Judiciary

"Tear Down This Judicial Paywall"

The federal judiciary should not be charging for access to public court records.

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An op-ed in today's Wall Street Journal by Northwestern University's Sarath Sanga and David Schwartz begins:

It's been a season of federal lawsuits. There have been multiple actions by the Trump campaign and his allies to contest the election results. Google and Facebook are the subject of Justice Department antitrust actions. If you follow this stuff, you might be interested in reading the court records themselves—but it'll cost you. Ten cents a page, according to the federal judiciary, even if you read them online.

That's crazy. These are public records sitting in the public domain, and the judiciary is the only branch of the federal government that charges for online access. The latest White House press briefing will run you precisely zero dollars. Food and Drug Administration reports? Congressional roll call votes? All free.

The law authorizing judicial fees is a relic of a time before the internet, when accessing court records meant physically going to the courthouse and asking a clerk to copy them page by page. It should have been repealed decades ago when the records went online.

As the op-ed notes, the House has passed bipartisan legislation--the Open Courts Act--to end this practice. The federal judiciary has opposed this step, citing ridiculously inflated cost estimates. Existing fees for documents only generate $145 million, which represents only two percent of the federal judiciary's budget, and an amount that Congress could (and should) cover. The American people should have access to court documents. It is (and should be) that simple.

NEXT: Conservative Judges Chose Legal Principles Over Partisanship and Trump - But We Shouldn't Take that for Granted

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  1. Existing fees for documents only generate $145 million . . . an amount that Congress could (and should) cover.

    Oh dear. Who honestly believes that $145 million under a paid model represents (anywhere close to) the amount of usage that would occur under a free model? Demand curve always slopes downward....

    1. That's the revenue, not the cost.\

      1. That’s the revenue, not the cost.\

        Nor did I suggest otherwise. But since you mentioned it:

        1. Which of those two amounts do you perceive the article requesting Congress to cover?
        2. To the extent the two amounts differ, that difference (not to be thought of as "profit" because guv'ment) was presumably being put to use somewhere. What becomes of that if Congress now only covers costs?

        1. Obviously, we would expect PACER usage to increase if the fees were removed (indeed, that's kind of the point). That would result in the court system both 1. losing the $145 million it now collects in fees and 2. facing additional marginal costs for the increased usage. I think Congress should cover both, as (I imagine) does Prof. Adler.

          1. That would result in the court system both 1. losing the $145 million it now collects in fees and 2. facing additional marginal costs for the increased usage.

            So the first $145 million of usage is reimbursed based on the rates that PACER has always charged, and anything beyond that at some different, ill-defined rate? What's the basis for treating them differently? What happens if they underestimate? What happens if there's unexpected capex in a given year? Do they just shut down/reduce service, or go back to Congress begging for more (or the two in parallel)?

            Far more candid in my view just to propose taking over the payments at the current rate structure (which presumably wasn't plucked out of the air and thus actually approximates expenses plus reasonable reserves).

            1. So the first $145 million of usage

              You said you didn't suggest otherwise, and yet you're doing it again. There is no $145 million of usage. Again, that's revenue, not costs.

              If the courts have certain budgetary needs, it should just be appropriated like anything else. There's no connection between that and PACER fees.

              Far more candid in my view just to propose taking over the payments at the current rate structure (which presumably wasn’t plucked out of the air and thus actually approximates expenses plus reasonable reserves).

              No. That's the whole point. It's not even a little bit related to expenses. It was plucked out of the air.

              1. No. That’s the whole point. It’s not even a little bit related to expenses. It was plucked out of the air.

                I'll take a cite on that one.

                1. The current rate structure is irrelevant. We don't know if it makes a profit or loses money. All we know is that the government will be losing $145M in revenue.

                  The point is the costs, whatever they are, should be covered by the Treasury. Like David, I doubt that even with increased usage they will be high.

                  1. The point is the costs, whatever they are, should be covered by the Treasury.

                    That's an utterly reasonable position. My point (as you'll read throughout) is that people taking that position should be candid that they're asking for a blank check, rather than sweeping under the rug the results (unknown in magnitude but inevitable in direction) of making a paid service free.

                    Like David, I doubt that even with increased usage they will be high.

                    And unlike David, I would expect you to know better.

                  2. The current rate structure is irrelevant. We don’t know if it makes a profit or loses money. All we know is that the government will be losing $145M in revenue.

                    Actually, we do know that it makes a profit. It costs the courts less than $5M per year to run PACER.

                2. Read the pleadings and the opinion in the PACER refund lawsuit. There's simply no connection between the fees charged and the PACER costs; the courts were just using it as a slush fund to cover all sorts of technology-related costs unrelated to electronic court records.

