
A Sad Irony: The Federal Judiciary's PACER Pricing Is Illegal - thinkcomp
http://www.aarongreenspan.com/writing/essay.html?id=84
======
xxpor
>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.

What. The. Fuck.

~~~
rprasad
PACER was designed in the early 1990s, before the internet was popular, i.e.,
when AOL _was_ the internet for most of America. Indeed, PACER is probably as
old, if not older than, most HN users.

It has not been upgraded since then, largely because Congress has not provided
sufficient funds to the courts for them to do so (appropriations in the past
two decades have largely been reserved for operations or for courtroom
construction, but not technological upgrades. Much of the money from PACER
access fees goes toward meeting the shortful in the operation budget, because
Congress in its infinite wisdom has underfunded the federal courts for most of
the last two decades.

(It's wierd that I have spent most of the last two days defending the American
court system...)

~~~
rsingel
This is such a load of self-serving bureaucratic nonsense. Pacer is an awful
site that rips off the American people. Even if it is a cash cow, there's NO
justification from keeping copyright free documents that are essential to
democracy behind a paywall.

Increase the fees that Lexis-Nexis pays. Or charge more to submit documents.
There's lots of solutions that could work to create a site that's usable and
free to the American people.

This blame Congress crap has gone on long enough. When will the U.S. court
system take its responsibility to the American people seriously? The answer:
when people like you stop parroting its rationale.

~~~
tptacek
Does 'rprasad work for the court system? Does he have some financial stake in
it? If not, how is this "self-serving"? If it's just the idea that you find
"self-serving", why did you target it at him specifically with "people like
you"? What incentive does he have to "parrot" anything from the courts?

The US Courts are underfunded and have crippling case loads. Beyond that, is
it even clear that any court has the authority to "increase the fees that
Lexis-Nexis pays"? Or to charge more to submit documents?

~~~
rsingel
Lexis-Nexis pays bulk rates to Pacer via contract. Attorneys pay to file
documents. Those are set by the U.S. court system, not Congress.

He's making the same argument the U.S. court system has made, sub-rosa, for
years, as it's _raised_ fees for accessing court documents. It used to be 8
cents a page. Jumped to 10 cents earlier this year.

------
mikehotel
I'm not sure why RECAP (<https://www.recapthelaw.org/why-it-matters/>) is not
mentioned more prominently in TFA.

"What does RECAP do? RECAP is an extension (or “add on”) for the Firefox web
browser that improves the PACER experience while helping PACER users build a
free and open repository of public court records. RECAP users automatically
donate the documents they purchase from PACER into a public repository hosted
by the Internet Archive. And RECAP saves users money by alerting them when a
document they are searching for is already available from this repository.
RECAP also makes other enhancements to the PACER experience, including more
user-friendly file names."

~~~
roel_v
Well, to state the obvious, it's because recap is a system that is competition
to the author's plainsite project. Petty squabbling much like the article
itself.

~~~
thinkcomp
Actually, PlainSite depends upon RECAP, and I think it's a great product,
which is why I mentioned the Princeton team. The essay was about PACER's
pricing scheme, not about RECAP, but I fully encourage everyone to use it.

<http://www.recapthelaw.org>

Not only that, but I've pledged $5,000 to anyone who can extend RECAP to
Chrome:

<http://www.aarongreenspan.com/writing/essay.html?id=83>

~~~
roel_v
Fair enough, seems I rushed to a conclusion.

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pseingatl
According to one commentator, that's not the only error in the article;

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.

~~~
dctoedt
> _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._

Lawyer and former litigator here. It's true that district-court decisions have
the status of binding precedent authority only within their own districts.
Such decisions, though, can be _and regularly are_ cited elsewhere as
"persuasive" authority.

