A Matter of Magnitude Beyond Jurisdictional Control
David Bloys - News for Public Officials
For years, Texas Attorney General Greg Abbott has warned citizens to safeguard personal information. In particular, he warned us to watch what we provide over the Internet. Last month, he told Texas Clerks they must do the same.
The Constitution promised all citizens that we would be ‘secure in our persons, houses, papers and possessions, from all unreasonable seizures or searches’. But today, government Web sites make it possible for people from all over the world to search and seize our papers at the click of a mouse. Remote access makes it easy for anyone to gather all the information they need to take your possessions, your home and even your life. Identity thieves, stalkers and terrorists are known to make use of “public” record Web sites.
The primary function of government is to protect the citizens within its jurisdiction, but until last month, a small percentage of Texas clerks were providing our most sensitive information to anyone in the world with an Internet connection. It didn’t have to happen and it doesn’t have to happen again. The problem isn’t our clerks in the courthouse; the problem is our records on the Internet.
Our clerks deserve the security of knowing that a single error will not land them in jail and citizens deserve the security of knowing that our clerks will not make an error so massive that it puts all of us at risk.
When Abbott abated Opinion GA-0519, he gave legislators 60 days to come up with a solution that might protect clerks from prosecution for simple errors while at the same time protect Texans from massive breaches of personal security. The confidential information the AG referenced in his ruling has always been available in the records kept at the courthouse but they were practically obscure. They were hidden inside volumes of records. It is unlikely a single criminal would ever found any sensitive information or even know where to look.
Publishing the records online changed all that. Suddenly every record containing every bit of sensitive information could be viewed anonymously by any criminal from anywhere in the world. This is the single error that puts all of us at risk.
For over 150 years the records held by county government were both safe and easily accessible. For many counties, this repository became the single greatest asset controlled by local government. The documents were always accessible by local attorneys, title companies, abstractors, businesses or anyone who had a need great enough to require a trip to the courthouse. When someone outside the jurisdiction had a legitimate need for some of the records, they hired local attorneys, abstractors and title companies thereby boosting local economy.
Our forefathers considered the repository as a whole to be so important that they protected the records behind steel vaults. Indeed the primary function of Texas clerks has always been to preserve this taxpayer owned asset while making individual documents available within the confines of the jurisdiction. The system worked exceedingly well until a few years ago when some county officials decided everyone in the world should have the same access as those who visited the Courthouse in person. These few clerks threw the security of their citizens and a hundred and fifty years of time-tested tradition out an Internet window.
The 2002 National Center for State Courts (NCSC) Model Policy recommended that clerks provide access to certain records only at the courthouse while allowing other, less sensitive documents to be published over the Internet. The policy made it clear that there is a difference between the public that visits the courthouse in person and people from all over the world who could access the data via the Internet. Some county clerks rejected this safe approach and opted instead for the convenience of placing all the records online.
On April 19, 2002 Fort Bend County Clerk Dianne Wilson wrote in an email to the NCSC, “I believe that the public should have access to public documents including making the index and images (if public) available on the Internet 24/7,” she continued, “There is no good reason why the information should be public for walk in customer but be off limits to web-based customers. The access should be equal”.
The United States Supreme Court had already made a distinction between physical access at the courthouse and remote electronic access thirteen years earlier.
In U.S. Dept. of Justice v. Reporters Committee the Court rejected the respondents' cramped notion of personal privacy by stating,” Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.”
Our clerks deserve the security of knowing that a single error will not land them in jail and our citizens deserve the security of knowing that our clerks will not make an error so massive that it puts all of us at risk.
The solution is simple. It doesn't require expensive redaction software or repealing laws that protect all of us. Only a handful of clerks made an error than put all of us at risk. Now we have to ask them to stop sacrificing our security for their convenience.
A few county clerk's may complain that it is inconvenient to unplug the records from the Internet. But for the 80% of the counties in Texas that never put the records online in the first place, this solution requires no action at all.