[okfn-discuss] Firefox Plug-In Frees Court Records, Threatens Judiciary Profits

[kimo]

Removing the paywall barrier to court data


http://www.wired.com/threatlevel/2009/08/firefox-plug-in-frees-court-records-threatens-judiciary-profits

<http://www.wired.com/threatlevel/2009/08/firefox-plug-in-frees-court-records-threatens-judiciary-profits>
Firefox
Plug-In Frees Court Records, Threatens Judiciary Profits

   - By Ryan Singel [image: Email Author]  <ryan at ryansingel.net>
   - August 14, 2009  |
   - 2:07 pm  |
   - Categories: The
Courts<http://www.wired.com/threatlevel/category/the-courts/>
   -

 [image: pacerhdr_cropped]<http://www.wired.com/images_blogs/threatlevel/2009/08/pacerhdr_cropped.gif>Access
to the nation’s federal law proceedings just got a public interest hack,
thanks to programmers from Princeton, Harvard and the Internet Archive, who
released a Firefox plug-in designed to make millions of pages of legal
documents free.

Free as in beer and free as in speech.

*The Problem*: Federal courts use an archaic, document-tracking system known
as PACER <http://pacer.psc.uscourts.gov/> as their official repository for
complaints, court motions, case scheduling and decisions. The system design
resembles a DMV computer system, circa 1988 — and lacks even the most basic
functionality, such as notifications when a case gets a new filing. But
what’s worse is that PACER charges 8 cents per page (capped at $2.40 per
doc) and even charges for searches — an embarrassing limitation on public
access to information<http://www.wired.com/politics/onlinerights/news/2008/12/open_pacer>,
especially when the documents are copyright-free.

*The Solution*: RECAP <https://www.recapthelaw.org/>, a Firefox-only plugin,
that rides along as one usually uses PACER — but it automatically checks if
the document you want is already in its own database. The plug-in’s tagline,
‘Turning PACER around,’ alludes to the fact that its name comes from
spelling *PACER* backwards. RECAP’s database is being seeded with millions
of bankruptcy and Federal District Court documents, which have been donated,
bought or gotten for free by open-government advocate Carl
Malamud<http://public.resource.org/> and
fellow travelers such as Justia <http://www.justia.com/>.

And if the document you request isn’t already in the public archive, then
RECAP adds the ones you purchase to the public repository.

The plug-in was released by Princeton’s Center for Information Technology
Policy, coded by Harlan
Yu<http://www.freedom-to-tinker.com/blog/harlanyu/introducing-recap-turning-pacer-around>and
Tim Lee, under the direction of noted computer science professor Ed
Felten<http://www.freedom-to-tinker.com/>
.

That’s a pretty good hack, but it’s still just a stop-gap measure until the
federal courts figure out that in the age of the internet, charging citizens
to search and read public documents should be a federal crime.

Using it should not cause journalists, lawyers or law students (PACER’s main
customers) any legal trouble. After all, court documents are never
copyrightable.

But you never know how the justice system might react. Last fall, the
federal court system shut down a pilot program that offered free PACER
access at a few libraries around the country after it figured out that
Malamud and hacker Aaron Swartz took them at their word and started
downloading court decisions by the gigabyte.

That got Malamud 20 percent of the fed’s court filings and an interrogation
by FBI agents earlier this year.

Hopefully RECAP will get a friendlier reception from the U.S. Federal Court
System <http://www.uscourts.gov/>.


