by Mark Ladd
Privacy is an incredible hot-button topic these days. Therefore, public records custodians, especially those who are elected to their posts, are very sensitive to the public's expectation that government will protect their personal data.
Protecting Your Customers From Identity Theft:
On the other hand, open records are considered a foundational element in government accountability. The land title business would not be able to function properly without access to public land records. Many county offices are attempting to fill the demand for easy access to public records by posting their information on the Internet.
In a nutshell, this is the dilemma for records custodians. Privacy interests and the interest for disclosure often compete against each other!
For decades the prevailing philosophy within the United States has been that the public has the “right to know” about information collected by the government. So why wasn't this records problem an issue ten years ago?
The digital age we live in has changed our relationship with these records.
Not that many years ago public records existed in what has been called “practical obscurity.” In other words, even though records were open to the public, you had to physically go to the courthouse, and you had to understand how they were indexed in order to find them.
This is no longer the case. More and more counties are developing what is being called a “virtual courthouse.” These Internet-based sites are designed so that citizens can conduct business with the government when it is convenient for the citizen. This often takes the shape of large databases and image libraries being posted on the government's Web site. These sites are usually available at little to no charge. Now vast amounts of information, some of it “personally identifiable,” are available 24/7 from the comfort of your home.
These Web sites contain land records, military discharge notices (in some states), tax liens, court filings, vital records, and property tax records, just to name a few.
We add to the complexity of this issue by adding two groups of people to the mix—people who are interested in identity protection and people who are in the business of identity theft.
Identity theft is the fastest growing crime in the United States. In 2002 the Federal Trade Commission reported 161,189 identity theft complaints, nearly double from the previous year. And the reality of the situation is probably worse, as studies show that most identity theft victims do not learn they were victimized for up to 14 months later!
When we speak of Identity Protection, there are some people who are even more concerned about this issue than the rest of us. These would include law enforcement personnel, individuals with restraining orders against other individuals, and those citizens who have performed their civic duty as jurors, just to name a few.
Now add the pressure of competing and/or conflicting state and local statutes and directives. One state passed a law requiring land records to be published on the Web (over the objections of that state's association of county recorders). When the public began to complain about the availability of personally identifiable information (one of the issues the state recorders' association warned about), the legislature rushed to adopt legislation requiring the redaction of information from public documents, again, over the objection of county recorders.
In several local jurisdictions county boards and commissions are being presented with repeated requests for easier access to public records from citizens and department heads alike. Citizens recognize that the Internet is a powerful tool for making access to government easier. Department heads presented with shrinking budgets are looking to the Web as a highly efficient means of distributing information to the public. In some cases, the value-added service of 24/7 access is becoming a source of new revenue for cash-strapped local governments.
In the face of this quagmire of competing interests and issues, the Property Records Industry Association (PRIA) is stepping forward in a facilitating role. This role fits well within PRIA's mission statement, which describes PRIA as
“a public/private partnership working together to identify issues, define problems and develop solutions, to bring consistency to the property records industry.” ALTA® is a member of PRIA.
While PRIA's early focus has been on the process of recording land records, the privacy and access issues that are springing up around land records are a major concern to PRIA members as well. And so is a sensible, workable solution.
To that end PRIA sponsored a roundtable discussion on the topic of Privacy and Access to public records in Washington, D.C., in February 2003. Twenty-five roundtable participants plus 150 registered observers spent the day discussing the legitimate issues and concerns of parties working on all sides of these issues.
As a result of the discussions, PRIA established a Privacy/Access Work group that was tasked with facilitating discussion and developing solutions around these topics that could be embraced by the broadest constituency possible. I co-chair that work group along with Darity Wesley of Privacy Gurus, Inc.
The work group recently kicked off a National Privacy ListServe. This listserve is designed to function as a national electronic discussion forum. Issues are identified, questions are asked, and it is hoped, a consensus can be reached regarding suggested best practices and perhaps even model legislation. You can learn more about this work group at http://taskforce.cifnet.com/priaus/listserv.cfm.
What Can You Do?
So what can the Title Industry do to help address these issues?
First, be proactive about protecting your customers' privacy. You can help your county recorder and your customers by reducing and eliminating the inclusion of Social Security numbers from documents destined for the public record. SSN's are rarely necessary on public documents.
Next, you can engage the policy-setting process. This includes becoming active in the PRIA Privacy/Access ListServe, but it also includes searching out state and local decision-makers and becoming involved in e-government committees where you live and work.
What about background checks for your employees? If you're like most of us, you've never given this too much thought, but your employees have access to some incredibly sensitive information that could be easily misused. Do you know the backgrounds of those employees who have ready access to this information?
In one county in the Midwest a clerk who handled birth record requests was passing identity information to someone who was using the information to engage in identity theft. Because this type of crime is relatively new, employees had not been screened. That has changed for this county, which learned that the clerk had a criminal history.
Another thing you can do is to limit the information you post on your Internet site. Just because information is available in the public record doesn't mean it's a good practice to make personally identifiable information readily available to individuals who might misuse it from across the country or across the world.
Public records custodians are feeling the crush of competing demands relating to the information in their keeping. PRIA is helping the industry wrestle with these difficult topics. ALTA® members can help by participating in the policy debate. Will you join us in developing a workable solution?
Mark Ladd is Racine County Register of Deeds. He also co-chairs the Property Records Association's (PRIA) Privacy/Access Workgroup. He can be reached at: Mark.Ladd@goRacine.org. This article is an excerpt from Mark's presentation at ALTA®'s Annual Convention last October.