What Happens When You Steal Public Records and Make Them Public


In August, I wrote about a bunch of geeks who built a tool to gradually borrow/steal court records from a paywalled government database. They're pulling the records gradually, in a in diffuse way. But when the courts briefly opened that same database—PACER—to law libraries without charge earlier this year, 22-year-old programmer Aaron Swartz decided to try snag the records all at once:

He visited one of the libraries — the 7th U.S. Circuit Court of Appeals library in Chicago — and installed a small PERL script he'd written. The code cycled sequentially through case numbers, requesting a new document from PACER every three seconds. In this manner, Swartz got nearly 20 million pages of court documents, which his script uploaded to Amazon's EC2 cloud computing service.

The script ran for a couple of weeks — from September 4 to 22, until the court system's IT department realized something was wrong. Someone was downloading everything.

And so, for making public records public, Swartz became an object of interest by the FBI:

The FBI ran Swartz through a full range of government databases starting in February, and drove by his home…The feds also checked Swartz's Facebook page, ran his name against the Department of Labor to figure out his work history, looked for outstanding warrants and prior convictions, checked to see if his mobile phone number had ever come up in a federal wiretap or pen register, and checked him against the records in a private data broker's database.

They decided not to stake out his house because "any surveillance, the agent concluded, would be conspicuous, since so few cars were parked on Swartz's dead-end street in Highland Park, Illinois."

NEXT: More on the Fucktardederal Trade Commission's New Rules

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  1. “He visited one of the libraries ? the 7th U.S. Circuit Court of Appeals library in Chicago ? and installed a small PERL script he’d written.”

    Isn’t that a crime?

    1. I’m sure they can find something to charge him with.

  2. it is such bs that most “public” records aren’t public at all. some states don’t even publish their own laws online. if the information is truly in the public domain then it should be easily and freely accessible to anyone.

    1. You mean, like healthcare legislation?

  3. The documents are public; the service of having them delivered to your computer is not free. But it is pretty cheap.

    What these yahoos did was like stealing a copy of the constitution from the public library. Sure, it’s a public document. But the library kinda owned that copy. Public doesn’t equal free.

    So I’d jump off the libertarian hobby horse on this one; these guys basically defrauded PACER, nothing more. The content of the documents are irrelevant.

    1. It’s not like stealing a copy of the constitution from the library because all they did was make electronic copies.

    2. I’m as anti-piracy as they get, and even I don’t see a problem here. Government documents are explicitly excluded from eligibility for copyright by federal statute, and his downloading these documents does not prevent anyone else from using them. As Finger states, this makes your constitution analogy inapposite.

      1. PACER charges for all that document scanning, databasing, storage etc.

        Basically PACER charges you .08 a page up to 30 pages for access to the documents.

        So yeah, it is fraud. You are stealing all the labor that went into building and maintaining the system at the very least. Like I said, the content of the documents don’t matter at all. It’s the storage, indexing, etc… that you are paying for. If you want the documents for free, I suppose you could head down to the court and ask nicely.

        It’s not even an intellectual property issue, at all.

        Picture this— somebody ships you a sweater you left at their place via fedex, but you have to pay for the shipping costs. You take the item and stiff the delivery guy. You didn’t steal the item— it was yours. You did defraud fedex, since they put all that effort into shipping the sweater back to you and they are entitled to get paid for their services. You screwed fedex, even though you own the property.

        Now imagine the sweater is a public document that anyone is theoretically entitled to access. You still screwed Fedex. And so you did commit a crime, and might go to jail.

        1. P.S. The vast, vast majority of people using this system are lawyers and law firms. So free access to this stuff is nice an all, and would be a welcome subsidy to the legal profession!

          Or you could just pay for what you need… just an idea.

        2. I don’t see how this could be considered fraud. Your contention that PACER was getting ripped off doesn’t square with the fact that

          the courts briefly opened that same database?PACER?to law libraries without charge earlier this year

          The sweat-of-the-brow doctrine has also not been upheld by SCOTUS. The phone company has to go through the grueling effort of cataloging and indexing all the people and businesses who have phone service in order to publish a phone book, and then watch Yellow Book take the information from that phone book, re-format it, and publish their own phone book without paying the phone company a red cent.

        3. And your FedEx analogy is inapposite for a few reasons, the main one being that if FedEx is shipping sweaters for free, I’m not cheating them at all by sending a package every three seconds.

    3. Copying bits that are in the public domain != stealing. If it is, then google indexing search results and reprinting the titles and descriptions of webpages it displays in those results is stealing as well.

  4. (For the record, I’m a law student. I don’t know whether that helps or hurts what I’m about to say, but it’s out there.)

    PACER is funded exclusively by access fees. There is no tax money going to fund it–it’s all paid for by the users. The fees aren’t charges to see the law or cases, but rather charges to use the electronic system. It’s still entirely possible to use the hardcopy reporters at no cost.