 http://arstechnica.com/tech-policy/news/2009/04/case-against-pacer.ars
>
>  The case against PACER: tearing down the courts' paywall
>
> US law says that federal court records are in the public domain. So why do
> the courts still lock most of their official documents behind a paywall? Ars
> investigates.
> By Timothy B. Lee <http://arstechnica.com/authors/timothy-b-lee/> | Last
> updated April 8, 2009 11:30 PM CT
>
>    -
>
>
>   [image: The case against PACER: tearing down the courts' paywall]
>
> If you want to find out how the Obama administration is spending the
> stimulus money, you can go to recovery.gov<http://arstechnica.com/tech-policy/news/2009/02/stimulus-tracking-recoverygov-goes-live.ars>for detailed spending data. Many executive branch agencies provide
> information about their activities via the government's regulations.gov<http://www.regulations.gov/>portal. And the Library of Congress has the
> Thomas <http://thomas.loc.gov/> 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.<http://pacer.psc.uscourts.gov/>Unfortunately, PACER locks public documents behind a paywall, lacks a
> reasonable search engine, and has an interface that's inscrutable to
> non-lawyers.
>
> The courts are coming under increasing pressure to address these flaws, and
> last year, RSS pioneer Aaron Swartz and open government activist<http://arstechnica.com/tech-policy/news/2008/04/oregon-publishing-our-laws-online-is-a-copyright-violation.ars>Carl Malamud took
> matters into their own hands.<http://www.nytimes.com/2009/02/13/us/13records.html>The courts had launched a pilot program that gave free PACER access to
> patrons of selected libraries, so Swartz and Malamud went to the libraries
> with thumb drives and used a Perl script to download as many documents as
> they could. They got about 20 million documents before the courts abruptly
> canceled the trial. The documents—about 700 GB in total—are now available<http://bulk.resource.org/courts.gov/pacer/>from Malamud's website, but there are still terabytes of public documents
> locked behind PACER's paywall.
>
> On February 27, Sen Joe Lieberman (I-CT) (a consistent advocate<http://arstechnica.com/old/content/2006/05/6802.ars>of public access to taxpayer-funded documents) sent the courts a
> letter<http://hsgac.senate.gov/public/index.cfm?Fuseaction=PressReleases.Detail&PressRelease_id=0ba1a72c-0103-4ce1-9308-41dbcda5085e&Month=2&Year=2009&Affiliation=C>asking some pointed questions about PACER. Noting that the 2002 E-Government
> Act had instructed the courts to move toward free public access to court
> records, and that the judiciary had a $150 million surplus in its
> Information Technology Fund, Lieberman asked the courts to justify
> continuing to charge 8 cents a page for these documents.
>
> On March 26, the courts responded to Lieberman's letter, arguing that the
> fees it collects are necessary to cover the costs of running the system. It
> also pointed to a number of steps that have been taken in recent years to
> make PACER more accessible. As we'll discuss below, some of the claims in
> the letter were disputed by the experts Ars talked to, and the courts
> declined to answer our follow-up questions.
>
> In this feature, Ars takes stock of online access to federal court records
> in the United States. We'll discuss how the system got where it is today,
> look at where there's room for improvement, and talk to two experts on open
> government about the prospects for reform. The bottom line is that the
> courts deserve credit for the progress they made in the 1990s, but a lot
> more work is needed to bring PACER into the 21st century.
> The importance of public access to the law
>
> Public access to court records might seem like something only lawyers would
> care about, but James Grimmelmann <http://james.grimmelmann.net/>, a
> professor at New York Law School, disagrees. "If there are secret laws, it's
> really hard to say that those are laws in any meaningful sense at all,"
> Grimmelmann says. "There are lots of areas of law in which the statute is
> very short, but the case law is incredibly long and important." For example,
> the statutory definition of fair use is only about a paragraph long.<http://www.copyright.gov/fls/fl102.html>To understand how the concept will be applied by the courts, you need to
> review the hundreds of judicial opinions that have defined its contours.
>
> To ensure broad public access, the courts have long held that court records
> are not subject to copyright.
>
> Grimmelmann also points out that public access to court records keeps
> courts honest. If court activities are secret, the public will have no way
> to verify that the court's procedures and decisions are fair and consistent
> with the law. Public access also promotes equality before the law by
> ensuring that those of limited means will not be disadvantaged by a lack of
> access to information.
>
> To ensure broad public access, the courts have long held that court records
> are not subject to copyright. That means that once a user has obtained a
> court document, he is generally free to redistribute it without payment. But
> until the rise of the Internet, practical barriers limited the dissemination
