Burningbird

In June, the federal court system released the results of a user satisfaction poll for PACER, the Public Access to Court Records online system.

The report boasts of a high satisfaction rate among those users polled. Of course, it’s difficult to assess how accurate the report is, considering that the court systems don’t provide access to the full report, only an executive summary. As it is, the executive summary does mention that the poll was invitation only, and not available for all users. This, even though being an online system, it would be a simple matter to send an email to all PACER users asking them to participate.

From the report:

The mission of the federal Judiciary’s Electronic Public Access (EPA) program is to facilitate and improve electronic public access to court information at a reasonable cost, in accordance with legislative and Judiciary policies, security requirements, and user demands. The primary point of access to the court information and documents maintained in electronic format is through the Public Access to Court Electronic Records (PACER) service, which provides access to court case files and reports residing in each court’s Case Management and Electronic Case Files (CM/ECF) system. Searching for case information across courts is accomplished through a tool called the PACER Case Locator. Support for the more than 450,00 [sic] PACER users, which include litigants, attorneys, and court staff, as well as commercial businesses, the media, academic researchers, students, and the general public, is provided by the PACER Service Center.
…
A total of 1,752 completed surveys were collected and analyzed, with a response rate of 20 percent.[emph. added]

Only 1,752 completed surveys from a pool of 450,000 users. Nothing can be cleanly deduced from such a small sample, especially when the polls are by invitation only, and we don’t know the criteria used to determine who is, or is not, invited.

The PACER poll is reflective of PACER problems in general. It goes out of its way to demonstrate a rosy picture of a system that most people call antiquated and out of reach for the average person. It focuses on those in the legal profession, to the detriment to those outside the system. It is more barrier than border; wall, than door.

Congress authorized the courts to charge “reasonable fees” for access to court documents, an authorization that was later modified via Section 205 of the E-Government Act of 2002:

(e) COST OF PROVIDING ELECTRONIC DOCKETING INFORMATION- Section 303(a) of the Judiciary Appropriations Act, 1992 (28 U.S.C. 1913 note) is amended in the first sentence by striking `shall hereafter’ and inserting `may, only to the extent necessary,’.

Yet, as has been noted time and time and time again, the amount of money PACER generates far exceeds the amount necessary to maintain the system, and the system still continues to be too intimidating for the average user (especially with a price tag attached to even a casual query).

Consider the research I undertook for my upcoming book, Ringling Brothers: The Greatest Show in Court. I needed to access court documents for the two primary court cases covered in the book: The ASPCA et al vs. Feld Entertainment (now known as AWI et al vs. Feld Entertainment) and Feld Entertainment vs. The ASPCA et al (now known as Feld Entertainment vs. AWI et al). The first court case has lasted over 12 years, and resulted in thousands of filed documents. The second, RICO lawsuit looks to last at least half as long and will, most likely, result in a huge number of court filings and documents, transcripts, and so on. In addition, there are numerous court cases related, either directly or indirectly, to these two primary cases.

I’ve spent over $1,600 accessing PACER documents for the two primary cases. This, in addition to the amount of money I’ve spent accessing PACER documents for other court cases I’m following. I estimate my 2013 PACER bills will be over $2,500 by year’s end, just for accessing only essential documents for ten court cases. The bills would have tripled if I hadn’t been able to access the transcripts and other documents provided online by Born Free USA and the other litigants (including Feld Entertainment, itself).

I’ve been in the tech industry for over 25 years. I know, for a fact, that no matter how poorly designed the computer system, it doesn’t cost $2,500 to access a copy of all entries for a case (the docket) and download PDFs from ten court cases. Frankly, I peg the costs to be less than five percent of what I was charged, and if the systems were actually created in the most efficient manner, less than one percent.

The systems aren’t created in the most efficient manner, though. For instance, each court has its own system; this, even though the systems are all the same. The type of data collected is the same, the front end HTML and JavaScript is the same, we have to assume the back-end code is the same…but the systems are maintained separately.

We don’t have separate laws for each court. Why, then, do we have to have separate data systems?

PACER is most definitely not user friendly. Users can’t access a running account of charges by daily access. The systems record this information, but don’t provide access to it on a daily basis. No, we only know the actual daily transaction costs by the 10th day of the following month. Of course, by that time, you may have incurred hundreds of dollars in charges and not even be aware of how much the access has cost. At one time, some of the courts did provide access to daily transaction charges. However, when I posted a query to the PACER folks about accessing the daily charges for all systems, the group seems to have responded by pulling access to the daily transaction charges for all systems.

I now keep my own spreadsheet of costs, which has, itself, increased costs when I’ve been so focused on recording the transaction, I’ve actually forgotten to download a copy of the document I just accessed.

