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Wednesday, May 28, 2008

Courts - "GE Suffers a Redaction Disaster"

So reads the headline to an instructive (but not instructive enough, see below) story today by Douglas S. Malan of The Connecticut Law Tribune. Some quotes:

Lawyers involved in the class action sex discrimination case against Fairfield, Conn.-based General Electric in 2007 would rather you not read passages from various filings.

After all, the plaintiffs' firm, Sanford, Wittels & Heisler in Washington, D.C., took the time and effort to black out reams of pages in numerous briefs to make them inaccessible to the public -- or so they thought.

But as of late last week, you could download several documents through PACER's federal court filing system, copy the black bars that cover the text on the screen and paste them into a Word document.

Voilà. Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required. * * *

Late last week, Shea contacted Sanford to discuss the matter. Sanford, the plaintiff's lawyer, then called the Law Tribune to shed more light on the matter.

"I wasn't aware of the severity of this problem," he said. "Certain documents have been filed improperly by us. If this redacted material is in the public domain, it becomes a problem for GE and for us.

"We're going to try to take steps to correct that error. We're doing everything we can today (last Thursday)" to make emergency, corrected filings with federal court clerks who are aware of the problem, Sanford said.

PACER account representative Shawn Robledo, who works in PACER's service center in San Antonio, also was unaware of the problem until she was guided through the process of downloading, copying and pasting.

"We need to report this to the court," she said. "We've never had this problem come up. I've been here for years and have never seen [a redaction] done like this."

The PACER service center is operated by the Administrative Office of the U.S. Courts in Washington, D.C.

Spokesman Richard Carelli said PACER employees do not check filings to make certain that redacted information actually is inaccessible. "The total responsibility rests with the lawyers" to redact properly, he said. * * *

The security breach in her case underscores a hot issue in the legal profession involving uncovered trails of electronic data, known as metadata. Where once a black marker strike on a piece of paper was sufficient, redaction in the digital world requires special software and the know-how to delete the words behind the shield.

Sloppy information management "has been a huge problem" for lawyers, said Connecticut Chief Disciplinary Counsel Mark Dubois. "Metadata is a fascinating area of developing law. It is much discussed in the fields of risk aversion and risk management."

Dubois said a lawyer or law firm who has insufficiently redacted information in a case could be in violation of a host of ethical rules and an easy target for a malpractice lawsuit.

Redaction problems often arise when people use old versions of Adobe software, which turns paper documents into an easy-to-read electronic Portable Document Format, the format of choice for PACER and many other web sites with multiple documents.

There are ways to hide the text in older versions of Adobe, but the process is "cumbersome" and requires multiple programming steps, said Glastonbury attorney N. Kane Bennett, a member of the Connecticut Bar Association's Legal Technology Committee.

"With the newest version of Adobe, it is pretty simple to hide the text with a black box and then scrub the hidden text behind it," said Bennett, who was unfamiliar with problems in the Schaefer case. "This prevents people from copying and pasting into a Word document." * * *

In 2005, the Department of Defense suffered through a similar dispersion of classified information. Redacted segments of an investigative report on the shooting death of an Italian journalist by U.S. soldiers in Iraq could be copied and pasted from a PDF into a Word document.

The article could be more instructive. This is not a new problem, there have been a number of similar stories over the past several years.

Here, for instance, is a NYT story from 2003 that begins:

An internal report that harshly criticized the Justice Department's diversity efforts was edited so heavily when it was posted on the department's Web site two weeks ago that half of its 186 pages, including the summary, were blacked out.

The deleted passages, electronically recovered by a self-described ''information archaeologist'' in Tucson, portrayed the department's record on diversity as seriously flawed, specifically in the hiring, promotion and retention of minority lawyers.

See this Oct. 23, 2003 article from a British publication, The Register.. It talks about the Justice Dept. mistake, and others:
It turns out the report began its life as a Microsoft Word document, and whoever was in charge of sanitizing it for public release did so by using Word's highlight tool, with the highlight color set to black, according to an analysis by Tim Sullivan, CEO of activePDF, a maker of server-side PDF tools. The simple and convenient technique would have been perfectly effective had the end product been a printed document, but it was all but useless for an electronic one. "Using Acrobat, I'm actually able to move the black boxes around," says Sullivan. "The text is still there." [ILB - emphasis added]

In 2000, the ,New York Times made a similar error in publishing on its website a classified CIA file documenting American and British officials' engineering of the 1953 coup that overthrew Iran's elected leadership. Before releasing the document as a PDF file, the paper blacked out the names of Iranians who helped with the plot. But online intelligence archivist John Young published an unsanitized version of the report after discovering that the opaque black lines and boxes concealing the names could easily be removed.

Both cases demonstrate that what you see is not always what you get in electronic documents. Censors could have more effectively eliminated the text by deleting it, rather than painting it over. Additionally, commercial software is available that's designed specifically to help government agencies redact PDF files for release under FOIA and the Privacy Act. Pennsylvania-based Appligent even sells its "Redax" Acrobat plug-in to the Justice Department. "The amazing thing is that there are different divisions in the Department of Justice that are using our software, so it's a little shocking that they would do this in Word," says company president Virginia Gavin.

Here is a May 25, 2005 article (3 years ago!) in New Orleans attorney Ernest Sveenson's blog, PDF for Lawyers, answering Q & As on PDF redaction.

For more, see this June 2006 article from Adobe titled "Redacting PDF files: A survey of tools."

Posted by Marcia Oddi on May 28, 2008 12:19 PM
Posted to Indiana Courts