A Sad Irony: The Federal Judiciary's PACER Pricing Is Illegal
The price of public access may finally be too high.
January 13, 2013
Most people have never heard of PACER, and those who have might not have heard of it prior to the press coverage surrounding Aaron Swartz's untimely death on January 11th. PACER is the federal judiciary's database of all federal court cases. It includes information on civil, criminal, and bankruptcy cases. All of the information in PACER is public.
But it is not free. That is why Aaron was trying to download it—because he was savvy enough to understand the importance of access to information in the justice system at a remarkably young age, without being a lawyer—and because the Administrative Office of the Courts never suspected that someone like him would take incredible advantage of a short trial period in 2008 when the per-page pricing suddenly dropped to zero at a few locations nationwide.
Since Aaron's brilliant stunt, which immediately ended that trial period and earned him an FBI investigation as a badge of honor, the price of PACER access has risen to ten cents per page. Ten cents doesn't seem like much, but when you consider that an average court case consists of thousands of pages of text in PDF files, those dimes add up rather quickly. When you further consider that in the course of prosecuting one's own court case, one must refer to many, many other cases because of the nature of legal precedent, legal research can suddenly cost thousands of dollars—and that's without even hiring an overpriced lawyer.
The fact is that for the past two decades, the legal profession has very successfully insulated itself from the change that the internet has wrought on the rest of the world economy. Excepting a few professors at law schools, lawyers are not computer savvy people by and large. Most lawyers turn to outrageously priced, subscription information services such as LexisNexis, Westlaw, and Bloomberg Law to get their case information. Those services simply compile data from PACER and mark up the cost, which ultimately gets passed on to clients, who pay even more. In other words, most lawyers love PACER because it helps them make money—or they just don't care either way. Meanwhile, the public is harmed as the cost of litigation soars, and key legal arguments are priced out of reach (especially for pro se plaintiffs who represent themselves).
In 2002, Congress realized that this was a real problem, and it passed the E-Government Act of 2002 (Public Law 107-347) accordingly. The Act did a few things, but among them, § 205(e) amended a note attached to 44 U.S.C. § 3501:
(e) COST OF PROVIDING ELECTRONIC DOCKETING INFORMATION.—Section 303(a) of the Judiciary Appropriations Act, 1992 (28 U.S.C. 1913 note) is amended in the first sentence by striking "shall hereafter" and inserting "may, only to the extent necessary, ".
This rather cryptic statement actually represented a huge change. Effectively, it modified another note, attached to 28 U.S.C. § 1913, to say that the court's price for information access was required, by law, to go down to the court's cost of providing that information only. The relevant section of the modified note read as follows (and still does today):
(a) The Judicial Conference may, only to the extent necessary, prescribe reasonable fees, pursuant to sections 1913, 1914, 1926, 1930, and 1932 of title 28, United States Code, for collection by the courts under those sections for access to information available through automatic data processing equipment. These fees may distinguish between classes of persons, and shall provide for exempting persons or classes of persons from the fees, in order to avoid unreasonable burdens and to promote public access to such information.
Princeton University CITP Director Stephen Schultze and his colleague, Harlan Yu, were aware of this situation, so they studied it. What they found was this:
"We examined the Courts' budget documents from the past few years, and we discovered that the Courts claim PACER expenses of roughly $25 million per year. But in 2010, PACER users paid about $90 million in fees to access the system."
There are two glaring problems with this picture. The first is that basic arithmetic reveals $90 million to be $65 million more than "the extent necessary" to run PACER, which makes the pricing, by definition, illegal. The second problem is that PACER apparently costs the government $25 million to run, and that was in 2010. Since then, revenues are way up.
Not surprisingly for government IT projects, PACER looks like most web sites did around 1994. It's actually not one web site at all, but more like one hundred, spread across different court districts and circuits in the country. The district-level courts each have their own custom version because judges demand custom features, and no one can refuse their demands. The appellate-level courts have an entirely different and separate infrastructure, written in a different language. (Technically-inclined readers, it's a Java applet. But really twelve different Java applets, depending on the circuit. No joke.) The Supreme Court, which can do whatever it wants, opts out of PACER entirely. Each level of PACER has separate login requirements, not to mention that PACER is separate from CM/ECF, an unbelievably badly-named system that actually lets you file documents, but under a separate login. What this means is that it is essentially impossible to follow a case from court to court, and if you even try, it is very, very expensive.
