Back in January, we had mentioned that Aaron Greenspan had offered up three $5,000 grants in memory of Aaron Swartz, for certain key improvements to RECAP, the browser extension that automatically uploads PACER documents to the Internet Archive, making them publicly available. The Center for Information Technology Policy at Princeton -- where RECAP was initially developed -- and Greenspan have now announced that two grants have been awarded: one for creating a Chrome browser RECAP plugin and another for extending the capability to work with the appellate courts as well. While it's cool that these grants have been given out, it's even cooler that RECAP is now available for Chrome. If you're a PACER user and a Chrome user, go get the plugin now...

Steve Schultze at Freedom to Tinker wants to know why the general public is still being asked to pay for access to public records. Since these records are generated using tax dollars, a person would reasonably expect they would be free to access, especially since they're the ones footing the bill. Of course, reasonable expectations are shattered by government entities daily and PACER is no exception.

As Mike noted in 2011, the fees to electronically access PACER records continue to rise, even as costs drop, leaving most Americans locked out by prohibitive fees (and a less-than-intuitive user interface). Schultze notes that not only are these fees excessive, they very likely are illegal.

[L]et’s review the law. 28 U.S.C. 1913 (note) says:

"The Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services."

Upon passing the E-Government Act of 2002, Congress noted its intent for the “only to the extent necessary” language:

The Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. For example, the Administrative Office of the United States Courts operates an electronic public access service, known as PACER, that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and from the U.S. Party/Case Index. Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.

The current fees are unquestionably greater than the cost of providing the services. Since passage of the E-Government Act, the cost of storing and delivering bits of data over the Internet has continued to fall precipitously, and the cost of PACER access has gone up by 42 percent.

To that end, Schultze has drafted a bill entitled the Open PACER Act, which provides for "free and open access to electronic federal court records." The draft bill is dedicated to the memory of Aaron Swartz (whose "abuse" of a limited-time free access offer greatly helped give the RECAP project momentum) and is open for comment at openpacer.org. (Schultze himself assisted Swartz in this venture, putting together the Perl script for automating the PACER downloads. Shultze had plans for a "thumb drive corps" of volunteers to hit multiple libraries and utilize the free access to download millions of documents. However, Swartz struck out on his own, scraping PACER via Amazon cloud servers, leading directly to his first contact with the FBI.)

Now, we all know why we think these documents should be freely available. Now, it's time to hear from the judicial system. Schultze runs through the many reasons the government thinks we should keep on paying, summarized from a list of excuses fact sheet entitled "Electronic Public Access Program Summary: December 2012." He compiles a list of 10, all worth reading (and mocking), but here are a few of the better (pejorative form) ones.

Excuse #1: “PACER is cheap”

Whether or not PACER is subjectively inexpensive is immaterial. The law says that the fees can only reimburse for the expense of the service, and the courts are charging more than that. End of story. Nevertheless, PACER is — subjectively — expensive. Although it costs “only 10 cents per page,” the system charges not only per page for documents, but per “page” of search results, and per “page” of docket listings. It is easy to quickly run up a huge bill unless you are looking for one particular thing and you know exactly how to find it.

10 cents per page might sound like a standard library charge for printouts or copies, but we're talking about electronic access, where accessing 1,000 pages has no discernible effect on the "cost" of retrieving the documents. And charging per page or search results or docket listings? That's like having a surcharge added to your restaurant check for "accessing" the menu before ordering. The ridiculous search results charge is even more insulting considering how poorly PACER's search function performs.

Excuse #6: “You can always go to the courthouse”

This is a good one. The Administrative Office will tell you that you can go to your local courthouse to access PACER records for free. Well, maybe not “local,” but you can go to the district, bankruptcy, or circuit courthouse and access PACER. Of course, you can only access records for that particular court. You can’t access other PACER records. You also can’t download the records. You can only view them. If you want to print them, that will be 10 cents per page. That’s not legal.

lol

No. Seriously. Dry-as-straight-vermouth-in-the-Sahara "lol," the sort of laugh hastily assembled from equal parts of disbelief and disgust that inadvertently escapes you blindsided with the least helpful advice ever. Citizen: "I wish to electronically access several public records for free." Administrator: "Do you own a car?"

Not only is this suggestion utterly worthless, it's the height of bureaucratic obtuseness. Equating "a drive to the courthouse" with "electronically accessing the total of the PACER system on my schedule" is the sort of logic only deployed by someone who wishes to appear helpful but not actually help anybody. To top it off, you can only search that specific location's documents and then MEMORIZE ALL PERTINENT INFORMATION or you're back to 10 cents a page. No downloading allowed. Beautiful.

