The Courts’ Solution To Overpriced Court Records: Make Them More Expensive
from the why-are-we-even-doing-this? dept
For many, many years on Techdirt we’ve bemoaned the fact that federal court documents are not available for free as they should be. Instead, we have PACER, a bloated, expensive, difficult to use system that charges you for every “page” it loads up for you (including search results). The whole thing is a sham. Indeed, the law that allowed PACER to be established was based on the idea that, like photocopies, it cost money to “print” every page of every document. It also said that the fees PACER collected could only be used for… PACER. Instead, the fees far outpaced the actual costs, and the federal judiciary started using them for all sorts of other expenses. Courts have even told their own bosses at the judiciary that they’re overcharging beyond what the law allows.
And, really, it’s not even about the overcharging, though that is problematic. It’s about the freaking principle. Court documents are public documents and there is zero reason — when hosting a PDF costs essentially nothing and a server is not a photocopier — that they are not freely and immediately available to everyone.
The judiciary has claimed, for years, that making PACER free would be way too costly, which was totally undermined by a Congressional Budget Office analysis that said it would… effectively be free (PACER’s payment and user system is costly, ditching it and just making docs available would save money).
This week we were going to run a repost of an EFF blog post supporting a bill that would make PACER free, also known as the Open Courts Act. Of course, similar bills come up almost every year… and… go nowhere. Because Congress does not care. They don’t believe they’re serving the public, so why should they make sure that the public has access to court documents?
Instead… the judiciary has spit in the face of the public and announced it’s actually jacking up the fees:
The U.S. federal judiciary on Friday said it will temporarily hike fees to download documents from its online court records system known as PACER in order to accelerate the development of a new, more secure case management and public access system.
The executive committee of the Judicial Conference of the U.S., the judiciary’s top policymaking body, agreed to increase the cost of downloading a court filing to 12 cents per page, up from the current 10 cents, for a five-year period starting January 1.
Let me let you in on a secret that isn’t much of a secret. There’s basically no chance — absent Congress doing what it should and making PACER free — that the judiciary will ever allow the price to go back down from 12 cents a page. Hell, I still remember reporting when the Judicial Conference hiked the price from 8 cents a page to 10 cents. As we noted at the time, this was already an illegal overcharge. Hiking the price to 12 cents per page is an even bigger violation of the law.
There is zero basis for charging 8 cents or 10 cents or 12 cents or any cents a page for a freaking PDF. It may have been more expensive to host PDFs when PACER started, but it’s not now.
The Judicial Conference is simply blowing smoke when they claim this increase is necessary to make PACER secure.
“Unfortunately, without a modest increase in fees, we will not be able to collect enough money to cover the costs of delivering the case management system that the federal courts must have to continue to operate securely,” Judge Robert Conrad, the director of the Administrative Office of the U.S. Courts, said in a statement.
Or — and this is the part the Judicial Conference doesn’t want to say out loud — if you made the documents publicly available without a login, you wouldn’t have any user data to secure in the first place. The security problem is a direct consequence of the fee system. Eliminate the fee system, eliminate the problem.
As always, the Judiciary pretends to then throw a bone to those who use PACER by saying they’ll up the “free” allocation:
To soften the blow, the judiciary said it would waive fees for users who spend $40 or less per quarter, an increase from the current $30 waiver. It said that will ensure that the vast majority of individual users, as opposed to law firms and other heavy PACER users, can avoid paying anything.
How magnanimous: a few extra free documents before the meter starts running — on records that, by every reasonable principle of democratic accountability, belong to the public.
The federal judiciary is now demanding more money for PDF downloads to fix a security problem that is mostly caused because… they’re charging the public money for PDF downloads. There’s a simpler solution and it is: make these public documents public for free.
Filed Under: court documents, federal judiciary, judicial conference, pacer, public records
Comments on “The Courts’ Solution To Overpriced Court Records: Make Them More Expensive”
Talking to the Choir
HALALUYA..
Neglected to mention RECAP, the project to store PACER content independently of the PACER system (and thus the PACER fees).
I’ll leave the googling of RECAP as an exercise for the reader, but I’ll mention that there are browser extensions that help implement RECAP, so it is dead easy to contribute, if you’ve a mind to.
Why stop at $0.12? Why not $12.00 per page? Surely that would get them all the funding they need and more. What are you going to do? Use an alternative system? Lawyers are just going to bill their clients anyway and I don’t think any law firm would complain about being more expensive.
Re:
If DOGE would have started writing PACER, it would have been announced to be done in two weeks and costed millions. Then it would have been fired all employees and so would have costed millions more. It would not longer work since then because it would have blamed Democrats. And would have costed millions more to try to put the old version without anyone to maintained it.
So yes, 12c is still pretty cheap.
If these charges are illegal...
If these charges are truly illegal, then why not pursue allegations of judicial ethics violations against the board putting them into effect, and get them disbarred and removed from the position?
Re:
Corrupt systems don’t hold corrupt officials accountable. If the system weren’t corrupt, this wouldn’t be possible in the first place.
What a surprise! Our Court system is just as dishonest as almost every other company.
I do not understand how both these statement can possibly be true. If making PACER free would save money, then clearly PACER is not charging more than it costs.
Re:
These are not the fees you are looking for. Move along….
Re:
Then you misread the statement somewhere.
1: PACER fees are bringing in enough money that they are actively spending the money they are taking in above and beyond operating costs on additional expenses they are not meant to cover.
2: The operating costs are made up almost entirely of the fees for running secure payment transactions.
3: Ergo, making the system free to use and simply paying the negligible hosting costs eliminates the costs that the charges actually nominally pay for, but, the kicker is it would also eliminate the slush fund it provides too, which they don’t want to lose as they have become very comfortable with it.
Re:
When critics and CBO talk about the cost of PACER and saving “money”, they/we mean the money required to provide the service, without considering whether revenue meets/exceeds cost. Here is a toy example: Suppose that the annual cost of providing PACER for no charge is $1. Suppose that the annual cost of providing PACER for a charge (i.e. using a payment system) is $5. The charge is just a number, and changing it is free. The judiciary should be charging what would bring in at least but not much more than $5 a year, and instead are charging what would bring in $25 a year. The law does not allow the latter.
Re: Re:
I forgot a detail.
under the assumption that the judiciary should be charging something greater than $0.
Re: Re:
OK, thanks. That’s what I was missing. I was thinking “save money” in a “we would have more net money” way, not in a “we would have less gross outlays” way.
More secure? Why, is there an issue with people inserting fake cases or filings into the database?
Sounds like an excuse and prep for not allowing anyone to view documents.
Secret laws
Restricting access to judicial proceedings is another step to secret laws and secret courts.
We already have secret laws. Some places incorporate model legislation by reference, for example NFPA regulations. Those are copyrighted and you’re not allowed to read a printed copy without paying. Indeed obe or 2 states tried to copyright all of their state law and wouldn’t let anyone read it.
In most areas of law, there is the legislated law, modified by the administrative findings. So knowing what the law is exactly today requires free access to both bodies of text.
Yes it matters, for example divorce law; my personal experience.
They want a “more secure” way to handle the documents?? That’s what, a weekend’s effort by a competent coding team?
They are going to burn millions trying to “secure” the documents which really equates to making sure the wall between the documents and the users will require that payment.
When, as you pointed out, the documents should just be there and freely available which would take very little effort to do.
The only “securing” that would be even a mild challenge is the protections on who can upload/change any document and a good logging system to track those changes down to the letter – and that would not be a challenge.
The whole “more secure” effort just sounds like a consulting firm convinced someone to hire them and spend millions to do nothing.