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When a Silicon Valley law firm dies, where do its records go?

A prominent law firm that represented scores of Silicon Valley start-ups and venture capital firms in its heyday may have dissolved amid financial troubles a few years ago. But its records are poised to live on in digital form for years to come--and some former clients are raising questions about privacy implications.

In a blog entry late last month, the CEO of Truston, a privately-held company that specializes in monitoring for identity theft, said he was troubled by a letter informing him that if he took no action, all digital files involving him and the now-defunct law firm of Brobeck, Phleger & Harrison LLP would be placed in a "closed archive" managed by the Library of Congress's digital preservation arm.

"There wasn't much in (the letter) to make me feel good about the privacy implications," wrote Tom Fragala, who heads up the Califonia-based company. "My social security number, and that of all my former investors and officers is in those documents."

After Brobeck went belly up in 2003, a federal bankruptcy court last August went on to authorize creation of a "secure digital repository" for its abandoned records. The idea behind the project, its organizers, say, is to capture a moment in history. As a Web site devoted to the preservation project explains, "these digital records document one of the most extraordinary episodes in the history of capitalism, the explosion of internet technology companies in the 1990s."

Worries like Fragala's are overblown, said David Kirsch, a University of Maryland professor who is overseeing the preservation effort.

Anyone who may have been mentioned in the records was notified by mail, and anyone who suspects his records are involved may opt out of participation, he said. Only a limited pool of scholars and archivists would be granted access to the archived documents at a single secure, monitored location, he added.

Even so, requiring former clients to "opt out" rather than "opt in" doesn't seem quite right, said David Sobel, a senior counsel with the Electronic Frontier Foundation. "A law firm's clients don't expect that their sensitive files will be made available to third-parties in this way, so they should not be given the burden of protecting their interests," he said in an e-mail interview.

But a more restrictive approach may defeat the purpose of the archive, Kirsch said. For instance, if the custodians of the data could not track down a particular client, they did not want to be forced to assume "their historic traces should be destroyed," he said. "The Closed Archive allows the records to survive with confidentiality intact, their fate to be resolved at some later date."