PACER reportedly has about 500 million documents in its system, although it is unclear how many include redacted documents using this format. Lee has cautioned that Princeton’s PACER documents are not taken from a random sample, so it is impossible to estimate just how many PACER documents might be subject to this issue. Whatever the quality of the sample, given the number of PACER documents and the number of redactions that are likely attached as PDFs, it is probably safe to assume that there are thousands of documents that might be susceptible to this problem.
Are your trade secrets safe if you file them in a common format for redaction in the federal PACER system? A recent article in the ABA Journal suggests the answer may be “no.” The article details a study conducted by Timothy Lee, a Ph.D. candidate in computer science at Princeton, who found that he was able to effectively bypass the vector format that was supposed to redact trade secrets, personal information, and the names of witnesses, jurors or plaintiffs in 194 PACER filings. (Lee’s actual study can be found at Freedom to Tinker, a blog hosted by Princeton’s Center for Information Technology Policy; additionally, I’d recommend checking out Womble Carlyle’s Trade Secrets Blog and Seyfarth Shaw’s Trading Secrets for their insightful coverage of this study.)
Lee’s study noted that the vector format used in PDF documents has multiple layers and is susceptible to the “lifting” of those layers to see information that was supposed to have been redacted. The format in question uses a blacked-out rectangle to redact the confidential information. According to Lee, lifting the black rectangles and extracting the information from these documents might be as easy as cutting and pasting. Lee wrote a computer program to detect redaction boxes within the 1.8 million PACER documents in Princeton’s collection; the software identified approximately 2,000 documents with redactions, and within that sample, 194 PACER filings had redactions that could be evaded.
It goes without saving that this study presents special concerns to the trade secret litigation community, as many litigants frequently use this form of redaction for PDF documents and exhibits containing the trade secrets at issue. Moreover, this concern is amplified by the fact that many filings in trade secret cases are done on an expedited basis (i.e., supporting documents for a TRO or preliminary injunction) where the time to reflect on the technical consequences of those filings is compromised by the pace of that litigation.
The take-away from this potential problem is that the safest course is probably not to file any documents with PDF redactions using this type of formatting using the PACER system until this issue is resolved. Instead, it may be prudent to file them manually under seal with the clerk’s office with instructions, or hopefully, an accompanying order, not to have them placed on the PACER system. Securing guidance on how to handle this issue with the district court during the TRO conference would make the most sense, and until you have an order or acceptable protocol, the best course would likely be to serve courtesy copies of any sensitive supporting PDF documents containing these trade secrets with the court initially.