With So Much Public Interest In Our Judicial System, It's Time To Free Up Access To Court Documents

from the pacer-isn't-keeping-pace dept

Like hundreds of thousands of Americans, I am closely following the “airport cases” around the country. In order to keep abreast of the latest developments in one of the fastest-moving cases, Washington v. Trump, I built a Twitter bot that scrapes the public docket mirror hosted by the Ninth Circuit and tweets about new documents and links as soon as they’re added.

This case leads a legal push that has attracted incredible amounts of public attention. There have been tens of thousands of protestors, dozens of organizations and companies that submitted amicus briefs (including Techdirt’s think-tank arm, the Copia Institute), and over 135,000 people who tuned into the audio-only livestream of the Ninth Circuit oral arguments (which was also broadcast live on multiple news channels).

Those numbers reveal a public demand to be informed and to participate in the law. But they also show the limitations on the kind of transparency that can satisfy that demand. Most notably, any attempts to make court proceedings more accessible to the public has to contend with the expense and overhead of dealing with PACER. My bot is only possible because the Ninth Circuit provides a public docket mirror for individual “cases of interest,” essentially duplicating the existing system outside the paywall. Those mirrors are manually updated, which means they are labor-intensive, error-prone, and not always up to date.

By contrast, look at the @big_cases bot run by USA Today reporter Brad Heath. It monitors a set of district court cases, selected by hand, and posts new documents as they get filed. These district court cases don’t have public docket mirrors, so @big_cases accesses PACER directly — and for that, it needs user credentials and ultimately to pay for the documents it downloads. For a journalist whose job is reporting on legal developments, paying these costs makes sense — and sharing the documents further is a valuable public service. Without institutional backing, though, it’s hard to justify the PACER expenses.

The costs go beyond the financial. These bots represent an experiment in meeting members of the public where they are, and those efforts are less likely if they come with a pricetag. Worse, it means these experiments will be limited to cases of widespread general interest. To pick a trivial example: Techdirt readers might be interested in a bot that tweets updates from privacy or copyright dockets. If those public documents were freely accessible, anybody could build a tool like that without worrying about subsidizing the ongoing PACER costs.

At a time when the president and his press secretary are calling into question the legitimacy of factual news reporting, an informed public requires more than ever access to primary sources. Moreover, they need to be confident in the integrity of those sources. Journalists reporting on court proceedings increasingly post the original source documents. Without a free and public government source file, though, most readers can’t see the context of the case, and they have to trust that they’re getting the full and unmodified documents in question.

The procedural stance of Washington v. Trump is unclear. A Ninth Circuit judge has made a request that both sides brief whether a larger panel should re-hear the question. The White House has issued conflicting reports about whether or not it will appeal Thursday’s order to the Supreme Court. And the District Court has indicated that a new briefing schedule might be appropriate. These paths offer various levels of transparency, and it’s frustrating to know my bot may not be able to keep up with, say, district court proceedings simply because of the antiquated PACER system.

Meanwhile, the issue continues to attract attention from lawmakers. The House Judiciary Committee will hold a hearing on Judicial Transparency and Ethics on Tuesday, February 14, and is expected to include testimony on PACER. Hopefully, the Committee uses this to recognize that a truly transparent judiciary requires rethinking how PACER functions.

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Comments on “With So Much Public Interest In Our Judicial System, It's Time To Free Up Access To Court Documents”

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11 Comments
DannyB (profile) says:

Free up access to court documents?

Isn’t that the wrong business model?

I’m assuming you mean Free as in troll booth, not free as in ‘free to go away empty handed without court documents’.

If the courts say its okay to charge for access to laws, the least they could do to make up for it is also charge for court documents.

Times are tough. Budgets constrained. This revenue could at least help fund more asset forfeiture operations.

(I think I’ll be sick now)

Personanongrata says:

Knowledge is Power

With So Much Public Interest In Our Judicial System, It’s Time To Free Up Access To Court Documents

A great idea whose time has come (to paraphrase Victor Hugo).

Tear down those paywalls Uncle Sam and help lift the fog of ignorance which has descended upon this nations land while blighting our citizens sight and staining their thoughts with ignorance and fear.

If the US government has trillions upon trillions of dollars to squander on death, banker bailouts and all the other boondoggles it surely has a few trifling cents left over in order to help lift it’s citizens from out of a state of US government induced ignorance.

timmaguire42 (profile) says:

The news media has done far more than the Trump administration to call into question the legitimacy of factual news reporting, but otherwise, I agree. Pacer should be free. In fact, all public documents should be free. It would be a relatively trivial matter, cost-wise, to make all public documents free and freely accessible to the public that has already paid for them.

dddimwrong (profile) says:

Years ago there was a real cost

Yes years ago court document keeping cost time and money. However with all the documents now in digital format the cost to allow the public access is negligible. Of course I realize that our court system never met a common sense idea until decades after the fact.

With a few exceptions for very special cases All court proceedings should be on video and all video and documents should be available to the public. Courts are where the rubber of the law meets the road of the citizen and shows how we are truly restrained by how laws are applied and especially how the exact same law is applied differently in different jurisdictions.

If you want to make significant changes in America start with opening our courts to the sunshine of public scrutiny.

Anonymous Coward says:

Re: What a joke

NSA can build a data center with hundreds of petabytes of storage

I read a "guestimate" of what the NSA was doing, and they claimed (with no citation to facts) that the NSA was buying a fully blown out VMAX SAN every day. Depending on what exactly they are buying, that is in the tens of millions of dollar range. Every day.

No wonder hard drives were so hard to get for a while. It wasn’t the storm damage after all…

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