
Attacking a Pay Wall That Hides Public Court Filings - howard941
https://www.nytimes.com/2019/02/04/us/politics/pacer-fees-lawsuit.html
======
pseudolus
In the interim there is a solution for some users in the form of an extension
- "RECAP" \- for Chrome and Mozilla that adds to an archive every initial
download of a docket or case file (accessed through PACER) [0]. Thereafter,
users with the extension installed will be alerted as to whether the docket or
file is available for free in the archive. Practically, this only helps to the
extent that the RECAP extension is installed by users, primarily attorneys and
support staff, and for dockets and case files that are generally sought out.

In passing, charging fees is clearly unfair given the role courts play in our
society. At the state level, such as in New York state courts, filings are
freely accessible.

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

~~~
smelendez
New York has free access, but that really varies widely by
state/county/district. Some are paywalled, some aren't online at all.

------
payne92
Even crazier: the local courthouse in my home town (in West Virginia) charges
$1/page _even when you make the copies yourself with your cell phone_.

Governments are sometimes just like people -- they get addicted to revenue
streams and have a hard time adapting when those revenues change or go away.

~~~
comtn
It could be said that because they have to physically go and find the
document, and hand it over for you to take a photo of is the reason for the
costs.

~~~
payne92
That would make sense, but in this particular case the fee is for copies of
deeds and other public documents that are in bound volumes in the record room.

It’s entirely self service.

~~~
Someone
There still is the cost of making and maintaining those volumes, for building
and maintaining the record room, for having somebody check how many photos you
made, for billing, etc, etc.

With fairly high fixed costs and, likely, demand varying a lot as a function
of price, picking a break-even price point isn’t really possible up-front.

For example, if they were to charge $1,000,000.— per page, chances are they
won’t recover costs, but that doesn’t imply they should ask more.

I think governments should just give up on the idea of recovering costs on
this kind of service. That may mean some people will benefit more from it than
others, but then, be that so. Alternatively, put a reasonably high cap on the
ability to query the system.

~~~
rovr138
On the other hand, you usually pay a fee to get those documents processed and
archived.

------
buildbuildbuild
PACER's antiquated interface and dirty data have fueled a wildly profitable
legal services industry.

The public deserves more than the base line of free access to court records.
Give the public access to clean normalized case data like in LexisNexis and
Westlaw's outrageously-priced products, including a full database dump for
civic hackers to improve.

Aside: I worked on a product which relied on scraping PACER. A foolish
integration test on our CI server once racked up a $50,000 PACER bill which we
didn't notice until the end of the quarter.

~~~
rayiner
The concept of “civic hacking” is an error of projection. Because user-
generated data is valuable in other areas of tech, techies assume its valuable
in civics. Unlike with Internet technology, user-generated data has little
value in politics and the law. Knowing that 76% of district courts did
something one way has little persuasive value compared to knowing two or three
well-reasoned court of appeals opinions. The data is in fact out there-all
federal cases are available for free on Google Scholar and various other
sites. And nobody has done anything interesting with that information.

That is not to say that politics and law can’t be data driven. But the data we
need in those areas is not data you can derive by analyzing user or government
generated databases. We need “hard data” such as how different tax policies
impact economic growth. That’s not the sort of data analysis “civic hacking”
can give us.

~~~
buildbuildbuild
The users are generating the data already: getting arrested and sued. This
data is not yet a URL you can share. Sign up for PACER and see how hard it is
to associate a credit card and look up one case. It is not accessible to the
casual user.

Perhaps we have witnessed different types of citizen contribution. I am not
suggesting data science. Many would happily join a volunteer endeavor to clean
up our country's case database and build a great UI on top of it which
encourages public interest in the judicial system.

> The data is in fact out there

It is not. There is no complete, real-time, or normalized open case data out
there, and LexisNexis and Westlaw's products are not priced to be accessible
to individual citizens.

~~~
rayiner
> Many would happily join a volunteer endeavor to clean up our country's case
> database and build a great UI on top of it which encourages public interest
> in the judicial system.

What would be the value of that? What problem is that trying to solve that is
worth giving up $140 million a year in revenue that’s currently coming almost
entirely out of the pockets of lawyers and law firms?

> The data is in fact out there It is not. There is no complete, real-time, or
> normalized open case data out there, and LexisNexis and Westlaw's products
> are not priced to be accessible to individual citizens.

