Consultus Electronica Can RECAP Turn PACER Around? by Blackwell N. Shelley Jr. PACER is the acronym for Public Access PACER’s user fees are a significant source grammer Aaron Swartz seized the to Court Electronic Records, a Web- of revenue for the third branch, but do opportunity to make a contribution to based service run by the Administrative PACER’s users get what they pay for? Public.Resource.Org. On one of the Office of the United States Courts (AO). Law librarians have criticized PACER, computers at the Seventh Circuit U.S. PACER began in 1989 as a pilot program saying that documents downloaded Court of Appeals library, Swartz serving a few U.S. district and bankruptcy from PACER cannot be authenticated. installed a small Perl (dynamic pro- courts. Beginning in 1990, the federal They have been circulating a petition gramming language) script that, every Judicial Conference, under the direction asking the AO to digitally sign each doc- three seconds, downloaded a new of Congress, prescribed fees for the use ument filed on the system using readily PACER document. Over the course of of PACER. In those dark days before the available technology. And law librarians several weeks, Swartz moved 780 giga- Internet, PACER was a bulletin board have criticized the cost and poor design bytes of data — 19,856,160 pages of text service with dial-up access and it cost a of PACER and have requested that — from PACER to an Amazon cloud dollar a minute to use. The per minute depository libraries get free access.4 server. Swartz then donated the docu- fee decreased during the 1990s, until Librarians are not alone in criticiz- ments to Public.Resource.Org. 1998, when the federal judiciary imple- ing PACER. The GPO and the AO were not mented the new Case Management/ Enter Carl Malamud. Malamud, pleased. The free access experiment was Electronic Case Files (CM/ECF) system. depending on your perspective, is either abruptly discontinued. Amazon identi- CM/ECF, which was Web-based, a hero or villain of the Internet. He is fied Swartz to the FBI. According to a dropped the per minute charge entirely partially responsible for creating the Freedom of Information Act request and substituted a seven cents per page first Internet radio station, for putting made by Swartz, the FBI checked user fee to download or view documents the U.S. Securities and Exchange Swartz’s Facebook page, his work history in case files. Currently, the fee is eight Commission’s EDGAR database online with the U.S. Department of Labor, any cents per page, with some exceptions. and, recently, for persuading the outstanding warrants and prior convic- The PACER fees trace their origin to Government Printing Office (GPO) to tions, and his mobile phone number 1988, when the judiciary sought con- create a standard for publishing the against its federal wiretap or pen register gressional funding to establish electronic Federal Register online, for free, in XML records. They checked him against the public access services. Rather than format. Malamud operates the nonprofit records in a private data broker’s data- appropriating funds for this purpose, Public.Resource.Org, which, among other base and considered a stakeout of his Congress directed the judiciary to fund things, advocates that public records house. On the advice of his counsel, that initiative through the collection of should be freely available on the Web. Swartz declined invitations to discuss his user fees. (See 28 U.S.C. § 612.) As a Not surprisingly, PACER’s per page exploit and, ultimately, the FBI dropped result, PACER has always relied on fee charge irks Malamud, who believes that the investigation.6 revenue. These revenues, however, have public access to court records should be Swartz’s Perl script, referenced far outstripped expectations. According open and free. (Malamud has also com- above, originated with Stephen Schultze, to the 2006 annual report of the Judicial plained publicly about PACER’s hit-or- a fellow at the Berkman Center for Information Technology Fund, the fed- miss record related to the publication of Internet and Society at Harvard eral judiciary collected $62.3 million in personal identifying information, such University. Schultze has also been a critic electronic public access fees in 2006, as addresses and Social Security num- of PACER’s user fees, and suggests that resulting in a budget surplus (for PACER bers.) Malamud’s organization has been they violate Section 205 (e) of the E- alone) of $32.2 million.1 By 2008, the amassing case law, codes, and treatises Government Act of 2002, which director of the Administrative Office of from public domain sources and, in amended then-existing law to state that the U.S. Courts reported that revenues some instances, by purchasing the “the Judicial Conference may, only to the from the PACER user fees would be rights and making the collection avail- extent