                  (It should be obvious that the marginal cost of electronically producing a page of a court filing is not 10¢!)

                  1. (It should be obvious that the marginal cost of electronically producing a page of a court filing is not 10¢!)

                    It should also be obvious that "marginal cost" is not the same thing as "expenses" (both present and reasonably anticipated). But we wouldn't be having this exchange if it were.

                    Refer back to my first content re lawyers who are genuinely convinced they're so smart that the world cannot be any more complicated or nuanced than they themselves can envision.

          2. The additional marginal costs are somewhere around zero, of course.

            1. The additional marginal costs are somewhere around zero, of course.

              Yet another lawyer who has never actually run a business. Real-world content provider companies are so witheringly stupid for building all these gargantuan data centers when all they would have had to do is push the same bits out the same pipes faster using magic pixie dust, amirite?

              1. You know we're not talking about streaming video, right?

                1. Right, because streaming video uses regular old bits, and PACER uses QUANTUM bits! Or something. Different.

                  You really need to heed the first rule of holes on this.

                  1. What I really need to learn is the lesson of DNFTT.

                    1. I guess that's as good a way as any to try to save face whilst you retreat with your tail between your legs.

                    2. This guy's handle should be Holy Grail rather than Life of Brian.

                  2. No because text documents, even relatively large ones, use a very small fraction of the bandwidth to send over that streaming video uses.

                    Streaming video needs a "pipe" |------------------------------------------------------| this big.

                    This is the "pipe" pacer needs |-----|

              2. I've worked in tech and specifically built content-serving infrastructure. David Nieporent's assessment of the direct cost of serving text-based content is basically correct. Fixed costs will vastly exceed any marginal increase in usage just from serving legal documents.

                I've never used PACER, so it's possible the search capabilities are complex and potentially the compute cycles needed to support it are more of a burden in terms of marginal cost than the actual serving of documents, but marginal use is still unlikely to be the primary driver of technology costs.

                Even at places like Google and Netflix which do a lot of streaming video (and in the case of Google) very advanced search, salary costs significantly exceed infrastructure costs, and a fair chunk of the infrastructure costs are not that sensitive to the amount of usage.

                1. I’ve never used PACER, so it’s possible the search capabilities are complex

                  The second half of the quoted language makes the first half obvious! PACER's search capabilities can best be described as "rudimentary." Basically, you can search for cases by only a small number of fields. And that's… essentially it. Forget about searching for specific filings; that's pretty much manual.

                  If you know what you're looking for, you can retrieve it relatively easily (if not particularly cheaply); otherwise, PACER isn't for you.

                2. I’ve never used PACER, so it’s possible the search capabilities are complex and potentially the compute cycles needed to support it are more of a burden in terms of marginal cost than the actual serving of documents

                  Even that idea is mired in 1980s programmer-level thinking, rather than a modern, Google-like gargantuan pre-search and ongoing categorization of all actual search terms used. Google will happily even index all your data for you.

                  1. Eh, database indexes existed a long time before Google did. Yes, it's possible to spend CPU cycles doing indexing in advance rather than at query time, but even Google's search infrastructure does tons of stuff that has to be computed in real-time for each query (probably more so than most "search engines" since they do a lot of search personalization/localization).

              3. Not sure if you are taking this into account or not. There are costs in maintaining a database, and costs in providing access to users.

                The former might be variable for a private business, depending on its structure. Not so for court files. The courts MUST maintain a database of all items filed in each case, which lawyers and judges lovingly call "the record." And, of course, the database is constantly growing as new cases are filed and new items are filed in existing cases.

                The latter, of course, is variable for both.

                1. The question is whether providing public access would dramatically increase those costs.

                  Seems unlikely.

                  1. I will defer to the experts. My point was that the database storage costs are not a function of public access. Even if no one but judges and the Court clerk had access, the database would have to be the same.

                    BTW, databases have now made appeals much easier for the clerk. The Clerk is required to submit a copy of the record to the Court of Appeals. This used to be an arduous task. Now all they need to do is download the docket and all the document thereon. When I filed an appeal recently, the docket was sent to the Court of Appeals the same day.

                    1. If they used on central database for all federal courts, they wouldn't even have to do that, just send the CoA the case id.

    2. It's probably a profit center right now, since they're not really keen to provide the service anyway.

      Hosted online? The marginal cost of access would be very close to zero.

      1. Hosted online? The marginal cost of access would be very close to zero.

        I suspect Google, Twitter, Netflix, and Facebook would be VERY interested in hearing about this development.

