Let the record show that the people who created Public Access to Court Electronic Records, a.k.a. PACER, think their database of judicial records is awesome. "PACER has been one of the great success stories of the federal Judiciary," exclaims bankruptcy judge J. Richard Leonard in the August 2010 edition of The Third Branch, a monthly newsletter published by the Administrative Office (A.O.) of the U.S. Courts. "The very good news, ha, ha, is that our users are happy," chortles Michel Ishakian, chief of the A.O.'s Public Access and Records Management Division in a video news release that appears on the database's website.
Not everyone, however, is so pleased with PACER, which is an Internet-based service that allows attorneys, litigants, and other interested parties to access docket sheets, judicial opinions, and other documents related to federal cases. "Its user interface sucks," says Carl Malamud, an open government gadfly and founder of public.resource.org. "Browsers aren't supported properly. There's no API. There's no batch access."
But perhaps what galls Malamud and other PACER critics most is the system's access fees. For the last several years, Malamud and various others, including Steve Schultze, associate director of Princeton University's Center for Information Technology Policy, have been insisting that the government is spending way too much to develop and maintain PACER given its limited functionality, while charging users way too much to access it. On April 1, as if on cue, the A.O. raised PACER prices by 25 percent—from 8 cents to 10 cents per page. At that rate, a weekday copy of The New York Times would go for $7 or $8, and Walter Isaacson's biography of Steve Jobs would cost $65.60.
PACER debuted in 1988 as a forward-thinking dial-up system allowing users equipped with a modem and a copy of PC Anywhere to access case materials from a handful of federal courts. Three years later, Congress decided the service should be self-supporting and authorized the federal judiciary to charge users a "reasonable" fee for accessing it. Perhaps taking inspiration from the popular 976 phone sex lines of that era, the A.O. initiated a fee of $1 per minute. The average reader could get through a 10,000-word judicial opinion for $40 or so.
Even at such seemingly exorbitant rates, PACER was a revolutionary leap forward. Prior to the service, federal courts kept exactly one paper copy of each document associated with any given case in their files. To view a document, you had to go to the courthouse itself (or send a courier on your behalf). In the dank marble bowels of some bureaucratic sanctum, you had to request the document from a slow-moving clerk, and if someone else happened to be looking at it when you made your request, you had to wait. Once you had it in your hands, you could take notes or ask the clerk to photocopy pages for you—at 50 cents per page. It was not the sort of experience that conjured up terms like user-friendly or accessible.
But if PACER seemed mind-blowing in the early 1990s, it now seems as archaic as a barrister's wig. You can initiate searches only by using case numbers or party names. There is no way to have the system alert you when new materials are added to the case you're following. And most of all, there are those fees.
"What's the alternative to PACER charging users?" counters A.O. spokesman Richard Carelli. "If it's not users, it's taxpayers." Carelli points out that many PACER users do access the system for free: Judicial opinions cost nothing to download, and any user who racks up less than $15 per quarter for other materials isn't charged. In fiscal year 2011, when the quarterly usage ceiling was $10, more than 70 percent of the approximately 450,000 accounts that used PACER during that period were not billed.
"Less than 1 percent of all accounts generate more than 65 percent of revenue," says Carelli. The largest customer is the Department of Justice (which, of course, means taxpayers already are funding PACER, just indirectly). Other high-volume users include commercial database providers such as Lexis-Nexis and Westlaw, which repackage PACER material in more useful and user-friendly ways and then resell it at premium prices to the legal industry and back to the federal government itself. According to Carelli, 95 percent of PACER's users incur less than $500 a year in charges. "It's not like Grandma and Grandpa are spending their mortgage money on PACER," he says.
Even without old folks help, PACER is a cash cow. In 1995 the service took in approximately $5 million in revenue. By 2006 its annual haul had grown to $50 million, and in 2011, Carelli tells me, the federal judiciary generated $114 million in electronic public access fees, the great majority of which came from PACER.
The A.O. uses these fees not just to maintain and develop PACER but also to underwrite other programs that it says help improve public access to the courts, such as automating bankruptcy filing notices and purchasing flat-screen video monitors for courtroom use. According to Carelli, the A.O. is raising PACER fees to cover the development costs of the next generation of Case Management/Electronic Case Filing (CM/ECF), the management system that allows attorneys and other parties to initiate federal court cases electronically instead of filing paper versions of the documents at the courthouse. (In turn, the documents that are entered via CM/ECF end up populating the database that powers PACER. It's these documents that are returned when users submit queries.)
Should ordinary citizens be paying higher fees to help underwrite improvements to a system that makes it cheaper and easier for attorneys to file their cases, even if they're only spending a few bucks a year? Should Lexis-Nexis? In fact, PACER's high access fees may be limiting its potential to generate revenue. When I suggest that unlimited free access might lead to so much usage that PACER could sustain itself on bail-bond ads alone, Carelli breaks out in laughter. "I've been here 12 years," he exclaims, "and I have never heard anyone mention the possibility of the federal judiciary in any way being linked with advertising."
Twelve years ago, scores of established information providers were so busy trying to figure out how they could charge users for Web content that they missed out on a chance to be Google. Even in 2012, the federal judiciary continues to think like a legacy media company. Its apparent goal is to help traditional customers use its information for the same purposes they've always used it for, albeit in a more efficient fashion.
Malamud and Schultze, meanwhile, have grander aspirations. Making sure that large numbers of people have access to more than one or two cases per quarter is a start. But the truly game-changing aspect of free access involves giving developers access to the entire PACER database and letting them develop new ways to filter, analyze, and distribute this valuable information. Some of these developers would be motivated by profit, others by altruism. But in the end, the culture at large would benefit as the information contained in the relatively unexploited PACER case materials became truly accessible for the first time.
"From a citizen perspective, we could build a variety of tools that would make it far easier to understand and consolidate what's going on in the courts and track cases that deal with issues that are particularly relevant to you," says Schultze. Ultimately, he believes, these tools would lead to a "democratization" of judicial proceedings, giving us all a much better understanding of how the cases and judicial decisions that end up having so much impact on our lives develop and play out.
There is certainly no reason why a more open PACER would have to sacrifice its self-sustaining status. If there is anything the last two decades have taught us, it's that a $100 million surefire revenue stream is often the greatest impediment to making $1 billion.
Contributing Editor Greg Beato writes from San Francisco.