necessary, prescribe reasonable fees “used to finance other expenses related able online for free in the Internet [for PACER].” In August 2009, Schultze to electronic public access to the courts Archive.5 Malamud’s efforts have been became the associate director of in areas such as courtroom technology controversial. Princeton University’s Center for and the Bankruptcy Noticing Center.”2 In the fall of 2008, the GPO experi- Information Technology Policy (CITP). According to the New Jersey Law Journal, mented with giving PACER away for PACER’s unspent revenues were $76.8 free at seventeen select libraries around 3 million for the 2008 fiscal year. Clearly, the country. Twenty-two year old pro- RECAP continued on page 58 www.vsb.org Vol. 58 | December 2009 | VIRGINIA LAWYER 57 RECAP continued from page 57 the RECAP database not be indexed by Worries_Some_Courts, last visited search engines, in order to keep the November 12, 2009. Also in August, the CITP started information relatively unknowable.) 4 The petition is available at the RECAP project.7 RECAP (motto: Finally, while documents created by a http://www.thepetitionsite.com/1/ improve-PACER, last visited “Turning PACER around”) is a free court are not subject to copyright pro- November 12, 2009. tection, there is no clear answer to the plug-in for the Firefox Web browser. 5 The current collection is at: RECAP works like this: If you run a question of whether copyright protec- http://bulk.resource.org/courts.gov/, PACER search, RECAP checks your tion can be extended to pleadings last visited November 12, 2009. query against the free database at drafted by counsel or pro se parties. 6 See “FBI Investigated Coder for Internet Archive (www.archive.org). If Although there is no apparent Liberating Paywalled Court Records,” the document is already there, RECAP connection to RECAP, the federal available at http://www.wired.com/ will show an on-screen icon, you can judiciary’s Electronic Public Access threatlevel/tag/aaron-swartz/, last vis- get the document from the public Program is conducting a self-assess- ited November 12, 2009. See, The New source, and you can skip the user fee. If ment of PACER to end in 2010.9 The York Times News Blog, “The Lede: the document is not in the public data- survey asks interested PACER users the Steal These Federal Records — Okay, participant to rate his or her satisfac- Not Literally,” Schwartz, J. and base and you choose to download it, Mackey, R., available at http://thelede RECAP automatically posts the new tion, explain the rating, and pick one .blogs.nytimes.com/2009/02/13/steal- document to the free database. thing to change about the system. these-federal-records-okay-not- The AO’s response to RECAP was According to the AO, the survey literally/?ref=us, last visited November terse, but the office did not summon results will help define the next gener- 12, 2009. See New York Times, “An the FBI.8 The position of the U.S. ation of PACER. Meanwhile, PACER Effort to Upgrade a Court Archive Courts is that if a PACER user is will cost eight cents per page for the System to Free and Easy,” Schwartz, J., exempt from the user fees, then the foreseeable future. at http://www.nytimes.com/2009/ user may not redistribute a down- 02/13/us/13records.html?_r=1, last loaded document; otherwise, any Endnotes: visited November 12, 2009. 7 See https://www.recapthelaw.org/, last PACER user who pays the user fee may 1 See Judiciary Information Technology Fund Annual Report for Fiscal Year visited November 12, 2009. save a copy of the document on the 8 See http://pacer.psc.uscourts.gov/ public database. So, officially, RECAP is 2006, at http://www.scribd.com/ doc/2436289/, last visited November announcements/general/ legitimate and legal. 12, 2009. exemptnotice.html, last visited The documents in the RECAP 2 See Annual Report of the Director, November 12, 2009. database at Internet Archive are, how- Activities of the Administrative Office 9 Electronic Public Access Program/ ever, heirs to the flaws of the docu- of the U.S. Courts, James C. Duff, PACER Assessment Begun, The ments in the PACER database. There is Director, at http://www.uscourts.gov/ Third Branch, available at http:// no way to know whether documents in library/annualreports/2008/index.cfm, www.uscourts.gov/ttb/2009-09/ the RECAP database are genuine last visited November 12, 2009. article05.cfm?WT.cg_n=TTB&WT.cg_ copies of the documents in the PACER 3 See New Jersey Law Journal, September s=Sep09_article05_tableOfContents, last visited November 12, 2009. system. Likewise, if a document in the 2, 2009, “Free Web Access to Judicial PACER system contains unredacted Records Gladdens Public but Worries Some Courts,” available at personal identifying information, then http://www.law.com/jsp/law/sfb/ the RECAP document will also contain lawArticleSFB.jsp?id=1202433517232 unredacted information.