By Deric Rangell | The Probate Lab
There is something fundamentally backwards about the way government treats public court records in the digital age. Walk into a courthouse and inspect a public record. That’s public access. Retrieve that same public information efficiently through technology, and suddenly the conversation changes. Now we hear about privacy. Bulk access. Automated collection. Scraping. Fees. Restrictions. But the information didn’t change. The method of obtaining it did. And that’s where the entire premise starts falling apart.
Public Means Public
California begins with a straightforward principle: court records are generally open unless they have been made confidential by law or sealed by a court. That’s important. We already have mechanisms for information that genuinely shouldn’t be public. Seal it. Redact it. Make it confidential by law. Protect Social Security numbers, account information and other legitimately sensitive information. But once those protections have been applied, what remains is the public record.
The government has already decided that members of the public are legally entitled to see it. Yet we have built an electronic-access system that frequently treats the efficiency with which someone obtains public information as though efficiency itself creates a privacy problem. It doesn’t.
I See This in the Courthouse
I’ve spent decades working with court-related real estate matters. I’ve also spent plenty of time standing at courthouse public-access terminals. People don’t necessarily buy paper copies of everything they research. They find the information they need. They read it. They record it. And modern technology means virtually everyone carries a camera and computer in their pocket. That’s the reality policymakers need to confront. If I can lawfully inspect a public probate petition at the courthouse, the government hasn’t protected that information from me.
If another citizen can inspect it, the government hasn’t protected it from that person either. Multiply that by thousands of members of the public and nothing about the legal status of the information changes. It’s still public. So what changes when technology makes collecting the information faster? Not privacy. Friction.
We Have Confused Privacy With Inconvenience
For generations, public records enjoyed something that looked like privacy simply because they were inconvenient to obtain. You had to know which courthouse had the case. You had to travel there. You had to search for it. You had to retrieve documents individually. You needed courthouse hours, transportation and time. That wasn’t true privacy. It was practical obscurity. Technology destroyed much of that obscurity. The internet weakened it. Smartphones weakened it further. Automation dramatically weakened it. Artificial intelligence may finish the job.
And instead of redesigning public-record policy around that technological reality, government has too often attempted to recreate the friction that filing cabinets and geography once provided naturally. That’s not a privacy system. It’s a friction system.
Probate Makes the Contradiction Especially Obvious
Consider an ordinary probate proceeding. Someone dies. A probate case is opened. Documents are filed with a public court. California law has long recognized an important distinction: an individual’s ordinary personal right of privacy generally does not simply survive death and descend to heirs like another estate asset. That doesn’t mean every piece of information associated with a deceased person automatically becomes public.
Specific information can remain protected by separate laws. Survivors can possess their own independent legal rights. Particular documents can be confidential or sealed. But those are separate legal protections. They don’t transform an otherwise public probate file into private information. So once confidential information has been protected and the remaining probate record is legally available for public inspection, we should ask a very simple question: Whose privacy are we protecting by making that public information difficult to collect electronically?
The deceased person’s ordinary personal privacy right doesn’t suddenly reappear because somebody used a computer. The heir doesn’t inherit the decedent’s privacy right merely by being an heir. And the court has already made the remaining information available for public inspection. So what exactly are we protecting?
The Court Created the Scarcity
This is where the issue becomes much more interesting. Nobody has to ask for an ordinary public record to become technologically inconvenient. The access architecture itself creates the barrier. The information may remain public while the court controls the most efficient doorway to it. Remote access can be restricted. Bulk access can be restricted. Documents can carry access or copying charges. Automated collection can be constrained. Case-by-case retrieval can be required. None of those things make the underlying information private.
They make public information artificially scarce. And scarcity has economic value. When ordinary members of the public cannot efficiently obtain and organize public records themselves, there is an obvious market opportunity for organizations capable of collecting, organizing, enriching and reselling access to that information. That’s where this becomes bigger than courthouse technology.
Scarcity Creates Markets
The government creates and maintains the court-record system. The public finances the judicial system. Litigants pay filing fees. The judiciary determines what information is legally confidential. Courts possess mechanisms for sealing information that genuinely requires protection. Then, after all those protections have been applied, the remaining information is called the public record. Yet efficient access to that public record can still be scarce. And whenever something valuable is artificially scarce, somebody benefits from overcoming that scarcity. Data aggregators can collect information.
