Cybersecurity Safeguards Implemented by Federal Judiciary for Filing Highly Sensitive Court Documents

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The U.S. Federal Judiciary announced new safeguards and procedures to protect sensitive court records in light of a recent apparent cybersecurity breach.

Last month, the Department of Homeland Security issued an emergency directive regarding “a known compromise involving SolarWinds Orion products that are currently being exploited by malicious actors.”  The judiciary was notified of this issue by the Administrative Office of the U.S. Courts, and suspended use of this IT network tool at the national and local levels.  An apparent compromise of the confidentiality of the Federal Judiciary’s CM/ECF system is now being investigated in connection with the breach.

Under the new procedures announced January 6, 2021, all highly sensitive court documents (“HSDs”) must be filed in paper format or via a secure electronic drive (e.g., a thumb drive) to be stored in a secure, stand-alone computer system by the court.  Highly sensitive court documents are not to be filed via CM/ECF.

Not all documents a party may file seek to file under seal are considered HSDs.  Courts are anticipated to issue standing orders regarding these new procedures, including to address the specific types of documents the courts will or will not consider to be highly sensitive.  In the January 6 notice, it was noted that Social Security records and sealed filings in many civil cases are unlikely to be considered HSDs.

Some federal courts, including the District of New Jersey, the Eastern District of Pennsylvania, and the Eastern District of Missouri, have issued interim notices, acknowledging the apparent compromise and stating that they will post new procedures “as quickly as possible for the limited types of documents that meet the definition of HSDs.”  The webpages for the District of New Jersey and Eastern District of Pennsylvania provide that “[m]ost HSDs are filed under seal as preliminary documents in criminal cases.”

Other courts have issued notices with a bit more substance.  For example, the District of Minnesota issued a notice stating that “[e]ffective immediately,” HSDs are to be filed in hard copy only submitted via drop boxes located at any of the four courthouses in the state.  Neither the notice nor the court’s webpage clarify what are considered to be HSDs at this time.

The January 6 notice states that federal courts are to issue standing orders on this issue in the coming days.  These orders will likely provide the best guidance for ascertaining what materials constitute HSDs, and how to best protect sensitive information at this time.  Reference should be made to any such orders before filing documents of a sensitive nature at this time.  And, when in doubt, a call to the court’s clerk may help ensure sensitive client information remains protected.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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