> of legal records. Courts produce millions of pages of documents every year,
> and it would have been impractical to distribute paper copies of every
> document to public libraries. In principle, anyone could have physically
> driven down to a courthouse and asked to see copies of court records, but
> practically speaking only practicing lawyers and a handful of sophisticated
> journalists and academics knew how to navigate this system successfully.
>
> Broader and more convenient access to court records allows greater public
> understanding and scrutiny of our legal system. As information technology
> makes broader availability economically feasible, public officials have an
> obligation to respond by using those technologies to expand public access.
> A great leap forward
>
> There is plenty to criticize about PACER, but it's also important to
> acknowledge what the courts have done right. The initial creation of PACER
> in 1988 was a huge improvement over the existing system of paper records.
> Working attorneys found it extremely convenient to be able to monitor the
> progress of cases they were working on from the comfort of their offices.
> The system charged per-minute fees for dial-up services, but these were seen
> as a small price to pay for convenience, and such fees were not unusual for
> commercial online services at the time.
>
> The courts steadily improved the system during its first decade in
> existence. Steve Schultze <http://managingmiracles.blogspot.com/>, a
> fellow at Harvard's Berkman Center, tells Ars that the original dial-up
> system provided only basic case and docket information; lawyers wanting the
> full text of documents still had to go down to the courthouse to retrieve
> them. But during the 1990s, more and more documents were added to the
> system.
>
> In 1998, the system was moved to the Web. Attorneys could access PACER
> using a Web browser rather than a proprietary dial-up service. And instead
> of paying per-minute dialup fees, Web-based PACER users are charged on a
> per-page basis.
> Falling behind
>
> The courts are justifiably proud<http://www.uscourts.gov/ttb/2008-11/article02.cfm?WT.cg_n=TTB_Nov08_article02_tableOfContents>of the work they did to modernize PACER during its first decade. Creating
> PACER and then moving it to the Web were great strides for open access to
> court records. Unfortunately, in the last decade the courts have not been
> able to keep up with the pace of online innovation. PACER continues to serve
> legal professionals well enough, but in an age where the rest of us have
> come to expect easy access to public documents, PACER is looking
> increasingly anachronistic.
>
> Schultze argues that most of PACER's problems can be traced back to the
> decision to put federal court records behind a paywall. Before users can log
> into PACER, they must provide the PACER Service Center with registration
> information and a credit card number. Users are charged eight cents per
> page, and HTML documents such as search results are broken up into
> arbitrarily defined "pages" for billing purposes. Even an empty search
> result costs eight cents.
>
> 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 <http://www.google.com/patents>)
> unless it is willing to pay millions of dollars in PACER fees.
>
> As a result, ordinary users are stuck using the search tools PACER
> provides. And Schultze points out that those tools leave a lot to be
> desired. PACER is designed for finding particular cases based on
> characteristics such as date, case number, or the names of the parties.
> There's no full-text searching option, and only very limited keyword search.
> Even worse, every federal court runs its own instance of the PACER software,
> each with its own idiosyncrasies.
>
> There are alternatives for those willing to pay a premium. Commercial
> databases such as LexisNexis and WestLaw offer more sophisticated search
> tools that span multiple courts, but these tools have flaws of their own:
> access is far more expensive than PACER; the information in these databases
> may not be as current or as comprehensive; and although their search tools
> are better than PACER's, they're not nearly as good as the leading Web
> search engines.
> Following the money
>
> Schultze and Grimmelmann agree that the solution to PACER's problems is for
> the courts to make court records available for free download. Schultze
> points to a recent paper<http://arstechnica.com/tech-policy/news/2008/06/study-gov-websites-should-focus-on-rss-xmlnot-redesigns.ars>from Princeton's Center for Information Technology Policy arguing that
> governments should stick to releasing raw information and allow private
> parties to build organization and search tools. Schultze predicts that if
> private parties were given free access to the raw PACER documents, they
> would quickly build websites that surpass PACER in functionality and
> ease-of-use.
>
> The courts seemed to admit they charged about twice as much as they needed
> to for PACER in 2006.
>
> There are a couple of hurdles that will need to be overcome before PACER's
> paywall can be torn down. One involves money. In its letter replying to
> Senator Lieberman, the Administrative Office of the Courts argued that the
