Imagine That IP Law Blog

The Administrative Office of the United States Courts announced new security procedures to protect confidential filings on Wednesday, January 6, 2021. The changes come in the wake of a massive cybersecurity breach identified in December 2020. The breach involved a known compromise of third-party provider products, and has affected a number of federal agencies, including the Departments of Energy, Commerce, State, and Treasury. The Judiciary uses an impacted product for IT network monitoring and management and; consequently, its online filing system has been jeopardized.

In response to an emergency directive from the Department of Homeland Security, the Judiciary has suspended all national and local use of the Case Management/Electronic Case Files System (“CM/ECF”) with respect to highly sensitive documents (“HSDs”). Under the new procedure, HSDs filed in federal court will be accepted for filing only in paper form or via a secure electronic device, such as a USB stick or thumb drive, and these will be stored in a secure, stand-alone computer system. Such documents will not be uploaded to CM/ECF. The Judiciary noted that this does not affect the policy regarding public access to court records, and PACER will remain online.

Since the Judiciary’s announcement, courts have issued and will continue to issue standing and general orders regarding the new procedures for this sensitive material. Courts will offer guidance on what types of filings are considered to contain HSDs. The Judiciary noted “most documents similar to and including presentence reports, pretrial release reports, pleadings related to cooperation in most criminal cases, Social Security records, administrative immigration records, and sealed filings in many civil cases likely would not be sufficiently sensitive to require HSD treatment.” These types of filings could likely continue to be sealed in CM/ECF as necessary.

As the fallout from the breach continues, expect to encounter changing security measures across all courts and software platforms in the coming months. It is critical that all litigants and potential litigants stay current on privacy and cybersecurity news and always use best practices in keeping documents as safe and secure as possible, particularly with court filings.