        1. $145 million in revenue, at $0.10 per page (ignoring revenue from other sources), roughly means 1.45 billion pages downloaded.

          A PDF page can range from 10KB for a lower resolution black-and-white text only page to upwards of 1 MB for a large image. If we pretend that every page downloaded was 1MB in size, that's 1.45 petabytes. Or, in terms of Netflix or YouTube, several minutes of bandwidth.

          In other words, the PACER system is many orders of magnitude less bandwidth intensive, and the library size even smaller.

          Trying to compare a small, high latency, infrequent pusher of small data files to companies with billions of low latency data transfers per second is just silly. The costs for PACER are negligible, especially when compared to their income - much less the internet giants you are pretending face the same challenges.

          1. Trying to compare a small, high latency, infrequent pusher of small data files to companies with billions of low latency data transfers per second is just silly.

            Well then it's a good thing I wasn't doing that.

            It doesn't matter that PACER uses orders of magnitude less bandwidth then Netflix. It does matter that free-for-all PACER would use significantly more bandwith than paid PACER.

            The bottom line is that pushing bits over pipes costs money. More requests for bits in the same timeframe = more pipes = more money. There is no free lunch. The notion otherwise is one of the most deeply-seated urban myths I've encountered in my years.

            That is all.

            1. From what was quoted above pacer revenues are $145M/year and the cost around $5M/year.

              The cost of extra bandwidth scales fairly linearly with the amount of bandwidth.

              If they budget for current revenue, usage would have to increase by a factor of 30 before they have an issue. And quite frankly, I doubt such a large increase is likely. there simply aren't that many people that interested in court documents.

            2. It is, in fact, what you did when you brought up Google and Netflix and the rest.

              And no one denied that bandwidth costs money. The claim you were attacking was that PACER's costs are close to zero - and they are. A $5 million annual budget for a government project is trivially small.
              The costs of hosting and bandwidth do not, in any way, justify the prices PACER is charging.

          2. For comparison a feature film in High Def would run around 3GB. That's slightly over 3000 MBs or 3,000,000KB

            Or to relate that to Pacer, 300,000 text document pages or 3000 pages with large images = streaming one feature film.

          3. Since this is a government database, and the only reason government hogs it is so it can charge for access, let Google or any other search company inhale the whole thing.

            Done. Government's only interest is in keeping it accurate and updated, which it does anyway as part of its function to maintain law information The People actually have to obey.

            1. Inhale it, and tuck it into a teeny, inconsequential portion of its entire operations, where such magnitude is not a big deal, and most likely they'd love to, anyway.

            2. I think this is a reasonable approach. The courts could just make the raw data available and folks on the Internet would figure out what to do with it. (Collecting and serving the documents would still have some cost, but presumably the vast majority of usage would shift elsewhere so Life of Brian wouldn't have to worry about runaway costs for the courts.)

    3. Paper and toner costs money -- .pdfs don't and a lot of state & local governments have figured out that it is a lot cheaper (and simpler) to give free access to the images than to fight over a price for the dead tree version -- and then collecting and processing those funds.

  2. There are some online municipal court dockets out there that are free and can give you access to traffic tickets. If they can do that, then surely an organization with the resources of the federal courts can also do it.

    1. In my experience, most state courts don't have free online access to the actual filed documents (though I certainly applaud those that do). But if nothing else, the fact that PACER charges for searches and access to docket sheets is obscene, and needs to end.

      (I believe there was actually a proposal to lift PACER fees in one of the COVID stimulus bills, although obviously it didn't make it.)

      1. State records costs are a fifth those of PACER.

  3. Let us not forget Aaron Swartz who attempted to create a free pacer database 12 years ago -- when they only charged 8 cents a page.

  4. So long as the cost is balanced out by cuts to, say, the National Endowment for the Arts or [insert non-favorite program].

  5. Why not just let Google and others crawl the databases?

  6. User fees are a very legit way to finance public goods. Think of the paywall like your water bill. The general public rarely, if ever accesses court records, so why push that cost onto them? Let the lawyers and their clients pay for it.

    1. The same reason your local playground doesn't charge people to use the water fountain: having the ability to access something is valuable in its own right, and is worth the minimal per capita cost.

      1. Feh, don't be silly. It's more like a tollway, which charge by the vehicle, while the rest of the road infrastructure (internet) is paid for by gas tax or property tax dollars.

        It's perfectly morally acceptable to have the heavy users pay to pull the freight, while the rest of us pay for the infrastructure supporting it.

        1. Feh, don’t be silly. It’s more like a tollway, which charge by the vehicle, while the rest of the road infrastructure (internet) is paid for by gas tax or property tax dollars.