> funds it collects are necessary to maintain PACER and the other systems that
> Congress has instructed it to fund with PACER fees. The courts also argued
> that it was meeting the E-Government Act's requirement that the courts move
> toward making court records available for free. For example, fees for long
> documents are capped at $2.40. The letter also claimed that "free access to
> all judicial opinions is provided" to PACER users.
>
> 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<http://public.resource.org/jitf_annual_report_2006.pdf>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.
>
> Indeed, later in the same report, the courts explicitly acknowledge this
> point, noting that the IT fund had retained $32.2 million in 2006 due to
> "unanticipated revenue growth associated with public requests for case
> information." In other words, the courts seemed to admit they charged about
> twice as much as they needed to for PACER in 2006. Ars sought clarification
> on this point, but a representative of the judiciary's Administrative Office
> declined to provide further details.
>
> Of course, the courts are correct to note that running PACER costs money.
> As long as Congress requires that PACER be funded by user fees, a paywall of
> some kind seems unavoidable. But given the relatively small amounts of money
> involved, and the importance of public access to public records, requiring
> PACER to be self-financing seems short-sighted. The law affects everyone,
> not just the small fraction of the public that currently has the money and
> expertise to navigate PACER. Grimmelmann and Schultze both contend that it
> is Congress's responsibility to provide the federal courts with sufficient
> funding to make court documents freely available.
>
> Schultze also points out that modernizing PACER presents ample
> opportunities for cost savings. The current arrangement, in which each court
> runs its own instance of PACER, does not fit with industry best practices.
> Consolidating PACER into a single national system could yield dramatic
> savings. Moreover, dropping the paywall would eliminate the need for its
> elaborate billing infrastructure, and should drastically reduce the need for
> support personnel at the PACER Service Center.<http://pacer.psc.uscourts.gov/>To be sure, Congress will need to provide more money to eliminate PACER's
> paywall, but it's not likely to require the tens of millions of dollars the
> courts are currently spending on the system.
> Privacy problems
>
> The federal courts deal with a variety of sensitive issues, including
> bankruptcy, drug charges, and a variety of civil litigation, and it is
> relatively common for these proceedings to reveal sensitive personal
> information such as Social Security numbers and dates of birth. Current law
> requires that such information be redacted from documents before making them
> available to the public, but the courts, shielded by the practical obscurity
> afforded by PACER's paywall, have not done a good job of enforcing this
> requirement. So before making PACER significantly more open, Congress may
> need to provide the courts with more funding to hire enough clerks to
> thoroughly redact documents.
>
> But Grimmelmann emphasizes that privacy concerns should not be used as an
> excuse to keep public documents locked behind PACER's paywall. He notes that
> bulk data collectors are already harvesting PACER data and selling it to the
> highest bidder, so the privacy concerns need to be dealt with whether or not
> PACER has a paywall. And it's likely that the public scrutiny and feedback
> that would come from dropping the paywall would spur the courts to take
> privacy issues more seriously.
> Conclusion
>
> An important obstacle to improving PACER is the court's myopic focus on the
> system's current users. A recent article<http://www.uscourts.gov/ttb/2008-11/article02.cfm?WT.cg_n=TTB_Nov08_article02_tableOfContents>in the federal courts' internal newsletter promised to "survey the courts,
> litigants, attorneys, the media, and bulk data collectors—the people who use
> PACER." Conspicuously absent from the list are academics, non-profit
> organizations, and members of the general public: groups that would benefit
> from a more open PACER but which are discouraged from participating by the
> paywall and primitive search tools.
>
> Fortunately, public awareness and support of online transparency issues is
> growing rapidly. All three branches of governments coming under pressure to
> be more open and accountable. With a new administration in town that at
> least says the right things<http://arstechnica.com/tech-policy/news/2009/02/plotting-a-course-to-open-government.ars>about open government (even if the results occasionally fall
> short<http://arstechnica.com/tech-policy/news/2009/03/were-not-releasing-acta-docs-says-us-again.ars>),
> 2009 could be the year that free, public access to federal court records
> finally becomes a reality.
>
> *Disclosure: As a grad student at Princeton's Center for Information
> Policy, the author works closely with the authors of the Princeton paper
> cited in this article.*
>
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