
Government’s PACER Fees Are Too High, Federal Circuit Says - elliekelly
https://news.bloomberglaw.com/white-collar-and-criminal-law/federal-circuit-affirms-limits-on-how-government-uses-pacer-fees
======
droidno9
The entire Federal Judiciary runs on a budget of about $8-$8.5
billion/year.[1] Think about that for a moment. One of the three co-equal
branches of the US Government, and guardian of the US Constitution, operates
on a budget of less than 1% of the Department of Defense's budget ($1.15
trillion), 10% of the Department of Homeland Security's ($91.6 billion), and
20% of the Department of Justice's ($42.3 billion).[2]

One of the reasons for PACER fees (and other court costs) is the Judiciary's
attempt to have some financial autonomy from Congress, even though it clearly
depends on Congress for almost all of its annual budget.

As others have stated, you can get case law for free elsewhere. You do need to
access PACER for docket material, however. But there's even a fee exemption
for "indigents, pro bono attorneys, academic researchers, and non-profit
organizations."[3]

[1] [https://www.uscourts.gov/about-federal-courts/governance-
jud...](https://www.uscourts.gov/about-federal-courts/governance-judicial-
conference/congressional-budget-request) [2]
[https://www.usaspending.gov/#/explorer/agency](https://www.usaspending.gov/#/explorer/agency)
[3] [https://pacer.uscourts.gov/pricing-how-pacer-fees-
work](https://pacer.uscourts.gov/pricing-how-pacer-fees-work)

~~~
User23
> One of the three co-equal branches of the US Government, and guardian of the
> US Constitution

This is incorrect on both counts. First, the branches are not co-equal by any
stretch of the imagination. They are created in order of their intended level
of power. The Article I branch, Congress, manifestly has far greater
enumerated power than the other branches, including being the only branch with
the ability to remove members of the other two branches. The dominant check on
Congress's power is really Congress itself, although admittedly the other
branches have some ability to curtail abuses of Congressional power. Even so,
Congress can overrule both a veto and a finding that a law is
unconstitutional. It can also pack the courts, and all kinds of other things.
The Article II and II branches, Executive and Judicial respectively, have
progressively fewer enumerated powers.

As for the second point, the Constitution explicitly gives Congress and the
States the sole power to amend the Constitution, but the Judiciary has
arrogated that power to itself. That's not guarding the Constitution, it's
mutilating it. Likewise, Congress has ceded much of its authority to the
executive.

Anyhow this is all moot because the reality is that how the US Federal
Government is run has about as much to do with the Constitution as it does
with Schoolhouse Rock[1]. Some of the trappings remain, but that's all. It's
observably true that none of the branches is in any way a guardian of the
Constitution.

[1]
[https://www.youtube.com/watch?v=FFroMQlKiag](https://www.youtube.com/watch?v=FFroMQlKiag)

~~~
pnw_hazor
They are not co-equal in the sense of equivalence. Because they have different
roles and responsibilities with some minor overlap.

Congress cannot make administrative law or enforce law.

The Executive cannot appropriate money.

The Judiciary cannot enforce law or make laws.

For example: courts can issue contempt orders against the Executive branch
(and many have) but the Executive branch can ignore them (as many have);
Congress can pass as many laws as it wants, but unless the executive branch
enforces those laws they mean little; the Executive can refuse to
appoint/nominate Judges and Justices, nothing Congress or the Judiciary can do
about that; and so on.

~~~
dragonwriter
> But Congress cannot make administrative law

They could, but it would be kind of pointless (that is, Congress could adopt a
statute giving an executive officer a non-discretionary ministerial duty to
issue administrative regulation with precisely specified content, but it's
just easy to pass a statute law with the same effect. Administrative lawmaking
is not an independent power.)

> or enforce law.

What are the offices of Sergeant at Arms of each the House and Senate, if they
aren’t law enforcement bodies directly controlled by the respective Houses of
Congress?

------
pseingatl
Federal criminal defense attorneys must pay for PACER access out of their own
pockets (in theory, they are reimbursed, often years later, often at less than
the full cost). Nor can they access records in criminal cases in other
districts.

Meanwhile, prosecutors don’t pay and have nationwide access.

It’s fair of course. Completely. The Rule of law™.

