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May 1 Named National Day of PACER Protest
Posted On April 21, 2015
Advocates for free access to legal information on the internet have proposed May 1 as the National Day of PACER Protest to encourage the federal courts to remove cost barriers to a wealth of information from the nation’s courts. PACER (Public Access to Court Electronic Records) is a service of the Administrative Office of the United States Courts’ Public Access and Records Management Division. It allows access to most of the documents that are part of litigation filed in the federal trial and appeals courts. This access, however, comes at a cost and has a user interface that one critic describes as “an inexplicable unusable disaster.”

The National Day of PACER Protest is the brainchild of Carl Malamud, president and founder of Public.Resource.Org (a nonprofit organization that advocates “Making Government Information More Accessible”). In its 8-year history, the organization has led several efforts to increase access to government information, including one of the first efforts to collect and digitize legal opinions from the federal courts. This resulted in $2 million in seed funding from Google and played a part in Google Scholar’s continuing digitization of court cases. Other Public.Resource.Org projects have included Yes We Scan, an effort to scan document collections from both federal and state governments, and FedFlix, a joint venture with the National Technical Information Service (NTIS) to digitize and upload film and video archives from various federal agencies.

The ‘Analog’ Days of Court Research

The PACER protest arises out of increasing frustration with the availability of information from the federal courts. Both the U.S. Constitution and federal law require that courts operate publicly, making trials and records of court cases open to the public. While limitations occasionally may be imposed to close court sessions and seal records related to particularly sensitive matters—such as those involving children, abuse victims, domestic situations, and mental health issues—most of the documents filed in court proceedings, as well as other court information, have been considered public records.

In the “analog” days, accessing those records meant a trip to the courthouse and to the clerk’s office to request and inspect a specific file. It might contain a wide variety of legal documents, including the complaints filed by plaintiffs and the answers filed by defendants, motions and discovery requests, court orders, and opinions. Journalists often use these records to track the status of important local trials. Consumer advocates might use them to identify unscrupulous businesses through their history of suing or being sued. Scholars often use them to look for litigation trends, such as tracking so-called patent troll lawsuits.

PACER in many respects is modeled after the analog system. It was established in 1988 as a means of providing electronic access to court records—originally through dedicated terminals—and it has used the web since 2001. PACER also has a companion service called Case Management/Electronic Case Files (CM/ECF). This system is used by lawyers to file their litigation documents electronically rather than file in person at the court clerk’s office. Much of the content available through PACER comes from documents filed through the CM/ECF system.

Problems With PACER

In many respects, using PACER still mirrors that original trip to the courthouse. Its search engine is very limited. There is a case locator for identifying cases by name, but to use it, you often must know the court, the full names of the litigants, and occasionally even the docket number assigned to a particular case. You cannot do searches by keyword or subject (for example, to find all cases in which copyright’s Fair Use doctrine is an issue), and once within a case file, you cannot do keyword searches to identify particular documents that might be relevant to your needs. PACER will provide a “history” that lists all the documents associated with the case, but they are often identified by cryptic or legalistic titles, which usually requires reviewing each document to see if it is relevant.

This leads to another major criticism of PACER: It’s not free. While the limited searches are free, and selecting a particular case file is free, opening up any document—even the history to see the links to the individual documents—requires a fee of 10 cents per page for most documents. The charge applies whether pages are printed, viewed, or downloaded. While individual documents are capped at a $3 per document (30 pages) maximum, it does not take much time to rack up a significant level of search charges. Users must also register for PACER accounts and provide a credit card for billing. PACER does, however, waive fees if the usage on the account is less than $15 per quarter. If the usage is more than $15 per quarter, the full fees are assessed.

The Administrative Office of the United States Courts asserts that the fees are necessary to pay for the costs for administering PACER, but critics say that the revenue generated by the fees exceeds the operating costs. They also point out that lawyers do not pay any fees to file their documents electronically through the CM/ECF system. (Lawyers may be required to pay court costs for certain documents or to initiate a lawsuit, but those are applied by individual courts and would be in effect regardless of whether documents are filed electronically or through the court clerk’s office.)

Protesting PACER Using RECAP

A brief pilot project in the late 2000s to allow free access to PACER through selected libraries ended in controversy when the late activist Aaron Swartz downloaded nearly 20 million pages of documents. The program was “suspended” but has yet to be renewed. The New York Times reported that the FBI was called in to investigate what was termed as a “compromise” to the “security of the Pacer service. …”

The 20 million pages were uploaded to the Internet Archive and became the core of a project known as RECAP. Users can search the RECAP database at the Internet Archive to see if the federal court documents they need are already uploaded. If not, and users must access and pay for the documents from PACER, a custom extension to the Chrome and Firefox browsers allows them to upload their PACER documents to RECAP (notably, RECAP is PACER backwards) to expand the database content for future users.

The National Day of PACER Protest encourages people—both individually and as part of community organizations, law school student groups, and similar assemblies—to download PACER documents and upload them to RECAP. To participate, people would need to sign up for a PACER account in advance, but if they avoid downloading more than $15 worth of documents, the fees will be waived. In theory, if 10,000 people download $14.90 (or 149 pages) worth of documents, then nearly a million and a half pages of documents will be added to RECAP (potentially more if people carefully select large documents subject to the $3-per-document cap). Public.Resource.Org also encourages people to write to local federal court judges and to their congressional representatives to promote an updated and free PACER service.

In 1958, President Dwight D. Eisenhower declared May 1 to be Law Day as a means of reflecting on the “ideals of equality and justice under law” (Title 36, Section 113 of the U.S. Code). In selecting May 1 as the National Day of PACER Protest, Public.Resource.Org says that “[f]reeing PACER fits very well into those themes … that our courts must function in the light of day. …”

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. He teaches legal research, intellectual property, and privacy courses at the School of Law in both the J.D. and Northwestern’s innovative Master of Science in Law program. Prof. Pike is a frequent lecturer on issues of First Amendment, copyright, and Internet law for library and information professionals. He is also a regular columnist and writer for Information Today, publishing a monthly column on legal issues confronting information producers and consumers. Previously, Prof. Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Prof. Pike received his B.A. degree from the College of Idaho, his law degree from the University of Idaho, and his Masters in Library Science from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

Email George H. Pike

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