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PICK UP THE PACER

March 19, 2019

PICK UP THE PACER: PROGRESS ON THE HORIZON FOR AN OUTDATED AND OVERPRICED SYSTEM

By: Megan Square, Volume 103 Staffer

“The Wall” has become a recent subject of hot debate. Discussions highlighting its astronomical cost and questionable legality have come to the fore, with some observers even proposing that the idea should be scrapped altogether.[1] These arguments are aimed not at any politically-charged physical structure, but rather a virtual one: PACER’s Paywall.

I. HISTORY OF PACER

The Public Access to Electronic Records [PACER] system provides “on-line access to U.S. Appellate, District, and Bankruptcy court records and documents nationwide.”[2]Over one million users take advantage of such access.[3]The system was created over 30 years ago, when computers and the World Wide Web were starting to lead America into the Information Age.[4] Before that time, all court documents were still kept on paper—those who needed access to records lined up in clerk’s offices daily, waiting to sift through case files.

In an effort to incorporate (what was considered at the time to be) cutting-edge technology into the court system, the Judicial Conference of the United States created PACER.[5]Rather than setting aside funding for this initiative, Congress allowed the Judicial Conference to assess fees in order to cover operating costs.[6] PACER charges users for certain activities, like downloading a PDF or running a search. For example, ten cents per page is assessed when downloading any non-Supreme Court filings.[7] The result has been “a massive windfall for the judiciary,” raking in about $150 million per year.[8]

II. RISING OPPOSITION

Such profitability, however, might ultimately lead to PACER’s demise. The E-Government Act of 2002 says that courts may impose fees “only to the extent necessary” to make public records available.[9] That phrase is now at the center of a class-action lawsuit brought by three nonprofit advocacy groups: the National Veterans Legal Service Program, the National Consumer Law Center, and the Alliance for Justice.[10] They are challenging the fee structure of the PACER system, which raked in $146 million in 2016, despite costing only a small fraction of that (about $3 million) to operate.[11] The plaintiffs are asking that the government not “exceed the expenses actually incurred in providing records upon request.”[12] To add insult to injury, the federal court system uses this enormous surplus to fund expenditures that have nothing to do with enhancing public access or understanding of how the justice system works.[13] Ruling in favor of the plaintiffs in the case, Federal District Court judge Ellen Segal Huvelle expressed astonishment at the clear misuse of PACER fees: “The court does not see how flat-screen TVs for jurors or those seated in the courtroom, which are used to display exhibits or other evidence during a court proceeding, fall within the statute.”[14]

That ruling is now on appeal. In January and February of this year, a wave of stakeholders filed Amicus Curiae briefs with the Court, condemning the PACER fee system and urging for a plaintiff-favorable ruling. One such brief was filed by former Senator Joe Lieberman, an original sponsor to the E-Government Act at issue in the case.[15] He claims that the legislative history of the Act has been skewed, and that it was never Congress’ intent to essentially delegate taxing power to any administrative branch.[16] His perspective, along with those of the other friends of the court, provide insight into the wide array of PACER paywall criticisms.

III. WHO IS MOST AFFECTED?

On a strictly financial scale, lawyers and law firms probably come to mind as the most intensely affected. One survey found that law firms were averaging costs in the five-figure range on PACER fees—with one firm reporting a massive bill of $110,000 for that year.[17]

Journalism stakeholders have also been cited as suffering disproportionately from the effects of the PACER paywall. The total price of the fees alone is difficult for large media outlets to swallow, and is even more crushing for small, local newspapers. In their January amicus brief to the court, media organizations highlighted the dire financial straits in which digital journalism finds itself: “In this environment, many news outlets simply cannot afford large fees for court records.”[18] Moreover, throttling widespread access to legal documents can hinder a journalist’s ability to report on legal affairs. PACER is widely criticized for its outdated appearance, but it also is handicapped from performing certain basic functions like batch downloading or text-searching the documents themselves.[19]

Pro se litigants are another group in a particularly disadvantaged position due to the PACER system. In fact, in an effort to understand the central problems facing district courts, the Federal Judicial Center asked clerks to identify the top unresolved issues afflicting pro-se litigants in the judicial system. The number one problem reported was the lack of access or limited access pro se litigants have to electronic filing, CM/ECF, and PACER.[20]According to the PACER website’s FAQ section, not even an in forma pauperis[21] determination gives someone free access to court records.[22]

IV. THE FUTURE OF PACER

While the above-mentioned class-action lawsuit alleges a statutory violation, newly introduced legislation could take the argument a step further. The Electronic Court Records Reform Act is a bipartisan bill that was re-introduced in the House on February 13th.[23] The previous version of this bill died when it failed to get a hearing last session.[24]Sponsors Rep. Doug Collins (R-Ga.) and Rep. Mike Quigley (D-Ill.) hope for more support this time around, calling the bill: “a prime example of a common-sense initiative to increase transparency and accountability.”[25]As opposed to the gray-area standard provided by the “only to the extent necessary” language in the current law, this bill would require that “all documents on the system shall be available . . . free of charge.”[26]

Like its vintage-looking website, the judiciary is slow to adapt to the overwhelming criticisms of PACER. It costs nowhere near $150 million annually to offer the service that it does—and aside from any statutory violation, the federal court system ought to seriously consider providing the service for free. A country that posits itself as a leader in equality and justice for all should be sure to take a hard look at the supposedly equal access it is providing for one of the most foundational branches of our government: the judiciary.