For example, in a California case, a lawyer might argue, in effect, "Your
Honor, in a similar situation in New York, Judge So-and-So took Action X, for
the reasons explained in her published opinion; we submit that you should take
Action X too."

~~~
pseingatl
I never said that district court decisions had no value; simply that you're
not going to find them easily in PACER. And there's nothing wrong with citing
caselaw in F.Supp.; but my point is that lawyers do not normally do case law
research using PACER. The way the US legal system should work is that once the
parties see that Judge So-and-so is right, litigation should cease, right? But
it doesn't work that way. Especially at the federal level--if Main Justice
doesn't like a decision they'll keep shopping until they get one they like--as
will any other litigant who has to litigate in multiple jurisdictions. And my
friend, since when do district judges follow the decisions of their district
colleagues? Those decisions are only persuasive as well. Look at my SDFla
comment. The only binding precedents are those from the Supremes and those
that come from your circuit (or the 5th, if you're in the 11th and there's a
need to cite a pre-1982? case). Or the Fed. Cir. for matters within their
jurisdiction. Or the FS Ct., but now we are really far afield.

------
cloudwalking
I agree with this essay, but I want to point one thing out.

    
    
      > 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.
    

This is shortsighted. I think hosting a government website is quite complex.
They have very strict security requirements and maintenance requirements, with
very little economy of scale. $25M does seem a bit high, but I can easily see
their costs above $1M.

~~~
greenyoda
I doubt that $10,000 is anywhere close to the cost of designing the system.
$10,000 is not even enough to hire one senior developer for a month. And the
designers would have to have domain knowledge of the legal system, which very
few web developers have; you'd probably need to hire lawyers as consultants.
Plus, the article mentions that different courts and judges have differing
requirements, so just figuring out what the system needs to do seems non-
trivial.

Also, even if the system _could_ be designed for $10,000, the yearly cost of
operating it (hardware costs and personnel) would be significant, since all
the data from the various courts would need to be entered daily, and someone
would need to verify that the data in the system was complete and accurate.
Plus, the system would need to be backed up and have redundancy and disaster
recovery plans. You can't afford to shut down the legal system across the
entire country because one data center loses power. We're not talking about
Twitter here; we're talking about critical national infrastructure.

~~~
davedx
I'm a senior developer and I cost about that, at freelance rates. I could
definitely design and build the things you mention in a month, providing the
core functionality (a document storage system) is not overly complex.

And who said anything about the yearly cost of operating it?

~~~
eru
(Slightly off-topic.)

> I'm a senior developer and I cost about that, at freelance rates.

For a month? Do you live in a place with really low cost of living?

~~~
ZachPruckowski
For any place that's not New York, LA, or Silicon Valley, $120,000 is pretty
solid money for a working professional.

~~~
efuquen
How is 120k not considered good money in New York, LA, or Silicon Valley for a
working professional? I live in New York and make in this ballpark and I
consider it pretty decent money. Those cities are expensive, but I don't think
so expensive that anyone wouldn't consider a 6 figure salary as somehow "not
solid".

------
btilly
Note, the PACER incident is not the direct reason why Aaron was in the legal
trouble he was in, that was his downloading of JSTOR's material, which under
the law clearly illegal.

However there is widespread speculation that the PACER incident was behind why
prosecutors may have wanted to throw the book at Aaron.

~~~
kamkazemoose
Just a note, but it's possible what Aaron did actually was legal. There was an
article [1] by an expert witness in the case posted earlier today. So I think
the trial would have been revealing. Admittedly the article doesn't prove
anything, but I think everyone has so far been assuming Aaron's guilt. And
while there is no denying the acts that he committed, they may have been
legal.

1\. [http://io9.com/5975592/aaron-swartz-died-innocent-++-here-
is...](http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is-the-
evidence)

~~~
smackfu
A bit of a tautology there: If the expert witness that was on Aaron's side
wasn't planning to testify he was not guilty... he wouldn't be the expert
witness on Aaron's side.

~~~
nmcfarl
But that doesn't mean the expert witness is wrong.

~~~
smackfu
No, it just means he's not the impartial expert on the facts that some seem to
be imagining him to be. I'm sure the prosecution had an expert witness who
could have written a post saying "Aaron would have been found guilty."

~~~
AnIrishDuck
For what it's worth, the expert we're talking about stated in his post that he
usually testified _against_ hackers. He explained what he thought was
different in Aaron's case in his post.

------
lostlogin
The article cites PlainSite as a cost reference. That surely can't be the cost
of a developer, server, bandwidth etc? Free labour? Anyone know more? I know
that an enerprising hacker can do a lot, but setting up a system better than
another that has a $25 million budget? And would anyone care to guess what it
should cost per page (ideally with some sort of cost justification)? 1c? .01c?

