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Blurbs from the Bossman

Practical Obscurity and Public Records
by Scott Perry | 2008/05/07 |

With all the recent stories in the news and posts in the Discussion Forum regarding online public records and privacy issues, I thought that this article I wrote awhile back about how technology has changed the way we deal with publicly available information was both timely and relevant.

Blurbs from the Bossman ::

It used to be that if you wanted to obtain a copy of the deed to your house, you had to make a trip to your local courthouse, enlist the aid of a clerk in the Recorder of Deeds' office to assist you in searching through those old, dusty canvas books, find your name in the index, have them pull the correct book or microfilm, then wait while they made your copy for you.  It was an inconvenient and often time-consuming process.  However, the advent of the Internet and the availability of public records for worldwide consumption have changed all that.

Fast-forward to today, where, with just a few mouse clicks, not only can you quickly and easily download and print your own deed from your county's website, but while you're there, you can find out how much your neighbor paid for his home, who holds his mortgage and the size and dimensions of his lot.  You can also find out how much he pays in property taxes and in some cases, you can even get pictures of his house...and that's just the tip of the iceberg.  I haven't even mentioned the civil and family court records--which may contain volumes of sensitive and personal information about him or his family.

A February 2006 investigative report by our own David Bloys, publisher of the online newsletter News For Public Officials, details how fraudsters were able to fake a signature and a notary seal to produce a bogus deed transferring ownership of a house from a Denton county couple to themselves.  The theft had the earmarks of a rash of deed fraud in Florida in which the signatures and notary seals of deeds to properties belonging to absentee owners were copied from public record websites.  Commenting on the need for legislation to combat the fraud, Florida state Senator Dave Aronberg stated, "it's one thing if these guys are committing crimes; It's another thing if the state is facilitating it. The state shouldn't be making it easy for this kind of thing to go on."

In February 2007, MSNBC Senior Investigative Correspondent Lisa Myers broke the story of an Ohio woman whose identity was stolen by a ring of thieves who obtained her sensitive personal information from a county court database.  Details such as her name, date of birth, address and social security number were there for the taking-everything the thieves needed to open accounts and make hundreds of thousands of dollars worth of purchases and charges using her identity.  MSNBC later reported that New York State had removed documents from its Department of State website that showed the personal information of such celebrities as Donald Trump and Joe Namath, as well as many private citizens, in reponse to Ms .Myers' report.

Since the founding of our nation, citizen access to government records has been an integral part of promoting transparency and accountability in government.  As those records have become available through electronic means, civil libertarians have made the argument that since land records and records of court proceedings are considered "public", they should be accessible by the most modern methods available.  So the paramount question is: do I, a private citizen sitting here in my pajamas in front of my computer in North Huntingdon, Pennsylvania (or anyone else, for that matter) have any business knowing what someone in, say Fort Worth, Texas for example, paid for their house?  Internet librarian Dan Giancaterino doesn't think so.

Speaking as a guest on the Michael Smerconish radio show in October 2005, Mr. Giancaterino said, "I think that having that practical barrier of having to show up [at the courthouse] and go through the process of...requesting documents tends to weed out a certain percentage of crazies".  He then went on to cite an example of information in a child custody case that he was able to pull from the website of a county near Philadelphia.  He had the child's name and birth date; the mother's address; the fact that the father had been incarcerated and was being evaluated for a mental disorder; that the mother was pregnant with another man's child; the city and state to which the mother and child were moving; and even the name of the elementary school that the child would be attending.

A few years back, I attended a seminar at a technology forum sponsored by the Pennsylvania Land Title Institute (PLTI) which dealt with this very issue.  I remember one of the speakers, a real estate attorney, informing us that while the individual pieces of information by themselves are "public" in nature, they become "private" once assembled into a narrative report or an abstract of information relating to a specific person or parcel of real estate.  This little-known legal theory, known as the doctrine of practical obscurity, basically states that although a piece of information may be publicly available, the fact that no one with more than a casual interest would go to the trouble of looking it up makes it, for all practical purposes, obscure.

The doctrine of practical obscurity was first articulated by the United States Supreme Court in a landmark case entitled US Department of Justice, et al. v. Reporters Committee, et al., 489 US 749 (1989) in which a reporter made a request under the federal Freedom of Information Act (FOIA) for access to the FBI "rap sheets" of criminals.  The Court held that although an individual's arrest records are available for public inspection in the respective courthouses, the doctrine of practical obscurity would make the compilation of such records an invasion of an individual's right to privacy.

"[T]he common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person."

Some states have already passed legislation addressing privacy issues with regard to public record data.  The state of Florida, for example, has had an electronic redaction program in effect since 2006.  Many local jurisdictions are taking similar measures.  The County Council in Allegheny county, PA voted in November 2007 to eliminate the name search function from the county's online real estate assessment website.  The names of roughly 100 judges were removed from that county's website in June 2005 after the murder of the mother and the husband of a federal judge in Illinois and the killing of a county judge in Atlanta, GA.

I'm usually the last guy to recommend a government solution to  a problem, but taxpaying citizens of local governments have the right to expect that their elected officials will take positive steps to protect their privacy as those practical obscurity barriers become increasingly eroded by advancing technology.



1649 words | 2414 views | 1 comments | log in or register to post a comment

Amen to this!

I am a mortgage broker, but I know this site is dedicated to those of us who deal in private information.  The problem with government restrictions is that the pendulum can swing too far the other way.  They are now attempting to overcorrect their earlier oversights.  Right now, this has not yet affected those of us who legitimately make our livings gathering information.  But I would caution even the "private individuals" that the comfort of today is paid for in the trials of tomorrow.  Yes, you have your privacy, but you've also just made it that much more difficult to process a loan or get a line of credit.  I will never forget the time someone told me triumphantly that I would not be able to get a credit report on him because he had blocked his information.  First, I didn't tell him that there are still ways around this.  But second, what he failed to realize is that without his credit history, he could not be approved for a loan, and we can not accept reports printed by the applicant.

On the other hand, there has been a rash of fraud.  I personally had someone come to me with her sister's identity.  She tried to pass herself off under her sister's markedly better credit, and she looked enough like the sister that a casual glance at the Driver's License was just that, casual.  Luckily, we caught the mistake in time, mainly because this woman did not like to answer her cellphone.  We had to look up her home number, and were met with a "What loan?  I didn't apply for a loan!"  I don't know what happened to that young lady, but it was a close call to say the least.  I think the situation will get worse as people get more desperate. 

by Erin Finelli | 2008/05/09 | log in or register to post a reply
Blurbs from the Bossman


Thoughts, Observations
and Ruminations of an Independent Title Examiner Living & Working in the "Steel Buckle of the Rust Belt."



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