Federal Courts Making It More Expensive To Access Records, Even As They're Swimming In Cash

from the the-public-domain-is-expensive dept

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.

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Comments on “Federal Courts Making It More Expensive To Access Records, Even As They're Swimming In Cash”

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Anonymous Coward says:

Re: Re:

Of course you think that, because you don’t think that the government already has a budget paid for by the people by taxes and now they have to pay again because the government can’t get their heads out of their asses and manage money in a responsible way.

You also don’t think that laws should available to anyone just those who can pay for it right?

Pitabred (profile) says:

Re: Re: Re: Re:

Why does it have to be a battle? Perhaps that fee is more than I’m willing to pay to satisfy my curiosity, or want to learn. Or even better, some school kid’s.

But even more importantly… how can you defend any increase in fees that’s not directly tied to administration costs that makes it more difficult for you to know what laws you’re expected to obey? The US wasn’t founded as a nation of “secret” laws. We shouldn’t have to pay to know what is and is not legal.

Jay (profile) says:

The price increase is certainly misguided. What happens if you’re interested in a specific topic, such as copyright law, and looking for precedents set by it through a certain amount of cases? Looking up the Perfect 10 lawsuits, plus the Youtube v Viacom lawsuits and seeing their precedents runs counter to making quite a bit by charging for access.

Has anyone seen why they want to charge more? Is there a central trust fund that this goes to?

Anonymous Coward says:

Re: Re:

If you are only interested, you do what anyone else with an expensive hobby does: they pay.

Most of the big cases (and the ones most likely to be cited in these sorts of legal actions) are online, and have been referenced over and over again. If you can’t find them, you truly have failed.

Perhaps the real issue here is that people who have absolutely nothing to do with the legal system are business complaining about it, rather than actually doing something productive with their time.

Jay (profile) says:

Re: Re: Re:

So let’s get this straight.

Because I’m not a lawyer or attorney at law, I have no access to public records, no matter how little or how much it is. I can’t look up and reference all of the articles and decisions made in the history of MY country of birth because I didn’t pay a fee.

And for that small injustice, when I want to change my naive notion that more access to information allows me to make better decisions, you decide to try to dismiss it by saying “you’re whining?”

Are you sure that’s what you want to say?

Anonymous Coward says:

I’ve been using PACER for many years.

The PACER system allows each party to a case a “free look.” You get an email to your registered address with a link to the document. Click the link and you have the document in PDF format to save locally and do what you want with… FREE OF CHARGE. Once you have the document via the free look you don’t need to pay again for anything you choose to do with your copy.

You only have to pay if you need to go back and view documents via PACER again, if you want to view documents in cases where you are not a party, or to run reports to extract data from the court.

WysiWyg (profile) says:

First of, let me point out the silver lining; 10 cents per page makes the math a lot easier than 8 cents. 😉

Second; why charge per page, or even document, at all? Wouldn’t it be more sane to charge a subscription fee, or something like that?

Then again, the only sane way of doing this is to not have a fee at all. One of the core basics of democracy is to allow the people to keep an eye on the courts, and make sure that they don’t go bonkers.

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