No more secret laws
by tdaxp ~ April 9th, 2009
Ars Technica has a great piece on an effort to bring America’s legal standard to the standard that Athens had thousands of years ago: allow individuals to know the laws that government their behavior.
The case against PACER: tearing down the courts’ paywall – Ars Technica
If you want to find out how the Obama administration is spending the stimulus money, you can go to recovery.gov for detailed spending data. Many executive branch agencies provide information about their activities via the government’s regulations.gov portal. And the Library of Congress has the Thomas system, which gives the public free, searchable access to information about the activities of the legislative branch. But the judicial branch is a conspicuous laggard when it comes to making public documents available online. Theoretically, public access to federal court records is provided by a Web-based system called PACER. Unfortunately, PACER locks public documents behind a paywall, lacks a reasonable search engine, and has an interface that’s inscrutable to non-lawyers.
Let’s hope Barack Obama makes ending secret laws a priority!
I think this is your...
April 9th, 2009 at 11:03 am
we use PACER all the time. it is a royal pain in the youknowwhat. but i think this is missing the point.
the court system already has an open docket system. anyone can go down to any courthouse in the country and look at any lawsuit that was filed, or any answer that was filed in reply. pretty much the same with criminal cases too. you can make a copy, for a small fee, of anything on the docket. any local newspaper reporter will tell you to do this.
PACER was originally established to allow the litigants to file things electronically, rather than serving three copies of every document every single time. so it was built for attorneys and clerks. it allows electronic service. then they decided, hey, why don’t we open this system up for anyone to search, not just the litigants?
so it didn’t evolve out of a freedom of information type policy, it evolved out of a paper elimination and cost reduction scheme the federal judicial system implemented to save on an already small budget. the small fee is to help keep the PACER system from being a budget killer, and just going back to triplicates of everything system we had before. and it is smaller than what you would pay if you went down to the courthouse yourself and made a copy (but you can still do that if you want).
nothing is really blocked behind a paywall… its just a convenience.
April 9th, 2009 at 11:09 am
Fed X.,
Thank you for your comment. I think it contains a couple inaccuracies.
The small fee allows PACER to have a profit margin far higher than most businesses that are not government monopolies. From the article:
Schultze is currently conducting a comprehensive audit of PACER documents, and he says his findings contradict the courts’ claim that all opinions are provided for free. Although most opinions are indeed provided for free, some courts have failed to provide any free opinions, and other courts provide free opinions only sporadically. The sporadic availability of such opinions, and the need to log into PACER in order to access them, makes them significantly less useful.
Schultze also questions the claim that the courts need to charge eight cents per page in order to cover the costs of running PACER and related services. Pointing to the 2006 annual report of the Judiciary’s Information Technology Fund, Schultze notes that PACER generated revenues of $62.3 million in 2006. In comparison, the courts reported spending just $11.6 million on its Electronic Public Access program (which includes the public PACER website), and another $16 million on court administration and case management, which includes the “CM/ECF” system used by lawyers to file documents with the court electronically. That suggests that the upper bound on PACER’s costs is $27.6 million, less than half of PACER’s revenues.
Likewise, the paywall helps to obscure information, prevent those with limited budgets from learning the law, and shields the law from critical or scientific analysis. From the article:
Paying eight cents a page is not a major burden for working attorneys, who can often pass these fees along to their clients. But the paywall is a major deterrent to members of the general public who access court records only occasionally and are likely to be intimidated by the system’s clumsy search tools. The paywall also makes it difficult for academics to perform comparative research on large numbers of court cases, and it makes it prohibitively expensive for third parties to improve access to the documents. Google, for example, can’t index or re-publish these documents (as it has done with the patent database) unless it is willing to pay millions of dollars in PACER fees.
If the concern was merely having a system that funded itself, then the fee should reflect the cost of adding information to the system. Simply creating torrent trackers to cases and allowing them to be downloaded and re-indexed by firms that would do the hard work of organizing, coding, and providing search functionality to the information (e.g., Google) would be much simpler.
April 9th, 2009 at 11:21 am
yeah, don’t get me wrong, i’m not in agreement with the fee, and if its higher than their costs, then it should be lowered. governments aren’t supposed to cash in on their monopolistic status (but lawyers do… so the govt’s lawyers sometimes forget!).
anyway, i’m all for making it free, or making it lower in cost, and i definitely think that academic usage should be free. but i’m just trying to say that from the courts perspective, PACER wasn’t really about freedom of information, it was about freeing up time for the judges.
the state courthouses represent an entirely different problem. almost all are still paper based, and the volumes are just unbelievable.
April 9th, 2009 at 7:28 pm
Fed. X.,
Thanks for the clarification!
I agree with you.
I was involved with a small law office’s attempt to be able to file bankruptcies eletronically, when the circuit’s regulations changed. The whole thing was an exercise in the changing whims of the local judge. It was a farce.
The ‘modernization’ succeeded in further weeding out competitors for the established firms able to jump through the arbitrarily changing hoops.