“You have zero privacy anyway. Get over it.”

— Sun Microsystems Chief Executive Officer Scott McNealy, as quoted by The Wall Street Journal

Until recently, a little-known legal concept referred to as “practical obscurity” kept many public documents hidden in the catacombs of county courthouses across the country.

The concept holds that because records are difficult to access, they remain obscure for all practical purposes.

Lawyers, private investigators, credit companies, journalists and others trained in the art of sifting through such dust-covered documentation have been mining county records and other public information tunnels for years.

But in the old days, it took time, talent and tenacity to find out anything. Enter electronic searchability, digital record-keeping and the Internet.

Now even your inquisitive neighbor can ascertain how much you paid for your house, who loaned you the money, your finished square footage and perhaps even your floor plan — without leaving the comfort of his own rather small cottage that he obviously paid too much for. (The reason I know this is because I looked it up on the county Web site.)

Transformation from the darkness

The diffusion of light into formerly dark spaces has also transformed the newspaper game of public notices.

In some locations, corporations and government entities practice damage control via placing required notification in the smallest circulated, most obscure, but still adjudicated, legal newspaper.

This, despite the fact there might be a 100,000-plus circulation major daily that provides wide access to the general reading public most affected. But instead of running it there, a legal advertiser, forced by statute to communicate its communal intentions, will run the notice miles away in a very narrowly defined publication that only a few local lawyers receive in the mail.

This, of course, is not really what lawmakers intended when they legislated public notification guidelines.

More universal access and third-party review have been points that newspapers have always used to argue in favor of forced public notification for government actions and private doings that affect the public. Those arguments, however, don’t hold any water if the spirit of such laws is routinely violated. We, in the newspaper industry, have some responsibility to make sure we don’t destroy our ability to use those arguments by bastardizing the process.

Taking a step backwards

Governments across the country, meanwhile, are making public information much less “practically obscure.” Information like state tax liens, arrest warrants, bond postings, property transactions, civil judgments, criminal court proceedings, land assessments, military discharges, voter registration and delinquent taxes is routinely available.

Some states, however, are considering reining in such access. In Florida, for example, lawmakers approved a statute banning government agencies from posting certain personal records. The new law is a step back from a 2000 regulation mandating that agencies display official documents on Web sites by 2006.

Clearly, the private vs. public debate has barely begun. The policy-setting Judicial Conference Committee on Court Administration and Case Management, at a recent hearing, was deluged with comment from both sides of the spectrum.

“The privacy question is not one that will confront us some time in the distant future — it is here now and must be addressed,” said committee chair Chief Judge D. Brock Hornby.

“This ‘practical obscurity’ ends when the court records become easily accessible and searchable electronically from remote locations — anywhere in the world and at any time of the day or night.”

Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, in comment submitted to the judicial subcommittee, argued that unsealed documents should be equally available online and in person.

“Any limitations should be decided on a case-by-case basis, with the assumption that the public shall have access to the broadest range of material,” she wrote.

Unforeseen consequences?

Not everyone agrees. A policy paper released early last year by the Competitive Enterprise Institute in Arizona suggested there may be instances in which Internet access should be limited.

“Court records should continue to be accessible for any lawful purpose,” the paper stated. “However, this need not be done by making the records openly available to the general public over the Internet. Opening records to scrutiny of the idly curious may have unforeseen consequences, even if the display of the most sensitive information is blocked out. But records should be made available over other electronic networks to which access can be restricted, such as intranets within the courthouse.”

Regardless of what is decided in terms of online access versus the relative “practical obscurity” of public access at the courthouse in person, information deemed “public” is likely to find its way to the Internet anyway.

Somebody will go look it up, compile it in a useful format, create a database and take it from there. In this day and age of satellite photos of your yard from outer space and cookies that tell everyone every site your browser has visited — there is practically no obscurity.

Rob Carrigan specializes in prepress systems for weekly newspapers. He is the publisher of the Ute Pass Courier in Woodland Park, the Gold Rush in Cripple Creek and the Pikes Peak Journal in Manitou Springs, all Westward Communications Inc. weeklies in Colorado. He can be reached via e-mail at RCarrigan@aol.com.