~~~
mlissner
Hi, founder of Free Law Project here. Actually, the DOJ is the biggest PACER
user and they pay a ton of money on PACER each year. Somebody FOIA'ed it a few
years back, and it totals about $3-4M/year. [https://free.law/pacer-
facts/#what-if-i%E2%80%99m-a-governme...](https://free.law/pacer-facts/#what-
if-i%E2%80%99m-a-government-employee-say-at)

~~~
seanmcdirmid
There is a difference between defense attorneys having to pay out of pocket
(and being reimbursed a few years later) and the DOJ paying the bill for their
prosecutors.

~~~
mlissner
Yes, very true, thanks. Another interesting angle is how DOJ can subpoena tech
co's for, say, location information, but defense attorneys _can 't._ So if you
want exculpatory data, you have fewer avenues for getting it. The deck is
stacked in a lot of ways against the defense.

~~~
jhart99
What prevents defense attorney's from accessing that data? Would it be
possible for a defendant to download his own location history and use it?

------
ajb
Here's my pacer story: When the Microsoft antitrust case was on, I made a
pacer account to follow it; and kept using it during the SCO vs linux debacle.
It was a bit worrying to look at things which cost $0.10/page, but I knew that
if I didn't actually go over $10 (or something), I wouldn't get charged. I
never did go over the chargeable amount, but nevertheless for a few years I
used to get an invoice for $0.00 - sent by airmail to the UK.

Given they never bothered to fix that bug, I guess they were raking it in.

~~~
LorenPechtel
Never fixed? I had to look some stuff up on PACER many years ago, never went
over the free threshold, never got a bill of any sort.

~~~
ajb
Well, maybe they did fix it; they closed my account a while back for lack of
use.

------
schoolornot
If the fees were reasonable, fine. But I remember getting charged "8 cents" a
page for search results, even for queries that yielded no results. The "No
Results Found" page... 8 cents.

~~~
floatingatoll
It’s really interesting to see people in general confront the actual costs of
computing when they’re charged for asking a question. The reaction is,
universally, “how dare you charge me for zero results”, as though it’s free to
search for an answer - as if the time and money spent on performing that
search must be given for free to all askers.

Most providers bury this cost in their revenue model and hide it from users.
While PACER is probably charging more than is necessary, they’re definitely
not burying it, and I’m honestly quite happy to see that.

There is an interesting parallel in that common and widespread reaction that
match issues we’ve seen with essential workers during the pandemic, where for
example a customer will say “Why should I wear a mask? There’s no one in
here!”, somehow failing to recognize the worker as a human being in the
process.

So, to translate the PACER pricing objection into the human equivalent, I
present a question:

Do human librarians deserve to be paid a wage for performing a search that
finds no results, or should their wages be docked if they can’t find anything?

~~~
tehjoker
I think the problem is user fees for a system that is supposedly funded by the
entirety of society so we can ensure fair process. If you have to pay for
literally nothing, it rankles. Instead, the system should just be funded by
taxes like (most of) the courts themselves. Perhaps there could be user fees
for extremely high usage, but $10 seems like an extremely low bar for $0.08
per page. The system as it exists appears to simply discourage the public from
getting too nosy in the workings of the courts.

~~~
floatingatoll
I think it should be more like the post office or public transit, where a
nominal fee is charged (or none at all) but that fee is not the primary source
of funding. Small fees are very effective at limiting the human tendency to
abuse anything offered at $0. I agree that the current fees are higher than is
necessary to prevent abuse - and I think it should be free to taxpayers.

