Features – Electronic Court Filing

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Bradley J. Hillis holds MA and JD degrees from the University of Washington. He is the editor of the forthcoming, “Internet Experiments in Electronic Court Filing,” and is a representative of the courts to the Washington Digital Signature Implementation Task Force. His previous Internet law articles have appeared on the Web at Villanova Institute for Information Law and Policy.

(Archived November 1, 1997)

T o tell the truth, I lied my head off.

At the May, 1997 Special Libraries Association Convention in Seattle, I was on a panel about electronic court filing. The other panelists were from West Publishing and Lexis-Nexis, which both operate large-scale filing systems. They described their companies’ filing systems, using bulletin board systems for complex litigation, and detailed the fees charged for sending documents to the court or accessing docket information.

The audience learned how the U.S. Bankruptcy Court in the Southern District of New York, and the Delaware Complex Litigation Automated Docket were set up, the business model for their success, and the new features in the works. The systems work, the attorneys who use them are by and large happy with them, and the courts do not pay anything to have the service provided.

Then, speaking last, I said the Internet allows courts to create electronic filing based on simple paradigms. Fees? Oh, let’s skip the fees this time, shall we. Fees are unnecessary for electronic court filing because cost savings from electronic storage of documents would make the system immediately save so much money, I suggested. Training could occur informally if staff were stakeholders and felt free to experiment and explore. Answers to thorny technical questions would now come from communities of listserve groups instead of high-priced consultants.

Even taking West and Lexis at their words, the business model suited large litigation, or busy urban courts. What about small courts or those with little budget for new equipment? I advocated for the simple actions that were possible immediately at no cost, such as accepting court briefs by e-mail at Washtenaw County Courts, in Ann Arbor, Michigan.

Digital signatures based on a public key infrastructure would provide authentication and verification, so pre-approved authorization for users wasn’t needed. Court administrative costs would be negligible because there was no need to set up for each attorney a special password. Secure commerce servers would accept credit card payments for filing fees or fines, and would likely be replaced soon enough with new forms of cybercash debit card payment. Long term storage of documents unresolved? Leave that problem for the next guy, a hard drive will give you five years before the bits go fuzzy.

Continuing in this Alexander Coleridge vein of possibilities, attorneys could submit documents in any format–HTML built on a Mac preferred! The federal courts’ idea of favoring the Portable Document Format was a flawed effort to recreate paper in electronic form. For the venture to work, we needed to become electronic body and soul, not cling to memories of the paper world.

As I said, I lied my head off–even though what I said is largely true. That is, my message was accurate in a technological sense. Courts have yet to exploit the cost savings, collaboration and information sharing features of the Internet. New media is still a blur to most courts. However, the picture I painted is untrue due to cultural barriers to changing business practices in the courts.

Opponents of electronic filing projects, or of Internet-based communications in the courts, are more than “don’t talk to me about a Xerox machine, I’m busy ordering carbon paper” Luddites. In some instances, there is concern about due process. Would litigants know what is happening to their rights, even liberty, when the documents are electronic, critics ask. At other times, the complaint is that computers don’t make us any more productive as thoughtful people, only more busy and harried.

Yet the pressure to go electronic is like water going down hill–there is no other direction possible due to how much cheaper it is to index and copy, store and move electronic data compared to paper. Over the last decade, discussions of electronic court filing have moved from curiousity to planning for the inevitable. So what will the electronic future look like?

The Internet has created a sense that the electronic future could contain fun and color, individuality and purpose. The open paradigm for information access was a boon to creative expression, say Internet boosters. Too often, the direction of our future is seen as if a dream image of gray file cabinets of magnetic tape with every personal consumer transaction recorded for immediate sale to a marketing company, or worse. How electronic court filing would impact privacy is still an open question. Currently privacy is not adequately protected on the Internet. Economic issues are important. Would the public would use the system, or would commercial entities simply dominate use and avoid fair fees for the data, thus undercutting the courts’ ability to fund other public services?

At the end of the meeting I felt like trading places with my counterparts in private industry. “Take me with you,” I wanted to say, clinging to their pant cuffs as they made for the door and planes back to St. Paul and Dover. They had operational court filing systems. I had words about plans about ideas to someday make one. They had revenue streams to cover expenses, while I had potential cost savings that logically should free up funds. They were moving from their past BBS systems to World Wide Web home pages to take advantage of the better graphical user interface, taking the wind out of my “you’re using old technology” sails.

Details on Digital Signatures

If you’re not sure what a digital signature looks like, try out the tutorial at Xcert, a Vancouver, B.C.-based software company. You’ll notice that you don’t see a signature. Instead, what appears on your screen is a “digital certificate” verifying the signer’s identity. Several states have enacted laws to take advantage of the technology.

The new Washington Electronic Authentication Act, ch. 19.34 RCW, was modeled on a pioneer measure adopted several years ago in business-savvy Utah.

In addition to legalizing machine-made signatures, Washington’s law regulates the companies that issue the software used to create them. Maintaining the integrity of the process used to create them is essential to avoiding fraud. The U.S. Postal Service, Citibank, IBM, and several smaller companies have already announced plans to enter the digital signature market.

Washington’s law is meant to foster commerce by making electronic messaging more efficient and reliable, speeding up the contract process, and by minimizing risks of forgery and fraud. It also implements industry standards, and establishes uniform rules of authentication and reliability of e-mail.

Under the law, an issuing company can register with the Secretary of State or elect not to do so. One benefit of registration: a limit on liability in case of consumer loss. To protect consumers, the new law requires companies wishing to register, to sell digital signature software to demonstrate financial solvency. They must also post a bond, employ no one with a criminal record, and submit to periodic audits.

Digital signatures:
Learn more on the
World Wide Web

Utah digital signature homepage

Georgia digital signature homepage

Electronic commerce law, from the American Bar Ass’n, Section of Science and Technology

Verisign, a private company selling digital signature software

OnWatch, a private company selling digital signature software

Xcert, Inc., a private company selling digital signature software

In the final analysis, I was amazed and impressed with the West and Lexis products and would recommend them to courts. Their world was real and mine was full of ambiguity and uncertainty.

Yet courts across the country are rolling out either entire electronic court filing systems, or are offering discrete parts of the puzzle. In Utah, the courts are unveiling in Fall, 1997 a filing system for criminal cases statewide, based on the 1994 electronic case file report from Alan Asay and the Utah courts working group. The Utah system will use digital signatures. In Leon County, Florida, the court clerk offers free online docket information and several other searchable databases. The Stanislaus County Courts in California are using the Web to post case calendaring free online and Harris County District Court in Texas continues to pioneer in the field. The setbacks that occur in court information projects, notably the Los Angeles Superior Court, and Prince Georges County, Maryland, which are both offline for now, show that we still need to search for an economic model that will make satisfy a variety of situations.

Meanwhile, apart from the actions of courts, new laws are making the rules clearer. The Washington Digital Signature Act, patterned after Utah’s act, takes effect January 1, 1998, and will make electronic signatures the equivalent of written ones. The movement of the public to Internet services will make it easier to provide services to a large audience in cyberspace. To borrow a bit of industry dazzle, Netscape is getting somewhere over a billion hits a month to its Web site and there around a million Web servers online. If due process concerns of courts using the Internet or electronic files are based on the familiarity of the citizenry, we may not have to worry too much longer. Perhaps at the next SLA meeting, we will discover that the legal culture has outpaced technology.

Posted in: Courts & Technology, Electronic Court Filing, Features