This is the third in a series of posts about PACER:
- What is the “PACER Problem”?
- Why Should Congress Care About PACER?
- What Should be Done About the PACER Problem?
Let’s outline what you should do, what Congress should do, and what the courts should do:
What you should do about the PACER Problem
As we mentioned in our first post, Carl Malamud of Public.Resource.Org has written a memorandum detailing a three-pronged approach that average individuals can take to address the PACER Problem: Litigation, Supplication, and Agitation. Let’s consider each.
It’s probably not fruitful if everyone runs out and sues the courts over PACER. Carl’s memorandum sketches many of the challenges that such cases would face. There are people thinking about this carefully, however, and so if you believe you are particularly likely to have standing, or have other resources to contribute to such an effort, feel free to get in touch with us and we can direct you to the folks having these conversations.
Carl’s memorandum also explains that Public.Resource.Org is asking for a fee exemption from the courts, focused on receiving all of the documents from one district court and one appellate-level Circuit court. The courts have the ability to grant such a waiver, and as discussed in our second post, Congress wants the courts to move towards making these documents free. This request is already in the works, so while individuals could be supportive of this request, or pursue their own fee exemptions where they believe they have grounds to receive one, most people will find something in the next category more useful to pursue.
There are several polite ways you could raise the profile of this issue. It appears to us that many of the decision-makers are not even aware that there is a problem or that the problem is as dire as it is, so this is not a time to resort to name-calling or flame wars. Instead, consider some of these options for PACER activism:
Send postcards to the chief judge in your local federal district court and your regional circuit court. Send a simple message, something like:
Hi. I believe that public access to electronic court records is important, but that the current PACER system is not serving the public well. I’m writing to ask you to support the exploration of ways to reduce or eliminate many of the fees PACER charges. I also think fee exemptions should be easier to obtain for a broader group of individuals. I’d encourage you to read the blog posts by Free Law Project about this at http://bit.ly/pacer-1 and to reach out to them if you would be willing to work with them on improving public access. Thanks!
Click on this map to use a PACER feature that actually works fairly well if you’re not sure which is your local federal court.
Write to your members of Congress. Is one of your Senators on the Senate Judiciary Committee? Is your representative on the House Judiciary Committee? or is one of your Senators on the Homeland Security and Governmental Affairs Committee? This was the Committee that wrote that report about the E-Government Act of 2002 that said Congress wanted the Judicial Conference to move to “a fee structure in which this information is freely available to the greatest extent possible.” Write your members of Congress, whoever they are, and say something like:
Hello. I believe that public access to electronic court records is important, but that the current PACER system is not serving the public well. When Congress passed the E-Government Act of 2002 an accompanying Senate report stated that Congress wanted the Judicial Conference to move to “a fee structure in which this information is freely available to the greatest extent possible.” However, PACER fees have only increased since that time and there appear to be no meaningful efforts to make these public records freely available. I would urge you to call for public hearings on PACER to learn why no improvement has been made on this in the last 13 years. I would also recommend you read the blog posts about this by Free Law Project at http://bit.ly/pacer-2 that suggest other steps Congress should take. Thank you for your attention to this important matter.
You can find contact information for your members of congress by searching on OpenCongress.org.
Join our crowd-based effort to download PACER documents using RECAP. Carl’s memorandum also suggested a way to pursue direct action to free some PACER documents. PACER waives any fees that are under $15/quarter. So, Carl proposed that on May 1st a lot of people download $15/worth of documents and try to set a record day for PACER usage. Using your $15/quarter in “free” downloads is easy: You need to get a PACER account (credit card required), then you need to get the RECAP extension for either Firefox or Chrome. Do this now in the first quarter so you can make sure your setup is working. That way you know you’ll be ready on May Day. We’ve written up detailed instructions for participating. We’ve also set up a recap-reminder mailing list that will send you a reminder when each quarter is coming to a close, so you never forget to use your $15 credit to put more public documents into a free public archive.
Do whatever you do best!
Maybe you’re great at making videos or art or writing opinion pieces for your local newspaper. That’s awesome. Do those things. This is a people’s protest.
