Alan M. Feldman, Chancellor
Philadelphia Bar Association
Re: Electronic Case Records
Before: Administrative Office of Pennsylvania Courts’ Public Access Ad Hoc Committee
March 2, 2006

We are grateful for the opportunity to comment on the AOPC's proposal to make court records, including criminal court records, available to the public on the internet. As Chancellor of the Philadelphia Bar Association, I come before you on behalf of our nearly 13,000 members, comprising a diverse legal community with lawyers from both the public and private sectors, who practice in virtually every area of the law.

The issues being discussed before you today are of great concern to both the members of the Association and to the broader Philadelphia community. These concerns, regarding public access to internet criminal records, were formalized in a resolution unanimously adopted by the Board of Governors of the Philadelphia Bar Association last October. The resolution states that the Association objects to AOPC's plan to make criminal court records available to the general public on the Internet unless safeguards ensure the accuracy of the online records and protect the rights of those who may be affected—including those who are the actual subjects of the records and those who are misidentified as the subjects of the records.

The first area of concern is whether electronic case records detailing pre-conviction information should ever be available to the public. The Philadelphia Bar Association believes that Internet posting of information prior to any actual conviction can have monumentally negative consequences. For instance, such a record might persuade a lender not to approve a mortgage, or cause an employer not to offer someone a job. As a result, an innocent person, not convicted of a crime, could potentially be denied employment or housing, or suffer other harm based on Internet dissemination of arrest records that never progressed to a conviction.

We fear that making such information available to the public inherently contradicts our society's basic notions of justice and fairness. The principle that one is "innocent until proven guilty" is one of the fundamental tenets of our nation's founding. But Internet accessible information of pre-conviction records—amounting to no more than a suspicion of guilt—may nevertheless lead to a public perception of probable guilt, or otherwise tarnish an individual's reputation. Such perceptions are nearly impossible to change—even if or when criminal charges are quickly dismissed, or if or when an individual is acquitted. This can irrevocably alter the life of an innocent citizen, and that is inconsistent with our American tradition of justice.

The Philadelphia Bar Association proposal is simple and direct: alleviate this concern by requiring that arrests not ending in conviction be removed from the Internet within thirty days after the end of the case.

We are also concerned with the fact that AOPC's existing plan increases the likelihood of incorrect attribution of criminal records. This concern goes to the second question: that is, whether a party's name and date of birth are sufficient identifying factors for providing and selecting correct electronic case record data. The Association believes that without additional identifying information, misidentification remains a strong possibility. Instances of misidentification can easily result in the impression that a person is guilty of a crime he or she did not commit.

In a recently issued Philadelphia phone book, there were 12 Mary Greens, 14 people named Jose Gonzalez, 26 John Millers, 31 named Robert Jones and 43 named Charles Williams. They all had listed phone numbers. If just two people with the same name, like these, have similar dates of birth, there is a reasonable likelihood of mistaking one person for another. Misidentification would be likely, and for those affected, it could be life altering and extremely costly. More specific identifying information (such as the last four digits of a person's social security number) would help avoid instances of misidentification.

The third and final item on today's agenda involves errors in the criminal records database. State and federal studies have revealed that there is an enormous rate of error, both clerical and as a result of identity theft, in criminal court and police records. Without a simple and expedient method to correct mistakes, an added burden—likely necessitating the service of a lawyer and attendant legal fees—will be placed on all persons who are the victims of such errors.

Incorrect criminal histories will disrupt the lives of law-abiding citizens and create unreasonable problems—even for the guilty. It is just as wrong to record and publish that a person committed a crime other than the one he was convicted of, as it is to falsely suggest an innocent person has a criminal record. Such mistakes are not tolerable, especially when considering the consequences of making all such misinformation available to the public, on the Internet.

Because of all of these concerns, the Philadelphia Bar Association resolved in October 2005 that the AOPC should not launch this Internet project without the above-described proposes safeguards. While the Association understands the desire to make public records more easily accessible, it is also mindful that inaccurate, incomplete and incorrectly attributed information will cause serious harm to many of our fellow citizens, as will the dissemination of pre-conviction records.

Since 1802, the Philadelphia Bar Association has been a proud civic leader in areas concerning the law and its impact on society. The mission of our Association is to "serve the profession and the public by promoting justice, professional excellence and respect for the rule of law." Mindful of this mission, I respectfully encourage you to consider these concerns and to make sure the rights of our citizens are not compromised on the altar of cyberspace.