Court Tells Users They Can't Use RECAP

from the public-domain-fail dept

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:

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.

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?

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Comments on “Court Tells Users They Can't Use RECAP”

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Anonymous Coward says:

Nice FUD about open-source, too

Of course, everyone equipped with sufficient intelligence and even modest security expertise is fully aware that only open-source software has even a chance of being secure; all closed-source software must be presumed to be insecure by both design and implementation. (And as it turns out, this presumption is nearly always proven to be correct quite rapidly.)

What a pity that the idiots running PACER are simply too stupid or too stubborn to grasp this rudimentary point.

Jay (profile) says:

Re: Re: Re: Re:

Oh, ICE is really bad… You should look at their immigration policies.


Basically, they have to deport 400,000 people at the behest of Congress. People that have had few problems with the law, disproportionately Latino, and have American children that have to deal with not being able to grow up with one of their parents.

Then, to add to this story, the detainment is one of the worst punitive damages I’ve seen. Maggot ridden food, private security force that is abusive, rape allegations that aren’t reviewed, and ICE agents that bully the people that do complain.

Private police force for the rich indeed.

Jay (profile) says:

Re: Re: Re:3 Re:

So… You want people who have been close to US citizens for 10 years to up and quit coming to the United States illegally.

You want US citizens that have been here for 10+ years to grow up without a father or mother because of the thicket to becoming a US citizen is beyond bad.

You believe that every illegal alien has no right to any type of due process rights when they are detained, submitting that they have to be fingerprinted, searched and deported. If they complain about their problems, be it the fact that guards can rape them, they can be beaten while guards throw out racial slurs or ICE bullying them into silence for their treatment, it’s their own fault because of some belief that entering the country illegally is robbing the US of jobs.

That is beyond an ignorant statement, and I would highly suggest you look into the website linked for a review of the Secure Communities program, the devastating effect of immediate deportation, and the consequences of the detainment program of ICE.

BearGriz72 (profile) says:

Re: Re: Re:3 (@lucidrenegade)

So much for Give me your tired, your poor, your huddled masses yearning to breathe free

I realize that we have immigration problems in this country, but they are of our own making, and a symptom of our bass-ackwards legal system. We are fighting the wrong problems in this country, and it saddens me daily.

Anonymous Coward says:

Imposing sanctions

By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.

???????Cox Broadcasting v Cohn (1975) (Emphasis added.)

Stefan says:

It’s all about their perceived right to a distribution monoploy and control of “their” information. Information shall flow from a controlled central authority to the masses who shall under no circumstances mumble among themselves.

They have only replaced the copymachine and have not understood that the new technology changes the core of how society is built. That isn’t surprising at all really, it is exactly how large changes in technology has always been handled. The new things is seen and used as a small update of something similar that already exists and it takes quite a lot of time to realize that it can have much more impact.

Anonymous Coward says:

Re: Re:

It’s all about their perceived right to a distribution monoploy and control of “their” information.

Quoting from BOCA v Code Technology (1st Cir., 1980)

In Nash v. Lathrop (1886), the Massachusetts Supreme Judicial Court followed these precedents in interpreting a contract between the Commonwealth and Little Brown Publishing Company which was claimed to give Little Brown the exclusive right to publish opinions of the SJC. In ordering the reporter of decisions to permit a competing publisher to examine and copy the opinion, the court articulated the policies underlying the rule:

“Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices.”

The court observed that, for the same reasons, a legislature could not constitutionally keep statutes out of public access although it could regulate the manner of publication so as to insure accuracy.

(Pincites omitted.)

Regulating ?the manner of publication so as to insure accuracy? is not the same as regulating publication to collect money.

Anonymous Coward says:

Taxing newspapers

It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press.

?.?.?.?. The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties.?.?.?.?.

The form in which the tax is imposed is, in itself, suspicious. It is not measured or limited by the volume of advertisements. It is measured alone by the extent of the circulation of the publication in which the advertisements are carried, with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers.

???????Grosjean v. American Press (1936)

Anonymous Coward says:

“A for profit police service.”

We already have one down in Texas. It made the news a few years ago when their cops were caught pulling people over for no real reason and then ‘confiscating’ jewelry, etc, for ‘evidence’ and arresting anyone who dared to protest. They probably got away with it as long as they were because they were going after mostly foreign looking people who they thought were in the country illegally, hence would be too scared to report the crime.

Anonymous Coward says:

Re: Re:

… if they can extort money out of people…

?Hundreds of trips: who’s paying?? by David Ingram, The National Law Journal, October 24, 2011

Majority of federal appellate judges traveled in 2010 ? on sponsors’ dimes.

Law schools, advocacy groups and an array of other interests picked up the tab for 680 trips by federal appellate judges during 2010, and gave them gifts including theater tickets and club memberships, financial disclosure reports show.