------
blintz
Recap ([https://free.law/recap/](https://free.law/recap/)) is a really cool
piece of civic tech to work around PACER’s absurd fees. Fantastic news that we
could someday be rid of them.

~~~
bozzcl
Isn't RECAP piracy in some way? Granted, I don't know if these documents are
protected by any copyright law, or if they're provided to users under some
limited license, that would let the government sue.

~~~
akvadrako
No, the documents are explicitly not copyrightable.

Anyone else could setup a pacer alternative and just pay for the docs once. I
think some legal services even do that.

~~~
xxpor
Not true:

[https://www.trademarkandcopyrightlawblog.com/2014/07/westlaw...](https://www.trademarkandcopyrightlawblog.com/2014/07/westlawlexis/)

~~~
akvadrako
Okay then, copyright on them is just unenforceable.

------
ilamont
It's amazing how long this has taken. I had to use PACER in the late 00s, and
it wasn't just the fees that were bad, it was the whole stinking system, from
billing to UI. It wouldn't surprise me if it was designed by the same
contractor that built TESS for the U.S. Patent and Trademark Office (another
fed website sorely in need of an overhaul).

~~~
toomuchtodo
There have been mitigation efforts such as RECAP [1] (and Court Listener [2]),
where documents are shuffled off to the Internet Archive when you're using
PACER with a browser extension installed, but this is welcome news as this
data should be freely available considering the costs involved. Tremendous win
for open data advocacy, but there is still work to be done.

> Thanks to our users and our data consulting projects, the RECAP Archive
> contains tens of millions of PACER documents, including every free opinion
> in PACER. Everything in the archive is fully searchable, including millions
> of pages that were originally scanned PDFs. Everything that is in the RECAP
> Archive is also regularly uploaded to the Internet Archive, where it has a
> lasting home. This amounts to thousands of liberated documents daily.
> Finally, we make the RECAP Archive available via an API or as bulk data for
> journalists, researchers, startups, and developers.

My hope is that one day everything in PACER has been retrieved out for storage
in the Internet Archive, and the ongoing costs for keeping the collection up
to date are trivial. The user fee waiver per quarter has been raised to $30;
please consider using RECAP if you're a PACER user!

[1] [https://free.law/recap/](https://free.law/recap/)

[2] [https://www.courtlistener.com/](https://www.courtlistener.com/)

~~~
wahern
> this data should be freely available considering the costs involved

The purpose of the fees is to cover the costs incurred by the court system in
managing the document system so that it's self-funding rather than being paid
out of the government's general revenue. In other words, while the costs
required for publishing any particular document are miniscule, the point is to
provide revenue for the court system.

I'm not defending it, but that's the reason the costs are so high and why the
system still exists. To get rid of the PACER fees you need to convince
Republican congressmen to "subsidize" the court system.

~~~
toomuchtodo
CourtListener expenses are less than $100k/year for providing storage and
indexing of the PACER documents they have [1] (the Internet Archive also keeps
a copy as mentioned in my above comment). There is room for the court's costs
to decline substantially, and those cost control pressures on the judiciary's
technology budget are what I'm interested in seeing. They are asking for far
more than what they need from their user fees. I am not against reasonable
user fees (I said "freely" above, and that's my faux pax), but very much
against gouging because of politicians and bureaucrats.

For funsies, let's assume the entire PACER corpus is 10TB (edit: appears to be
closer to 250-300 TB). Let's also assume that you want all of it OCRd,
indexed, and available over a web interface and an API. Let's also assume a
staff of ~5 technologists to oversee such a system. What do you think a
reasonable annual budget would be for such a system? I would argue no more
than $2-3 million. Let's Encrypt (non-profit for public certs) has a budget of
$3.6 million and employees 13 people (as of 2019).

Perhaps the judiciary should just pay Free Law Project to host PACER, they’ve
already proven they can provide a superior product cost effectively.

[1]
[https://projects.propublica.org/nonprofits/display_990/46334...](https://projects.propublica.org/nonprofits/display_990/463342480/08_2019_prefixes_46-46%2F463342480_201812_990EZ_2019080216542344)
(Free Law Project, 2018 990-EZ, Line 17, total expenses)

~~~
zucker42
Supposedly (according to the Free Law project) the size of PACER is probably
closer to 250-300 TB. Your point still applies though.

