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Technology Outpaces Reasons to Keep PACER a Fee-Based Service

My colleague Bob Ambrogi has posted several times on open government advocate Carl Malamud's efforts to liberate all court documents from their password-protected chains. But how much progress are Malamud and others making toward the goal of free, open access? In this extensive article at Ars Technica, Timothy Lee takes stock of online access to federal courts in the United States, chronicling how the system arrived where it is today and how it can be improved.

Lee begins by reminding us that while there's plenty to criticize about PACER, the online portal to the federal court records, it's also important to acknowledge what the courts are doing right. Prior to the creation to PACER in 1988, there wasn't any centralized system for attorneys to monitor progress in their own cases, let alone view activity in related dockets. Though PACER charged for dial-up access, those fees were common for commercial services at the time. By 1998, PACER moved online to the Web, with users charged on a per-page basis instead of paying per-minute.

The major criticism of PACER today is the eight cents/page charge. Though the cost is de minimis for lawyers, it poses a barrier to the public who are also entitled to view documents. The for-fee system and pay wall also makes it difficult for third parties to index documents and make them searchable. So users are limited to the search tools that PACER provides, which are limited to case number, party names and very limited key searches.

So what needs to be done before the pay wall can come down? Lee writes:

There are a couple of hurdles that will need to be overcome before PACER's paywall can be torn down. One involves money. In its letter replying to Senator Lieberman, the Administrative Office of the Courts argued that the funds it collects are necessary to maintain PACER and the other systems that Congress has instructed it to fund with PACER fees. The courts also argued that it was meeting the E-Government Act's requirement that the courts move toward making court records available for free. For example, fees for long documents are capped at $2.40. The letter also claimed that "free access to all judicial opinions is provided" to PACER users.

Lee notes that there are some concerns about making PACER completely open. Privacy advocates are concerned that some documents that haven't been properly redacted could make their way onto the Internet. But those who favor disclosure believe that privacy concerns should not be used as an excuse to keep public documents locked behind the PACER pay wall.

Do you use PACER? How would you improve it to make it more useful for your practice and your clients?

Posted by Carolyn Elefant on April 9, 2009 at 01:55 PM | Permalink | Comments (1)


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