Any startup could design a system better than this for $10,000. (For a frame of reference, PlainSite, which is roughly as complex as PACER, has cost Think about $1,000 so far. (It hosts over 30GB of data from PACER and the Supreme Court and the United States Patent and Trademark Office and the IRS.) But the courts, which complain of being broke, apparently prefer to spend $25 million or more per year on PACER instead of trying something new.
The Administrative Office of the Courts and my Congresswoman, Anna Eshoo, claimed that everything was just fine (and apparently, free!) when I wrote them about the situation last year. I suppose they are right—a system in which the courts have been breaking the law for nine years with only two people (and Senator Lieberman) noticing could be called "fine" if no one really cares. But now that someone's life has ended due to a ridiculous prosecution with its real roots in this very issue, in which the prosecutors were in league with an institution clearly breaking the law by stealing from the public on a daily basis, it hopefully seems a little bit less "fine" to everyone.
Aaron Swartz wanted PACER to be open because it should be. And he's not the only one who thought so. Congress thought so, too. Maybe it's about time to enforce the law, and take the judiciary to task. For a page, ten cents and a life is just too much.
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.
Michael OKane (http://www.alandaluslaw.com)
January 14, 2013 at 2:17 AM ST
There are a couple of factual errors in this post:
"When you further consider that in the course of prosecuting one's own court case, one must refer to many, many other cases because of the nature of legal precedent, legal research can suddenly cost thousands of dollars—and that's without even hiring an overpriced lawyer."
Aaron misunderstands the nature of legal research. Legal research is done at the appellate level. In the course of prosecuting a case, legal research is necessary, but you won't be conducting legal research with PACER--it's not that kind of system. District court cases are not precedential with respect to other district court cases and it is rare that there is a usable opinion deciding the case. At the appellate level things are different, and there are both free and paywalled systems containing those precedents, such as Google Scholar (free) and Lexis/Nexis (paywall).
Putting aside legal research, it is not impossible to follow a case from court to court. Upon filing a notice of appeal, a district court case will be given an appellate court number which can then be followed on the appellate court's version of PACER.
I agree with much of what is written here but these errors detract from the main argument.
Aaron Greenspan (http://www.aarongreenspan.com)
January 14, 2013 at 3:59 AM ST
From what I've seen, research is done at all levels, though the higher the level, the more likely the citation. For example, district judges like to cite other district decisions in their same courts for routine boilerplate, such as the conditions when a 12(b)(6) motion is appropriate.
I have conducted legal research with PACER multiple times in the course of handling litigation. One key time was when I had to look up ALA v. Pataki--a district decision--which has key implications in the FaceCash case because it deals with the right of states to regulate the internet. It never got to the appellate level, but it's the law of the land now. So I would disagree with your statement that "district court cases are not precedential," because they sometimes are. Many other times I wanted to see how particular motions were drafted in other cases (having never written them before), which is something that you can really only do if you have access to the PDFs of the motions themselves.
Google Scholar does not contain district case dockets or documents at this time, though it is a great resource. LexisNexis is barely usable for novices, expensive, and simply not a realistic option for many people involved in litigation who aren't lawyers.
Even though appellate courts obviously track cases with numbers, those cases are not directly linked from PACER such that you can follow a case backwards or forwards with one click. I've used these systems pretty extensively. I stand by what I wrote.
January 14, 2013 at 4:55 AM ST
This is a really serious issue and I'm glad that this issue was here for me to read. I'm from Missouri were we have more prisons than any other state. Ironic that they would rather build prisons around here than schools or libraries. Making Pacer open would probably help the citizens of Mo and every other state. I believe in order to make a more productive country we should start by making Pacer accessible to the public.
Terrence Kevin Oleary
January 14, 2013 at 9:55 AM ST
Thank you for this. And thanks to Think for creating PlainSite and proving that government can be disrupted as effectively as industry.
