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After Security Warnings, a Recap on RECAP

Last week, I wrote about RECAP, a Firefox-based software plug-in that automatically sends documents downloaded by a user through PACER to an online Internet repository where they are made available to the public. Though RECAP doesn't appear to violate any of PACER's terms and conditions of use, some federal courts are warning lawyers who have installed RECAP to exercise caution in use.

Last Friday, Paul Levy of Public Citizen's Consumer Law & Policy Blog noted that the United States District Court for the District of Michigan e-mailed the following notice to lawyers who use the courts electronic filing system:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or “plug-in” called RECAP, which was designed to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. At this time, RECAP does not appear to provide users with access to restricted or sealed documents.

Please be aware that RECAP is “open-source” software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes. This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.

Levy opines that the note is not a genuine security warning, but an attempt to intimidate users from installing RECAP. After all, as more federal court documents become accessible at no cost, the federal court system will lose revenues.

But Levy acknowledges that RECAP users should still be cautious -- not so much for security, but to ensure client confidentiality. He references New York Personal Injury Law Blog author Eric Turkewitz's concerns that free access to court documents in which personal information has not been properly redacted can compromise client confidentiality and give rise to identity theft. Both agree that lawyers must pay closer attention to the requirements of Federal Rule of Civil Procedure 5.2, which prohibits parties from filing information such as a social security numbers and taxpayer ids (except last four digits) or birth dates. With the prospect of information filed at the court becoming available online for free, FRCP 5.2 takes on greater significance.

Posted by Carolyn Elefant on August 25, 2009 at 04:23 PM | Permalink | Comments (2)


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