Free PACER by Susan Lyons

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Balancing access and privacy Free PACER By Susan Lyons

n 2001, the Judicial Conference of the United States gingerly entered the Internet age with the release of a Web-based version of the Public Access to Court Electronic Records I(PACER) database that allowed remote public access to most federal civil court documents over the Internet. It did so only after two years of studies, reports, and the solicitation of public comments. The 242 comments received by the conference reflected the tension between access and privacy. Journalists, private investigators, and data companies urged full and unfettered access, insisting that “public is public!” Other comments urged caution, citing privacy concerns and the potential for identity theft from the misuse of sensitive financial and personal information contained in many court filings.

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The courts balanced these concerns court, have long been open to the adjacent to our reference desk, was the by coming up with the system that public. Some authors argued that these main portal for PACER access. Only remains largely in place today. Obtaining paper records existed in a state of librarians and circulation staff had access documents through PACER requires a “practical obscurity” that served to to the password. password-protected account. Anyone can minimize privacy concerns. Court On the very day I received our apply for an account but must surrender records held in paper files are not easily password and while I was still working some personal information to do so: a browsed and potential identity thieves on a Web page that would promote physical address, an e-mail address, and might feel some discomfort in lingering the program and explain how to use credit card information. Account users in the records room of a courthouse. PACER, the reference desk called to pay a fee, now at $.08 per page, to Judge J. Rich Leonard, a member of alert me that a patron had just come in download documents. While charges the Judicial Conference committee that asking to use our free PACER. My first only apply after the first $10 of formulated the policy on PACER, customer told me he had just come from downloads and there is a cap of $2.40 responded that the judiciary had the federal courthouse, about a mile per document, the fees effectively weighed these concerns carefully in away from our library, where the clerks’ discourage attempts to capture large developing the program. Writing in the office had posted a copy of a press release sections of the database. American Bankruptcy Law Journal in from the U.S. Courts Web site about the Social security cases, which typically 2003, Judge Leonard notes that the free PACER program with the name of contain private medical information, account registration system provides our library circled. were excluded from the system, and some check on abusive use of court Over the next several months we court rules were changed to require some documents: “Remote access to federal received a steady stream of visitors who personal information, like Social Security court data is not anonymous. Instead, came to use the free PACER service. numbers, to be redacted from court a proposed user must register with Pro se litigants were the largest group of filings. Criminal cases were initially the PACER (Public Access to Court users, many of whom were using PACER excluded, but after a pilot project that Electronic Records) Service Center and to keep track of what was happening in allowed access to criminal pleadings in obtain a log-in and password and set their own cases. Other users included 11 courts, access was expanded in 2003 up a billing account.... [A]n electronic attorneys, students, and an out-of-town to include widespread access to criminal footprint of each user who accesses any journalist. Our busiest days brought filings. file is created. Although this may not three or four requests to use PACER. PACER made its debut in the early prevent harm, there is some deterrent On other days there were no requests. 1990s as a dial-up service offering a effect to misusing data from a federal Overall usage averaged about 30 limited selection of court documents court file when access can be traced to visitors per month, a level that was quite over slow dial-up modems with charges a particular password.” manageable for library staff. Each user of $1 per minute. Its migration to had to be logged in by a library staff a Web-based database in 2001 brought The Free PACER Pilot Program member, usually the librarian working at In November of 2007, the reference. Because PACER accounts have Administrative Office of the United unwieldy user names and passwords with States Courts (AOUSC) took another odd characters, this required taking out step toward full public access: in a piece of paper with the password and cooperation with the Government trying to type it in while concealing the Printing Office, it began a two-year password from the patron. A system that pilot program that offered free and used IP authentication rather than unrestricted access to PACER at 17 passwords would have provided greater libraries that were participants in the security and created less anxiety for the Federal Depository Library Program library staff members. (FDLP). This article reflects on that Our participation in the program brief pilot program, its abrupt continued unremarkably until late suspension, and the continuing tension September of 2008 when all between privacy and access. It concludes participating libraries received an urgent with recommendations for how the e-mail from the court administrator courts can offer free access to PACER telling us to immediately change our that is broadly accessible to the public passwords. After we all did so, we while still protecting the legitimate received another message stating that privacy interests of litigants. the pilot program had been suspended improved access and also generated a My library, an academic law library indefinitely. In a conference call, flurry of articles in law reviews and bar located in downtown Newark, New the court administrator informed journals on the merits and perils of the Jersey, volunteered for the two-year pilot participating libraries that there had been new system. program and was among the 17 libraries a security breach and that one or two of Some articles posed hypothetical chosen to participate. Other participants the pilot program passwords had been situations wherein one’s identity could included six other academic law libraries, used to download a massive amount of be stolen, or sensitive information could state libraries, county and state court documents. be used to blackmail individuals whose libraries, college libraries, a federal circuit In February of 2009, several private information could now be court library, the Law Library of newspaper accounts provided a fuller accessed by anyone with a PACER Congress, and a public library. Each description of the incident that caused account. Others warned attorneys that library received a password for the free the AOUSC to abruptly suspend the free they might be liable for malpractice if account. The terms of the pilot program PACER program. Aaron Swartz, a 22- they failed to carefully redact private dictated that we could only use the free year-old computer whiz, managed to information from court documents. PACER password on computers within download nearly 20 million pages of Of course, court records, with the the confines of the library. In my library, PACER documents, or about 20 percent rare exception of cases sealed by the the government documents computer, of the entire database, before the

