Yes, PACER stinks … but is it also overcharging its customers?

|The Volokh Conspiracy |

[Updated below, 1.12.16]

As anyone who has ever used PACER —the "Public Access to Court Electronic Records" system under which you and I and the rest of the public can get access to ostensibly "public" information about cases in the US federal court system—knows quite well, the system is antiquated and inefficient. Registration and login procedures are cumbersome, the interface is dreadful, and searching is truly state-of-the-art, circa 1995, relying, as it does, on an incomprehensible series of indexing conventions. [You can get a taste of this by using the free "training sessions," available here.]

It is also quite expensive to use. The system charges $0.10 per HTML page for all documents retrieved by a search—a charge that would perhaps make sense if this were a photocopying machine, but is pretty outrageous for the display of an electronic file. [There is a cap of $3.00 per document—but insofar as there may be dozens or scores of documents pertaining to any individual case, the charges can mount up …]

This is part of a much larger, and much more serious, problem—the absence of a publicly-accessible, searchable repository of authoritative information about the statutes, regulations, judicial opinions, etc. that constitute the law of this country. But that is a story for another day.

According to a lawsuit filed a couple of weeks ago in the Western District of Washington, that's not the only problem. The suit—filed on behalf of a class consisting of "all PACER users who, within the last six years, accessed a U.S. District Court, U.S. Bankruptcy Court, or the U.S. Court of Federal Claims and were charged for at least one docket report in HTML format," asserts that PACER has been overcharging users for years, by systematically miscalculating the number of pages displayed by any given search.

PACER Exhibits a Systemic Billing Error That Overcharges Users

[B]ased on Plaintiff's counsel's investigation, PACER systematically overcharges users for access to court dockets in breach of its stated policies, including the PACER User Manual. To discover why and how PACER overcharges users, Plaintiff's counsel retained expert consultants with advanced degrees in computer science and substantial experience in the field. These consultants conducted an investigation into the overcharges, including who is affected, when and under what circumstances the overcharges manifest, and the nature of the underlying error in the PACER system.

Based on this investigation, PACER exhibits a systemic billing error that affects the vast majority of users who access docket reports in the default HTML format. For these docket reports, PACER uses a formula based on the number of bytes extracted, purporting to charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of extracted bytes in a docket report, resulting in an overcharge to users.

The suit seeks damages for breach of contract (entered into by users during registration) and "illegal exaction."

[UPDATE: A commenter (CockleCove) pointed me to the GPO's recently-redesigned FDsys website in response to my complaint above about "the absence of a publicly-accessible, searchable repository of authoritative information about the statutes, regulations, judicial opinions, etc. that constitute the law of this country." I hadn't seen the site before, and I do have to admit to being, at least on first impression, quite presently surprised—it looks like a really useful resource, and I suspect I'll be using it in the future. It's quite thin when it comes to judicial opinions, unfortunately (no Supreme Court opinions, for instance, and only selected opinions from other federal courts), but it's a decent start …]