January 14, 2013 at 10:58 AM ST
Interesting article. One question I have, is there anything that would prevent trying to crowdsource this problem? If you pay for x number of pages, can another site repost those pages and provide them for free to other users?
January 14, 2013 at 12:10 PM ST
I suggest you check out the Recap Firefox Plugin. In addition to many other features: "As you browse PACER, RECAP will upload docket files and PACER-downloaded PDFs to the Internet Archive for others to download. This happens transparently and adds nothing to your PACER fees. You will see a small notification box after each upload, which you can turn off if you wish. By simply installing RECAP, you are contributing to this growing public domain legal library."
Paul Reinheimer (http://blog.preinheimer.com)
January 14, 2013 at 12:12 PM ST
@Allen take a look at Re-Cap, it was designed with that in mind
January 14, 2013 at 3:08 PM ST
PlainSite may be as complex as PACER if you only count the web site, but doesn't PACER have to scan in hard copy documents gathered from all around the country? Even if someone else does the digitizing, building the original database from diffuse sources is a lot more work than just hosting a comprehensive database created by someone else.
Also, PlainSite could not possibly have cost only $1000. Even if it cost $1000 in labor to have someone build the site (which seems quite low even for a simple searchable archive -- certainly, the going rate for web design is more than that), there are hosting/hardware costs as well.
I absolutely do think PACER should be free, but you're overstating your case here.
Aaron Greenspan (http://www.aarongreenspan.com)
January 15, 2013 at 1:58 AM ST
I think you may misunderstand. PACER does not do any scanning--all documents must be submitted in PDF format (sometimes by lawyers or litigants who scan them in themselves if they are not natively digital documents).
PlainSite is a lot more than just PACER copied and pasted into another database. Building it required an incredible amount of data parsing, merging, separation, and transformation--actions that should have happened at the official government level but never did. Those routines were then abstracted and applied to the other databases that PlainSite pulls from (almost ten different ones now).
The biggest expense for PlainSite was the $400 needed to purchase two 2TB hard drives. It runs on servers Think already had in a data center that Think already used. I volunteered my labor. Occasionally, we get charged about $100 for bandwidth overages. That's it.
January 15, 2013 at 8:25 AM ST
"It [a district court case] never got to the appellate level, but it's the law of the land now."
No, it is not. It is not even precedent, only "stare decisis" (applicable to the particular set of facts in the case), and some court's opinion on the law- which another judge may or may not choose to follow.
January 15, 2013 at 9:59 AM ST
You bring up a good budget issue but as far as legal research goes appear not to be very versed in how to do it. Lexis and other databases compile reporters, not PACER. The wholly false nature of some of your facts detracts from your point, making people doubt your other facts which would take time to verify. Thus, more people who have clerked or done significant appellate work are less likely to believe the facts you state which they don't immediately know. If you would clean it up and do some proofing on the ones with which you made assumptions this would be a great WSJ article. And timely too considering Aaron's passing.
January 17, 2013 at 7:00 AM ST
It is unclear that the funding stream is illegal. First, the authorization which you cite can be overridden by a given year's appropriation. I haven't checked theirs, but it should be stated whether or not this provision is active. They may also have other provisions in their authorizing or appropriations language which gives them the authority to transfer, retain, or otherwise direct classes of funds such that these uses are not inappropriate. I gather elsewhere that these data points were in part from conversations with congressional appropriations staff. They are not necessarily lawyers and are almost certainly not appropriations lawyers, so their opinion on the legality is only relevant as far as folks don't want to piss them off.
More importantly, I can't understand the $25m from the information here. When they reviewed budget documents, does that mean accounting system costs totaled that amount, or does it mean the budget request totaled that amount after accounting for the estimated $90m? The difference is that they may have been looking for the increment that was over and above the $90m. For instance there may be costs not attributable to any individual, and that they'd prefer not to allocate out for some reason. Or that may be the amount associated with exempt classes of people, such as pro se litigants. Put another way, is the cost of PACER $115m, or $25m?
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