DEMOCRACY NOW

Why Pacer should (and should not) be like Edgar

Google may put the world’s information at your fingertips, but good luck if you need a filing for a US federal court.

For that you have to register with Pacer, a database whose name stands for Public Access to Court Electronic Records. Then prepare to pay.

Though judicial opinions come free, the government charges 10 cents a page for pleadings, motions and other papers. The courts cap the fee at 30 pages and waive it for litigants, their lawyers and anyone who racks up less than $15 in any three-month period. The cap does not apply to court transcripts, which can run hundreds of pages. Pacer holds records for roughly 43 million cases, according to the Administrative Office of the US Courts, which manages the database.

In practice, Pacer’s fee structure means that three-quarters of people who use the database pay nothing. Still, the charges can add up for anyone who wants to peek at more than a handful of papers.

That rankles those who say democracy demands that such information be free. In 2008, Aaron Swartz, an Internet activist, downloaded roughly 20% of Pacer from a computer at a public library during a free trial of the service. (Swartz was later indicted for downloading academic journal articles in bulk from a university database, and killed himself while awaiting trial.)

Carl Malamud, the founder of PublicResource.org, who was one of Swartz’s mentors and has spent the past 20 years prodding the government to make more of its information public, argues that there’s a precedent for making court papers free. It’s Edgar, the US Securities and Exchange Commission’s online database for financial results, annual reports and other information from listed companies.

Edgar, which stands for Electronic Data Gathering, Analysis and Retrieval, is free to the public. But like Pacer today, the system that became Edgar sat behind a paywall when it began 22 years ago. It remained that way until Malamud subscribed to the data feed and started giving away the information.

Still, he had to persuade the SEC to unlock the database. “The low-level SEC guys said they needed the money and that Wall Street needed the data,” Malamud tells Quartz. But as electronic filings via Edgar multiplied, Arthur Levitt, then the SEC chairman, saw that the information contained in the filings made financial markets more efficient, and tore down the wall.

The same logic, says Malamud—who also has pushed the government to provide public access to patent filings and to charitable organizations’ tax forms—should apply to the courts. “What the courts haven’t figured out is that their job is not to sell paper docs at 10 cents a page but to make our justice system transparent and effective,” he says.

A database of databases

Pacer doesn’t mirror Edgar precisely. Pacer developed in tandem with a system that allows lawyers and litigants to file court papers electronically. That system, called CM/ECF, exists as much to help courts manage cases as it does to provide information to the public. It also serves as the source of most documents filed with the federal courts. Without it, there would little in Pacer to look up. Not surprisingly, 57% most of Pacer’s use comes from lawyers, according to a survey commissioned in 2012 by the courts.

pacer_users

And while Edgar contains information filed with only one federal agency, Pacer is a database of databases. These are supervised by the 94 district courts, 93 bankruptcy courts, and 13 circuit courts that compose the federal judiciary. A pitfall of that setup surfaced in August, when the archives of four circuits and one bankruptcy court disappeared from the database.

The configuration of Pacer partly reflects an accident of timing. The system came online around 1990 just before databases moved to the Web, notes Tom Bruce, director of Cornell University’s Legal Information Institute. In its operation, Pacer resembles a computer bulletin board of yesteryear more than an online site of recent vintage. “It was the wrong technology at the wrong time, though they had no way to know it,” Bruce tells Quartz.

As Bruce sees it, Pacer might benefit from a makeover for the Internet age—perhaps by a group such as 18F, the federal government’s digital SWAT team that formed in the effort to fix healthcare.gov. As it happens, 18F currently is working with federal agencies to overhaul the technology tools the government uses to process Freedom of Information Act requests. For its part the judiciary is in the process of further fusing Pacer and the system for making electronic court filings with a single sign-on that promises to improve Pacer’s searchability.

A subsidy for power users?

However, if the courts wanted an Edgar or, for that matter, a system that tapped the latest technology, they would have to persuade Congress. Since 1991, Congress has ordered the Judicial Conference of the United States, a body of district and circuit court judges, to fund electronic access to records from fees alone.

Pacer has about 1.6 million user accounts, but most of the 500 million requests the database receives annually come from law firms; commercial publishers such as Reed Elsevier, Bloomberg and Thomson Reuters; and the Department of Justice (DoJ). These and other power users accounted for about 70% of Pacer’s $146 million in revenue in the fiscal year that ended on Sept. 30, 2013, according to the Administrative Office.

Yet providing records to the public costs the courts only about $20.2 million annually. So what happens to the rest of that money?

