Wednesday, December 12, 2007

Trustee "Smart Form" May Become Data-Miner's Smart Bomb

I have been sitting on this one a while, but when ALM and ABI picked up the story, decided it was worth a few electrons in this forum.
In at least the last 2 years, the Administrative Office of the U.S. Courts and the United States Trustee has been working on an initiative to develop and implement standards for the use of "smart forms" or "data enabled" forms for the use in debtor bankruptcy filings. According to a Request for Comments dated June 3, 2005 and submitted by the AOUSC and USTP, a data enabled or smart form is a .pdf document that is filled out on-line, and then "saved as a PDF file containing data tags that are not visible to the user, but which 'mark' each piece of data entered into the individual fields on the form with a tag."
What this really all means is that the information captured in a petition, schedules and presumably statement of financial affairs allows anyone with the right electronic toys to assemble and aggregate the information entered into each of the active fields in the smart form into a data base or other repository without having to re-type or manually re-process the information.
The ability to rapidly access and assemble this data can be invaluable to the courts, trustees, administrative personnel, and creditors. The concern is that the ability to rapidly access and assemble this data can be invaluable to otherwise disinterested third parties who may find other, potentially nefarious uses, of the information.
This initiative, originally set to kick in on October 17, 2005, has been subject to fits and starts without really gaining much momentum. The primary barrier seems to be the reluctance of vendors to dive into this project without the use of the "smart forms" made uniformly mandatory throughout bankruptcy courts. A September 23, 2005 Memorandum to bankruptcy petition preparation software companies included a sample "data enabled" petition, also lovingly referred to as Official Form B1.
Software providers were assured that CM/ECF "as-is" would accept data-enabled forms. Providers were also informed that the foundation for this project would be something called Adobe Acroform filed and value (F/V) tags. In the June 2005 call for comments, the AOUSC and the USTP noted that the PDF/A, the interim filing format in place for CM/ECF was supported by PDF v. 1.4, but that it did not follow the "current industry trend towards XML tags", which is supported in "PDF/A version 1.5 or higher". The gubment cites its desire to move in the opposite direction of the rest of the world in order to "ensure all CM/ECF PDFs are compatible with the long term archival of digital records." I don't know what this means either, but remember this because it adds to a later plot twist. From a vendor standpoint though, it sure sounds like the software vendors don't have the desire to expend time and resources to develop a software tool based on standards and a format that only a small segment of its customers will be using, that are not used by any other end-user, for a profession notorious for changing nothing until and unless forced to do so. Sort of the equivalent of making GM produce a car that runs on eggshell fuel, at a time when the government has not yet required chickens to lay eggs with shells on them.
An undated posting on the website of the AO's office regarding the proposal seems to confirm these suspicions. A significant case is made by the author of the posting, for an XMP - metadata approach; and by attribution to Marty Mohr of E-Z Filing, that an XML-type standard be adopted.
Clifford J. White III, who must have a largely thankless job, has championed the benefits of fast-forwarding the use of smart forms. In an April 26, 2006 statement to the House, White explained that the "data-enabled" function would assist the US Trustee in conducting studies mandated by BAPCPA. White explained that implementing the program would allow the Trustee to use the data or analyzing the means test, selecting cases for targeted debtor audits, conducting the aforementioned studies, reporting to Congress and processing cases more efficiently. White also stated that the use of data tags in the smart form could be saved into the "industry standard Portable Document Format", so that the resulting document has search able data. The April 2006 statement is silent as to the PDF/A v. XML issue.
In September 2006, the Advisory Committee on Bankruptcy Rules met to consider, among many other things, White's suggestion that the use of the smart forms be made mandatory. The minutes reflect that White provided copies of a letter to James Duff, Director of the Administrative Office indicating that the technical standards were "set", but that the software vendors weren't likely to get on board unless the use of the forms was made mandatory. At that time, the minutes reflect that only one of the vendors had indicated a willingness or ability to implement the forms. Peter G. McCabe, billed as secretary of the Standing Committee, got a golden star for the session by pointing out, according to the minutes, that the smart form is better viewed as a long-term solution for the data-gathering requirements, and further indicated his belief that there were still some unspecified problems with the technical standards. Eventually, the committee passed a "sense of the committee" motion that all necessary steps be taken to advance the cause of data enabled forms. (I think I will screen print and sell some catchy t-shirts advocating for the "cause of data enabled forms... order now to beat the Christmas rush).
In December 2006, and in relation to BAPCPA, White told a Senate sub-committee that the use of smart forms was necessary to process "a large number of cases with the same efficiency in the future as we have over these past 12 months." This ability is threatened by "the fact that the courts have not yet mandated" the use of the smart forms. That individual courts have not mandated the use of smart forms is a legitimate concern, given that they apparently have the authority to do so under federal bankruptcy rule 5005.
In July 17, 2007, White broached the issue again in relation to a House sub-committee hearing on working families, medical debt and bankruptcy. White pointed out, correctly, that the use of smart forms would allow "researchers and others" to identify cases involving high medical debts, domestic support issues and would allow debtors to know sooner rather than later whether the UST would sling down the cursed "presumed abuse" lightning bolt. Bigger picture, according to White, the smart forms will provide more information as to the effectiveness of the system as a whole.
More recently, on October 2, 2007, White told a House sub-committee in an oversight hearing that the UST has developed or enhanced automated systems but stressed the continued need for the mandatory use of smart forms. To his credit (although this is the first public mention I can find of this issue), White did indicate that the mandatory use of such forms ought to be subject to "appropriate privacy and access concerns." Although I didn't pony up the the $15 for access to the ALM online article, it is the privacy issue that is of great concern to those watching this process. It is precisely these undefined privacy and access issues that need to be sorted out for the protection of individual debtors, their families and the attorneys they employ.
Many readers may recall the debacle that ensued after attorneys for a Roman Catholic church diocese filed "redacted" electronic filings that a clever reporter was able to work around and discover information that was supposed to have been kept under lock and key by debtor's counsel. The smart form may be the second generation of this type of problem for all bankruptcy lawyers. By and large, we already don't understand the electronic processes that guide us and surround us (just like the Force). Filing .pdf documents through PACER is currently something of an innocuous process now, but all bets are off once we start uploading data that can be mined, sifted, soiled, bundled, packaged, and re-sold. With the exception of the smattering of lawyers that truly understand metadata, no one that I know of has really voiced any opinion on the potential ethical issues and related dilemmas that will surely follow the implementation of smart forms. While there is no question that White and the good folks at the UST have it right that the smart forms ought to implemented, the "when" of the implementation is the real question; and "now" is probably not the correct answer.

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