government shut down access to all free allegations of fraud, dishonesty, criminal court filings raise other PACER pilot accounts. Swartz, who at negligence, discrimination, and concerns. If a criminal conviction is the age of 14 was among the authors of dereliction of duty. Such allegations, expunged, it is possible to remove the the RSS 1.0 specification, was inspired if untrue, would be grounds for records from PACER. But if those by Carl Malamud’s call for a “thumb- defamation suits if made outside of court records have migrated to other databases drive corps” to liberate PACER proceedings. Many cases are dismissed or to the open Web, the value of documents so they could be made or settled long before the merits of their expungement is diminished, if not lost. freely available on the Web. claims are ever tested before a judge The Electronic Privacy Information Malamud is the founder of or jury. Yet the allegations linger on in Center (EPIC) notes that dissemination Public.Resource.org, a nonprofit group court filings. Unlike court decisions, of criminal records on the Internet working for open government. His pleadings are not “the law” but only diminishes the chances for social earlier work helped to provide free the raw claims of litigants, untested and forgiveness, the “principle that one public Internet access to Securities unproven. Sitting quietly in the practical can be born again in America and leave Exchange Commission (SEC) obscurity of a court records room or even mistakes in the past.” documents as well as patent and in the deep Web of the PACER database, trademark databases. In an article in such claims are rarely heard by any but Identity Theft Concerns Wired Magazine, Malamud describes the the parties to a particular lawsuit. But A final concern with all court records, PACER system as “the most broken part placed out on the open Web, such claims civil and criminal, is the issue of identity of our federal legal mechanism.” The may never die. theft. The courts have tried to address New York Times, in an article about the Beyond basic pleadings, other court this by requiring that litigants redact efforts of Swartz and Malamud to make documents implicate privacy concerns. Social Security numbers and other court records more accessible, described The courts excluded Social Security sensitive information from court filings, PACER as a “system designed in the litigation from PACER because these but compliance has been less than bygone days of screechy telephone claims contain detailed information on perfect. While some failures to redact modems. Cumbersome, arcane and not the claimants’ medical conditions. Many private information are no doubt free, it is everything that Google is not.” consumer bankruptcies are related to attributable to attorneys, many court medical expenses and the schedules can documents are filed in hard copy by Preserving Privacy reveal significant information about a pro se litigants. These documents are Clearly the greatest level of access the debtor’s medical condition, where a scanned into the PACER system by government could provide would be to debtor lists doctors and hospitals on court clerks, and it may not be practical make PACER freely available on the the schedule of creditors. for them to review the documents to open Web, where search engines could ensure no private information is revealed. index its 100 million pages, and Who’s a Rat? Malamud, in reviewing the court researchers could apply Web 2.0 tools Perhaps the most serious privacy and records that Swartz downloaded, found to analyze the data and develop custom security concerns arise in criminal cases. numerous instances where litigants applications. Congress is pressuring the One notorious example of abuse of failed to redact sensitive information, courts to provide free access to PACER court records is the Who’s a Rat Web site including one 54-page list of 350 but also to ensure that private data is (www.whosarat.com). The site claims patients of a doctor, complete with protected. Senator Joseph Lieberman, to have identified 4,300 government names, Social Security numbers, and Chair of the Homeland Security and informers and 400 undercover agents, medical conditions. Malamud has called Governmental Affairs Committee, has many of them from documents obtained these lapses to the attention of the courts asked the Judicial Conference why it from court files available on the Internet. and Senator Lieberman, and is working continues to charge for PACER access Names and mug shots of the alleged rats to clean up the data he has so that it is and also demanded the courts do more are posted on the site, along with plea free of sensitive private information. to protect private data. agreements and other court documents Congress’ demand that PACER in support of claims that someone is a The Demand for Access be free and accessible to all without government informant. Advocates of full and free access to compromising legitimate privacy The founders of the site claim First PACER might argue that the genie is interests or, in the case of criminal Amendment protection for their efforts. already out of the bottle. Perhaps privacy filings, anyone’s security, puts the courts Speaking to ABC News in 2007, Web is dead and we should just get over it. in a “Catch 22” dilemma. Before site spokesman Anthony Capone said, Significant portions of the PACER exploring whether there is a way out “If people got hurt or killed, it’s kind database have been captured by of the dilemma, it is useful to consider of on them. They knew the dangers of Lexis, Westlaw, and other proprietary if there is something about PACER becoming an informant. We’d feel bad, databases. Those with access can use the documents that makes them distinct don’t get me wrong, but things happen sophisticated search tools in proprietary from other types of government to people. If they decide to become an services to mine data far more effectively information and deserving of special informant, with or without the Web than is possible within PACER. Why not precautions that are unnecessary for, say, site, that’s a possibility.” The same provide bulk records to those who wish SEC filings or annual reports. I believe Capone told The New York Times, to develop competing services that are some categories of materials found “The reality is this. Everybody has a free or cost less than searches in Wexis? within PACER do pose special risks choice in life about what they want Equity of access is the central and are deserving of special treatment. to do for a living. Nobody likes a argument of those who wish to liberate Court pleadings are qualitatively tattletale.” While no deaths have yet court documents from the confines of different from other types of been attributed to the Web site, a PACER. Malamud points out that the government records because they are number of informants have had to be data they downloaded “was available documents created by private citizens moved into protective custody and some to the public, but only in an unjust engaged in often-heated disputes with courts have removed plea agreements manner. Any lawyer, identity thieves their adversaries. They routinely contain from the PACER system. with cash, or librarians with all-you- sharp and hyperbolic language and make Beyond witness intimidation, can eat Lexis accounts (in short many

