Editor’s note: In Part 1, published in the June 16, 2010, edition of InsideTrack, the authors discuss hidden information within an electronic document, known as metadata, and how it can expose lawyers to liability when it comes to confidentiality issues.
By org practicehelp wisbar Nerino Petro and Bryan Sims
July 7, 2010 – With the growing incidents of identity theft, as well as electronic case management and filing by attorneys, redaction of personally identifiable information from court and other public records is not only a best practice, but in many locales, now required.
Redaction is generally used to remove sensitive or confidential information such as Social Security numbers, identities of key parties to a matter, settlement terms, and so on. Traditionally, redaction meant cutting out sections of a document or using a black marker to obscure the confidential information and then photocopying the redacted document.
Today, computer and software technology has made electronic redaction possible and much more efficient. But it has also made the opportunity for improper redaction (with the subsequent revelation of the information) much easier. Understanding electronic redaction, and the steps necessary to ensure confidential information remains confidential, is essential.
Why it’s important
Redaction of certain information is required for filings with the Federal Courts, specifically, under Rule 5.2. Privacy Protection For Filings Made with the Court:
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:
- the last four digits of the social-security number and taxpayer-identification number;
- the year of the individual's birth;
- the minor's initials; and
- the last four digits of the financial-account number.
States are also enacting privacy protection laws that require any business that collects Social Security numbers and other personal information to establish policies to protect this information and to take steps to prevent its release. Connecticut is one of the latest states to join a number of other states that have enacted similar laws.
Beyond any legal requirement to protect this information Wisconsin attorneys are required by the Wisconsin Rules of Professional Conduct to safeguard confidential information.
(a) Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure.
Electronic redaction: Traps for the unwary
Using software tools to redact text from electronic case documents is obviously more efficient than printing out pages, striking out sensitive text with a black marker and scanning the altered documents back into your system. However, improperly redacting an electronic document can have disastrous consequences with the unplanned disclosure of information.
Often, the improper redaction occurs with word processing documents that have been converted to a PDF. What many don’t know is that when a word processing file such as a Word or WordPerfect document is converted to PDF, not only is the PDF image created, but an invisible text layer is also created.
Attorneys and staff who aren’t familiar with this fact attempt to redact information by simply shading the text to be redacted which, while making the text in a printed document impossible to read, it has no effect in the electronic version.
This is what happened to the U.S. Army in 2005 in the fatal shooting of Italian journalist Giuliana Sgrena'an and Nicola Calipari, an Italian special agent who had recovered Sgrena’an from his Iraqi captors. In attempting to disclose the information surrounding this tragic incident, military personnel sought to protect information on informants and other classified information from the reports.
Unfortunately, they merely changed the text color to match the background. This allowed the text to be copied and pasted into MS Notepad to reveal this hidden information. Image 1 below shows Section U of this document in its original state, and Image 2 shows text from Section U that was sought to be hidden.
Image 2 made it clear that there was no alternative to the route that was being used; in fact, it was the only route. Information such as this made it easier for the enemy to know the route of Coalition convoys. But these types of mistakes don’t only occur before converting a document to a PDF. They can also occur after the documents have been converted to PDF.
Using the drawing tools in Adobe Acrobat or other PDF software, users often attempt to keep information from being disclosed by drawing opaque shapes such as rectangles or squares (i.e. a black or white box ) over the text to be hidden. However, this does not affect the invisible text layer that remains separate from the underlying image.
This text can still be easily copied and pasted into another program such as a word processor to reveal the underlying information; such was the case in Hepting v. AT&T Corp. (C-06-072-VRW) or Facebook, Inc. v. ConnectU (LLC C-07-01389-JW) as shown in Images 3 and 4 below.
Mistakes such as these emphasize why using the proper tools for electronic redaction is imperative.
What to look for in redaction software
For those that do only occasional redaction, software such as Nuance-PaperPort can redact text or areas of a page selected by hand, while Adobe Acrobat can hand-select the text or areas for redaction as well as do simple searches for specified text.
But if you regularly do large-scale redaction projects, you should turn to software specifically designed for this purpose. Capabilities to look for in dedicated redaction software include:
The ability to work with multiple file formats such as Word, WordPerfect, Excel, PDF, TIFF, image files, and CAD drawings
Text-based searching for specific words or word strings to be marked for redaction
Text-pattern recognition of predefined text to be redacted, such as personal addresses and credit card numbers
The ability to create nonstandard pattern searches
Zone-based redaction to designate specified areas that are consistent from document to document
The ability to add items such as Bates numbers, watermarks and security restrictions
Tools for proper redaction
Image 5 below shows the redaction tools in Acrobat Acrobat Professional version 8 or 9. Redaction in Acrobat is a two-step process: 1) You must first mark the text for redaction; and 2) you must apply the redaction. If you forget step two, nothing will be redacted.
NOTE: When you redact a document in Acrobat, the redaction is applied to the document and is final. You should always make a copy of the file and redact the copy; otherwise, once redaction is applied, you cannot undo the redaction unless you set your preference to adjust file name when saving applied redaction marks by appending a prefix or a suffix to your file name.
Applications such as Redact-It from Informative Graphics Corporation bring much more sophisticated capabilities to redaction. With Redact-It, the program only makes changes to a copy of your file, leaving the original file unchanged. Redact-It appends a marker at the end of the file name of redacted copies such as “-r” or other indicator that you wish to use. Image 6 shows a directory of original files and redacted copies.
Programs such as Redact-It and Appligent Redax provide the abilities previously outlined including the ability to run standard scripts or ones that you create as shown in Image 7.
If you don’t have the necessary software to properly redact an electronic document, then err on the side of caution – print out your document, use a black marker to strike out the text, and then photocopy or scan to produce your redacted document.
Nerino J. Petro Jr. is the practice management advisor for the State Bar of Wisconsin’s Law Practice411TM program. He assists lawyers in improving their efficiency in delivering legal services and in implementing systems and controls to reduce risk and improve client relations. You can reach Petro at (800) 444-9404, ext. 6012; org practicehelp wisbar wisbar practicehelp org.
Bryan Sims, Naperville, Ill., is the sole shareholder in Sims Law Firm, Ltd., where he concentrates his practice in the areas of commercial litigation and civil appeals. Bryan has spoken on legal technology issues for both the Illinois State and Chicago bar associations. He was named the 2005 TechnoLawyer of the year. Bryan blogs at www.theconnectedlawyer.com.