How Courts and Legal Services Seek to Protect Litigants’ Personal Information

To help people solve their own legal problems, some court systems and legal service providers are embracing third-party web services to offer critical information and guidance. Well-designed legal websites use such services to help visitors navigate what can be complex systems. But to best serve users, site hosts need to provide plain language information in their terms of service about the data they collect or share. That way, users can make informed choices about which sites they visit, what features they use, and, ultimately, what data they decide to provide.

When terms of service language is missing, unclear, or overly complex, people seeking legal information through these sites could inadvertently share personally identifying data. Third-party web services might extract their data through social media links, logins, or payment processing to identify clients or target them with advertising for unnecessary legal products. The Pew Charitable Trusts assembled a working group of technology and legal experts to suggest strategies that might alleviate some of these privacy concerns and help guide courts and legal services providers to make their terms of service more accessible and transparent for users. Such steps would help ensure that user data is managed securely.

To focus on real-world applications, the group examined the workings of a specific website, a legal issue-spotter called Spot. The Legal Innovation and Technology (LIT) Lab at Suffolk University in Boston developed Spot, which is still in development with limited public availability, as a third-party web service to help nonlawyers identify legal problems based on the language of questions submitted to a website, such as a court portal or self-help site. Based on accumulated queries, Spot uses artificial intelligence to identify specific legal issues—such as eviction or custody disputes—through the use of typically nonlegal wording.

But the functionality of these sites is structured around data use agreements, the contractual documents that describe how services such as Spot acquire, manage, and use the data transmitted by platforms using the service.

The working group reviewed data sharing agreements and privacy policies designed to explain to users how data is shared between the Spot service and various court or legal services’ websites. In late 2020, the members developed guidance for what should be included in data use agreements and created specific terms of service and a plain language data use agreement for Spot.   

Agreements and policies show how services use data

After reviewing over 50 models and focusing on an agreement developed by Microsoft, participants concluded that the data use agreements on websites for courts and legal service providers should include:

• Plain, explanatory language in each provision.
• Language that anticipates the use of artificial intelligence and machine learning.

The data use agreements should be open-source and publicly available for others to use on their websites.

After also reviewing a variety of publicly available privacy agreements, the working group adapted a policy created by The Guardian newspaper in November 2020 and identified provisions they thought were critical to include in similar policies for courts and legal service providers. Those include:

• Full disclosure of all required data.
• Disclosure of if and when data was stored.
• Contact information for users to ask questions or register concerns. 

Explainer materials can encourage users to better understand these processes 

Legal service providers are often concerned that platform users will simply ignore privacy policy language or may not understand that their data is being sent to a third-party service. In the Spot case, the working group developed plain-language examples that clearly inform users that a legal service platform uses the Spot service, provide a direct link to explainer materials, and offer an easy opt-out if someone chooses not to use Spot. 

Spot does not require users to input personally identifying information. Still, hosts of legal sites that link to the service can use one of three plain-language infographics to stress critical messaging: “Spot does not keep the text of your search,” "You can help Spot get smarter!" and "Spot remembers and learns from all the questions it searches."

In Massachusetts, MassAccess Court Forms Online, a document assembly service run by Suffolk’s LIT Lab, offers a link for users to learn more about Spot along with a checkbox that when clicked allows the site to use information typed into the dialogue box to help Spot guide others facing similar issues.

At a minimum, courts and service providers should expect that the services they contract with will: 

• Clearly articulate what data is being asked for and how that accomplishes the intended purpose.
• Disclose what data will be shared and with whom. 
• Follow industry security standards.
• Develop policies and procedures necessary to safeguard data, including language that describes what happens if there is a data breach.

As the legal system modernizes, services such as Spot, which relies on artificial intelligence and machine learning to improve access to information for people representing themselves, are likely to increase. Providing terms and language that are easy for users to understand increases the likelihood that litigants will provide informed consent about access to and use of their data. Creating agreements and policies that protect user data is vitally important for courts and legal service providers as they seek to share information to help evaluate services and provide better user experiences.

Erika Rickard is a director and Amie Lewis is a senior associate with The Pew Charitable Trusts’ civil legal system modernization project.