminal Procedure 49.1, which does not permit categorical protective orders. Alternatively, rather than modifying access rights depending upon the medium through which access is sought, courts may seek to prohibit all access to sensitive filings through categorical sealing measures. This approach is unworkable in the Second Circuit, which requires case-by-case determinations with respect to motions to seal. Finally, courts may choose to reconsider which documents ought to be maintained in the public record. This Note concludes that the last option is preferable due to its ability to withstand scrutiny under both the access doctrine and Federal Rule of Criminal Procedure 49. …