The trips ranged from quick stays while judging moot courts to a three-week journey through four Southeast Asian countries attending a conference and consulting. And the gifts ranged from $282 worth of books reported by Senior Judge Kenneth Ripple of the U.S. Court of Appeals for the 7th Circuit to $723,672 in legal and consulting services reported by 9th Circuit Judge Jay Bybee, who was locked in an ethics fight over his tenure at the U.S. Department of Justice.


Anonymous Coward says:

real security?

“At this time, RECAP does not appear to provide users with access to restricted or sealed documents.”

Does PACER give access to restricted or sealed documents? If so, then what kind of security does it have? (And does the word “sealed” mean anything once the lawyers are through with it?) If not, then RECAP cannot do so, and the quote above is quite disingenuous.

What kind of authentication comes with these documents? What prevents an unscrupulous lawyer (*cough*) from modifying a document before sending it to the RECAP archive?

Here’s what I’d like to see: the PACER system digitally signs all the documents it hands out (public key on the PACER website). If it gives out restricted or sealed files, it first appends the identity of the recipient (rigorously verified), then signs (perhaps with a special key), then encrypts (with the recipient’s public key). The RECAP system rejects any document without a valid court signature– and if it fails to do so, users who get unsigned documents and trust them are fools who deserve what they get. It also rejects any document marked “RESTRICTED” or “SEALED”– and if it fails to do so, the original recipient (whose name is still at the bottom, otherwise the signature wouldn’t be valid) goes to jail.

This will never happen because lawyers don’t like logic, don’t trust technology, and don’t want to make something impossible when they can make it illegal.

CarlaJHabeas says:

Re: real security?

Check out case 2011-1199 in
Court of Federal claims. Johnson vs US. All documents sealed from plaintiff. Why? It’s a prose litigant that had to pay for PACER only to find the sealed information was sealed without notice to Appellant or with an order. So the info was sealed by PACER so that noone would see the error of the court and then charged the Appellate for accessing the info it could not read only to deny it without addressing the sealed information and never explained how or why it was sealed. The attorney defending the case of course could win this way and (cough, cough), take out the evidence – none of which lands in ANY legitimate federal reporter to the public.
It’s a Ponzi scheme assisted by unindicted lawyer/clerk coconspirators!

Anonymous Coward says:

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?

Of course. An example: I own a copy of a book that’s out of copyright and in the public domain. I scan the book and offer it for sale on the internet for 10 cents per page. Once you pay me 10 cents for a page, it’s yours and you can do with it as you please since there’s no copyright. Now, I could decide that rather than charge 10 cents per page, for certain people with low incomes I’ll give it to them for free. As a condition though, they must promise to not be using Firefox. I’ll only give it away for free if they’re using Internet Explorer. Can I do this? Of course. It’s not a copyright issue. My copy is my copy, and I have property rights over it. I can sell or give it away for free, with or without conditions. This is a contract issue, not a copyright issue.

Anonymous Coward says:

Re: Re:

This is a contract issue…

It’s an illusory contract.

From the PACER ?Policies and Procedures?:

If these Policies and Procedures change in a significant way, information regarding the changes will be posted on the PACER Service Center web site ( It is the account holder’s responsibility to check these Policies and Procedures regularly for changes. Continued use of PACER following the posting of changes will mean that the account holder accepts and agrees to the changes.

A so-called ?contract? where one party reserves the right to change all of the terms at whim is not a contract. It’s the pretense of ?contract?: just an illusion.

Anonymous Coward says:

Re: Re: Re:

As long as these terms of use are conspicuous (and Mike’s article makes it sound like they are), then why in the world wouldn’t they be enforceable? Terms of use may be changed. That doesn’t mean that it’s an illusory contract and therefore unenforceable. If PACER wants to say “no RECAP” for fee exempt users, they can. Just because they could later change their mind about that policy doesn’t mean the policy is unenforceable. Give me a break.

Andrew F (profile) says:

Re: Re: Re: Re:

Were this a commercial site, then yes, PACER could enforce the terms of use.

But PACER is owned and operated by the government. It’s also subject to Congressional Law, including Public Law 102-140 (as amended):

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. These fees may distinguish between classes of persons, and shall provide for exempting persons or classes of persons from the fees, in order to avoid unreasonable burdens and to promote public access to such information.

The key is the last sentence — does creating a class of users who can’t use RECAP “avoid unreasonable burdens” or “promote public access”? PACER would probably argue that if it fee-exempt users could upload court docs to RECAP, then no one would have an incentive to pay for PACER access. And if no one pays, then maintaining PACER would become an “unreasonable burden.” Or they’d have to shut down fee-exempt access, ultimately harming “public access”.

I think that’s baloney. PACER fees are clearly unreasonable. I forget the link, but lawyers have shown that PACER fees are such that it’s operating with substantial profit. While we encourage private companies to seek profit, the government shouldn’t restrict how people use information for the sole purpose of maintaining a profitable monopoly.

