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Introducing Operation Asymptote
A suggested method for downloading the rest of PACER.

January 16, 2013

Asymptote Graph

Today I spent $46.90 to find out the answer to a question. I wanted to know how many cases Assistant United States Attorney Stephen P. Heymann has prosecuted in the District of Massachusetts during his entire career. I also wanted to know what those cases were about, who the parties involved were, which judges presided over them, and what happened in each of them. There were 73 cases I could find. So, to discover this public information about a public servant nominally protecting the public, it cost me (actually, it cost Think Computer Foundation) $46.90—and that's without downloading any of the actual case documents. Those would have cost hundreds more.

It did not cost $46.90 because providing that information required the United States Government to burn $46.90 in coal to power giant computers; use $46.90 of long distance telephone time to transmit data at 1200bps; or compensate a kid on a bike for 4.69 hours of pedaling at $10.00 per hour. It cost that amount because some bureaucrat and/or panel of judges in the Administrative Office of the United States Courts arbitrarily decided that it should. And they arbitrarily decided it should because they were looking at a graph with a lot of red ink, and they decided that must mean that Congress underfunds the courts (which I'm willing to admit it might). But then they further decided that such underfunding of the courts gives them a license to do anything they please, such as steal, to cover the shortfall—or maybe to cover the shortfall, and then some, where "some" is, you know, about $100,000,000.00 per year.

So, in effect, the Administrative Office of the United States Courts stole $46.90 of my money today. They might as well have walked into my house and took a few twenties off of my nightstand. They took that money because they have a budget issue to deal with and they also happen to know something that I want to know, but that they are not allowed to profit from by law. And they know all about that law because they are the Administrative Office of the United States Courts.

While I generally see the stealing of my money as a problem, it's personal now. Stephen P. Heymann played a very active role in the entirely unnecessary death of Aaron Swartz, who I liked and respected very much. In turn, I would very much like to educate Mr. Heymann, his colleagues at the United States Department of Justice, and his colleagues at the Administrative Office of the United States Courts about what Aaron could see that they most certainly could not: their own future.

The future is going to look a lot different at each of those institutions, and it's going to look a lot more like Aaron's vision of it than one they might choose for themselves. That's because aside from the fact that Aaron's vision matches the ideals of the founders of this country, I'm going to make it my personal mission to see it come to light. But I'm not stopping with the technology grants. At the very least, I want every U.S. Attorney and AUSA's full career as a prosecutor available to the public to examine in its entirety. Because what's even scarier than an abusive prosector is an abusive prosecutor who becomes a judge. (And guess what many of our judges did before they were judges?)

Aaron saw a future where the justice system was transparent. So let's start with Heymann. When information is transparent, it's much easier to make informed decisions, such as whether or not an Assistant United States Attorney might have abused his prosecutorial discretion earlier in his career. Regardless of whether or not any one AUSA has, as an official representative of the United States of America in a decidedly non-clandestine role, what that person does in a professional capacity should be subject to public scrutiny every bit as much as what the Attorney General does, especially given that unlike many government employees, an AUSA has the power to unilaterally destroy a life, as Aaron so visibly proved.

Aaron also could see the flaws in systems on a larger scale. I never talked to him about this particular flaw, but I'm pretty sure he would find it of interest now. Because as it is currently designed, PACER has a pretty big flaw.

I'm not talking about a technical flaw. It's the same kind of system design flaw that allowed Aaron to download about a fifth of PACER's contents in 2008. The courts are forced (by Congress) to grudingly acknowledge that not everyone is rich enough to afford a lawyer, so in very limited circumstances, it is legal to use PACER for free.

This is why I am introducing Operation Asymptote: an initiative to take full advantage of those very circumstances. Participating requires the following:

  1. You must have five minutes.
  2. You must have a valid credit or debit card, even though it will not be charged.
  3. You must have a computer with internet access that can run Firefox.
  4. You must have a PACER account.
  5. You must have the free RECAP browser extension.

Once you've done all that, you can use the free Operation Asymptote tool on PlainSite to help you figure out what to download, and so long as you download no more than $15.00 worth of PACER materials per calendar quarter, your card will not be charged. That's it.

Of course, the courts won't be happy about it. PACER's home page for many districts is a wall of frightening disclaimers, one of which is about using RECAP as a "fee-exempt" user. Don't be fooled.

As far as I can tell as a non-lawyer who, for the record, is not providing anyone with legal advice by discussing any of this (if you have questions or doubts, talk to a lawyer), the court must provide information on its activities (other than those under seal) to the public, and it cannot discriminate against any portion of the public when providing that information. That means the court can't say, "if you have blue eyes, you are not authorized to access our public information." Nor can it restrict how public information is used or redistributed after it has been obtained. So, for example, the court also can't say, "if you are going to a town hall meeting after this, you can't have our public information—but going to a school to study it is okay."

By stating, "Therefore, fee exempt PACER users must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work," that is exactly what the court is doing, and it's probably against the law. Of course, that's no surprise, because this whole situation is against the law.

The disclaimer is flawed in other ways, as well. It's not clear who "fee-exempt PACER users" even are because users do not know ahead of time whether they will or will not be fee-exempt. Exemption depends on usage. Users who just go over the $15.00 threshold by a penny are not required to somehow "return" $15.00 worth of data.

In addition, while the scary disclaimer states, "Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court," the PACER home page clearly states, "By Judicial Conference policy, if your usage does not exceed $15 in a quarter, fees for that quarter are waived, effectively making the service free for most users," which means that data transfer as the result of a fee exemption is expressly authorized by the court!