In addition, PACER charges at least ten cents for a query that returns no results. No system I know of, other than PACER, actually charges when you don’t get a result. The system is not particularly clever when it comes to determining which case you’re after, either—leading to query after query with no results until you find what you’re after. And if your search returns several records, you’re charged “by the page”. It’s mind numbingly insane.

Pacer also charges for access to the docket sheet for a case. It also charges “by the page”, even though you access the docket sheet online. If you want to access the docket with all the text, you can pay several dollars. It currently costs close to five dollars to access the original AWI et al vs. Feld Entertainment court case docket sheet with full text. It costs over two dollars to access the docket sheet for another case I’m following, and this case is only about a month old.

What’s interesting, though painful, are the gotcha costs. For instance, to provide online access for the court documents I download, I make a copy of the full docket sheet HTML pages, using the “Save As Complete Web Page” feature in Chrome. I then modify the pages to access the court documents locally. To me, it’s the best way of providing access to court documents.

Chrome makes a second query when you use the Save As Complete Web Page feature. Normally, this second query would result in a double bill for accessing an offline copy of the docket sheet. PACER, though, does have a filter in place that prevents a person from being double billed for accidentally making a second query for a document or docket sheet in the same session you made the first.

But that all changed in June. In June, PACER made a modification to the technology when it comes to accessing the docket sheet. When I accessed the full docket sheet, with all the text, and then did a web page save for making a copy for offline access, PACER returned the docket sheet output without the full text. Not only could I not get the full docket sheet with text for offline access, but since the charges now differed (the docket sheet sans text is less expensive), the system no longer filtered out the second request, and I was charged for it.

I finally had to query the docket with text, use the browser’s View Source feature, copy the HTML and paste into an editor, before I can get an offline copy of the full docket sheet. Even now when I do this, I disconnect from the internet to ensure I don’t somehow get billed. I have become that paranoid.

What if you want to know whether a case you’re following has a new docket entry? After all, you don’t want to have to access the docket sheet too frequently—not at five dollars a pop.

PACER has met this modern day challenge with an Automated Case Notification system. Well, this is more like it…

Until you realize the “Automated Case Notification” system is nothing more than an RSS feed of every docket entry for the entire court. When you consider a busy court like the DC court can wrack up over a thousand docket entries in a day, and you have to sift through each and every one, well, you may find that the title of the application doesn’t quite live up to the promise.

Too expensive, too intimidating to people outside the legal profession, and too antiquated. No limited, invitation-only user poll can change what is the reality of PACER.

So what are the alternatives?

One such is a clever idea and implementation called RECAP the Law. The site and associated tools were created by the Center for Information Technology at Princeton University. The tools provide a simple way to download copies of court documents that are then stored at the Internet Archives whenever you access the documents at PACER.

I have used RECAP with some of my court document queries. However, I don’t now, specifically because of the issues I’ve had with changing technology and unexpected billings. I’ve seen the code for the extensions. I know there’s no way that I can be double billed using them, but I still hesitate, because of the changes in technology that have occurred at PACER and worry about unexpected billing. *Paranoid, yes, but with cause.

RECAP is also problematic for people in the legal profession. For instance, those who use the electronic system to file court documents may inadvertently download these same documents to RECAP, even though the documents are under seal, or have not had necessary redactions for privacy. It was this concern that led to the Massachusetts court to issue a warning about using RECAP, even though RECAP should be able to prevent such inadvertent downloads.

More importantly, though, RECAP does not help me now, when I already have thousands of court documents. Unlike The FOIA Project, RECAP doesn’t provide a way to upload court documents you already have. The reason why is the system has no way of verifying the legitimacy of the uploads. True, some court documents now come with digital signatures (the Ringling Brothers cases are now being managed by Judge Facciola, who was instrumental in bringing about digital signatures), but most don’t.

Another concern I have is that a system like RECAP depends on the interest of the public in order to ensure longevity, and as we know all too well, the public’s attention is fickle. By being a browser extension system, it’s essential the underlying code is kept fresh—especially with PACER undergoing changes in technology that seem to be geared towards decreasing access via a system like RECAP. All too often I’ve seen interest in maintaining a system fade proportionally to the publicly expressed interest in said system.

What I’ve implemented instead, for better for worse, is my concept of Open PACER, whereby people post court documents online, and we let search engines like Google provide the underlying system to access these documents. The context of where you find the document then provides whatever validation you deem necessary. When I find court documents online at other sites, I copy them and re-post them here, adding a necessary redundancy.

I’ve also been encouraging non-profits and legal professionals to publish copies of their court documents online, though this effort has been a uphill battle. In the Ringling Brothers court cases, attorneys for Feld Entertainment have used the fact that the animal welfare groups post court documents and exhibits online as an argument for putting all discovery under seal, which then inhibits the animal welfare groups from countering some of the rather fanciful claims made to the press by Feld Entertainment. And some judges do tend to side with privacy more often than not, even though our laws are such that open access to court documents is supposed to be the norm.

