May 22, 2018

Judge Declares Some PACER Fees Illegal but Does Not Go Far Enough

Five years ago, in a post called “Making Excuses for Fees on Electronic Public Records,” I described my attempts to persuade the federal Judiciary to stop charging for access to their web-based system, PACER (“Public Access to Court Electronic Records”). Nearly every search, page view, and PDF download from the system incurs a fee ranging from 10 cents to $3 (or, in some cases, much more). I chronicled the many excuses that the courts have provided for charging what amounts to $150 million in fees every year for something that should—by all reasonable accounts—not cost much to provide.

I thought the courts were violating the law. I suggested that someone file suit. Two years later, the good folks at Gupta/Wessler did (in partnership with Motley Rice). Yesterday, Judge Huvelle of the US District Court for the District of Columbia agreed—in part. You can read her opinion here, and see all documents in the case here. Under her ruling, approximately $200 million will likely be returned to people who paid PACER fees from 2010 to 2016. This is good, but not good enough.

It also does not address the larger constitutional issues that I raise in my forthcoming paper, “The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records.”

Judge Huvelle is a good and fair judge. She rejected the reasoning of both the plaintiffs and the defendants (the Judiciary). Instead, she substituted her own analysis. Unfortunately, her analysis was both legally and technically flawed. Under her ruling, PACER fee-payers will not recover another $750 million (or so) of fees that I think are unlawful. The rest of this post explains why, and what might be next.

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Free Law Project Partnering in Stewardship of RECAP

More than five years ago, I spoke at CITP about the US Federal Courts electronic access system called PACER. I noted that despite centuries of precedent stating that the public should have access to the law as openly and freely as possible, the courts were charging unreasonable rates for access to the public record. As it happened, David Robinson, Harlan Yu, Bill Zeller, and Ed Felten had recently written their paper “Government Data and the Invisible Hand“, arguing that:

…the executive branch should focus on creating a simple, reliable and publicly accessible infrastructure that exposes the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data.

After my talk, Harlan Yu and Tim Lee approached me with an idea to make millions of court records available for free: a simple browser extension that made it easy for individuals to share the records that they had purchased from PACER with others who were looking for the same records. The idea became RECAP (“turning PACER around”), and the tool has indeed helped to liberate millions of public records in the years since then. But the time has come to turn over our stewardship, and we could not be more pleased that CITP is announcing a new partnership with Free Law Project to take over and expand upon RECAP.
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Take Over My Dream Job: Associate Director at CITP

Nearly four years ago, I joined the Center for Information Technology Policy at Princeton as Associate Director. The CITP community is a fantastic collection of smart and funny people who work passionately on all aspects of information technology policy. It was my dream job, so it was bittersweet when I accepted a new job working on internet freedom programs at the State Department. However, this means that someone else has a chance to step into this incredible position. If you love tech policy and want to help lead a vibrant and growing research center, you can now apply to be the Associate Director of the Center for Information Technology Policy at Princeton. I am happy to answer any questions that you may have, at

In my new role at the State Department, I help to award and oversee grants to groups that are supporting internet freedom worldwide. This includes technology tools as well as advocacy, training, and research. I am always eager to hear from folks with projects or ideas, and part of my goal is to help support the growing internet freedom community however I can. Feel free to email me at , and to submit a Statement of Interest (SOI) for technology projects (the next quarterly round of SOI’s are due on August 30th).