~~~
jcromartie
It should cost $0 per page. The infrastructure and maintenance for a document
database of our country's tax-funded court proceedings should be so
vanishingly small in relation to what we already spend on the justice system
that it should approach 0.

------
fnordfnordfnord
FYI, Interesting bit from the PACER TOU:

>"The per page charge applies to the number of pages that results from any
search, including a search that yields no matches with a one page charge for
no matches. The charge applies whether or not pages are printed, viewed, or
downloaded. There is a maximum charge of $3.00 for electronic access to any
single document."

It is also interesting to note that pricing is decoupled from actual bandwidth
usage, or any other metric that could be correlated directly with the cost of
providing the service.:

>1\. We use a formula to determine the number of pages for an HTML formatted
report.

>2\. Any information extracted from the CM/ECF database, such as the data used
to create a docket sheet, is billed using a formula based on the number of
bytes extracted (4320 Bytes equals one page).

>3\. For a PDF document, the actual number of pages are counted to determine
the number of billable pages.

------
dbot
Lawyers use PACER quite a bit, but it's not because they love it or make money
from it (in fact, clients are increasingly rejecting "research" charges). It's
just that PACER is often faster, easier, and more certain than using the
firm's internal document management system. PACER is set up for litigation -
DMSes, while they let you store anything, don't understand what the content
is.

Our startup is basically tackling that problem - and one of the side benefits
will be dramatically reduced PACER bills. There is no reason firms should ever
be looking up their own case documents on PACER, since they get them for free
in the first place.

------
tlrobinson
For once I find myself agreeing with Aaron Greenspan, except AaronSW's latest
legal troubles were with JSTOR, not PACER. The article should have at least
pointed that out.

~~~
thinkcomp
Tom,

A lot has been written by many people about JSTOR, so I wanted to focus on
PACER and its pricing, but I do mention JSTOR here:
<http://www.aarongreenspan.com/writing/essay.html?id=82>

Aaron

------
monochromatic
It is by no means clear from reading this what the meaning of "necessary" is
in context. _Maybe_ it means "necessary to cover costs," but I can't tell from
this post.

~~~
thinkcomp
See Senator Lieberman's 2010 letter to Senate Appropriators for clarification
(which I've updated my essay to reference):

"As you know, Court documents are electronically disseminated through the
PACER system, which charges $.08-a-page for access. While charging for access
was previously required, Section 205(e) of the E-Government Act changed a
provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so
that courts “may, only to the extent necessary” (instead of “shall”) charge
fees “for access to information available through automatic data processing
equipment.” The Committee report stated: “[t]he Committee intends to encourage
the Judicial Conference to move from a fee structure in which electronic
docketing systems are supported primarily by user fees to a fee structure in
which this information is freely available to the greatest extent possible…
Pursuant to existing law, users of PACER are charged fees that are higher than
the marginal cost of disseminating the information.”

Since the passage of the E-Government Act, the vision of having information
“freely available to the greatest extent possible” is far from being met,
despite the technological innovations that should have led to reduced costs in
the past eight years. In fact, cost for these documents has gone up, from $.07
to $.08-per-page. The Judiciary has attempted to mitigate the shortcomings of
the current fee approach in a variety of ways, including limiting charges to
$2.40-per-document and the recent announcement that any charges less than
$10-per-quarter will be waived. While these efforts should be commended, I
continue to have concerns that these steps will not dramatically increase
public access as long as the pay-per-access model continues."

~~~
pseingatl
Keep in mind that the US court system is not funded through filing fees.
Courts generally have struggled with funding. Minimum mandatory penalties and
the drug wars caused Miami to end up with four downtown federal courthouses
and a (relatively) new federal prison. These facilities were not inexpensive.
To get back to the principal issue, the Government gets free access to PACER
(and even free photocopies at the courthouse) whereas a private defendant,
like Swartz, has to pay for these out of his own pocket. The government gets a
case agent, the defendant gets none. The defendant may get a public defender,
but only after he has exhausted his funds--and this happens.