I’m not sure what you mean by “normalized” in this context, but Lexis and
Westlaw do a ton of additional analysis on top of public cases at their own
expense. That information isn’t in PACER. To generate it you’re talking about
even more expense. And while the existing databases are not updated in real
time, they’re quite complete for federal cases, which is all that PACER
covers. And I’ve never seen an interesting application of that data beyond
simply allowing you to read the cases.

~~~
cheriot
I don't mind advocating against regulatory capture in general. If nothing
else, improved access to this data will make the Westlas/LexisNexis industry
more competitive.

There are a lot of ways governments generate revenue even if we want to
restrict it to the legal industry. Obfuscating public information to the point
that there's an oligopoly controlling access is fucked up.

~~~
rayiner
You’re deeply confused about the situation if you think Westlaw and Lexis have
anything to do with PACER. You use those services to access legal opinions.
The underlying opinions are free on PACER and also usually posted on courts
websites. Westlaw and LEXIS don’t index most of what’s in PACER. Conversely,
PACER doesn’t contain most of what’s in Westlaw and LEXIS. PACER for the most
part only has electronic files going back to the early 2000s. You can’t use it
for serious legal research. Westlaw and Lexis have comprehensive data based of
opinions going back to the 18th century because they went and scanned in all
those paper records. (And West has been around since 1870 and has been
building its collection ever since then.) The government (in fact,
governments—there are hundreds of mostly autonomous court systems in the
country) isn’t limiting access—it simply doesn’t have the data that makes West
and Lexis so valuable.

~~~
comex
Are you sure? I have not used Westlaw or Lexis, but from a quick search, both
of them appear to offer services – albeit distinct from their 'main' services
– that provide access to court dockets and corresponding documents [1] [2],
which would account for the rest of what's in PACER.

[1] [https://www.lexisnexis.com/en-us/products/courtlink-for-
corp...](https://www.lexisnexis.com/en-us/products/courtlink-for-corporate-or-
professionals.page)

[2]
[https://legal.thomsonreuters.com/en/products/westlaw/dockets](https://legal.thomsonreuters.com/en/products/westlaw/dockets)

~~~
rayiner
You’re right, I forgot West/Lexis have docket tracking. I assume that gets
data from PACER, but it also gets data from court “runners” (people who go to
courts to get filings).

That being said, despite that the overlap between West/LEXIS is very small.
The docket tracking is an adjunct service that you use in the unusual
situation where you’re keeping tabs on a case you’re not participating in. Its
not real time (day after) which is a big thing because the PACER/ECF
notification is the official notice that triggers time periods and deadlines.
It’s also vastly more expensive than PACER (like $50 per document).

That doesn’t address OP’s point, which is West/Lexis’s market dominance. And
that is based on those systems having 200+ years of human annotated and
indexed case law. PACER doesn’t have that data.

------
mchannon
My PACER bill always manages to end up north of $25 a quarter.

Reforms are sorely needed. Imagine google charging you (and your lawyer) $.10
per search plus $.10 per returned result.

~~~
sokoloff
In the scheme of waste in the legal field, I'm not sure PACER is a blip.
(That's not a reason to never address it, but if we're prioritizing...)

For me (not a lawyer), my PACER usage never reaches the threshold where I get
sent a bill. I can go research a case I'm interested in, download the relevant
filings, read them over, search for related materials, and not get billed. If
I really got into a case or couple of cases, maybe I'd get a bill that is less
than an average hardcover book. Meanwhile, I've have spent some multiple of
that amount on my own time.

I'd much rather a system like this than an ad-supported social network for
legal filings.

My larger beef with PACER is the insanely poor user interface. However, it
gets the job done.

Edit to add afterwards: Despite the above, I fully support making PACER
taxpayer-funded and free-to-access.

~~~
mchannon
Lucky you.

I’ve seen legal professionals not limit their queries, downloading 50 pages at
$.10 each, when they’ve already downloaded the document umpteen times and only
want to see the first or last page.

That also goes out the window when you want to read a 283-page filing
including attachments.

Audio recordings (free) are starting to be made public at the 10th circuit.
Looking forward to wider availability of them nationwide.

~~~
phonon
> That also goes out the window when you want to read a 283-page filing
> including attachments.

PACER has a $3 cap per document (no matter how many pages).

~~~
mchannon
Last month I got billed $10.00 for a 100-page transcript.

March of last year I got billed $12.60 for a 126-page transcript.

