March 3, 2015

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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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Two Major updates to RECAP: Developers from Around the World Write Code in Memory of Aaron Swartz

A little over two months ago, we joined with the Think Computer Foundation to offer a set of grants in memory of our friend Aaron Swartz. Aaron worked on many issues in his too-short life, but one of those was liberating American court records from behind a pay-wall. He helped to inspire our RECAP project, which has allowed thousands of people to legally liberate and share millions of public records.

We didn’t know if anyone would take up the challenge, but today we are extremely pleased to award two of these grants. These awards recognize some truly amazing coding by software developers that were inspired by Aaron Swartz and his causes. Over the past several years, the two most-requested features for RECAP have been support for US Courts of Appeals (a.k.a. circuit courts), and a version of RECAP that works with the Chrome browser.

Ka-Ping Yee, Filippo Valsorda, and Alessio Palmero Aprosio represent the best kind of technological idealists. They are idealists that not only believe in worthy causes, but also have the engineering expertise and the dogged determination to see their vision through. Read more about them and install their code at recapthelaw.org.

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Making Excuses for Fees on Electronic Public Records

I recently posted about my draft bill to make electronic public access to federal court records free (#openpacer). Since then, I’ve had some very positive feedback from members of Congress, and I expect that the bill will be introduced with bipartisan and bicameral support once the public settles on the right language (the bill text is open for comment).

Schultze Hogan LetterIn the meantime, I wrote a letter to Judge Hogan, Director of the Administrative Office of the US Courts. I wanted to make the case directly to him that the courts should do the right thing — and that what they are doing right now is against the law. I was assured by his colleagues on the bench that Hogan is a reasonable and judicious person, and that he would at least hear me out. Yesterday, his administrative assistant replied to me. She said that he had forwarded the letter to the people in the Public Access and Records Management Division (PARMD), and that he didn’t want to talk to me. She said that I could contact Public Affairs Office if I wanted to discuss it further. The PARMD folks have, in the past, forwarded my requests for things like the congressionally mandated Judiciary Information Technology Fund Report to the Public Affairs folks, who of course never respond.

So, rather than participating in yet another bureaucratic run-around, I thought I’d outline the series of poor excuses that the Administrative Office has offered to justify their fees. If you’re a lawyer reading this, I invite you to consider what a lawsuit might look like. My email address is

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New Search and Browsing Interface for the RECAP Archive

We have written in the past about RECAP, our project to help make federal court documents more easily accessible. We continue to upgrade the system, and we are eager for your feedback on a new set of functionality.

One of the most-requested RECAP features is a better web interface to the archive. Today we’re releasing an experimental system for searching and browsing, at archive.recapthelaw.org. There are also a couple of extra features that we’re eager to get feedback on. For example, you can subscribe to an RSS feed for any case in order to get updates when new documents are added to the archive. We’ve also included some basic tagging features that lets anybody add tags to any case. We’re sure that there will be bugs to be fixed or improvements that can be made. Please let us know.

The first version of the system was built by an enterprising team of students in Professor Ed Felten’s “Civic Technologies” course: Jen King, Brett Lullo, Sajid Mehmood, and Daniel Mattos Roberts. Dhruv Kapadia has done many of the subsequent updates. The links from the Recap Archive pages point to files on our gracious host, the Internet Archive.

See, for example, the RECAP Archive page for United States of America v. Arizona, State of, et al. This is the Arizona District Court case in which the judge last week issued an order granting injunction against several portions of the controversial immigration law. As you can see, some of the documents have a “Download” link that allows you to directly download the document from the Internet Archive, whereas others have a “Buy from PACER” link because no RECAP users have yet liberated the document.

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Round 2 of the PACER Debate: What to Expect

The past year has seen an explosion of interest in free access to the law. Indeed, something of a movement appears to be coalescing around the issue, due in no small part to the growing Law.gov effort (see the latest list of events). One subset of this effort is our work on PACER, the online document access system for the federal courts. We contend that access to electronic court records should be free (see posts from me, Tim, and Harlan). Our RECAP project helps make some of these documents more accessible, and has gained adoption far above our expectations. That being said, RECAP doesn’t solve the fundamental problem: the federal government needs to publish the full public record for free online. Today, this argument came from an unlikely source, the FCC’s National Broadband Plan.

RECOMMENDATION 15.1: the primary legal documents of the federal government should be free and accessible to the public on digital platforms. [...]