          Yes, I agree that's the model we're using now. The point is that the model doesn't make any sense.

          Most people will never have occasion to read a federal statute, much less the legislative history that led up to it. (Indeed, I'd guess that access is even more driven by a handful of heavy users than PACER.) Should Congress start charging for access to that part of its website?

          Outside of a handful of deep-pocketed drug manufacturers, no one wants to read FDA regulations. Why do we have to pay for them to be online?

          And so on.

          1. It makes sense in two ways.

            First, your average Joe doesn't access such records and thus should not be paying for it. This is like not charging someone a higher gas tax to pay for a free way when all they do is drive locally.

            Second, if it makes a "profit", then excess revenue generated defers higher taxes elsewhere to pay for presumably other worthy government causes. Therefore we essentially have a tax on lawyers passed onto their clients. That is something that most people will support, and is no different than a million other taxes.

      2. The same reason your local playground doesn’t charge people to use the water fountain

        I can't imagine anyone who would pay for the use of most playground water fountains I've had the privilege to encounter. Tragedy of the commons is the other, dirty little side to this coin that we ignore to our peril in "free stuff for all!" discussions.

        1. I'm not following.

          As I understand it, decision about how to run PACER (and CM/ECF) are ultimately made by the administrative office of U.S. courts, and by administrative staff in the relevant district or circuit. Those people already have free PACER access. I haven't seen any indication that people who pay for access are able to use their status as customers to advocate (or receive) better service.

          1. You said it yourself at 5:18 -- you use it a lot more because it's free to you.

            When it's "free" to everyone, lots more people will use it a lot more.

            And since nothing in life is free (despite the assurances of many in the rather raucous thread up-page), either funding will spiral out of control to meet the increased need or (more likely) funding will be frozen and service will degrade to match.

            This is a pretty basic and well-understood intersection of economics, human behavior, and common sense.

            1. But (as the article notes) Congress and federal agencies seem to be able to make their content freely available without those problems: I don't see any reason why the court wouldn't be able to do the same. (Indeed, a lot of the frustrating parts of PACER seem to be linked to the need to charge for services.)

              For that matter, the public parks in my area also seems to be in pretty good shape, for the most part.

            2. Anti-government cranks are among my favorite culture war casualties.

    2. I can't read the full article (it's behind a paywall, which is the WSJ's right as a private organization).

      But apparently the author(s) point out that Congressional and executive documents are accessible for free - thus why not judicial documents?

      As long as the cost of free access is offset by cuts elsewhere, but how hard would that be with a few million dollars?

      1. eh, hundred millions of dollars. Still not *real* money.

      2. I can’t read the full article (it’s behind a paywall

        I wonder if anyone at the WSJ thought about the supreme irony of that move? One of those malice or incompetence questions -- not really sure which way I want it to go.

        1. Irony, sure, but to be supreme irony, the WSJ would have to be publicly funded.

          That's not for a few years yet.

    3. "Let the lawyers and their clients pay for it."

      Yes. Its not about the public, its about lawyers getting something for "free".

      1. Then raise the fees lawyers have to pay in federal court - why punish the public by denying them free access if they want it?

      2. Unless they take a flat fee, it's the clients paying for access, not the lawyers. That includes state governments, whose citizens are thus further taxed if they want to litigate in federal court, and even include federal agencies. (Yes, the federal government writes checks to itself to pay for PACER documents.)

        PACER and CM/ECF were very ambitious projects when they were launched, at a time when data storage and transmission was a much more expensive proposition than it is today. And in light of the gamble being taken, I don't begrudge the decision to be conservative and attempt to recoup the costs. But that's not the world we live in today, and cost is no longer a defensible justification to keep this information from the public.

        1. "it’s the clients paying for access, not the lawyers"

          Maybe. If they easily recouped the costs, they wouldn't bellyache about it so much.

          My company has a PACER account with modest use. The cost is hardly burdensome.

          1. I have free unlimited PACER access, which means I use it much more (which, I think, improves my advocacy) then if I had to pay a la carte.

            But I agree that lawyers can probably get by professionally under the current model, just as I imagine institutional journalists can get their sponsors to pay for what they need and so on. It's ordinary citizens who want to follow court proceeding out of their own interest that are shut out, and the benefit to them far exceeds the minimal cost (especially compared to other things the federal government is happy to underwrite).

            1. I guess I phrased that poorly: I meant that I am able to access as many PACER documents and searches as I want at no additional marginal cost.

              1. Really, I did not know there was such an option. Is this for the whole country, including all district courts and courts of appeal? What is the annual cost?

                BTW, if I am not mistaken, SCOTUS filings are available free online.