Make May 1 “Law Day” a National Day of PACER Protest
To give all these individual efforts greater collective impact, Carl has proposed that the people take back May 1st “Law Day” by making it a National Day of PACER Protest. So, whether you’re mailing a letter, delivering a postcard in person, or downloading $15 worth of PACER documents with RECAP, focus your activity on May 1st.
What Congress should do about the PACER Problem
Congress should amend the E-Government Act of 2002 to forbid the Judicial Council from charging PACER fees. While this is something of a “nuclear” option, it is actually the best option because almost nothing else would solve every aspect of the PACER Problem we wrote about in part one of this series. The elimination of fees obviously resolves the unreasonably high cost of public access, but it would also solve the user-interface, document-level search, and accountability problems that make up the PACER Problem. These problems would be solved as companies competed to innovate with the PACER data. Additionally, when multiple third parties have their own copies of the public record, there can finally be accountability since the Judicial Council would be unable to arbitrarily take thousands of documents offline.
A fundamental part of such a change in the law should include a commitment to provide the courts with the funding they need directly. It is not right for the courts to use a PACER surplus to fund unrelated needs. This should stop and Congress should open up the books and figure out the appropriate level of direct funding.
Congress should hold hearings on public access to electronic court records. Before any change to the law, Congress generally holds hearings, and hearings on public access to electronic court records are long overdue. The courts put out reports that make hard-to-believe claims about user satisfaction rates and present carefully-selected statistics to suggest that many members of the public are getting free access, but a hearing that actually included diverse perspectives on these topics should be eye-opening for Congress. Invite the legal technology startups, venture capitalists, and non-profits operating in this space.
Congress would learn that a system that is good enough for electronic filing is disastrous as a fee-based public access system and that this particular disaster is holding back an enormous amount of innovation, economic growth, and public good.
Congress should require greater financial transparency around PACER. At a minimum, Congress and the public deserve more information in order to evaluate PACER and its operation. Congress should insist on detailed financial reports and outside audits that would show annual PACER revenues, annual expenses actually tied to public-access-related operations, and amounts spent annually by federal government entities using PACER. Fee policies could be better evaluated if such reports also showed separately the revenue generated from searches, docket reports, and document downloads. Congress already has the authority to receive such information and simply needs to ask.
What the Courts should do about the PACER Problem
The Courts should eliminate numerous PACER fees immediately in order to eliminate the PACER surplus. As described in our second post, best evidence suggests that PACER fees generate far more revenue than it costs to operate PACER. This has created a surplus whose existence violates the E-Government Act of 2002 and thwarts clear congressional intent that the Judicial Council move towards making these documents free.
These fees could be dropped to eliminate the surplus: searches should be free, docket reports should be free, complaints should be free, and not just opinions, but all orders should be free. This would leave in place charges for motions, briefs, declarations, transcripts, exhibits, and numerous other documents found on court dockets. But removing the fees for these other types of documents would enable much greater public insight into the workings of our federal judicial system. It would be a huge step towards allowing the public and the press to “know what it doesn’t know.” Without a docket, one may not even know of a case, and without the complaint, one often does not know the case’s subject matter sufficiently to know whether it is of interest, and if one could search without fear of charge, then these items could be found. Finally, as we’ve stated many times, the decrees of the courts, through orders and opinions, are the law, and we have the right to inspect the law that binds us.
We also believe all documents in cases that have been closed for at least a year could be made free without a financial impact, but again, without better reporting from the Judiciary or Congressional oversight, we lack detailed statistics on PACER usage, making it impossible to know for sure what financial impact this would have. Comments from the Administrative Office of the Courts during the PACERocalypse certainly suggest that documents in these older closed cases are not frequently retrieved and so should not significantly reduce revenue.
The Courts should grant Public.Resource.Org’s Fee Waiver Request. Public.Resource.Org proposes an extremely worthwhile experiment in free bulk access to PACER. In addition to the value that would be had as a result of the privacy audit proposed, I believe the chief value of such an experiment will come from things we don’t now expect. That is, legal technologists will build remarkable things on top of this data that we currently don’t even know we want or would enjoy. Their prototypes built on the data from a few courts will help demonstrate what we’re missing out on by not opening up all the documents.
