(Photo by Jason Tashea)
Now, unless you are a lawyer or a gov-tech diehard or an investigative journalist, you have likely never heard of PACER, the federally run, fee-based Public Access to Court Electronic Records program. In Malamud’s eyes, you’re lucky: PACER is an aberration to the goals of open government and data.
"We do our judiciary in the light of day, and today that light of day is on the internet."
Malamud is the founder and president of Public Resource, a California nonprofit focused on making government data accessible. He has worked to open up various federal entities and since 2007 he has also focused his attention on PACER. “This goes back to the Magna Carta,” Malamud said. “We do our judiciary in the light of day, and today that light of day is on the internet.”
PACER has plenty of challenges and shortcomings to rile up Malamud. It requires a credit card, and charges ten cents a page with a max of $3 per document. Beyond the paywall issue, PACER is riddled with unredacted personal information and billing errors. Malamud audited the PACER system in 2008 to illustrate both of these problems. In the court documents he downloaded from PACER, he found Social Security numbers and names of minors and confidential informants. He also provided evidence that PACER was over-billing. Since that audit, only some courts have redacted the personal identifying information, and the billing issue has yet to be resolved.
In his quest to open PACER, Malamud was joined by Steve Schultze, Harlan Yu and Timothy Lee. They are the troika that built RECAP, a Firefox and Chrome plugin to crowdsource the collection of legally purchased PACER documents.
Yu sums up the group’s motivation to build RECAP: “It seemed incredible that the federal judiciary was selling public information.”
Launched in 2009, RECAP automatically makes a copy of documents downloaded from PACER. The software scrapes the documents for relevant information to index in the database that ultimately goes to a public archive.
While RECAP works, its collection is a drop in the bucket. According to Malamud, RECAP has 3.2 million documents from 1.2 million cases. This may sound like a lot until you realize that PACER has about 1 billion total documents. And because RECAP’s collection is piecemeal, it means that cases archived may be missing documents.
Even with RECAP, Malamud and the others make clear that PACER is hurting innovation and research. Unless you are well off — like Bloomberg Law, which has made a for-profit PACER tool, the cost alone is too much of a burden for startups to take advantage of this data. The RECAP archive is not large or thorough enough for academics to do empirical research.
Lee, now a journalist for Vox, made the point that the crowdsourced nature of RECAP makes it easier for reporters to do in-depth legal research with less overhead, but RECAP’s archive is still not big enough to have the desired impact.
— Rebecca Williams (@internetrebecca) April 16, 2015
While the frustration with PACER was palpable, these speakers did not get together to lament, but rather to sound a call to action. To a room of lawyers, technologists and empathetic rabble-rousers, Malamud laid out his plan to reform the PACER system. Outlined on his site, the plan has three prongs: litigation, supplication and agitation.
Litigation, as Malamud readily admits, will be hard. Congress has given the courts explicit power to charge for PACER. Also, courts are extremely hard to sue. However, Malamud is resolute in his pragmatic assessment. “There isn’t anything super obvious to sue the courts for,” he said. “I still think it’s a constitutional crime to charge 10 cents a click.”
Supplication will be politer than a lawsuit. To accomplish this prong, Malamud will ask the Ninth Circuit Court of Appeals and four circuit courts to waive PACER fees. His goal is to again audit PACER’s use of privacy protections. It would also open the door for researchers to crawl these documents to better understand the court and justice system.
In regards to agitation, Malamud made sure to take advantage of his captured audience. He circulated postcards depicting Judge Cardozo, Justice Oliver Wendell Holmes and Socrates for audience members to write sitting judges about their displeasure over PACER. He even had PACER stamps with pictures of telegraphs and other antiquated technologies. His hope is to have enough mail arrive at numerous judges’ chambers for them to notice some public frustration around PACER’s current inception.
Malamud’s fight against PACER is seven years in the making, and this new three-prong plan begins in earnest on May 1, Law Day.
Even with all these efforts, Malamud thinks the only way to fix PACER is to get Congress involved. He has aspirations of Congressional hearings regarding PACER’s issues around public domain, privacy, and usability. Malamud reasons that if Congress would change the law and say “Courts can’t charge for PACER,” then the paywall would disappear. Even for how animated and passionate Malamud is about this issue, he ended on a tempered note.
“It’s not an easy issue to get people to stand up and say ‘This is important!’”
After seven years, and walking away from this project once, Malamud is living the words of warning he left with his audience: “This is a long fight.”