[https://free.law/2016/10/10/the-cost-of-pacer-data-around-
on...](https://free.law/2016/10/10/the-cost-of-pacer-data-around-one-billion-
dollars/)

------
1024core
It's a travesty that we have to pay for this information at all!

~~~
site-packages1
I agree that they're public records, but you even have to pay reasonable fees
for FOIA requests, which are also public records. There is some cost in
maintaining and distributing the records. While it's true that the government
could pay for it as a public service, and I believe they should, PACER is
self-funded via these fees for now. In that regard, it's actually quite a good
system, unreliant on annual budgets by Congress, but instead funded via the
users at a pro rata rate for how much use a user gets out of it.

Notably, the information is free up to a certain threshold.

~~~
duskwuff
> You even have to pay reasonable fees for FOIA requests, which are also
> public records…

Hm? FOIA requests are usually made to request the release of data which is
_not_ yet available to the public. Most such requests require some level of
human intervention, e.g. to determine what sorts of records need to be
searched, to perform manual searches on non-digitized or poorly indexed data,
and to perform any necessary redaction on the retrieved data.

PACER, by contrast, is already fully automated. The court records it searches
are all already digitized, and have all been cleared for release; literally
the only thing which users are paying for is the operation of the service.

~~~
site-packages1
There are plenty of FOIA requests where the responder simply has to do a quick
search of digital internal records that already exist but aren't "public" in
the same way that PACER records aren't "public" because they're behind a
paywall. Further, it's no longer the case that "most" such requests require
human intervention such as "perform[img] manual searches on non-digitized or
poorly indexed data," though it is true someone needs to check for redactions.
Think of the average case being like the high touch PACER option: someone
takes your FOIA request, performs an internal digital search, checks to make
sure results look good, and emails them to you.

I'd say in this way they're relatively analogous, though you're partially
correct in pointing out some of the differences.

------
1vuio0pswjnm7
They raised the fee waiver to $30 in January. They say only 25% of PACER users
ever exceed that threshhold.

It would be interesting to see a breakdown of who makes up the 25%.

If there was a compelling public interest in serving those users in the 25%
then, theoretically, the parties in each case could make their filings
publicly available; the parties have access to free copies of the filings in
their case.

The reasons why parties would not want to do that -- which I trust the reader
can imagine -- probably explains part of the historical reluctance to make
unlimited PACER use free for everyone.

As Amercians' privacy is decimated by tech companies, the moderate amount of
"privacy" afforded to parties in federal courts might actually be something
worth protecting.

What is filed in federal courts is perhaps one area of people's lives that is
not readily available for tech companies to vacumm up on a mass scale.
Needless to say, filings routinely contain sensitive personal information.

Note I am not making an argument either way, but just presenting some points
to consider.

------
mmhsieh
for anyone who has ever gotten the surprise O($10,000) PACER monthly bill,
this is a no-brainer. not just lawyers who get these bills btw.

~~~
texasbigdata
But it also blocks access to justice. Just pulling the docket and a few
related small filings for a case can cost $50+.

It (and this is a stretch) essentially disenfranchises poorer members of
society by limiting their access to justice and information.

~~~
Alupis
In my experience, lawyer fees are highly decoupled from their expenses...
which is to say even if PACER fees were dramatically reduced, lawyer fees will
not.

Not sure how that can help poorer members of society, since most people are
quite unlikely to be doing their own case law research anyway.