The Courts should publish reports that provide for greater transparency. The same reports that I suggest Congress should ask for, the Courts should simply produce on their own, without having to be asked. The courts should be leaders in operational transparency, instead of engaging in what looks like obfuscation to hide revenues that should have never been collected.
In the end, solving the “PACER Problem” will require help from the public, Congress, and the courts. The system has been in place for many years and allows for electronic filing fairly well, but when it takes on its alter ego of a pay-per-page public access system it becomes a devastating impediment to innovation in the legal technology space and thwarts the ability of the press and the public to ensure the proper functioning of our democracy. Start preparing to do your part to address the PACER Problem before, during, and after May 1st. We intend to keep at it until we tear down that pay wall.
This is the second of three short posts on PACER:
- What is the “PACER Problem”?
- Why Should Congress Care About PACER?
- What Should be Done About the PACER Problem?
There are several reasons that Congress should care about PACER:
- The Courts are ignoring the law that Congess passed. In our tricameral system of government, it is the Congress that holds the power of the purse. The E-Government Act of 2002 (P.L. 107-347) provides with respect to PACER fees that the “Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services.” So, they can only charge for public access services such as PACER if those fees are used to cover the operating expenses for those same services. In an accompanying Senate report, Congress noted that it “…intends to encourage the Judicial Conference to move… to a fee structure in which this information is freely available to the greatest extent possible.” 107. S. Rept. 174.
However, figuring out exactly how much revenue PACER generates and how much it costs to operate is such an overcomplicated task that only one person has ever tried to do it. In 2010, Steve Schultze, the then Associate Director of the Center for Information Technology Policy at Princeton, pieced together this information best anyone could from multiple sources and produced an analysis that suggests that annual revenue from electronic public access (“EPA”) services approaches $100 million while annual EPA operating costs are closer to $20 million. The enormous surplus is used to fund all manner of other court technology needs, such as flatscreen monitors for jurors and audio speaker systems in courtrooms.
In 2009, Senator Lieberman sent a letter to the Judicial Conference expressing dismay that seven years after the passage of the E-Government Act, “it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002.” Well, another six years have passed since then, and the situation has only worsened. The courts are simply ignoring Congressional intent and direction. One would like to quote the Court’s own words back to itself, when the Supreme Court wrote that, “Nothing can destroy a government more quickly than its failure to observe its own laws… If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Mapp v. Ohio, 367 U.S. 643 (1961).
- If you added up all the money federal government entities spend on PACER fees and just allocated it to the courts directly, then PACER could probably be free. The lawyers in most every federal agency use PACER too. The courts are sensitive to this and while they announced a fee increase for the rest of us back in September 2011, government users have been exempted from this fee increase, an exemption set to expire on April 1, 2015. When one imagines what the Department of Justice alone likely spends on PACER fees to look at documents that they themselves often created one has a perfect picture of government inefficiency. Congress should require the courts to produce a report showing how much each federal government entity spent annually on PACER for the last three years and then we could evaluate whether just reducing each federal government entity’s budget by a corresponding amount and allocating it to the courts directly for operating a free public access system might be a budget-neutral solution to the unreasonable burdens imposed on the public by the current fee structure.
- Congress wants to encourage innovation and nothing would spur the legal technology space more than opening up PACER. Addressing the PACER problem is a “good government” issue and hence a non-partisan issue. Congress has lousy public approval ratings right now and the perception is that they cannot collaborate to get anything done. Ensuring public transparency of the judiciary is something people of every political persuasion should favor, and so it presents an opportunity for Congress to claim an easy victory and accomplish something really meaningful. As the current stewards of RECAP, we are contacted on nearly a weekly basis by someone with a commercial interest in federal court records and the metadata contained therein, but they are all frustrated by the enormous cost and lack of machine-friendly interfaces of the current PACER system. If the courts made the bulk data freely available in a machine-friendly format, Free Law Project (and likely others) would work quickly to create APIs and other value-added services on top of this data that would do more to further the current burst in legal technology innovations than anything else government could do.
