Last week, the Times ran a piece on efforts to free PACER, the federal electronic docketing system. The benefits of a full text searchable, free, public docketing system are obvious:
“Pacer is just so awful,” said Carl Malamud, the leader of the effort and founder of a nonprofit group, Public.Resource.org. “The system is 15 to 20 years out of date.”
Worse, Mr. Malamud said, Pacer takes information that he believes should be free — government-produced documents are not covered by copyright — and charges 8 cents a page. Most of the private services that make searching easier, like Westlaw and Lexis-Nexis, charge far more, while relative newcomers like AltLaw.org, Fastcase.com and Justia.com, offer some records cheaply or even free. But even the seemingly cheap cost of Pacer adds up, when court records can run to thousands of pages. Fees get plowed back to the courts to finance technology, but the system runs a budget surplus of some $150 million, according to recent court reports.
To Mr. Malamud, putting the nation’s legal system behind a wall of cash and kludge separates the people from what he calls the “operating system for democracy.”
A further point that Malamud could make would turn on who really benefits from PACER’s costs. In my view, the real effect of costly public dockets is that sophisticated & wealthy parties are given a huge advantage in litigation: they can afford to purchase information about judges’ actual practices in resolving cases. Such trends are not readily discernible in unrepresentative opinions. By contrast, if PACER were free and easily searchable, everyone could see how cases are actually resolved, instead of the privileged few. The result: PACER permits lawyers to extract more rents.
On the other side of the argument stand privacy advocates like our own Dan Solove. Dockets contain lots of private information, which the clerks of court do a terrible job of redacting. Electronic dockets remove the benefits of practical obscurity. Solove is quoted in the article as saying that “It’s taking away this middle ground that offered a lot of protection, practically, and throwing it into this radically wide open box.”
I agree with Dan that the government should deal with these privacy concerns. But that doesn’t strike me as a good argument for charging for PACER access. What we’ve got now seems like the worst of both worlds. Ordinary citizens are deterred from learning the law. Commercial data miners, who can absorb .08/page charges, collect lots of personal information. The government makes a $150M surplus on a program that ought to be simply about disseminating information. And researchers who wish to access PACER end up forcing their law schools to pay for access to a system that ought to be free. (There is a research exemption in theory, but it is incredibly cumbersome and practically unavailable when you want to do nationwide work).
So, my solution would be to mandate that PACER be free, but increase the pressure on clerks of court and on lawyers to comply with the law by redacting certain personal information. We need an open-records law with teeth.
(Image Source: Sidney, Ohio Courthouse.)