Moreover, if PACER fees were solely to maintain public access, there’s a much better “business model” for the government here. Just charge every lawyer a fixed fee. This ensures PACER has a relatively stable source of revenue that doesn’t fluctuate with the vagaries of technology.

Andrew F (profile) says:

Re: Re: Re:2 Re:

Ah, here we go. Link from Ars Technica:

What do the courts do with all that money? In 2007, a judicial committee reported that “significant unobligated balances have accumulated” as a result of growing PACER usage. It proposed to use the extra funds for various IT projects.

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.

It’s great for courtrooms to have better A/V technologies. But diverting PACER fees to projects unrelated to PACER may be illegal. Harlan Yu, an open government expert at Princeton’s Center for Information Technology Policy, points to the 2002 law authorizing the PACER fees, which states that those fees may be charged “only to the extent necessary” to cover the costs of providing public access. Congress “sought to have a system in which the information is ‘freely available to the greatest extent possible,'” he told Ars, quoting from the conference report that accompanied the legislation.

Andrew F (profile) says:

Re: Re: Re:3 Re:

The question isn’t whether PACER’s terms of use, in general, are enforceable. The argument is that this specific PACER term violates a Congressional statute, namely Public Law 102-140.

When Congress authorizes funding for government websites, it can attach restrictions to the funding. In this case, Congress authorized appropriations for PACER on the condition that PACER only collect fees to cover costs, not make a profit.

Anonymous Coward says:

Re: Re: Re:4 Re:

When Congress authorizes funding for government websites, it can attach restrictions to the funding. In this case, Congress authorized appropriations for PACER on the condition that PACER only collect fees to cover costs, not make a profit.

Even if that’s true, it doesn’t necessarily make the terms of use (including the “no RECAP” rule for fee exempt users) unenforceable. Considering that fee exempt users aren’t paying fees, I don’t see what fees collected from other users has to do with it.

Andrew F (profile) says:

Re: Re: Re:5 Re:

The purpose of the “no RECAP” rule is to deny non-exempt users access to documents shared by fee-exempt users, thereby forcing non-exempt users to pay more for access.

Under the statute, the only authorized purpose for charging different rates to different “classes of persons” is “to avoid unreasonable burdens and to promote public access.” The purpose for the “no RECAP” rule is arguably inconsistent with that.

G Thompson (profile) says:

Re: Re: Re:5 Re:

If a term within a contract (or the whole thing) is deemed illegal or unlawful then that term is either voidable or the whole contract is null.

Furthermore if a contract has no consideration (and the usage by persons for free when others pay means there is no consideration for the free users) also then that contract is deemed illusory and no contract has been formed.

And all that is before we get into estoppel and unconscionable conduct.

Though It would be highly amusing for PACER (and its owner) to take a user to task for forfeiture though.

Me I just think this is standard psychological puffery towards those silly enough to pay any attention to this EULA.

Anonymous Coward says:

Re: Re: Re:3 Re:

Are government owned websites not allowed to have enforceable terms of use?

The government may not deny use of its website ?to a person on a basis that infringes his constitutionally protected interests? especially, his interest in freedom of speech. ?

Perry et al v Sindermann (1972)

For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests? especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall. Such interference with constitutional rights is impermissible.

Andrew F (profile) says:

Re: Re: Re:7 Re:

There might be a 1st Amendment case if PACER is the only (reasonable?) way to obtain a particular public record.

Imagine if a court document was only available in hard-copy, and when you went to pick it up, you were forced to sign a contract saying you can’t republish the document online.

The net effect would be that the document was not available online, even though I have a First Amendment right to publish online. That seems wrong on a gut level, and an example of the government “produc[ing] a result which [it] could not command directly” under Speiser v. Randall.

As it is though, you could easily pay for the right to republish on RECAP. Not sure how this affects 1st Amendment analysis.

Anonymous Coward says:

Re: Re: Re:8 Re:

you could easily pay for the right to republish on RECAP

In a comment above, I provided (without additional comment) a link to Grosjean. There, the tax at issue singled out publications with ?circulation of more than 20,000 copies per week?.

Along that same line, there’s Minneapolis Star & Tribune v Minnesota Commissioner of Revenue (1983):

?.?.?. Minnesota has singled out the press for special treatment. We then must determine whether the First Amendment permits such special taxation. A tax that burdens rights protected by the First Amendment cannot stand unless the burden is necessary to achieve an overriding governmental interest. Any tax that the press must pay, of course, imposes some “burden.” But, as we have observed, this Court has long upheld economic regulation of the press. The cases approving such economic regulation, however, emphasized the general applicability of the challenged regulation to all business, suggesting that a regulation that singled out the press might place a heavier burden of justification on the State, and we now conclude that the special problems created by differential treatment do indeed impose such a burden.

(Citations omitted).

It’s basic, though, that the freedom of the press is not limited to the institutional newspapers. Rather, it is ?traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.?

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