The expressed desire of Congress to make PACER information free is currently being (and has been for 13 years) ignored by the courts who are moving in the opposite direction, making the service more costly every few years. The federal government itself is inefficiently paying its left hand with its right, while allowing a system to continue that does not incentivize the courts to reduce their operational costs like a free public system would. Finally, Congress is missing a great opportunity to encourage an increasingly vital area of the economy. Congress should care about PACER and–in our next post–we’ll further outline what both Congress and others should do about it.
 To address a few potential counter-arguments, let me state some assumptions I make. First, I suspect the government entity usage of PACER amounts to at least 20% or at least $20 million annually and that a public access system for the federal courts could be operated and maintained for less than $20 million annually. It is in this sense that my proposal would be budget neutral. This would not include spending on the courtroom technology upgrades or whatever else the courts are doing with the PACER surplus, expenditures that I think the courts should make. I simply believe they should be made transparently, in an above-board manner, with express Congressional allocations for those purposes, and not on the backs of the public paying a per-page fee for public documents. I believe the courts are woefully underfunded in general, but believe that Congress should allocate them the money that they need.
In January of 2015, Carl Malamud of Public.Resource.Org posted a memorandum detailing problems with the federal PACER system that is supposed to provide Public Access to Court Electronic Records and outlining a three-pronged approach for addressing these problems this year.
More detail is available in the memorandum or in the video we made last fall, “Using PACER: What Could Possibly Go Wrong?”
However, this is the first of three shorter posts where we will try to address:
- What is the “PACER Problem”?
- Why Should Congress Care About PACER?
- What Should be Done About the PACER Problem?
What is the “PACER problem”?
As a result of various problems with the PACER system, the average member of the public has no meaningful access to federal court records. This is the “PACER Problem.”
These “various problems” with the PACER system include:
- PACER fees are too high, especially in the case of surprise charges for searches where the total charge for the search is not known until after you have incurred the charge. Using PACER’s search functionality is terrifying. You have no way of knowing what you will be charged until after you have incurred the charge. In my own experience, slight typos have cost me upwards of $50. Imagine using Google and paying based on the number of results that Google returns, where the number of results that might be returned are completely unknown in advance. On the internet, you could use a different search engine, but PACER is an absolute monopoly, so some times you have no choice but to search and cross your fingers. A system designed only for the wealthy, who have the luxury of having no regard for what use of the system might cost them, is not a public access system.
- The user interface is an inexplicable unusable disaster. (See our video for numerous examples.)
- There is no document-level search. Unlike modern search engines that index documents and return responsive documents to queries, PACER users can only search for a litigant’s name or by using an already-known case docket number. This makes the system utterly unusable for general purpose research. You cannot search for a general word or phrase, like “asylum” and hope to get back responsive documents. Instead one must already know the case one is looking for beforehand.
- There is no accountability. The courts recently took thousands of documents offline and after a public outcry and inquiring letters from members of Congress, the courts stated that they would put them all back online, but because no one but the courts has unhindered access to the system, no one can say what was taken offline and whether it was restored or not. As things stand now, fact-checking the courts on this is simply not possible.
So, again: As a result of various problems with the PACER system, the average member of the public has no meaningful access to federal court records.
There is no liberty without access to the law. The guarantees of the First Amendment require that the public and the press have meaningful access to court proceedings and documents. Having an open democratic society requires that the people be able to scrutinize public institutions to ensure their fairness, to enhance their quality, and to safeguard their integrity. We cannot accept a justice system we are prohibited from observing, because the watchful eyes of the public and the press are what diminish injustice, incompetence, perjury, and fraud. Meaningful public access is foundational to the functioning of good government.
We will address in a subsequent post what should be done about the PACER problem, but here we simply want to say: The PACER Problem is a problem of consequence that cannot be permitted to stand.
