Why Should Congress Care About PACER?

This is the second of three short posts on PACER:

• What is the "PACER Problem"?
• Why Should Congress Care About PACER?
• What Should be Done About the PACER Problem?

There are several reasons that Congress should care about PACER:

1. The Courts are ignoring the law that Congess passed. In our tricameral system of government, it is the Congress that holds the power of the purse. The E-Government Act of 2002 (P.L. 107-347) provides with respect to PACER fees that the "Judicial Conference may, only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services." So, they can only charge for public access services such as PACER if those fees are used to cover the operating expenses for those same services. In an accompanying Senate report, Congress noted that it "...intends to encourage the Judicial Conference to move... to a fee structure in which this information is freely available to the greatest extent possible." 107. S. Rept. 174.

   However, figuring out exactly how much revenue PACER generates and how much it costs to operate is such an overcomplicated task that only one person has ever tried to do it. In 2010, Steve Schultze, the then Associate Director of the Center for Information Technology Policy at Princeton, pieced together this information best anyone could from multiple sources and produced an analysis that suggests that annual revenue from electronic public access ("EPA") services approaches $100 million while annual EPA operating costs are closer to $20 million. The enormous surplus is used to fund all manner of other court technology needs, such as flatscreen monitors for jurors and audio speaker systems in courtrooms.

   In 2009, Senator Lieberman sent a letter to the Judicial Conference expressing dismay that seven years after the passage of the E-Government Act, "it appears that little has been done to make these records freely available -- with PACER charging a higher rate than 2002." Well, another six years have passed since then, and the situation has only worsened. The courts are simply ignoring Congressional intent and direction. One would like to quote the Court's own words back to itself, when the Supreme Court wrote that, "Nothing can destroy a government more quickly than its failure to observe its own laws... If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Mapp v. Ohio, 367 U.S. 643 (1961).

2. If you added up all the money federal government entities spend on PACER fees and just allocated it to the courts directly, then PACER could probably be free. The lawyers in most every federal agency use PACER too. The courts are sensitive to this and while they announced a fee increase for the rest of us back in September 2011, government users have been exempted from this fee increase, an exemption set to expire on April 1, 2015. When one imagines what the Department of Justice alone likely spends on PACER fees to look at documents that they themselves often created one has a perfect picture of government inefficiency. Congress should require the courts to produce a report showing how much each federal government entity spent annually on PACER for the last three years and then we could evaluate whether just reducing each federal government entity's budget by a corresponding amount and allocating it to the courts directly for operating a free public access system might be a budget-neutral solution to the unreasonable burdens imposed on the public by the current fee structure.¹

   

   Screenshot of pacer.gov website (March 2015)

3. Congress wants to encourage innovation and nothing would spur the legal technology space more than opening up PACER. Addressing the PACER problem is a "good government" issue and hence a non-partisan issue. Congress has lousy public approval ratings right now and the perception is that they cannot collaborate to get anything done. Ensuring public transparency of the judiciary is something people of every political persuasion should favor, and so it presents an opportunity for Congress to claim an easy victory and accomplish something really meaningful. As the current stewards of RECAP, we are contacted on nearly a weekly basis by someone with a commercial interest in federal court records and the metadata contained therein, but they are all frustrated by the enormous cost and lack of machine-friendly interfaces of the current PACER system. If the courts made the bulk data freely available in a machine-friendly format, Free Law Project (and likely others) would work quickly to create APIs and other value-added services on top of this data that would do more to further the current burst in legal technology innovations than anything else government could do.** **

The expressed desire of Congress to make PACER information free is currently being (and has been for 13 years) ignored by the courts who are moving in the opposite direction, making the service more costly every few years. The federal government itself is inefficiently paying its left hand with its right, while allowing a system to continue that does not incentivize the courts to reduce their operational costs like a free public system would. Finally, Congress is missing a great opportunity to encourage an increasingly vital area of the economy. Congress should care about PACER and--in our next post--we'll further outline what both Congress and others should do about it.