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Design and Operation of Information Systems of the US Courts are Linked to Conduct of a Simulated Banking Regulation Litigation
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Joseph Zernik, PhD  jz12345@earthlink.net Human Rights Alert (NGO), California, USA http://www.scribd.com/Human_Rights_Alert
 Abstract
Previous studies have found deficiencies in the authentication and validation of the information systems of the US courts – PACER (Public Access to Court Electronic Records) and CM/ECF (Case Management/Electronic Court Filing). The current report is based on a case study of landmark litigation under the current financial crisis:
Securities and Exchange Commission v Bank of America Corporation
 (2009-10). The case was covered numerous times in leading US and major world media outlets. However, little focus has been placed on serious deficiencies in litigation records in this case. This paper documents missing and invalid litigation records, leading to the conclusion that the case as a whole amounts to simulated litigation.
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 A number of corrective measures are outlined, including publicly and legally accountable functional logic verification of PACER and CM/ECF, and correcting the defective authentication procedures now implemented in the systems. Information Systems experts now face a unique duty in the safeguard of the integrity of the courts and Civil Societies in the Digital Era.
Keywords:
e-government, information system design, policy, politics, human behaviour
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 Presented in the 16
th
 World Criminology Congress, August 2011, Kobe Japan, and published in an abstract form in the Congress proceedings.
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 Simulated Banking Regulation Litigation in the US Federal Court
Introduction
The US government has completed a decade-long project of transition to digital administration of the US courts at a cost that is estimated at several billion US dollars. Courts of nations around the world are going through similar processes, and United Nations reports on judicial integrity  promote such transitions Obviously, electronic systems can enhance the reliability and transparency of the courts. Record keeping and information processing under paper administration of the courts have evolved over centuries, and formed the core of due process and fair hearings. The transition to electronic administration of the courts affected a sea-change in such court procedures. Two systems were implemented in the US district courts and courts of appeals:
PACER – for Public Access to Court Electronic Records, and
CM/ECF – for Case Management and Electronic Court Filing. Previous reports, inspected the validity and integrity of the systems, and identified core defects inherent in their design and operation. [
,
] The international community was materially harmed by the current financial crisis, and international unease was repeatedly voiced with the ineffectiveness of US banking regulation. Under such circumstances, this paper inspects the information systems, implemented by the US courts and their implications in the litigation of a landmark case under the current financial crisis:
Securities and Exchange Commission v Bank of America Corporation
(1:09-cv-06829). In this case, the US Securities and Exchange Commission (SEC) prosecuted Bank of America Corporation (BAC) in the US District Court, Southern District of New York, for alleged
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 PACER & CM/ECF - Invalid IS of the US courts
violations of securities laws, related to taking by executives of bonuses exceeding $5 billions with no due disclosure to shareholders or the SEC. Financial analysts described the underlying matter as a ‘criminal conspiracy’ and ‘bigger than Watergate?’
1. PACER and CM/ECF
Critical deficiencies were previously identified in design and operation of PACER and CM/ECF: [
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Both the courts and the US Congress failed to establish the new electronic court  procedures by law, particularly, defining the form of valid and publicly recognizable digital signatures and electronic authentication of court records by the clerks of the courts. (
Figures 1,2,3
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Public access the electronic authentication records in CM/ECF is routinely denied. The corresponding records were essential part of the public records under paper administration of the courts.
The systems enable attorneys to appear and file records with no prior review by the clerks of the courts, and with no power of attorney by their purported clients. [
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] The systems also enable unauthorized court personnel to issue and publish online court records – dockets, minutes, orders, and judgments, which were never authenticated by the duly authorized clerks. Due to the manner in which the systems were designed and are operated, the public cannot discern the validity, or lack thereof, of such judicial records. [
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There is no evidence that the systems were subjected to functional logic verification in a  publicly and legally accountable manner.
 
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