Impractically Obscure? Privacy and Courtroom Proceedings in Light of Webcasting and Other New Technologies*

The advent of modern information technology has brought with it mounting privacy concerns. As court records, from dockets to electronically filed pleadings, are increasingly digitized, privacy proponents have sounded the alarm that critical personal information must be protected from public view. Over the past decade, courts across the United States have taken important steps to protect personal information captured in court records. Comparatively little concern has been given, however, to increasing online availability of court proceedings themselves, whether in the form of electronically available court transcripts or archived or even live webcasts of the proceedings themselves.

Ironically, modern technology is forcing us to ask a most peculiar question: can a trial be too public? Indeed, some might argue that few legitimate privacy issues exist in the area. After all, most court proceedings are and have always been public. Absent closed sessions and sealed orders, privacy routinely is sacrificed for openness and court accountability.4 We suggest that new technology has changed the pragmatic situation greatly, perhaps enough to create substantial issues of policy and law.

William & Mary Law School is only a short distance from Colonial Williamsburg in Virginia, and our colonial city can be a useful source of historical perspective. One of Colonial Williamsburg's defining structures is its Courthouse of 1770. A modest unprepossessing building across from the armory, it is an unexpected symbol of a very modern question of public policy. In an age without television, radio, and the movies, indeed without iPods, the courthouse was often a major center for diversion and entertainment. A trial in the colonial period was a major event, one that could attract a significant number of local citizens. The phenomenon of "Publick Times" grew around colonial Williamsburg's quarterly court sessions during which hundreds of people would come to Williamsburg for several weeks - elected Burgesses (some with their families), an association of merchants that likely met at the same time, farmers who sold produce and livestock at market days, and the like all came to Williamsburg at the same time. Agricultural fairs and horse races were popular pastimes during court sessions, as were balls held at the Governor's Palace, the larger taverns in town-even in the courthouse on Duke of Gloucester Street. So raucous were the occasions that tempering, at least within the courthouse, was required. The United States Supreme Court described the circumstances:

Indeed, when in the mid-1600's the Virginia Assembly felt that the respect due the courts was "by the clamorous unmannerlynes of the people lost, and order, gravity and decoram which should manifest the authority of a court in the court it selfe neglected," the response was not to restrict the openness of the trials to the public, but instead to prescribe rules for the conduct of those attending them.5

The American constitutional right to a public trial stems at least in part from that ordinary and culturally expected normative practice. Although trials could be closed, there can be little doubt that litigants, defendants, and other trial participants, including witnesses, had no practical expectation of privacy in normal proceedings.

As the population in the United States grew and spread, it became increasingly impractical to attend a local trial or hearing. Although certainly possible, most people came to rely on the media for news of what happened in the courtroom. The media, of course, has tended to cover only newsworthy trials. As a result, few people have any knowledge at all about most hearings. The American legal system established a de facto expectation of privacy in most court proceedings. Admittedly, it is only a partial expectation inasmuch as any person can wander into court and attend the average case (at least so long as a vacant chair remains in the gallery). Yet that expectation is reasonable. Few people can expect details of their troubles or testimony to come to the attention of the general public, or even their neighbors. The United States has developed a culture in which trial details are shielded by the functional equivalent of what is known as "the doctrine of practical obscurity."

The "doctrine of practical obscurity" is the expression that has been used to explain how paper court filings that are legally public in nature became private in practice. Few people realize that most court documents are available t...

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