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millions of people) had full access to all in bulk to anyone requesting them. reasonable limits on the terms this information, for data mining or any These two categories of documents of this access that would protect other purpose. The folks that have not pose little risk to privacy and are sensitive data. had access to the data are the ordinary among the most used and valuable • Reinstitute the PACER pilot citizens, scholars, journalists, and many of the materials in PACER. Exhibits program and expand the pilot to others. Saying that data mining was and attachments with private all federal courthouses. Full release somehow not happening ignores the information could be excluded of the database could be prevented reality that this data was public, simply from the release. by restricting the number of just not evenly distributed.” • Give attorneys and litigants free downloads permitted at any one Malamud supports rulemaking by and unlimited access to their own site and instituting reasonable the Judicial Conference to better limit dockets. Under the current system, guidelines to prevent abuse. Access the release of sensitive data on PACER, when a new document is uploaded should be provided through IP but argues that once a document is to the court’s electronic docket, authentication rather than public, it needs to be public for all, parties receive an e-mail notice passwords. not just those who can afford to pay. that allows them one opportunity Striking the right balance is possible to download the document to if not easy. PACER has traveled a long Finding Balance and Solutions their own computer without way since the days of screechy modems. While some categories of documents charge. While large law firms The next step in the journey is to offer within PACER pose special risks to may capture these documents in no-fee public access to large portions privacy, others do not. The Washington sophisticated case management of the database while still protecting Office of AALL has consistently called systems, many smaller firms may legitimate privacy interests. The AOUSC for no-fee public access to PACER while need to log in to PACER and has stated its commitment to greater also calling for the courts to safeguard incur charges to view documents access to court records and to protecting private information. Can the courts do in their own cases. Free access privacy. This article’s recommendations both? Below are four recommendations is especially critical for pro se are offered with the hope that they will to make the most useful PACER litigants, who may not have regular successfully navigate that course. ■ documents freely available on the Web access to computers and need to without compromising privacy and access PACER repeatedly to view Susan Lyons ([email protected]. security: files in their own cases. edu) is documents/reference librarian at • Release all court decisions and • Allow scholars doing empirical Rutgers University Law School Library briefs in motions and appeals research on court records full in Newark, New Jersey. without restriction on the open access to bulk data. The Judicial Internet and make the files available Conference could establish

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