  1. See Patrick L. Gregory, PACER’s Court Records Should be Free, Lawmakers Say, Bloomberg Law (Feb. 13, 2019), https://news.bloomberglaw.com/us-law-week/bipartisan-bill-introduced-to-make-pacer-docs-free. ↑
  2. PACER, https://www.pacer.gov (last visited Feb. 26, 2019). ↑
  3. Gregory, supra note 1. ↑
  4. 25 Years Later, PACER, Electronic Filing Continue to Change Courts, U.S. Courts (Dec. 9, 2013), https://www.uscourts.gov/news/2013/12/09/25-years-later-pacer-electronic-filing-continue-change-courts. ↑
  5. Id. ↑
  6. Id. ↑
  7. Commentators praise the Supreme Court for allowing this type of unrestricted access to documents, and suggest that the entire judiciary should follow suit with its online platform. See, e.g., Editorial: Making the Case for Free Access to Court Records, The Daily News of Newburyport (Feb. 6, 2019), https://www.newburyportnews.com/editorials/editorial-making-the-case-for-free-access-to-court-records/article_87fbc7a7-a71e-5199-9bf4-2fad898f582e.html (quoting Deepak Gupta: “The Supreme Court’s system is terrific and it’s a model for how courts can do this”). ↑
  8. Timothy B. Lee, New Bill Would Finally Tear Down Federal Judiciary’s Ridiculous Paywall, Ars Technica (Sept. 17, 2018), https://arstechnica.com/tech-policy/2018/09/new-bill-would-finally-tear-down-federal-judiciarys-ridiculous-paywall/. ↑
  9. E-Government Act of 2002, Pub. L. No. 107–347, 116 Stat. 2899 (2002). ↑
  10. National Veterans Legal Services Program, et al. v. United States, Case No. 1:16-CV-00745-ESH (2017). ↑
  11. See Matt Ford, The Courts are Making a Killing on Public Records, The New Republic (Jan. 31, 2019), https://newrepublic.com/article/153003/courts-making-killing-public-records-pacer-fees (“The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate”). ↑
  12. Corrected Opening Brief of Plaintiffs-Appellants, at 45, Nat’l Veterans Legal Servs. Program, et al. v. U.S. (2017) (No. 1:16-745-ESH). ↑
  13. See Memorandum Opinion, Nat’l Veterans Legal Servs. Program, et al. v. U.S., at 39 (2017) (No. 1:16-745-ESH) (discussing whether the expenses at issue fit within the definition of permissible expenses). ↑
  14. Id. at 41. ↑
  15. Brief Amicus Curiae of Senator Joseph I. Lieberman in Support of Plaintiffs-Appellants, Nat’l Veterans Legal Servs. Program, et al. v. U.S. (2017) (No. 1:16-745-ESH). ↑
  16. Id. at 6. ↑
  17. Erika V. Wayne, PACER Spending Survey, LLRX (Sept. 7, 2009), https://www.llrx.com/2009/09/pacer-spending-survey/. ↑
  18. Elie Mystal, PACER is Getting Dragged and I’m Here for It, Above the Law (Feb. 1, 2019), https://abovethelaw.com/2019/02/pacer-is-getting-dragged-and-im-here-for-it/. ↑
  19. See e.g., Everything Wrong with PACER, Am. LegalNet (March 2, 2016), https://www.alncorp.com/everything-wrong-with-pacer/ (diagnosing PACER’s flawed user interface as one of its most problematic shortcomings). ↑
  20. Donna Stienstra, et al., Federal Judicial Center, Assistance to Pro Se Litigants in U.S. District Courts: A Report on Surveys of Clerks of Court and Chief Judges, at 20 (2011), https://www.fjc.gov/sites/default/files/2012/ProSeUSDC.pdf. ↑
  21. In Forma Pauperis, Black’s Law Dictionary (10th ed. 2014) (“In the manner of an indigent who is permitted to disregard filing fees and court costs”). ↑
  22. FAQ, PACER, https://www.pacer.gov/psc/faq.html (last visited Feb. 26, 2019). ↑
  23. Electronic Court Records Reform Act of 2018, H.R.6714, 115th Cong. (2018). ↑
  24. Id. See also Andrew Blake, Bipartisan Duo in House Introduce Bill to Abolish Fees for Accessing Federal Court Filings, The Washington Times (Feb. 14, 2019), https://m.washingtontimes.com/news/2019/feb/14/bipartisan-bill-reintroduced-abolishing-fees-for-a/ (reporting that lawmakers “rekindled” their bipartisan effort to pass the bill). ↑
  25. Kayla Goggin, Bill Would Make Online Access to Federal Court Records Free, Courthouse News Service (Feb 13., 2019), https://www.courthousenews.com/bill-would-make-online-access-to-federal-court-records-free/. ↑
  26. Lee, supra note 8. ↑
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