Plaintiff Can’t Erase Court Order From the Internet–Nelson v. Social Security Commissioner

The Commissioner of Social Security ruled that Nelson’s disability ended in 2010 and terminated benefits. In 2014, Nelson filed a federal lawsuit contesting that determination. In 2014, the judge ruled in her favor.

In 2016, Nelson went back to court. She said that some “law research blogs” had published the court’s 2014 order, and its presence online “was frightening her” and “caused her to fear for her safety.” The court denied her motion to seal her casefile. She then filed a letter (which the court treated as a reconsideration motion) saying that the order being online “worsened her anxiety and depression and had caused her to suffer panic attacks,” and “she would feel better” if the order wasn’t online. The court said no.

In 2017, Nelson sent a second letter asking “that the Order be sealed so that it will be blocked from search engines.” Even if the court overlooks the tardiness of her second reconsideration request, the court says no (cites omitted):

The denial of her motion in no way suggests that the Court does not take Nelson at her word that the availability of the Order online has caused her great distress. The public availability of such orders is, unfortunately for her, the consequence of a public dispute resolution system financed with taxpayer funds. Electronic access, moreover, is not unique to Nelson’s case; nor, surely, is Nelson alone in unhappiness. In Social Security cases, orders regularly include sensitive personal health information regarding a claimant’s disability. But, we do not have Star Chamber justice in the United States. Access by the media, the legal profession and the public at large to courts deciding cases openly on the public record helps solidify that arrangement, which is why, consequently, the Federal Rules of Civil Procedure establish a baseline requirement that orders such as the one aggrieving Nelson will be available to the public through remote electronic access.

Moreover, the availability of public access to such decisions helps ensure the refreshed validity of caselaw and that parties similarly situated are treated equally under the law. In line with these considerations, a movant bears a weighty burden when requesting that a case be sealed. Succinctly, Nelson’s predicament is no different than that facing any other social security claimant who brings her case in federal court, and, at bottom, nothing in Nelson’s file qualifies for sealing, especially since the horse of online access to the Order has long since left the barn. Consequently, neither Nelson’s case (broadly) nor the Order (specifically) will be ordered sealed, and her motion seeking such relief is denied.

Implications

This case doesn’t use the “right to be forgotten” vernacular, but this is a straightforward RTBF case. Nelson sought a court order to remove information about her court case from the search engines. Fortunately, the court understands the broad policy implications of the request and rejects it–even without discussing the First Amendment considerations.

Were the U.S. to create more RTBF law, I believe we’d see a startling number of cases like this one. See, e.g., Martin v. Hearst.

As a legal blogger, I’ve also had first-hand experience with this issue. I blogged a court opinion (I won’t name it but I consider it a pretty interesting ruling) that the plaintiff subsequently got the court to seal. The plaintiff then repeatedly asked me to remove the blog post because the opinion had been sealed. I declined to do so.

In a search engine-dominated world, I imagine post-issuance sealing of opinions, followed by takedown requests and search engine scrubbing, will come up with increasing frequency. It might make a good paper topic for someone looking for an underexplored corner of the right to be forgotten.

I sometimes hear privacy advocates argue–with a straight face, no less–that privacy and free speech aren’t in conflict with each other. What they usually mean is that sufficient privacy protection can encourage the production of First Amendment-protected speech, and I agree with that argument in the context of anonymous/pseudonymous speech, whistleblowing, etc. However, the non-nuanced soundbite-y version (e.g., “privacy and free speech are friends!”) is mockable. Much of privacy law is designed to shut down free speech, as this case illustrates. Here, increasing the plaintiff’s privacy would strip valuable information from the discourse. In situations like this, privacy and free speech are in a zero sum game. There will be winners and losers.

(This did make me wonder if social security claimants can sue in court under a pseudonym. That might be a way to increase their privacy with fewer free speech losses).

We often take for granted the integrity and independence of our judiciary system, but this is a good opportunity to remind readers just how precious and rare our judiciary system really is. As the court discusses, some of our system’s success can be attributed to its transparency–we all can monitor, debate and protest new judicial developments–and to judges’ efforts to resolve factually similar cases similarly–something only possible if the facts from prior cases are clear enough for judges to spot commonalities with future cases. In an era where our executive and legislative branches are using dubious legal procedures to pursue insane policy objectives, the fate of our republic may depend on the judiciary’s strength, independence, and credibility. Thus, we must vigilantly defend the attributes that make our judiciary great. Fortunately, this judge kept things in perspective.

Case citation: Nelson v. Commissioner of Social Security, 2017 WL 1314118 (E.D.N.Y. April 6, 2017) (the opinion is dated March 25 but it wasn’t filed until April 6).