June 1, 2023

Assessing PACER's Access Barriers

The U.S. Courts recently conducted a year-long assessment of their Electronic Public Access program which included a survey of PACER users. While the results of the assessment haven’t been formally published, the Third Branch Newsletter has an interview with Bankruptcy Judge J. Rich Leonard that discusses a few high-level findings of the survey. Judge Leonard has been heavily involved in shaping the evolution of PACER since its inception twenty years ago and continues to lead today.

The survey covered a wide range of PACER users—“the courts, the media, litigants, attorneys, researchers, and bulk data collectors”—and Judge Leonard claims they found “a remarkably high level of satisfaction”: around 80% of those surveyed were “satisfied” or “very satisfied” with the service.

If we compare public access before we had PACER to where we are now, there is clearly much success to celebrate. But the key question is not only whether current users are satisfied with the service but also whether PACER is reaching its entire audience of potential users. Are there artificial obstacles preventing potential PACER users—who admittedly would be difficult to poll—from using the service? The satisfaction statistic may be fine at face value, assuming that a representative sample of users were polled, but it could be misleading if it’s being used to gauge the overall success of PACER as a public access system.

One indicator of obstacles may be another statistic cited by Judge Leonard: “about 45% of PACER users also use CM/ECF,” the Courts’ electronic case management and filing system. To put it another way, nearly half of all PACER users are currently attorneys who practice federal law.

That number seems inordinately high to me and suggests that significant barriers to public access may exist. In particular, account registration requires all users to submit a valid credit card for billing (or alternatively a valid home address to receive log-in credentials and billing statements by mail.) Even if users’ credit cards are never charged, this registration hurdle may already turn away many potential PACER users at the door.

The other barrier is obviously the cost itself. With a few exceptions, users are forced to pay a fee for each document they download, at a metered rate of eight-cents per page. Judge Leonard asserts that “surprisingly, cost ranked way down” in the survey and that “most people thought they paid a fair price for what they got.”

But this doesn’t necessarily imply that cost isn’t a major impediment to access. It may just be that those surveyed—primarily lawyers—simply pass the cost of using PACER down to their clients and never bear the cost themselves. For the rest of PACER users who don’t have that luxury, the high cost of access can completely rule out certain kinds of legal research, or cause users to significantly ration and monitor their usage (as is the case even in the vast majority of our nation’s law libraries), or wholly deter users from ever using the service.

Judge Leonard rightly recognizes that it’s Congress that has authorized the collection of user fees, rather than using general taxpayer money, to fund the electronic public access program. But I wish the Courts would at least acknowledge that moving away from a fee-based model, to a system funded by general appropriations, would strengthen our judicial process and get us closer to securing each citizen’s right to equal protection under the law.

Rather than downplaying the barriers to public access, the Courts should work with Congress to establish a way forward to support a public access system that is truly open. They should study and report on the extent to which Congress already funds PACER indirectly, through Executive and Legislative branch PACER fee payments to the Judiciary, and re-appropriate those funds directly. If there is a funding shortfall, and I assume there will be, they should study the various options for closing that gap, such as additional direct appropriations or a slight increase in certain filing fees.

With our other two branches of government making great strides in openness and transparency with the help of technology, the Courts similarly needs to transition away from a one-size-fits-all approach to information dissemination. Public access to the courts will be fundamentally transformed by a vigorous culture of civic innovation around federal court documents, and this will only happen if the Courts confront today’s access barriers head-on and break them down.

(Thanks to Daniel Schuman for pointing me to the original article.)

Release Government Data, Early and Often

One of the key axioms of modern open government is that all public data should be published online in a raw but usable form. Usability in this case is aimed at software programmers. By making government datasets more usable, programmers are more likely to innovate in the civic sphere and build technologies, using the raw data, to enhance the relationships among citizens and with government.

The open government community has provided plenty of valuable guidance about what usability means for programmers. We proclaim that all datasets need to be: published in a format that is reasonably structured and machine-processable; well-documented; downloadable in bulk; authenticated using cryptographic digital signatures; version-controlled; permanent and citable; and the list goes on and on. These are all worthy principles to be sure, and all government datasets should strive to meet them.

