It isn’t surprising that courts aren’t necessarily state of the art when it comes to electronic documents, but it’s gotten worse.
First, some background. Public Access to Court Electronic Records (PACER) is a database that was developed by the Administrative Office of U.S. Courts (AO) in the early 2000s to store electronic copies of documents from federal appellate, district, and bankruptcy courts. PACER is, to put it kindly, outdated. (Or, if you’re being less kind, “is a deeply dated system that already does too little and charges too much for online access to things like judicial orders and court briefs,” writes David Kravets of ArsTechnica.)
Another common complaint is that PACER charges for what are essentially public records: 10 cents per page, including per page of search records and per page of docket filings. In other words, if you don’t phrase your search query carefully, your wallet can end up in a world of hurt.
PACER has always had its share of critics; it’s the legal document system people love to hate. But on August 10—when PACER mentioned on its website that the records from the US Courts of Appeals for the 2nd, 7th, 11th, and Federal Circuits, as well as the Bankruptcy Court for the Central District of California, would no longer be stored in the database—those critics got especially cranky. People didn’t want access to documents to go away.
For example, the Federal Circuit has now lost electronic access to all US Court of Appeals cases filed before March 1, 2012. Those cases include patent appeals and veteran’s claims. A number of significant cases were deleted, according to the BBC, the records of which would now be available only to people who traipse to the appropriate courthouse to pick them up in person.
Why the change? The judiciary’s electronic case file system was being updated, and the legacy files were no longer compatible with the new system, so out they went.
Some people took exception to this, suggesting that even if the records couldn’t be made compatible with the new system, the AO should have given prior notice so that people could have come up with a plan B for making the documents available electronically.
In fact, ideas for making PACER records freely available were already underway. In one case, the Government Printing Office experimented with providing free PACER access to 17 courts across the U.S. Then Internet hacktivist Aaron Swartz used one of those courts in Chicago to systematically download what he estimated to be 4TB of data. This would have cost $1.5 million if the system wasn’t free—and that realization caused the GPO to shut down the experiment. The data Swartz collected also became the basis for RECAP (PACER backwards, get it?), a joint project of the Center for Information Technology Policy at Princeton University and the Free Law Project. This involved putting a small Firefox application on a computer, so that any PACER records downloaded on that computer were copied to the Internet Archive, where they are available to anyone for free using a browser.
Were Swartz’ actions and the creation of RECAP legal? It’s hard to say. The PACER system FAQ explicitly reads, “The information gathered from the PACER system is a matter of public record and may be reproduced without permission,” though the Privacy and Security screen of the PACER system also reads, “Any attempt to collect data from PACER in a manner which avoids billing is strictly prohibited and may result in criminal prosecution or civil action.” On the other hand, notes the Washington Post, “Technically, the data isn't being collected from PACER but by RECAP users.”
At first the courts themselves suggested that attorneys shouldn’t depend on RECAP files, saying there were various security concerns, but later said that RECAP was permissible. Even RECAP supporters admit, though, that it has only a fraction of the documents in PACER.
Critics also note that PACER’s set up is inefficient. These days we’re accustomed to having giant cloud databases that everyone shares, but PACER actually consists of some 200 separate databases, each individually maintained by its courts. That is inefficient and expensive, critics point out, adding that storage standards aren’t consistent across those individual databases.
Even if you agree that PACER should charge for its services—and not everyone does—critics also complain that PACER raises far more money than it costs to run, with the rest of the money being used as a technology slush fund by the courts.
What’s going to happen now? Senator Patrick Leahy (D-VT), Chairman of the Judiciary Committee, wrote to Judge Bates, the Administrative Officer of the Courts urging him to put the documents back online. In response, the AO said it will convert the appellate court records to PDFs—although it’s unclear whether the PDFs will be image only or searchable text—and that the records should be back online by the end of October. As for the bankruptcy court in California, they’re “working on it,” David Sellers, assistant director for public affairs at the AO, told the Washington Post. Of course, none of this does anything to address PACER’s systemic problems, notes the technology news and analysis web site GigaOm.
Assuming the AO makes the end of October deadline, and finds a solution for the bankruptcy court, critics are calling this a missed opportunity. A number of organizations—such as the Free Law Project and Public.Resource.Org—have already offered to host the documents for free, and they presumably could be incorporated into the existing RECAP system—which might already contain backups of at least some of the files. Since the PACER system no longer included them, the excuse of competition would no longer apply, writes the Electronic Frontier Foundation. “The restoration of access to these records through PACER is therefore coming at a significant lost opportunity cost,” the organization writes on its website. “The AO once again has a fee-driven excuse to obstruct free access, and no incentive to facilitate free access.”
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