Excuse #8: “There is a high cost to providing electronic public access”

Here is how the PACER system architecture works: every court runs its own local PACER server, with local support staff and a private leased network link to Washington, DC. Are you a system administrator? Are you an average citizen who has heard the word “cloud” in the past five years? Does this system architecture seem insane? It is. It is even more offensive in light of the fact that the GSA has had, for years, a streamlined government procurement system for cloud hosting. This system is certified at FISMA level 2 security, and is hosted in a “private cloud” for the government, which is good enough for the Department of Homeland Security. It is provided by companies like Amazon at only a fraction higher cost than their commercial offerings. The courts could host all of the PACER services in the cloud — tomorrow — for under $1 million per year. They could allow all of these local system administrators to control their own PACER installations. They could obtain greater cost savings (and security) by further consolidating PACER hosting and system administration. Of course, they feel no pressure to do so when they interpret the law to allow them to charge whatever they deem necessary.

No one's denying there are costs associated with providing electronic access. But a majority of those costs flatten dramatically once the documents are uploaded. Compare that to "driving down to the courthouse," which ties up however many employees it takes to get you up and running on their local PACER service, not to mention staffers taking phone calls from those unwilling to cough up 10 cents a page for an updated docket listing.

Not only is the complaint about costs ridiculous, but taxpayers are being double-dipped for some of these fees. Taxpayers fund the generation of the documents, and as Schultze points out, PACER's largest users are also government entities. In 2009, the DOJ alone paid over $4 million in PACER fees. That's public money transferring from one government entity to another, while the taxpayer supports both the one handling "Accounts Payable" and the one handling "Accounts Receivable."

Public access is a noble goal, but the PACER system as it stands now locks out many members of the public with escalating fees and an intimidating, counterintuitive interface. The priority has shifted from public access to making money. Hopefully, another push towards free availability will get the ball (re)rolling. After all, Joe Lieberman (of all people) asked this very same question all the way back in 2009. Four years later we're still waiting for an answer. And the longer we wait, the more we pay.

We've talked about the importance of carrying on the work that Aaron Swartz began, and the global efforts at hackathons to do just that. However, a few have started working on very specific proposals to try to carry on some of Aaron's work. Specifically, they're trying to build on the effort over which he was first investigated by the feds: his attempts to free up public domain court documents that are locked up behind PACER's paywall.

For the uninitiated, despite being public domain, court filings are locked up in an incredibly antiquated electronic document system that the federal courts all use called PACER. Anyone can get access to PACER (though using the system, which has never been an example of modernity, takes some figuring out), but it costs $0.10 per page to download any documents. That's what Aaron was trying to "free."

While his initial effort, making use of a "trial" at certain libraries allowing free access to PACER was shut down, his downloads did become the crux of the RECAP project, a browser plugin built a few years ago by some Princeton students, which would automatically upload any document you accessed via PACER to the Internet Archive where they could be viewed for free going forward.

Unfortunately, RECAP itself more or less stagnated after many of those behind it left Princeton. However, following Aaron's death, there have been a couple of interesting developments, driven in large part by a different Aaron, Aaron Greenspan. First, he set up three grants of $5,000 each to update the RECAP extension. It's currently only available in Firefox, but there are grants for expanding it to Chrome and to IE, while also updating the Firefox browser to cover appeals court documents. This would be huge. I tend to use PACER via Chrome, so I've been unable to contribute much to RECAP lately.

But the second part of the plan, also put in place by Greenspan, is what he's calling Operation Asymptote, to try to get lots of people to help out in freeing PACER documents. He's using the one slight exception to the $0.10 per page rule: PACER does not charge you if your total charges add up to less than $15 per calendar quarter. In other words, you can basically download 150 "pages" during a quarter for free. Now, that's not really 150 pages of court documents, since PACER also charges for searches. And, since some court documents can be pretty long, 150 pages can actually go pretty fast. But Greenspan is suggesting that if we can get a lot of people to sign up for PACER (and RECAP) and download a small amount, keeping under the $15 line, then effectively, a large group of people might free large parts of the public domain material in PACER for free (you need to have a valid credit card to sign up, but if you keep under the $15, then you don't get charged).

This is being done in association with Greenspan's PlainSite, a site which tries to make legal information as public as possible (we've linked to them in the past for their research into Intellectual Ventures' shell companies). Part of the goal is to actually pull together the details of cases worked on by "every US Attorney or Assistant US Attorney" during their career. For example, you could look at cases involving Stephen Heymann or those involving Carmen Ortiz. On the Operation Asymptote page, they even have a link that will automatically point you to cases where they're missing documents, so it's one click easy.

I have no idea if enough people will actually participate to make a difference, but after the slight hassle of signing up for a PACER account (and then a chance to witness just how poorly designed PACER is) anyone can help out for free. It seems like a worthwhile goal.