In Chief Justice Roberts’ End of Year Report there were some astounding figures about the size and scope of PACER, the Federal system for court filings. Among his figures was the fact that there are more than “one billion retrievable documents” in PACER:
— Mike Lissner (@mlissner) January 15, 2015
We believe that this means that PACER is the largest collection of public domain documents locked behind a pay wall. Having access to this information is vital to a functioning judiciary and we are working to break it open.
Public.Resource.org recently published an excellent memo outlining a campaign to retrieve from PACER more of its contents and to create pressure for it to be opened completely. The memo, which is worth a read in itself, defines a strategy of “litigation, supplication, and agitation.”
Today we’re announcing a plan that should help with the third part of the strategy: Agitation.
Here’s how it will work:
- Today, you sign up for our email list by filling out the form here.
- PACER provides a fee waiver for the first $15 that you spend each quarter. Near the end of each quarter, we will send you an email reminding you to download $15-worth of content from PACER, if you haven’t done so already.
- You install the RECAP extension and then use Think Computer Foundation’s Operation Asymptote to identify documents that are not already part of our free public archive.
- You download suggested items until you get close to the $15 fee waiver, then you STOP.
Our hope is that the administrators of PACER will notice an unusual usage of the quarterly fee waiver and that they will begin to feel pressure to open up the system. At the same time, since we are using the RECAP extension, we will be contributing all of this content to the public domain.
The more people we can get on board this project, the greater our impact will be.
In preparation for this plan of agitation there are four pieces of homework:
- Create a PACER account if you do not have one yet.
- Install the RECAP extension for Chrome and/or Firefox.
- Sign up for the email list so we can remind you when the time is right.
- Tell a friend!
Beyond a demonstration that many people care about these documents being free, we hope these efforts will actually make a substantial number of new documents freely available to the public.
Sign up today and let’s start agitating.
We rolled out a new feature today on CourtListener that allows you to stay up to date with court opinions and oral arguments as fast as we know about them. We’re calling it Real Time Alerts, and donors can start using this now by selecting “Real Time” in the rate drop down when creating alerts:
Once you’ve set up an alert with this rate, we’ll begin checking the hundreds of items we download each day and we will send an email as soon as a new item triggers your alert. Just like our other emails, once you get the alert, you can click directly on the results to read opinions or listen to oral arguments.
For journalists and other users with speed-critical work, it’s as simple as that to keep up with hundreds of courts. Let us know what you think!
Earlier this week somebody on the Internet pinged us with some code and asked that we integrate the data from the Supreme Court Database (SCDB). Well, we’re happy to share that less than a week later we’ve taken the code they provided and used it to upgrade CourtListener’s database.
The Supreme Court Database includes data for about 8,500 Supreme Court opinions from 1946 to 2013 and this first pass merges that data with CourtListener so that:
- Our copy of these opinions are enhanced with better parallel citations. You can now look these items up by U.S. Reporter (U.S.), The Supreme Court Reporter (S.Ct.), Lawyers’ Edition (L.Ed.) or even LEXIS citation (U.S. LEXIS). This should make our citation graph much more robust and should help people like Colin Starger at University of Baltimore that are doing great analyses with this data. Many of these items were screen scraped directly from the Supreme Court website meaning that for these items, this is the first time they have had proper citations. Here’s an example of the many parallel citations items now have:
- All Supreme Court Opinions from 1946 to 2013 have a new field that can be used by researchers to join them with the SCDB. This will allow the opinions from CourtListener to be merged with the items in SCDB to get any fields that we did not yet import (SCDB has dozens of fields!)
So, this first pass at a merge of SCDB and CourtListener accomplishes the immediate goals of adding more citations and of making it possible to join the two databases, but we have not yet imported all of the many fields that are included in the SCDB. We’re waiting to hear from the community before moving forward with any of the other fields so that we can learn which are valuable to our users. Depending on which fields people ask for, it should be easy for us to add them as needed. Be in touch and we’ll be happy to import further data.