Not sure where you're getting your information from.

~~~
phonon
We're both correct...

"Please note that there is a 30-page cap for documents and case-specific
reports (e.g., docket report, creditor listing, claims register). You will not
be charged more than $3 when you access documents or case-specific reports
that are more than 30 pages. However, the 30-page cap does not apply to name
search results, lists of cases, or transcripts (when available online)."

[https://www.pacer.gov/psc/faq.html](https://www.pacer.gov/psc/faq.html)

------
rayiner
The attacks on PACER suffer from a few misconceptions:

1) That PACER charges for people to access "the law." As the article points
out, "judicial opinions are free" on PACER. They're also typically published
as PDFs on the courts' websites.

2) That the "costs of storing and transmitting data have plunged, approaching
zero." That may be true, but the cost of maintaining and upgrading an
electronic filing and access system have not approached zero. And there is no
free off-the-shelf system that does what PACER does.

3) That PACER is meant for access to public records. PACER is a read-only view
of the courts' _filing system_ for lawyers and the court to use. Because
lawyers use it, lawyers pay for it. (Individuals representing themselves _pro
se_ can use it for free.) It may indeed be desirable to make these legal
filings publicly available through some system. _But PACER is not that
system._

The issue is not really that "PACER should be free," because it's quite
reasonable to charge lawyers a fee for a service they use that's provided by
the courts. What you really want is something like the various "Open
Government" searchable data sites that are out there. PACER is not that system
--it's not easy for the public to use, it's search features are primitive,
there is no way to do bulk downloads, it's running on the same systems as
mission-critical ECF filing functions, etc.

~~~
techsupporter
But PACER itself bills itself as that system: "Public Access to Court
Electronic Records."

If the mechanism for providing public access to court records is inefficient
or poorly-done, let's fix that. Saying "we have to charge for PACER because
PACER isn't the right way to do what PACER claims to do" doesn't seem valid to
me.

Charge attorneys and other filing groups to use CMECF (the filing side of
PACER) and make public access to download documents available for free. Or,
make a bulk feed and database dump of documents available to download, like
Wikipedia does, and let a group dedicated to open records access take up the
charge. I'd rather have the government provide the search service but if it
can't or won't, make the data available for free and allow for the opportunity
for someone else to take up the charge.

~~~
rayiner
It should be clear in HN of all places that what the product is named and what
it does at a technical level is not the same thing. Technically, PACER is a
view into the ECFS database, and it’s not set up for the sort of wide-spread
public access you’re talking about. One could build such a system, but now
you’re talking about building that system at substantial cost, while
undercutting your PACER revenue. And I’m not clear what the public benefit is
that justifies that.

I think in a common law system like ours, opinions must be available to the
public as a matter of political morality. I don’t think that same moral
justification extends to the other filings in cases, which don’t have the
force of law. I think you need some utilitarian justification for incurring
the cost of making these more widely available, and I don’t see a compelling
one.

~~~
dd36
The decisions are based on what is contained in those other filings.

~~~
rayiner
Decisions are written to be self contained.

~~~
jimktrains2
Previous decisions are often referenced, which I believe is what gp was
saying.

~~~
sfifs
Which are also freely available correct since all decisions are freely
available?

~~~
jimktrains2
Isn't the point of this article and whole thread that there is no prohibition
on their access, but often there are (unreasonable) financial barriers?

------
bellerose
The obvious wrong about Pacer is when a person doesn't have the financial
means and wants to pursue by pro se.

The law was constructed in the interest of the public and self representation
was deemed reasonable for justice to be always administered when a wrong has
been committed and a person wants to seek a verdict.

Well if you're a person who has low finances and in a situation where no
lawyer will take your case by interest or financial reasons. You can still
file a lawsuit and have the filing fees waived. The problem will be how much
it costs to print copies for yourself, the number of defendants and the judge
(court). People underestimate how much is needed to print if you're unable to
electronically file. Lawyers have access to the online filing system but pro
se doesn't necessarily (depending on the state) and has to file in paper with
mailing everything out.

Further more, the defendants may be a corporate entity with expensive lawyers
on retainers, who have full access to every previous court verdict (similar to
the situation) on PACER. They likely have a local database of the downloaded
documents and where they can do advance searches. On the other hand the pro se
is restricted by PACER in fear of the financial bill when searching and
viewing documents to find something similar to his/her own situation.