- For the Judicial branch, this should apply to all judicial opinions.

[...] Finally, all federal judicial decisions should be accessible for free and made publicly available to the people of the United States. Currently, the Public Access to Court Electronic Records system charges for access to federal appellate, district and bankruptcy court records.[7] As a result, U.S. federal courts pay private contractors approximately $150 million per year for electronic access to judicial documents.[8] [Steve note: The correct figure is $150m over 10 years. However it is quite possible that the federal government as a whole spends $150m or more per year for access to case materials.] While the E-Government Act has mandated that this system change so that this information is as freely available as possible, little progress has been made.[9] Congress should consider providing sufficient funds to publish all federal judicial opinions, orders and decisions online in an easily accessible, machine-readable format.

[7] See Public Access To Court Electronic Records—Overview, http://pacer.psc.uscourts.gov/pacerdesc.html (last visited Jan. 7, 2010).
[8] Carl Malmud, President and CEO, Public.Resource. Org., By the People, Address at the Gov 2.0 Summit, Washington, D.C. 25 (Sept. 10, 2009), available at http://resource.org/people/3waves_cover.pdf
[9] See Letter from Sen. Joseph I. Lieberman to Carl Malamud, President and CEO, Public.Resources.Org (Oct. 13, 2009), available at http://bulk.resource.org/courts.gov/foia/gov.senate.lieberman_20091013_from.pdf

This issue is outside of the Commission’s direct jurisdiction, but the Broadband Plan is intended as a blueprint for the federal government as a whole. In that context, the notion of ensuring that primary legal materials are available for free online fits perfectly with a broader effort to make government digitally accessible. In a similar vein, a bill was introduced today by Rep. Israel. The Public Online Information Act, backed by the Sunlight Foundation, creates a new federal advisory committee to advise all three branches of government on how to make government information available online for free.

To establish an advisory committee to issue nonbinding government-wide guidelines on making public information available on the Internet, to require publicly available Government information held by the executive branch to be made available on the Internet, to express the sense of Congress that publicly available information held by the legislative and judicial branches should be available on the Internet, and for other purposes.

These two developments are the first of what I expect to be many announcements in the coming months, coming from places like the transparency caucus. These announcements will share a theme — there is a growing mandate for universal free access to government information, and judicial information is a key component of that mandate. These requirements will increasingly go to the heart of full free access to the public record, and will reveal the discrepancies between different branches in this regard.

The FCC’s language doesn’t quite get everything right. Most notably, the language focuses on opinions even though there are other components of the record that are key to the public’s understanding of the law. Opinions on PACER are already theoretically free, but the kludgy system for accessing them doesn’t include all of the opinions, isn’t indexable by search engines, and only gives a minimal amount of information about the case that each is a part of. Furthermore, the docket text required to understand the context, and the search functionality required to find the opinions both require a fee. Subsequent calls for free access to case materials will have to be more holistic than the opinions-only language of the Broadband Report.

The POIA language is also a step forward. A federal advisory committee is a good thing in the context of a branch that is more accustomed to the adversarial process than notice-and-comment. However, we will need much more concrete requirements before we will have achieved our goals.

In the context of these announcements, the Administrative Office of the Courts made their own announcement today. The Judicial conference has voted in favor of two measures that make incremental improvements on the current pay-wall model of access to PACER.

  • Adjust the Electronic Public Access fee schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Currently, users are not billed until their accounts total at least $10 in a one-year period.
  • Approve a pilot in up to 12 courts to publish federal district and bankruptcy court opinions via the Government Printing Office’s Federal Digital System (FDsys) so members of the public can more easily search across opinions and across courts.

These are minor tweaks on a fundamentally limited system. Don’t get me wrong — a world with these changes is better than a world without. It is slightly easier to avoid spending more than $10 in a given quarter than in a given year, but it’s nevertheless likely that you will do so unless you know exactly what you are looking for and retrieve only a few documents. It’s also good to establish precedent for GPO publishing case materials, but that doesn’t require a limited trial that could end in bureaucratic quagmire. The GPO can handle publishing many documents, and any reasonably qualified software engineer could figure out how to deliver them in short order. What’s more, the courts could provide universal free public access today, with zero engineering work: offer a single PACER login that is never billed or, better yet, just stop billing all accounts.

The next round of the PACER debate will be over whether or not we make a fundamental change in access to federal court records, or if we concede minor tweaks and call it a day.