Information companies can organize it. Institutional users can purchase it. Technology companies can enrich it. Commercial databases can sell convenient access to information originating in public systems. I’m not alleging that courts created these restrictions for those companies. That’s a different claim and would require evidence. I’m asking a much simpler question: Who economically benefits when public information is difficult for the public itself to obtain? Follow that question.
This Is Data Prohibition
That’s why I call this Data Prohibition. Alcohol Prohibition didn’t eliminate America’s demand for alcohol. It constrained lawful supply while enormous demand remained. The predictable result was an alternative distribution system. Bootleggers existed because scarcity and demand created an opportunity. Public information operates under the same basic economic force. There is enormous demand for court information. Attorneys need it. Real estate professionals need it. Researchers need it. Journalists need it. Businesses need it. Investors need it. Families need it.
Artificial intelligence systems will increasingly need structured public information. Restricting efficient distribution doesn’t eliminate that demand. It creates an incentive for somebody else to satisfy it. And unlike alcohol in the 1920s, digital information costs virtually nothing to reproduce once it has been obtained. One copy can become a million copies. One database can be searched endlessly. One dataset can feed countless analytical systems. That makes Data Prohibition even harder to sustain.
Stop Calling Public Information Private
There is an enormous difference between:
and:“The public is not entitled to know this.”
The first proposition is about privacy. The second is about distribution. We shouldn’t confuse them. If information genuinely creates unacceptable harm when disclosed, protect it before disclosure. Redact it. Seal it. Make it confidential. Write narrowly tailored statutes protecting it. That’s legitimate privacy policy. But once government deliberately leaves information in the public record, the discussion changes.“The public is entitled to know this, but we don’t want the public obtaining it efficiently.”
Government should have to explain why the public’s ability to use modern technology to obtain public information is itself harmful.
Ten People or Ten Thousand?
Here’s the question that exposes the contradiction. Suppose 10,000 people are each legally entitled to retrieve the same public record. Person one retrieves it. Legal. Person two retrieves it. Legal. Person 10,000 retrieves it. Still legal. Now suppose technology allows those same public records to be collected and organized efficiently. What changed? Not the information. Not its public status. Not the public’s underlying right to inspect it. The efficiency changed. That’s the uncomfortable heart of this entire debate.
We’re trying to regulate the speed at which public information becomes genuinely public.
The Courthouse That No Longer Exists
Much of our public-record architecture still behaves as though citizens consume government information one sheet of paper at a time. That world is gone. The modern citizen carries a networked computer, camera, scanner, database terminal and artificial-intelligence interface in a pocket. Artificial intelligence will accelerate this transformation enormously. Computers don’t care that obtaining 10,000 records once required 10,000 individual human actions. To a computer, those are data operations. Government therefore faces a choice.
It can spend the next decade attempting to technologically reconstruct the inconvenience of the paper era. Or it can finally separate two concepts that should never have been confused: Privacy and friction. Protect what is genuinely private. Make what is genuinely public actually public.
Public Records Should Not Depend on Artificial Scarcity
This is ultimately bigger than court records. It’s about what the word public is supposed to mean in a digital society. If public information is technically available but intentionally difficult, expensive or inefficient to obtain, then we haven’t created meaningful digital public access. We’ve created controlled scarcity. And controlled scarcity inevitably creates gatekeepers. Artificial intelligence is going to put enormous pressure on that model because AI turns documents into searchable information almost instantly. The government’s answer cannot permanently be:
That isn’t a sustainable information policy. And it isn’t privacy. Privacy comes from protecting private information. Scarcity comes from restricting public information. We should stop pretending they’re the same thing. Working probate or court-ordered listings? See how ready you are with the free Probate IQ Quiz, or learn the full system in EPCAS, the Elite Probate Client Acquisition System.“You may see this public information, but only inefficiently.”
Deric Rangell
The Probate Lab
The Probate Lab examines the intersection of probate, court-ordered real estate, technology and the real-world consequences of rules that affect estates, heirs, investors and real estate professionals.
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