Free PACER by Susan Lyons

AALLSpectrum_July2009:1 6/18/09 3:18 PM Page 30 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. 30 AALL Spectrum July 2009 AALLSpectrum_July2009:1 6/18/09 3:29 PM Page 31 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 © 2009 Susan Lyons • image © iStockphoto.com/Alex Slobodkin AALL Spectrum July 2009 31 AALLSpectrum_July2009:1 6/18/09 3:19 PM Page 32 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.

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