This latter issue demonstrates the real problem with PACER, and it isn’t necessarily costs, though these are prohibitive. The real problem is that the courts, themselves, are ambivalent at best, and extremely reluctant, at worst, about providing the general public with access to court documents. Among my readings, I have seen a strong feeling in the courts that we, the unwashed many, won’t “understand” the documents; that we may misrepresent what a document truly means in our social media; that we may be “unfairly” critical of this decision or that, this court action or that, because we’re not legal professionals.

What can I say to the courts, other than the fact that the access to knowledge is messy. It is messy, chaotic, and the results are frequently misunderstood and misinterpreted—accidentally and deliberately. But access to that knowledge is necessary.

The courts aren’t just deciding this legal case or that, they’re setting precedent. They’re defining and re-defining our social contract. They’re making history and altering the future. What you and I can do today, is heavily influenced by what has happened in the past in the courts.

It is an absolute must that we have simplified access to the court systems. PACER, though prohibitively expensive and intimidating, at least provides online access to most documents. This is more than can be said for many state court and local court systems.

PACER, though, needs to do better. Something as simple as removing the costs associated with making a query or accessing the docket sheet for a case would make a profound difference. Capping the costs for transcripts is also essential, as well as making sure these transcripts are available to the public (something that does not happen frequently enough). Providing a way to download all the documents for a court case at once, and capping the costs for this operation, would also be an outstanding improvement.

More importantly than changing the software behind PACER, the attitudes of the courts need to be changed. The courts should stop pretending everything is just fine with the system—using bogus polls to justify their fantastical outlook—because the system is not meeting the needs of all the people, as intended by Congress.

*Please don’t allow my unfounded paranoia dissuade you from trying out RECAP for yourselves. What’s important is we all do something to ensure open access to the PACER court documents.

I confess here and now: I am a PACER junkie. For the uninitiated, PACER is the federal court online system.

I rarely go a day without looking for new court filings in the many court cases I follow. When a new motion is submitted, I’m in alt. Think how science fiction fans react to a new Doctor Who episode, and you get the idea.

There seems to be a misconception about legal filings, and the law. Contrary to popular myth, neither are for lawyers, only. Yes, you have to be a lawyer to practice law, but you don’t have to be a lawyer to be interested in the law or legal documents. You don’t have to be a lawyer to have an opinion on laws, or legal documents, either. You may misunderstand a decision, or misstate the importance of a case, but doing so is no different than misunderstanding any other decision, or misstating the importance of any other event. The art of law is no different than the art of philosophy, geology, history, or computer programming.

What happens in the courts has a profound impact on all of us. If Congress passes laws, and the Executive Branch implements these laws, it is the Courts that refine the laws—ensuring that the laws are applied consistently, and adhere to basic principles on which the nation is formed.

Think of law as a statue. Congress, acting on its own or based on the demands of the populace, decides it wants a new statue. If enough members of Congress agree, it writes up a specification for the statue, and provides funding to create it.

The Executive Branch of the government, via its agencies, takes these specifications and formulates a plan for creating the statue. Once the first draft of the plan is complete, the relevant agency submits the plan to the master architect/bean counter, otherwise known as the Office of Management and Budget. The OMB checks that the statue implementation plan is cost effective, and won’t piss off the master sculpture (i.e. the President). If the plan passes muster, the agency submits it to the people for comment. Commentary flows in that ranges from the sublime to the inane. How much impact the commentary has depends on any number of factors, including the impetus of creation, and which raw resource dealer has the best lobbyist. Eventually, the agency finalizes the plan and sends it and the raw materials off to the minions to create the statue.

Lo, and behold, here is the statue.

The law is art, and art is always in the eye of the beholder. The people may not agree with how the statue looks. One person may think its too crude; another may think it varies from the specifications too much; a third may deem it blasphemous and demand it be taken out into a field and blown up with dynamite. If one or more people are personally impacted by the creation of the statue, they may take their artistic disdain to the Courts.

The Courts take up the tools of the legal trade—a dainty chisel and fine sandpaper here, a blow torch there. They’ll hear the arguments of the people and the creators, look at the specifications provided by Congress and the finished work of the agencies, and within the boundaries that constrain their own activities (because it does no one any good to have a Mad Artist suddenly take a sledge hammer to a great piece of art), they’ll decide if the people are wrong, and the work is fine. Or they may decide that the people are correct, and the piece needs work.

It is the Courts, then, who refine the statue. Over time, they brush away the imperfections. Sometimes they may go a little too far, and a repair is necessary. Other times the Courts may disagree on artistic interpretation, or the people may disagree with the Courts, and a higher Court will either confirm an interpretation, or reverse it before any irrevocable action has taken place. