By Gary Blankenship
You’re representing a client in a divorce. As part of the routine process, the client emails you a required financial disclosure. It has bank account numbers, credit card numbers, the client’s Social Security number, and other sensitive financial information.
You take the electronic document and in accordance with R. Jud. Admin. 2.420 and 2.425 you electronically edit it, removing account numbers and other information to protect the client. Then you send the financial disclosure through the statewide portal that handles electronic filing for the Florida court system, including, if necessary, the form in Rule 2.420 alerting the receiving clerk for any additional sensitive information that must be redacted from the public court file.
A short time later, your client’s bank accounts are raided by thieves, his or her credit cards are used for a plethora of unauthorized purchases, and he or she is victimized by someone using the Social Security number. All because the fraudsters got the relevant information from a public document in the court file — the document you filed.
That’s because a record of all the changes you made to the document, while invisible on the face of the document, were retained in its “metadata,” or background information, which can be uncovered by any moderately knowledgeable computer user, who, because most Florida court records are going online over the summer, can be anywhere in the world.
Metadata is invisible information retained as a document is drafted, edited, and refined. It includes such helpful information as formatting standards for the document and bookmarks and it also includes every change made to the document and perhaps who made the change and when it was made.
The issue is more critical than ever for lawyers because clerks, who are not responsible for stripping metadata from a filed document, are making documents available online in accordance with Supreme Court requirements.
The problem is so serious that the Florida Courts Technology Commission, at its May 14 meeting, voted to recommend a metadata warning be posted on the court system’s e-filing portal. And Florida’s county clerks of court are so concerned that confidential information may wind up in the public record, either from metadata or lawyers inadvertently including it in a normal filing, they are asking lawyers to indemnify them for any information that accidentally makes into the public record (see story, here).
Since this involves rapidly changing technology that includes several moving parts — including the way clerks store electronic documents, the way lawyers prepare them, and even access for low- and moderate-income people — it’s difficult to grasp the metadata problems. Lawyers may have an inadvertent protection because of the way some clerks store electronic documents, but that could change without notice and that protection could be gone.
There’s even a tech irony: Many if not most lawyers are filing incorrectly formatted documents, which for the moment protects them from metadata difficulties.
Aside from the portal warning, the FCTC has already proposed that the technical requirement that the e-filing portal be able to strip metadata from filed documents be dropped from the Supreme Court’s administrative order on electronic filing because it’s technically unworkable.
That technical standard said the courts’ e-filing system should ensure that “all metadata related to creator, editor and contributor must be stripped from the [electronically filed] document.”
At the FCTC’s ePortal Subcommittee meeting on May 13, FCTC Chair Judge Lisa Munyon noted that Supreme Court Justice Ricky Polston, who is the court’s liaison to the commission, is worried about the metadata issue and whether lawyers fully understand the significance of the issue.
“Justice Polston was concerned about those who are not in the know about metadata that no one is going to protect you from yourself. No one is going to strip your metadata,” she said.
Munyon added than many lawyers erroneously think that turning off the “Track Changes” function in their Word document processing program will solve the metadata problem.
The subcommittee recommended, and the full FCTC approved, recommending to the Florida Court E-Filing Authority, which manages the statewide e-filing portal, that it include a warning on the page where filers designate the type of document they are filing. That notice will read: “Warning: Removal of document metadata is the responsibility of the filer. Any document metadata remaining may become part of the public record.”
The warning also will link to a portal authority YouTube training video that explains what metadata is and how to remove it from an electronic document before filing. That video is available on the video page under the FAQs tab on the portal, or at https://www.youtube.com/watch?v=3xPnLhdyuZQ
Second Circuit Judge George Reynolds, chair of the FCTC’s e-Portal Subcommittee, gave one example of unintentional metadata. He said when many people need a new document they don’t start from scratch but pull up an existing document with the correct formatting, delete the text, and begin writing. What they may not realize is if the metadata isn’t removed, that entire original document can be seen by someone who knows how to access metadata, he said.
FCTC member John Stewart, a member of the Bar Board of Governors, gave another example. He noted lawyers frequently use forms for routine functions, such as interrogatories, stripping out unnecessary parts, and adding sections as needed. Without removing metadata, every change ever made to that form can be revealed, he said.
FCTC member Mary Cay Blanks, clerk for the Third District Court of Appeal, said that opinion drafts done in Word were routinely exchanged between judges and court staff and the court realized that historical information and changes had to be removed before the document was released.
“All kinds of information was in that document, who the judge was, who the secretary was; everything is in there,” she said. “We realized we had to strip all of that information, which, now we do.”
Blanks added that electronically converting a Word document to a PDF does not remove all of the metadata.
Commission members said lawyers are getting some metadata protection by the way some clerks are electronically storing e-filed documents. Those clerks are converting the received documents, which come in either as Word or PDF documents, in the TIFF format. That is basically an optical format, which means only the visible type is retained and all metadata is lost.
That format conversion is expected to change, however, and the FCTC, in another part of its meeting, discussed a uniform document style for storing electronic court records, which is expected to be some form of the widely used PDF.
Another accidental protection is when lawyers do not correctly format the documents they file, although they are accepted by the portal and clerks. Melvin Cox, who oversees the portal operations for the e-filing authority, noted that rules and technical standards required that all documents filed through the portal be in seachable Word or PDF formats. Only 37 percent of filers comply with that requirement, he said.
Instead, Cox said what most lawyers do is prepare the document in Word and then, apparently uncomfortable with the electronic signature encouraged by procedural rules, they print out the document so they can “wet sign” it in ink. Then they scan the finished document and convert it to a PDF before e-filing. However, he noted that PDF is an optical image and is not the text searchable PDF as required by rules. This procedure also creates a much larger data file resulting in storage capacity problems for clerks. It does, however, leave behind all metadata.
Several FCTC members said the key to fixing the filing and metadata problems is better education for lawyers. Stewart, who also chairs the Technology Committee of the Bar’s Vision 2016 project, said that committee is proposing a 20 percent increase in CLE hours for lawyers, from 30 to 36 hours every three years, with all the extra training being devoted to technology issues. (See story on page 1.)
“Lawyers are notoriously behind the learning curve when it comes to technological competence,” he said.
While the FCTC did approve the warning, member Kent Spuhler, director of Florida Legal Services, Inc., cautioned it could dissuade pro se users from using the e-filing portal. While relatively few pro se litigants now use the portal, he noted that current efforts to improve access to justice initiatives will include technology-assisted ways for low- and moderate-income families and individuals to handle their own legal matters when they cannot afford an attorney. That will, he said, necessarily involve filing through the portal.
Few pro se litigants, Spuhler said, will understand metadata and saying in the warning they have a “responsibility” for metadata may discourage them from pursuing a legal action.
“Something that is officially saying their access to court is contingent on something they will have no understanding of is a problem,” Spuhler said. “We don’t want to chill someone getting their issue before the court.”
This article originally appeared in the June 15, 2015 edition of The Florida Bar News