But you’ll be hard-pressed to find any government datasets that exist with all of these principles pre-satisfied. While some are in better shape than others, most datasets would make programmers cringe. Data often only exist as informal working sets in proprietary Excel spreadsheets. Sometimes they are in structured databases, but schemas are undocumented, field values are ambiguous, and the semantics are only understood by the employee who created them. Datasets have errors and biases that are known but never explicitly corrected.

For a civil servant who is a data caretaker looking over the laundry list of publishing principles, there’s frequently a huge quality chasm between the dataset she owns and how people are asking to see it released. To her, publishing this data adequately just seems like a lot of extra work. The more attractive alternative is to put off the data publishing—it’s not in her job description or evaluations anyway—and move on to other work instead.

How can this chasm be bridged? A widely-adopted philosophy in software development and entrepreneurship would serve open government data well: release early and release often. And listen to your customers.

In the software development world, a working version of the product is pushed out as soon as possible even with known imperfections—an “alpha” release—so it can be subject to real use by early adopters. Early adopters can provide helpful feedback about what works, what’s broken, and what new features would be most useful to them. The software developers then iterate quickly. They incorporate the suggested fixes and features into their code and release an updated version of the product to their users. The virtuous cycle then starts again. Under this philosophy, software developers can be efficient about how to best improve their code where it matters, and users get software that works better and has more features they desire.

The “release early, release often” philosophy should be applied to government data. For the initial release, data caretakers should take the path of least resistance to get data out the door. This means publishing datasets in whatever format is most convenient, along with as much documentation as can reasonably be mustered. Documentation is especially important with an “alpha” dataset—proper warnings about its problems, instabilities and inductive limitations must be prominently displayed. (Of course, the usual privacy and legal caveats should also be applied.) Sometimes, the “alpha” release will be “good enough” for programmers to start their work, and this will minimize any superfluous work done by caretakers. This is the virtue of “release early.”

In other cases, programmers will need assistance using the dataset and will notice problem spots with the initial release. The dataset might be confusing, contain errors or be difficult to work with. A tight feedback mechanism allows the programmer to get help quickly and continue to innovate, while the data caretaker can fix problems based on real use cases and add clarifying metadata into an updated version of the dataset. Data quality and usability increases for those working with the dataset, both in and outside of government. That’s the virtue of “release often.”

And here is the big opportunity for government: no platform currently exists to engage the prime audience for government data—software programmers. Without a tight feedback mechanism, the virtuous cycle of mutual benefit cannot exist. Government is missing its best opportunity to improve data quality by neglecting useful feedback from programmers who are actually tinkering with the datasets. Society is losing out on potentially game-changing civic innovations, which otherwise would have been built if data were more usable and the uncertainty of failure reduced.

A terrific start in turning the corner would be for government to adopt an issue-tracking system for its datasets. As a public venue, it would help ensure that data caretakers are prompt in addressing developer concerns. It would also allow caretakers to organize feedback in a formal way. Such platforms are commonplace in any successful software development venture. The same needs to be true for government data in order to drive rapid quality improvements and increase developer engagement.

Introducing RECAP: Turning PACER Around

With today’s technologies, government transparency means much more than the chance to read one document at a time. Citizens today expect to be able to download comprehensive government datasets that are machine-processable, open and free. Unfortunately, government is much slower than industry when it comes to adopting new technologies. In recent years, private efforts have helped push government, the legislative and executive branches in particular, toward greater transparency. Thus far, the judiciary has seen relatively little action.

Today, we are excited to announce the public beta release of RECAP, a tool that will help bring an unprecedented level of transparency to the U.S. federal court system. RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive. The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository. RECAP helps users exercise their rights under copyright law, which expressly places government works in the public domain. It also helps users advance the public good by contributing to an extensive and freely available archive of public court documents.

The project’s website, https://www.recapthelaw.org, has all of the details– how to install RECAP, a screencast of the plug-in in action, more discussion of why this issue matters, and a host of other goodies.

The repository already has over one million documents available for free download. Together, with the help of RECAP users, we can recapture truly public access to the court proceedings that give our laws their practical meaning.