We've discussed recently some questions about the federal court's PACER system, and noted that the courts seem to be profiting nicely from PACER, even as it's supposed to be about improving access to public domain court rulings, not about money for the court system. Yet, at the same time they're raising rates, and going beyond the mandate that created PACER by using the profits to fund other projects. Even worse, we noted that some courts seemed to be taking an antagonistic view towards efforts like RECAP, which was put together by Harlan Yu, Tim Lee and others at Princeton to help take public domain documents out of PACER and make them available to the public.

It seems like we're hearing about more and more attempts by the courts to scare people away from RECAP. Lawyer Michael Barclay sent over the following text he saw when he logged into the PACER system for the District of Massachusetts federal court, which goes so far as to tell people who are accessing PACER on a "fee exempt" account that they're forbidden to use RECAP:

NOTICE FOR PACER FEE-EXEMPT USERS
The court would like to remind fee-exempt PACER users of the terms of the exemption and of potential issues associated with a new software application called RECAP. It was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. A fee exemption applies only for limited purposes. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Therefore, fee exempt PACER users must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.

NOTICE FOR CM/ECF FILERS
The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised. The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

That part where they say that fee exempt folks are barred from using RECAP had me scratching my head. Could the courts legally do this? According to the PACER FAQ:

A court may, for good cause, exempt persons or classes of persons from the electronic public access fees, in order to avoid unreasonable burdens and to promote public access to such information.

Um. If it is supposed "to promote public access to such information," shouldn't they be encouraging the use of RECAP for fee exempt folks? In digging around, I also found the identical notice to what's on the D.Ma. site -- and while there's no date on it, on the listing of announcements it's a few below March of 2010 -- so this particular statement may actually be a few years old. Either way, it seems troubling that PACER is trying to restrict the use of RECAP and claiming that certain users are forbidden from using it. I don't see how they have the right to do that. Along those lines, after being pressed on the subject back in 2009, the court system stated that the federal court system is fine with RECAP, so I'm a bit confused (and troubled) by the conflicting messages.

Is the federal court system really trying to tell people they can stop them from redistributing public domain info?

The Federal Court's PACER system is really quite misguided. It's the system that the federal courts use to distribute judicial records (court filings, rulings, etc.), but rather than making that info available to the public, it's basically locked up behind a paywall, and it costs people 8 cents per page to download documents. Well, it did cost 8 cents per page. They've just announced that they're jacking up the fees to 10 cents per page, and that can add up pretty quickly when accessing a lot of court documents or some rather long filings or rulings.

While Harlan Yu and Tim Lee helped create RECAP to free up court documents, and that has helped make some of this material more widely available, it's still limited. And, in fact, some courts have expressed concerns about RECAP and told lawyers not to use it. And even though the official policy of the US courts is that they're fine with RECAP, it appears not everyone in the court system agrees. EFF lawyer Michael Barclay recently alerted me to the fact that the PACER system for the Western District of NY has a warning on its query page about RECAP, saying:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

Of course, with this price hike, one wonders if the courts are really concerned about "security" or if they're concerned about losing out on a big chunk of cash that comes into the courts thanks to PACER. Apparently, that cash is being used for all sorts of things, way outside of what's allowed. The law that authorizes PACER to charge, makes it clear that it can only charge "reasonable fees" and then only to the extent necessary to fund the working of the system:

The Judicial Conference may, only to the extent necessary, prescribe reasonable fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United States Code, for collection by the courts under those sections for access to information available through automatic data processing equipment.

And yet, reports have shown that PACER already collects a lot more money than is needed to run the system. And this price hike will only increase that. And while some of that money is going to fund additional technology in the courtroom, it's not clear that this is a legal or even best use of funds.

One example is a courtroom renovation one judge described at a 2010 conference. He said that as a result of PACER fees, "every juror has their own flatscreen monitors," and there are also monitors for members of the public to see. His courtroom also got the latest audio technology. "We just put in new audio so that people—I'd never heard of this before—but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers," the judge said.

Not that we're against better technology in court, but it's not clear this is the best use of funds, when collecting less money but making the information more widely available might better serve the public interest.

And, really, you have to wonder why the court system needs PACER in the first place. In this age of easy and free delivery of information, why can't the courts release that content for free, and charge people just for paper printouts? And, as Tim Lee's article points out, there seem to be much better ways to handle such a distribution of content:

For example, there isn't just one PACER website for the whole country. Instead, there are actually around 200 separate PACER websites, each serving a different judicial district. Consolidating those 200 servers into a single website hosted from a modern data center would improve the user experience and dramatically reduce IT costs.

Indeed, Yu argued that the very concept of charging for copies of public records is misguided. He suggested that instead of jacking up fees in order to fund the development of a more elaborate PACER site, the courts should publish their raw data and allow private parties, from Google to the Internet Archive, to build websites using that data.