Like many of our recent features, this enhancement was possible because somebody wanted our data enhanced, gave us a great prototype implementation, and asked for us to do the last little bit to deploy it on CourtListener. We’re happy to do so today and to release the best CourtListener data yet.
Starting today, as you use CourtListener you’ll see Quick Tips on the bottom of search results. They show up below search pagination and look something like this:
The idea behind this feature is to give people quick bits of information about Free Law Project, CourtListener, RECAP and any other projects that we create in the future. As of now we’ve seeded the tips with about 20 that we thought would be useful, but because all of our work is in the open, we’re welcoming our users to add tips that they think would be useful.
To add a tip you’ll need a Github account and some basic HTML skills. If you have these two things, you can wander over to the list of tips and submit some of your own. If they’re good, we’ll add them to the site!
Yesterday the impressive DC Legal Hackers group held their first annual Le Hackie Awards and Holiday Party. Although we weren’t able to attend the event (it was in D.C.), we’re proud and gratified to share that Free Law Project played a part in two of the top ten legal hacks of the year. The first was for our new Oral Arguments feature that we’ve been blogging so much about lately, and the second was for Frank Bennett’s Free Law Ferret, which he built using code originally developed for CourtListener.
Update: Turns out the Free Law Ferret was from 2013 and was not awarded a Le Hackie Award. Our mistake was to trust a slide from the presentation, which contained a typo.
— Matt McKibbin (@LibertyPanacea) December 4, 2014
Brian and I couldn’t be happier to see the legal hacking community grow and we’re humbled to be a part of it. So much fantastic work is getting done each year, and the legal arena is growing and maturing at a feverish pace. We hope that the DC Legal Hackers will keep up their great work and that next year the board will be plastered with even better hacks.
The past week has been a busy one for us and we’re excited to announce that thanks to a generous data donation we’ve added an additional 7,000 oral arguments to CourtListener. These files are available now and can already be searched, saved, and made into podcasts.
Although 7,000 more oral arguments may not sound like much, I must point out that these files are larger than your average MP3 and this has taken a week for our powerful server to download and prepare. Our collection now has more than 200 continuous days of listening – more than six months of audio.
From here on, we’ll continue getting the latest oral arguments from the Federal Appeals courts that offer them but we are eager for more donations so we can build up our archive. Oyez.org is doing an incredible job with the Supreme Court (and we hope to integrate these eventually), but if you know somebody in the federal appellate courts or if you have a collection of oral arguments you’d like to share, please get in touch! We’re eager to hear from you and to build the largest collection of oral arguments that we can.
It’s really hard to overstate the incredible nature of the open source community, but if you head over to CourtListener, you’ll find that between yesterday and today the entire website has been revamped. This was done over the past month by a volunteer developer who took time off work to give every single page in the entire site a fresh lick of paint.
On top of just plain looking better, the new site has a raft of improvements that we’re excited about:
- The entire site from top to bottom can now be used from your phone, tablet or desktop. Complicated pages will do the right thing to adapt to smaller or bigger screens. (Yes, we now use bootstrap.)
- The accessibility of the site has been vastly improved for people with motility or vision difficulties. Over the next few days we’ll continue rolling out improvements in this area that will trickle down even to keyboard-heavy users.
- Sharing pages on Facebook or Twitter and saving the site to your desktop on iOS, Android or Windows now works properly, with good titles, descriptions and meta data.
This post is supposed to be about the new version of the site, but I can’t help but gush about the open source community and the smart people that it attracts. For our part, we did a little bit of deployment work and a few design sessions, but this developer came in, fixed every page of the site and then gave us a new and beautiful version. That’s incredible and it’s something that we could never do outside of the open source community. It was also particularly nice that, thanks to geographic proximity, we got to have two in-person sessions during the process.
This update makes CourtListener ready for the next several years and modernizes the way it looks so that it feels right regardless of if you visit on your phone, computer, Playstation, or whatever. With thousands of people visiting each day, we couldn’t be more excited to provide this update.
Let us know what you think and if you’re interested in helping build the next feature like this one, get in touch! There’s always more work to do. We’d love to hear from you.