~~~
pessimizer
It feels strange to have to say this, but there are thousands, if not
millions, of people who have done their own legal research who are not
professional lawyers. They do this because they can't afford professional
lawyers and they are in legal peril. Many of them are in prison themselves.

~~~
pnw_hazor
Good thing their are many free government sources that provide all the
research material anyone would ever need.

Though PACER is good for looking at submitted papers to see how other lawyers
draft their complaints, motions, etc.

------
dependenttypes
The creator of CSS was sued (and ended up losing, unfairly imo but it drew the
attention of the lawmakers at the end) for making an open database of court
records.
[https://www.wiumlie.no/2018/rettspraksis/06-11-blog.html](https://www.wiumlie.no/2018/rettspraksis/06-11-blog.html)
(it has links to the next posts)

I wish that every country published their court documents for free.

------
gnicholas
Just to clarify for non-lawyers, PACER is needed for certain filings, but not
the four opinions themselves. There are several good websites that host these.

Not that PACER isn’t overcharging, just that it isn’t where lawyers go to get
opinions, which are critically important for the practice of law.

~~~
mlissner
I'm chiming in a lot, but this is only sort of true. In theory, yes, opinions
and orders are free on PACER. In practice clerks have to check a box when they
upload each opinion to mark it as free, and yeah....some clerks do a great
job. Others do terribly. Some info here: [https://free.law/pacer-
facts/#written-opinions-are-free-on-p...](https://free.law/pacer-
facts/#written-opinions-are-free-on-pacer-but-h)

~~~
gnicholas
In my practice, all important opinions were published and freely available.
Perhaps there are areas of law where coverage is spotty or delayed, but I
literally never needed to use PACER because I didn't work on active litigation
(just transactions, opinion letters, client memos and other research-related
work).

~~~
mlissner
Right, you can usually find opinions, but in many cases, that's because the
provider you're using — WestLaw, Bloomberg, Justia, Google Scholar, whatever —
paid for it on your behalf. They (we) have to go to PACER and buy these things
too.

~~~
pnw_hazor
These are free

[https://www.supremecourt.gov/opinions/slipopinion/19](https://www.supremecourt.gov/opinions/slipopinion/19)

[https://www.govinfo.gov/app/collection/uscourts/district/als...](https://www.govinfo.gov/app/collection/uscourts/district/alsd/2017/%7B%22pageSize%22%3A%22100%22%2C%22offset%22%3A%220%22%7D)

------
jaybna
PACER fees are high, but at least federal records are centralized. Try
searching for lawsuits at the local level. To my knowledge there is no online
service at any cost that lets one hunt for civil actions. This is how the
legal systems stays obfuscated for the average citizen.

------
iav
The fees are ridiculous. Google Scholar is free but it’s very difficult to use
if you just want records for a particular case. In my attempt to solve the
problem, I created the website bankrupt11.com which offers free access to
federal bankruptcy records.

------
peter_d_sherman
I would think that it would violate _Due Process_ if PACER or any other public
court record was needed for a case, but the person needing them could not
afford them...

On a related note, I would think that it would violate _Due Process_ if any
piece of information relevant to any case, legal or otherwise, were available
and not provided, that is, if there was some sort of barrier (monetary, legal,
or otherwise) preventing its easy and complete acquisition by the public, or
whoever was involved in a case and needed it...

------
Shicholas
Gupta Wessler is an incredibly awesome firm. I recommend everyone interested
in the intersection of technology and law to follow this firm and their
motions.

------
tptacek
I don't have an opinion about whether PACER's fees are too high or not, or
whether metered pricing is the right plan, but our court systems are generally
underfunded, severely, and _that_ problem causes far more justice equity
problems than PACER fees do.

~~~
elliekelly
There is no differentiating - PACER fees _are_ a justice equity problem. It is
impossible to separate one from the other. Inmates and pro se litigants need
the information on PACER, too. The Courts have previously allowed these fees
on the ridiculous theory that the same information was available in hard copy
at the court house. It’s not equal access to justice when someone can afford
to get information in two clicks and someone else needs to take a bus an hour
each way.

------
supernova87a
How soon before someone opens a Scihub-like pirate site for all court
documents?

This feels a lot like scientific papers that are paid for by taxpayer dollars,
and then yet again charged to taxpayers to access them.

~~~
davidgerard
RECAP.