------
born2discover
As somebody who lives outside of US, this is rather shocking. In Switzerland
all judicial proceedings are free and open for access and that is anchored in
Law. Everything is accessible on the internet with no fees, registrations or
any kind fo "wall".

~~~
coderintherye
This isn't just the U.S. Switzerland may be better, but Norway has similar
issues
[https://www.wiumlie.no/2018/rettspraksis/10-22-returns](https://www.wiumlie.no/2018/rettspraksis/10-22-returns)
Furthermore, as discussed in that link the entire EU has a 15-year "database"
directive that limits free and open access [0]

[0] [https://ec.europa.eu/digital-single-market/en/protection-
dat...](https://ec.europa.eu/digital-single-market/en/protection-databases)

~~~
born2discover
Thank you for the links. I have to admit it was an eye opening experience. We
take our access to judicial proceedings (as well as laws, but that's beyond
the point) as essentially a civic right, that seeing others nations embracing
a different philosophy on the matter is quite shocking.

~~~
rayiner
I think you’re conflating two different things. The US has one of the
strongest traditions of free access to judicial proceedings. You can walk into
pretty much any courtroom to watch a proceeding. Even when it’s a big
corporate disputes involving confidential information, the court will only be
sealed for so long as the confidential information is being actively
discussed. And the court will force the parties, at their own expense, to
carefully redact filings with confidential information so that they can be
available publicly. In one court I practice in, the Federal Circuit, you need
special permission to redact more than 15 unique words in a brief, even if
it’s a big business disputes with tons of confidential information. That level
of access is not the norm in Switzerland as I understand it:
[https://www.swissinfo.ch/eng/society/understanding-the-
justi...](https://www.swissinfo.ch/eng/society/understanding-the-justice-
system_a-swiss-court-throws-opens-its-doors-to-visitors/44164790).

> However, no other initiatives are anticipated to make the justice system
> more public. The judge is, for example, not too keen on the idea of
> publishing all judgments online. “That would require far too much effort to
> make things anonymous,” he explains. But the court does already publish the
> most interesting judgments.

But the government here is also not big on paying for things. Building a whole
electronic system to disseminate these filings costs a lot of money.
Philosophically there is a strong trend in the US that having a right to do
something doesn’t mean the government has to pay to help you exercise that
right.

------
Andre607
Surprised the article (or the comments here), don't mention earlier efforts to
tear down court paywalls, such as Aaron Swartz's scraping of 2.7 million
documents from PACER: [https://arstechnica.com/tech-policy/2013/02/the-inside-
story...](https://arstechnica.com/tech-policy/2013/02/the-inside-story-of-
aaron-swartzs-campaign-to-liberate-court-filings/) .

------
saltvedt
There is a very similar case going on in Norway, where Håkon Wium Lie (creator
of CSS) is being sued:
[https://www.wiumlie.no/2018/rettspraksis/06-11-blog.html](https://www.wiumlie.no/2018/rettspraksis/06-11-blog.html)

~~~
coderintherye
With update:
[https://www.wiumlie.no/2018/rettspraksis/10-22-returns](https://www.wiumlie.no/2018/rettspraksis/10-22-returns)
It recaps most of what is in the first link while talking about how they both
lost and won the court case

------
stuart78
Library of Congress document search is great, and a good model for how PACER
could be done more effectively. No user accounts, no paywalls, no ads. Just
free access to documents owned by all of us.

------
codedokode
10 cents per page is expensive. The paper and ink to print the document would
probably cost less.

------
crankylinuxuser
Bigger question: why is public documentation and legal filings paywalled at
all?

Wasn't there an old legal precept that that law needs to be public? (Even
Draco saw that as a requirement.) And judicial opinions are part of the law in
our system with precedent.

~~~
elliekelly
> Wasn't there an old legal precept that that law needs to be public?

The Federal Courts argue that PACER is just "one avenue" of making the
information public and that people can access the information for free by
going to any Federal Courthouse.

I might buy that argument in 1999, but not in 2019.

------
muratsu
Is there a tracker/email reminder that allows you tracking cases? It would be
nice to get updates about this case.

------
drefanzor
I got pay walled to read this. Cleared cookies. Paywall climbed; now reading
about pay walls...

------
1024core
I'm sure a company like Google or Bing would be more than happy to store,
index and serve the pages.

~~~
hendzen
its very important that this be handled by an independent party. Imagine if
google was party to a lawsuit and could monitor what filings their legal
opponents were looking at.

~~~
jimktrains2
Independent in what sense? Is there any entity who couldn't be sued?

Also, I'd imagine (hope) Google wasn't _the_ source, but instead a better
interface/search engine over the data.

