The cost of electronic access to US court filings is facing a major legal test of its own

The 10 cents a page that most people are charged to view documents in Pacer, an online database of papers filed by litigants in the US federal courts, doesn’t sound like much. But critics of the setup say this cost is just the beginning.

Pacer, which stands for Public Access to Court Electronic Records, is a clunky system that doesn’t allow users to search for court papers by their content or look up filings across the web of district, bankruptcy, and circuit courts that make up the federal judiciary. And there’s little that outside developers can do about it.

“You should be able to say, for example, ‘Give me everything that has the word motion in its description and that talks about copyright,'” says Mike Lissner, executive director of the nonprofit Free Law Project. “That’s not possible.”

Lissner, whose group provides free online access to primary legal materials, says the system’s shortcomings are a direct result of the fees attached to Pacer documents. “If the data were free,” he says, “you’d see an ecosystem cropping up with competitive services improving it.”

As it happens, the paywall that surrounds Pacer is facing what may be its most serious test since the service emerged 28 years ago. Judge Ellen Huvelle of the US district court in Washington DC is expected to decide in the coming days whether a lawsuit accusing the government of setting Pacer fees at unlawfully high rates can proceed.

The case, which is seeking class-action certification, is being led by three nonprofits: the National Veterans Legal Service Program, the National Consumer Law Center, and the Alliance for Justice. Each group says it has downloaded documents from Pacer and incurred charges alleged to exceed the cost of providing the records. All say the setup violates the E-Government Act of 2002, which authorizes the judiciary to “prescribe reasonable fees”—and which the plaintiffs argue should limit the government to charge users “only to the extent necessary” to make the information available.

By allegedly running afoul of that law, the judiciary “has inhibited public understanding of the courts and thwarted equal access to justice,” the groups charged in court papers filed in April. As many as several hundred thousand Pacer users over the past six years may be entitled to refunds, the plaintiffs say.

Pacer fees explained

To understand the legal challenge, it helps to know something about Pacer fees and how the judiciary uses them. Pacer has roughly 2.3 million accounts, according to the Administrative Office of the US Courts, which manages the system. The courts cap the fees charged at 30 pages and waive it for litigants, their lawyers, and anyone who spends no more than $15 in any quarter. Judicial opinions are free.

Though nearly three-fourths of users pay nothing, the charges can add up for power users who account for the bulk of the more than 500 million requests that Pacer receives annually.

Judges have discretion to waive the fee for academic researchers. Before her election to the US Senate, Elizabeth Warren, while a professor at Harvard Law School, requested exemptions from Pacer fees as part of her research into the bankruptcy system. But journalists, government agencies, and lawyers who are paid privately remain ineligible for a waiver.

Deepak Gupta, the lead attorney for the plaintiffs, says the “fee regime deters people from doing analysis in the aggregate,”

But others argue that the critics of the fees misconstrue the system.

“It’s not that people are paying for the information,” Maine bankruptcy court judge James B. Haines Jr. told an audience at William and Mary Law School in 2010. “The information is free at the courthouse, as it’s always been… What you’re paying for is the delivery system and maintaining the delivery system. It’s not a price for the law. It’s a price to have it handed to you on your desktop at your convenience at your command.”

Pacer is part of a program the courts run called Electronic Public Access, which includes the Case Management/Electronic Case Files (CM/ECF) system that allows litigants to file court papers electronically. CM/ECF is how the content, which includes filings in nearly 49 million civil, criminal, bankruptcy, and appellate cases, comes into Pacer.

Electronic public access fees generated $144.6 million in revenue in the fiscal year ended Sept. 30, 2014, according to the Administrative Office. Of that, the judiciary spent 72%, or $103.8 million, on the CM/ECF system, on Pacer itself, and on telecommunications infrastructure (including cybersecurity), as well as websites for each of the courts and terminals at courthouses where you can look up filings in Pacer for free.

The remainder of the revenue went for monitors, sound systems, and other technology for courtrooms, electronic notices for bankruptcy cases, online summonses for prospective jurors, and a system that notifies law enforcement agencies when certain offenders move into their areas.

The breakdown matters in determining what Congress has authorized the judiciary to do with the fees. The lawsuit alleges that Pacer fee revenue has been put toward “unrelated projects—ranging from audio systems to flat screens for jurors—at the expense of public access.”

If Huvelle allows the suit to advance, the government will be obligated to detail the share of revenue from Pacer that exceeded the cost of Pacer itself during the years at issue, the portion that paid for CM/ECF and the other programs that constitute electronic public access, as well as the average fee per-page for documents downloaded from Pacer by the plaintiffs.

“If you imagine a pie chart, one slice is Pacer. Another slice is CM/ECF. And then there are all sorts of slices that are neither one of those things, like courtroom technology,” Gupta, the plaintiffs’ lawyer, says. “I think the government will have an especially hard time with all those other slices of the pie.”

How did we get here?

Sorting out what the courts can and can’t do with Pacer fees promises to take work.

From the inception of electronic public access, Congress has declined to set aside funds to pay for Pacer and instead directed the judiciary to fund the system from fees. As the ability to file court papers electronically evolved throughout the 1990s—along with software, hardware, and services needed to support the litigants’ filings—Congress told the judiciary, as the Senate Appropriations Committee noted in 1997, that it expected “available balances” from the fees that come in through Pacer would be used “to enhance availability of public access.”

In 2004, the House Appropriations Committee instructed the judiciary to use fees from Pacer to fund improvements and overhead for CM/ECF. Three years later, the top Democrat and Republican on the Senate Appropriations panel, in a letter to the then-director of the Administrative Office, wrote that they had “no objection” to a proposal by the judiciary to use Pacer fees to refresh courtroom technology.

But as the plaintiffs see it, the Congressional mandate changed with the passage of the E-Government Act. They contend that the act sought to limit the fees that the judiciary could charge for Pacer, with the goal of making the information broadly available to the public.

In support of their contentions, the plaintiffs cite statements by former senator Joe Lieberman, a Connecticut Democrat who sponsored the E-Government Act. In a March 2010 letter to his colleagues on the appropriations subcommittee that oversees the judiciary, Lieberman called for a review “to create a payment system that is used only to recover the direct cost of distributing documents via Pacer.” Outlays for additional items, Lieberman wrote, “should be funded through direct appropriation.”

More than a billing error

The Appropriations Committee has not commented on the lawsuit. Nor has the Administrative Office or the US Department of Justice (DOJ), which is defending the case. But in court papers asking Huvelle to dismiss the lawsuit, the DOJ contends that the policies governing use of Pacer obligate users who think they have been billed in error to first request a refund from Pacer’s service center, an assertion that at least one federal court has rejected. The plaintiffs counter that the lawsuit has nothing to do with billing errors, but rather that the fees themselves are too high.

Though the lawsuit seeks to limit Pacer fees rather than repeal them entirely, advocates like Lissner say the paywall needs to come down. Toward that end, the Free Law Project has published plug-in software for Chrome and Firefox browsers known as RECAP (Pacer spelled backwards), which archives files you purchase from Pacer to a publicly available database that has amassed about 2 million documents.

“Pacer is probably the biggest collection of data behind a paywall in the world,” says Lissner. “There’s so much innovation that could happen with this data. And this isn’t just the kind of innovation that will empower people to make lots of money. This is the kind of data that will make the judicial system more fair.”

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