Does this make any sense in the first place as a program designed to help impoverished litigants? Of course not. Only those who are lawyers or somehow involved in litigation sign up for PACER, and those people can easily hit $15.00 of usage almost immediately. Poor people caught up in the court system frequently don't have credit and debit cards. They also often don't have computers or the skills to use them, and they certainly are not about to master the absurd user interface that is PACER to do legal research if they do.

I've already sent the courts (and my Congresswoman) a very polite letter, and they've already explained why they plan to ignore it. I could write letters all day, but I don't think they're listening. So join me in sending the courts a different kind of message. They want to play a game with taxpayers (by taxing us twice and threatening us into submission), so let's play. No laws need be broken. Just follow the directions, and we'll get that other 80% of PACER sooner than you think. And it literally won't cost a dime.

Aaron Greenspan is the CEO of Think Computer Corporation and author of Authoritas: One Student's Harvard Admissions and the Founding of the Facebook Era. He is the creator of the FaceCash mobile payment system, ThinkLink business management system, and PlainSite legal transparency project.

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1

Brandon Anzaldi (http://brandonanzaldi.com)
January 17, 2013 at 1:44 PM ST

I think this is a brilliant idea. Finish what Aaron started. He deserves something in his memory. It won't bring him back, but it will bring some of his ideas to life.


2

John Hawkinson
January 20, 2013 at 11:03 AM ST

"Fee-exempt" PACER users are not people who use less than $15/month. That is not what it is about. Fee-exempt PACER users are those who have petitioned a particular court for free access to that Court "to avoid an unreasonable burden and promote public access to such information." See http://www.pacer.uscourts.gov/psc/hfaq.html#GP18.

While it's not super-clear under what circumstances such a fee exemption is granted (perhaps if you are a pro se litigant who is indigent, or maybe if you are a news reporter covering a case with voluminous filings), I believe it is clear that language does not apply to those who have not explicitly petitioned a specific Court for a fee waiver.


3

Chris Field
January 23, 2013 at 1:59 AM ST

Though one should assess the risk for themselves, I ultimately concluded for myself that the PACER policies that restrict "fee-exempt" users from transferring PACER data don't apply to "regular" users. For "regular" users, PACER's FAQ is unequivocal: "The information gathered from the PACER system is a matter of public record and may be reproduced without permission." [1]

The Judicial Conference of the United States determines the PACER fees. Contrast the Judicial Conference references to a "fee waiver" available to all individual account holders [2], [3], [4] with references to a "fee exemption," [5], [6] which the PACER FAQ clearly says can only be granted by a court after making the required findings upon motion by the party seeking fee exemption exemption. [7]



**SOURCES**

* [1], [7] from PACER Frequently Asked Questions at http://www.pacer.gov/psc/faq.html

* [2]-[6] from Reports of the Proceedings of the Judicial Conference of the United States at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings.aspx

[1] Pacer FAQ: "What are the acceptable uses of the data obtained from the PACER system?
The PACER system provides electronic access to case information from federal courts across the United States. The information gathered from the PACER system is a matter of public record and may be reproduced without permission. However, the PACER user assumes all responsibility for consequences that arise from use of the data."

[2] March 14, 2001: "no fee … [will] be owed until an individual … accrue[s] charges of more than $10 in a calendar year. … providing a basic level of public access consistent with the services historically provided by the courts."

[3] March 16, 2010: "In order to encourage use of … PACER … by the public, … users [will] not be billed until their accounts total[s] at least $10 in a one-year period. To increase the amount of data available without charge … users [will] be allowed to accrue $10 in free usage quarterly, instead of yearly, before they [will] be charged."

[4] September 13, 2011: "… the current waiver of fees of $10 or less in a quarterly billing cycle be changed to $15 or less per quarter so that 75 to 80 percent of all users would still receive fee waivers"

[5] September 23, 2003: "exemptions to the fee are only to be given upon a showing of cause, are limited to specific categories of users, may be granted for a specific period of time, may be revoked at the discretion of the court, and are only for access related to the purpose for which the exemption was given."

[6] March 15, 2011: "The Electronic Public Access (EPA) Fee Schedule provides for exemptions … upon a showing that an exemption is necessary to avoid unreasonable burdens and to promote public access to information. … [T]he Conference approved, a modification of the EPA fee schedule to include the following sentence: 'For individual researchers, courts must also find that the defined research project is intended for academic research purposes, and not for commercial purposes or internet redistribution.'"

[7] Pacer FAQ: "Can the user fees be waived?
Exemptions from user fees are uncommon. A court may, for good cause, exempt persons or classes of persons from the electronic public access fees, in order to avoid unreasonable burdens and to promote public access to such information. This language is intended to provide a mechanism by which a court may, upon appropriate demonstration of need, grant an exemption from fees for the use of electronic access to court data.

The appropriate procedure by which a court may consider the grant of an exemption from the fee is upon motion by the party seeking exemption from the fee. The motion should demonstrate the basis upon which the party claims such exemption. The standards established by the Judicial Conference are: to avoid unreasonable burdens and to promote public access to such information. A party must demonstrate that both standards have been met in order for a court to grant an exemption from payment of this fee.

The exemption of PACER fees will only apply in the jurisdiction that issued the order. PACER usage in other courts will be subject to public access fees unless similar exemptions are granted in those jurisdictions as well."

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