By: Nicole Allaband,
Courts in general have been slow to adopt technological changes. However, the Supreme Court of the United States has finally taken the plunge and will launch an electronic filing system on November 13, 2017.[1] Chief Justice John G. Roberts, Jr. promised to bring the Supreme Court into the 21st century and implement an electronic filing system back in 2014.[2] It took three years for the new system, developed in-house, to become available but the time has finally arrived.[3]
The federal courts implemented electronic filing in 2001, with bankruptcy courts joining first.[4] The Case Management/Electronic Case Files (CM/ECF) program allows more than 700,000 nationwide to file court documents electronically. Additionally, the public has access to virtually all the documents filed through the website Public Access to Court Electronic Records (PACER).[5] PACER does charge fees for searching, accessing, and printing.[6] The fees are set by the Judicial Conference and are currently $0.10 a page.[7] The new Supreme Court system will make all unsealed documents available to the public for free.[8] The free and quick access to electronic filings will benefit practicing lawyers as well as researchers.
Electronic filing in the federal courts has provided many benefits, including allowing attorneys to file documents from their home or office all day, every day.[9] Initially, the Supreme Court system will require litigants represented by attorneys to file both electronically and in paper.[10] The Supreme Court will likely maintain the dual filing for some time until the Court is sure the system works and is not vulnerable. After review, the filings will be publicly available. Attorneys can file electronically at no extra cost than the regular filing fees.[11] Pro se litigants must still file in paper form and the documents will subsequently be scanned and uploaded to the system.[12]
The CM/ECF system employs a two-step security process.[13] A program verifies each PDF document as it is uploaded.[14] Another program runs periodically to verify that the documents have not been changed since they were uploaded.[15]
To file electronically for the Supreme Court, attorneys must first register with the new system, which can take 1-2 days to process.[16] Only attorneys admitted to the Supreme Court Bar and those attorneys appointed for a specific case are able to register.[17]
The launch of the Supreme Court’s new electronic filing system has many potential benefits for practicing lawyers, as well as researchers. But there are also security concerns.[18] In the age of cyberattacks, ransomware, and hacking, courts are especially cautious because they deal with sensitive information on a daily basis.[19] Courts and the electronic filing systems have been targeted in the past.[20]
The Supreme Court developed its online filing system in-house over the last three years. Developers undoubtedly considered and developed security mechanisms to prevent hacking to steal sensitive information and cyber-attacks that could shut the system down. Technological advances are coming in an increasingly fast pace. Malicious hackers also move at a fast place, finding vulnerabilities in systems faster than “white hat” hackers can plug the holes.[21]
[1] See Electronic Filing, The Supreme Court of the United States, https://www.supremecourt.gov/electronicfiling/ (last visited November 7, 2017).
[2] See Brian Fung, The Supreme Court is about to become more transparent, thanks to technology, Wash. Post (August 3, 2017), https://www.washingtonpost.com/news/the-switch/wp/2017/08/03/the-supreme-court-has-finally-embraced-the-21st-century/?utm_term=.bac09c44ccf3.
[3] See Electronic Filing, The Supreme Court of the United States.
[4] See FAQs: Case Management/Electronic Case Files (CM/ECF), United States Courts, http://www.uscourts.gov/courtrecords/electronic-filing-cmecf/faqs-case-management-electronic-case-files-cmecf#faq-What-is-CM/ECF? (last visited November 7, 2017).
[5] See id.
[6] See Electronic Public Access Fee Schedule, PACER: Public Access to Court Electronic Records, https://www.pacer.gov/documents/epa_feesched.pdf (last visited November 7, 2019).
[7] See id.
[8] See Melissa Heelan Stanzione, Supreme Court Electronic Filing Opens Nov. 13, Criminal Law Reporter, BNA Law Reports, https://www.bloomberglaw.com/document/XFOUD4HS000000?emc=bnacrl%3A12&jcsearch=bna%25200000015f8215d6fdafffc6f5f0b20000#jcite
[9] See FAQs: Case Management/Electronic Case Files (CM/ECF)
[10] See Electronic Filing, The Supreme Court of the United States.
[11] See FAQs: Case Management/Electronic Case Files (CM/ECF)
[12] See Electronic Filing, The Supreme Court of the United States.
[13] See FAQs: Case Management/Electronic Case Files (CM/ECF
[14] See id.
[15] See id.
[16] See Stanzione, Supreme Court Electronic Filing Opens Nov. 13.
[17] See id.
[18] See David Murphy, U.S. Supreme Court to Deploy New Electronic Filing System Around 2016, PCMag (January 1, 2015), https://www.pcmag.com/article2/0,2817,2474456,00.asp.
[19] See, e.g.,Richard Milne, Maersk cuts profit guidance in wake of cyber attack, Financial Times (November 7, 2017) https://www.ft.com/content/711be9fa-c396-11e7-a1d2-6786f39ef675; Judy Greenwald, Ransomeware risks go mainstream, Business insurance (November 6, 2017), http://www.businessinsurance.com/article/20171106/NEWS06/912317025/Ransomware-risks-go-mainstream; Jake Bernstein, The Paradise Papers Hacking and the Consequences of Privacy, New York Times (November 7, 2017) https://www.nytimes.com/2017/11/07/opinion/paradise-papers-hacking-privacy.html?_r=0.
[20] See U.S. court system targeted in cyber attack: report, Reuters (January 24, 2014), https://www.reuters.com/article/us-usa-courts-hack/u-s-court-system-targeted-in-cyber-attack-report-idUSBREA0O03W20140125
[21] See obert Siciliano, How Hacking Has Evolved with Technological Advances, Balance (August 28, 2017), https://www.thebalance.com/how-has-hacking-evolved-with-technological-advances-1947546.
Image Source: https://www.tradesecretslaw.com/.