"Congress needs to consider funding PACER out of general appropriations," Yu told Ars. "It's really shutting people out from being able to learn the laws that they need to abide by in our society." Of course, if PACER were run in a cost-effective matter, and without a paywall, it would cost a lot less than $100 million.

A bunch of folks have sent over the incredible story of how the FBI investigated well-known programmer Aaron Swartz, after discovering that he had installed a perl script on a computer at the 7th U.S. Circuit Court of Appeals library in Chicago, to cycle through PACER documents and upload them to an Amazon S3 account. Basically (as we've discussed in the past), court documents -- which are in the public domain -- are mostly locked up in the gov't's PACER system, which costs $0.08/page. However, since the documents are public domain, once you get them, you're free to do what you want with them. The Government Printing Office started an experiment last year, offering free access to PACER in certain libraries. Swartz just went to one and then installed his script to cycle through and upload those documents. The library's IT staff eventually noticed the issue (it took a few weeks) and alerted the FBI who began an investigation of Aaron, after Amazon handed over his info. While you can sorta understand why the FBI might look into why someone had installed a program on a court library computer, once it became clear that it was only accessing public domain documents, it seems pretty silly to have continued onward -- including driving by his home and considering a stakeout.

Earlier this week, we wrote about how some Federal Courts were sending out misleading emails warning people about RECAP, the Firefox extension that would help make public domain PACER documents freely available. The warnings from the courts were scare tactics... but Paul Alan Levy spoke with Michel Ishakian, the Deputy Chief for IT Policy and Budget at the Administrative Office of the United States courts, who is apparently saying that the US courts are now perfectly fine with RECAP. That doesn't quite explain the scare tactic emails that have been sent out, but it's nice to know that (hopefully) the courts are coming around to see the value of RECAP. In fact, Ishakian apprently had a call with Ed Felten, who oversaw the RECAP project, and apparently everyone's on the same page. That's definitely good news.

We've been excited to see what would happen with the RECAP Firefox extension, which is being used to help free up public domain court documents that have been locked up behind the PACER paywall. However, there were also questions about how the folks who run and/or benefit from PACER would react. We now have at least part of the answer: bogus scare tactics. Paul Alan Levy alerts us to the fact that the Federal Court system, which profits from PACER, has started sending out scare notices to try to keep lawyers from using RECAP:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or "plug-in" called RECAP, which was designed to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. At this time, RECAP does not appear to provide users with access to restricted or sealed documents.

Please be aware that RECAP is "open-source" software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes. This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

I especially like the "scare quotes" around "open-source." Of course, I'm not quite sure why the fact that the extension is open source makes it any more vulnerable to being "modified for benign or malicious purposes." Either way, looks like the Federal Courts don't like competition eating away at their PACER profits.

Last week, we wrote about the launch of RECAP, a neat little tool for making sure that more public domain court rulings are actually accessible to the public (what a concept). Apparently, the tool is already useful. Thomas O'Toole points us to the news of someone who used RECAP to point to rulings that were vacated and then (oddly) ordered to be removed from various databases. All of this was a part of a settlement agreement. Rulings get vacated all the time, but having the judge order the various databases that hold rulings to delete them seems a bit extreme. However, thanks to RECAP it seems that the original rulings are still available. Yet another reminder that you can't make things disappear online.

There's been a push by people both inside and outside the government to get public court documents out to the public. As it stands now, most court documents can be found via PACER, the court system's own online service, which charges $0.08 per page. PACER notes that it's charging for the documents to cover its own costs of managing its system, but this still bothers many who don't like the fact that important public domain case law is so costly. There are some private services, like Justia trying to fill the void, and Carl Malamud is pushing hard to get the government to put public documents up for the public to read.

Now there's a new service that has an interesting tactic to try to help bring these documents to the public domain. Ed Felten's Center for Information Technology Policy at Princeton University is announcing a service and a Firefox extension called RECAP (it's PACER backwards), with the tagline: "turning PACER around." It's a bit ingenious. Basically, if you're a PACER user, you install the Firefox extension, and any documents you access via your PACER account automatically get uploaded to a public archive (hosted by the Internet Archive folks). If the document has already been uploaded, the extension alerts you to that fact in PACER, so you can access the open archived one.

While the folks at PACER might not like this, it's all perfectly legal. The documents are public domain, and people can do whatever they want with the documents once they have them. Creating a public archive is one option -- and a rather useful one at that. The real question is how many PACER users will actually participate in the program in order to make this a truly useful resource. At launch time, this public database has already been seeded with about a million documents, but the question is how quickly will it grow? No matter what, conceptually, this is a fantastic idea that hopefully will help to open up public domain court information that has been locked behind PACER's paywalls for too long.