    Personally, I think that publishing the law and court opinions is something that should be funded by taxes in a society ruled by law, but I can’t find myself getting too outraged over access fees that merely keep the servers on and the bandwidth connected, as opposed to profit-generation.

    1. That’s what i was thinking, access to public records seems like a legitimate use of taxes to me.

      According to wikipedia, the fee is only $0.08 per page, and unless you rack up more than $10 they don’t charge you. Without using the system, or having any idea what the average person’s need for court documents amounts to, it would sound like there’s at least some users who get access free of charge.

      Wouldn’t a subscription service for heavy users make billing alot more efficient though? And still keep the lights on.

      Also from the wiki article: “PACER revenues exceed costs by about $150 million, as of 2008, according to court reports.” That part bugs me. I’ll just assume, for my own happiness and mental health, that that money is reserved for future operations costs. I’m sure it isn’t, but i just don’t want to know…

  5. Is that a punchable face or what?

    1. Yeah, he should really be more cowed and submissive. Otherwise the court is going to kick his ass.

      1. Yeah, he should really be more cowed and submissive.
        That’s the next K M-W story

        1. I stepped right into that one.

          Well played Sir.

  6. When the government stops snooping our computers and transactions then maybe I’ll believe we shouldn’t be able to do things like this.

  7. While it would be considered malicious code, and probably a crime, I’m going with Kenobi.

  8. Is that a punchable face or what?

    That’s the exact smile Warty had on his face the time he took a dump in Elvis’ death toilet.

  9. Aaron is kind of a disciple of Cory Doctorow. I first encountered him in Cluetrain circles when he was a young teen who should have been spending his time playing sports and chasing girls.

    He’s more of a disruptor than a freedom fighter. A smart IT guy would dump the database to DVD and FedEx it to him. He’d go away, because he doesn’t want to be committed to the long term of keeping his free version up-to-date.

  10. Is John Tagliaferro really SugarFree?


      1. Trying again.

        Stupid finger error discovered through preview.

  11. He visited one of the libraries ? the 7th U.S. Circuit Court of Appeals library in Chicago ? and installed a small PERL script he’d written.

    How the fuck did he do that? What publicly accessible computer system allows anyone who wanders along to install software on it? If someone did that to our network, you can bet there would be a whole bunch of openings on our IT staff.

    1. What publicly accessible computer system allows anyone who wanders along to install software on it?

      One administered by unionized government IT staff.

  12. You know, I don’t have a problem with the FBI investigating people. That’s what we pay them for right? As long as they didn’t seize his assets, spook his employer, or fuck with his credit, that sort of thing. And as long as after checking into him they found no evidence of criminal activity they stopped digging.

  13. I’ve used PACER. It sucks.

    1. Oil leak or transmission problem?

      1. Chick repellant.


  14. WHAT! I can’t have an apostrophe in my name? That sucks…

  15. Uh, dude.

    1. Wow, previews but doesn’t post. That sucks.


  17. Why can’t I click on any of John Tagliaferro’s links?

    1. Most aren’t links. I just like typing in orange.

  18. I have taken it over.

  19. Public records should not be viewable on pay-per-user basis. Especially at a time when server space and web hosting is dirt cheap.

    I’d bet Google would be willing to host, sort and search-enable all court documents for free if they could show ads while doing so.

    I’d bet Microsoft would be willing to do it too; taking twice as long as Google, adding the docs as standard installs with every PC that couldn’t be removed, with the Microsoft logo watermarked on every page, of course.

    1. I’ve always been missing petabytes of documents i don’t need with my Windows experience.

      Get on the ball microsoft!

  20. To my understanding:
    1) The documents are not copyrighted, so copying them is not a crime.
    2) Access was provided for free to the place he accessed them from, so using it without paying is not a crime.

    This means the only crime that may have been committed was using his perl script. Depending on how the computer is intended to be used, this might not even be a crime (I’d love to see a meaningful legal definition of “installing” software). He could have easily typed it into a shell and left it running in a minimized window. If you’re allowed to use the shell, then I don’t see how that’s a crime, unless there’s some stipulation that you close all your programs when you leave the library. Of course this is probably not what happened, I’m just saying that it could be. If the court follows this line of reasoning (doubtful, since it makes sense) then he should get a very light sentence.

  21. To my understanding, after investigating, the FBI concluded there was no crime committed. However, when they began investigating, they mainly knew that someone had managed to send an extremely high amount of queries for free through a route that shouldn’t have been there. Out of concern that there might have been a real attack that could do real damage, the FBI investigated. After talking to Swartz, the FBI discovered the hole, concluded no crime had been committed, and closed the investigation.

    Isn’t that how we want our police to function?

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