As the chart below shows, it’s used to cover outlays for the filing system, CM/ECF ($32.1 million); video monitors, audio and other electronica that courts need to stage trials in the 21st century ($31.5 million); and the telecommunications, broadband internet and security systems that allow access to 197 databases around the country but keep hackers at bay ($27.5 million).

pacer_fees

Other charges cover the costs of courts’ hosting their own websites ($15.8 million), though admittedly these also serve as portals to Pacer; notices to creditors in bankruptcy cases ($12.8 million); a system that registers jurors electronically ($2.6 million); and another that notifies law-enforcement officials when felons under supervision move from one part of the country to another.

Another quirk of this system, critics note, is that DoJ, one of the biggest users of the database, is taxpayer-funded. That means, effectively, that taxpayers are subsidizing Pacer’s other heavy users—law firms and publishers. Steve Schultze, a software developer who works for the US State Department, argued last year (before joining the government) that these commercial heavy users can pass costs on to their clients, “so why not tax them at a rate higher than actual cost for access to the public record?”

Outside the paywall

There are plenty of people who stand to benefit from Pacer but struggle to afford the access. According to a survey in 2008 by Erika Wayne, a research librarian at Stanford Law School, 95% of law schools limit access to Pacer for fear of the fees that students might amass.

According to Wayne, the judicial opinions that are already free on Pacer are of little value to academe, because they’re relatively easy to obtain elsewhere online. “It’s finding all the stuff before the opinions that’s really challenging and for a lot of law students that’s the stuff they will be doing in practice,” Wayne tells Quartz. “They’ll be writing the briefs and the memoranda.”

Law librarians seem to concur. “Because there is a cost associated with Pacer use, the library is only authorized to run Pacer searches for limited academically approved searches for law students and faculty,” the University of North Carolina’s law library instructs students. Courts can waive the fees for academic researchers. But researchers must petition each court individually for a waiver.

The courts also offer no exemption from fees for the news media. Last year the US Court of Appeals in San Francisco let stand a decision by a lower court that denied a request by Jennifer Gollan, a reporter for the nonprofit Center for Investigative Reporting, for a four-month exemption from fees. She wanted it so that she and a colleague could comb Pacer to analyze efforts by federal judges to recuse themselves in cases that might present conflicts of interest.

Accountability and privacy

One argument for keeping the paywall on Pacer is that it helps protect the privacy of people involved in court cases. But opponents of the paywall argue that, in fact, taking it down could help more.

The need to protect privacy is pretty obvious. Unlike company filings on Edgar, court papers can contain information that should not be in the public domain. As Peter Winn, a career prosecutor with DoJ who has studied the tension between public proceedings and private information, has observed:

Courts must recognize that their files often contain private or sensitive information — such as medical and health records, employment records, detailed financial information, tax returns, Social Security numbers, intimate family information, intimate victim information, and other personal and identifying information.

A review commissioned in 2003 by Canada’s judicial council noted that employers can use court records to search the backgrounds of potential employees. Companies that aggregate data from court databases also can vacuum the names of people who stand accused, but not convicted, of crimes, or the names of people who seek the protection of bankruptcy.

The same concerns existed before dockets became digital. But in those days, obtaining court papers required going to the courthouse and running a gauntlet of clerks. The persistence required to obtain a filing provided what Winn, quoting former Justice John Paul Stevens, terms “practical obscurity” that shielded personal information. Removing Pacer’s paywall would remove one of the last vestiges of practical obscurity.

However, there are other ways to protect privacy. Court rules aim to keep Social Security numbers, financial account details and the names of minors out of filings. Some courts also prefer to keep filings in databases maintained by the judiciary and away from Google and other internet search engines. As the managers of the British and Irish Legal Information Institute note, privacy concerns sometimes demand that courts remove judgments from a database, and that’s harder to do after a document has been indexed by a search engine.

The problem is that as currently configured, Pacer falls short on both counts, according to Winn. “The federal electronic filing system does not appear to have been designed with the competing goals of facilitating access and protecting privacy in mind,” he concludes. A partial audit of Pacer by Malamud in 2008 found filings that contained Social Security numbers, medical records, information about minors, tax filings and more. Even with a paywall in place, these can leak out.

Hence the argument for making Pacer free: It would permit more complete audits that would catch such shortcomings. Malamud says he and anyone else so inclined could audit away if only Pacer came out from behind its paywall. “We could go across districts and look for all the cases that have to do with this or that,” he says. “But we can’t audit their database at 10 cents a page.”

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