            2. The bottom line is that it is going to cost more to keep track of .pdfs viewed than you're going to get in revenue....

    4. I don't really disagree, but they need to charge a charge that just covers the actual cost of maintaining the database, not make a huge profit off of it.

      1. I have news for you about excise taxes on alcohol.....and about a million other taxes....

        Government is expensive, yo! And that "profit" is redistributed to other government programs and policies.

  7. "American people should have access to court documents"

    "American people" is a funny way to spell lawyers.

    1. Can't lawyers access the latest Congressional statutes for free - and bill it to their clients?

      Congressional documents, court documents, they're all public govt documents.

      1. Lawyers bill their time to the client -- the time to read and analyze the materials in terms of the client's needs in the representation. They don't bill for the costs of accessing the documents. At least that is what I have always seen done.

        1. I guess I should have said bill the time.

          1. And what is wrong with that? The statutes passed by Congress should be free. A lawyer's time and expertise in reading them, understanding them, researching how courts have interpreted them, and then applying that to the client's situation are all fairly compensible. That's where the lawyer's education and experience bring value to the client.

            1. OK, just White-Out that part of the sentence.

  8. Ironically, the linked op-ed is...behind a paywall.

    1. The Wall Street Journal provides value, unlike the federal government which does nothing but destroy value, especially, its totally worthless and toxic judiciary.

      They allow a billion internet crimes. They allow 15 million common law crimes, 5 million being violent. Their regulations crush striving and our economy. Only technology ever adds value.

      1. And it adds to productivity, which government inhales for itself, by keeping borrowing proportional to GDP rather than any rational analysis of need.

        And that's, sigh, during good times with a "pay as you go" rule preventing spending increases without decreases elsewhere.

        1. Yep, Democrat about to be President. Time for Republicans to start worrying about deficits again.

  9. Willing to pay the fees. Cannot make PACER work for me. Government does nothing well, even when willing to pay.

    1. ECF not open to pro se litigants in some courts.

    2. Willing to pay the fees. Cannot make PACER work for me. Government does nothing well, even when willing to pay.

      Uh huh. Ever consider it might be you who's defective?

      1. They say call, customer service. It does not answer.

  10. A good first start might be to open-source the data, and price the content distribution mechanism once you see what the market does with the open source material. If every slip and filing is on git-hub, the market will find a way to translate that data layer into code and make it free with advertising. Big firms could build in-house engines to develop the interface technology, and that would eventually filter back to the market.

    Where it's mission critical that you don't miss anything or need to have absolutely the right pagination, there's always the legacy solution, and I'm sure that the usual white hats (Cornell, Google Scholar) would step in to make the resource broadly available.

    Just a thought.

    Mr. D.

    1. Government produces and maintains the database, then let Google and Bing and anyone else copy it and they deal with the costs of searching and mass distribution.

  11. It is almost as though the Courts were trying to hide something.

  12. FWIW, NY Courts provide free access to court filed documents.

  13. how much are hosting costs? Why not allow charging up to those costs?

    I doubt if the revenue isn't there the money would need to get covered ... the money goes back to the judiciary right? Salaries and court costs are already covered, so what is it being spent on?

    1. Because the primary purpose of putting the documents in electronic form in a database was for the courts own use. Being able to server them to others at a fraction of the cost of producing hard copy is just icing on the cake.

      1. Because the primary purpose of putting the documents in electronic form in a database was for the courts own use.

        Oh yeah? Then tell me why such a significant number of #*@!$ judges still require hard copy "courtesy copies" of filings!

        (Coronavirus has temporarily halted that annoyance.)

  14. Any idea how the AO came up with its ginormous estimate of the cost of making PACER free?

  15. Note that PACER charges $0.10/page up to $3. Everything after page 30 is free. I've downloaded many documents over 100 pages.
    Pacer takes a credit card. "Fees are waived when usage is $30 or less for the quarter."

    My current usage rules:
    Check Google, Bloomberg, Lexis and Westlaw first. For instance, ESPN had every Deflategate document posted almost as fast as they were filed. Most popular with lawyers cases are on Wexisberg and are within my academic contract, If there, they are free. I recently downloaded the Petitioners' brief in The Steel Seizure Case from Westlaw.
    Then go to PACER.
    Don't open a document unless you are sure you want to see it, as opening creates the charge.
    IF YOU OPEN, THEN DOWNLOAD. You don't want to reopen with new charges.

  16. BTW, the House co-sponsors were Doug Collins and Hank Johnson, both from Georgia.
    Collins came in third to Warnock and Loeffler in November.
    John Ossoff was formerly Hank Johnson's national security staff aide.

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