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.
RECAP has been a success for years now, but Tim, Harlan, and I have each taken on more projects and responsibilities. We will continue to assist with the technical maintenance of RECAP and will advocate alongside Free Law Project for the long-term win of opening PACER altogether (you may not have noticed it, but lawmakers are starting to pay attention).
Free Law Project is also home to the CourtListener platform, which houses another tremendous cache of public court records. RECAP and CourtListener records will be integrated with each other, leading to what we think is the largest body of US caselaw that is available for free online. In an era in which the price of digital storage and transmission is low enough for a few dedicated developers to host such an archive on a shoestring budget, the Judiciary should simply open up all public court records to the public so that every citizen can know the law. Two recent letters to the editor of the ABA Journal highlight the persistent urgency of this issue:
Regarding “Keeping PACER,” March: PacerPro is having you pay to add to its private collection of government works and can turn off your free access to it at any time it chooses—all in exchange for a few minor features, mostly a prettier interface.
But rather than contribute these documents to a company that can lock them up and exploit them, you should use PACER in combination with the RECAP Web browser add-on, which puts these documents in a public archive available to everyone.
PACER is evocative of our broken criminal justice system: willfully deficient, where justice is only available to those who can afford it. The real obstacle to change is the fear of government officials, who have become accustomed to the lack of transparency that has become the platform for their corrupt practices. Because fixing PACER is only the first step.
What crimes does the government often charge, only to later drop? How many people like Aaron Swartz are there, bullied and threatened with inflated accusations? How often is a particular person a witness in a case, e.g., a known corrupt cop or expert witness? Those are questions only machine-readable bulk data, accessible to everyone for free, can answer.
It is high time the chief justice of the United States—as the presiding officer of the Judicial Conference of the United States, the supervisory body with authority over both the Administrative Office of the United States Courts and PACER—takes action. And if he won’t do his job, then Congress should.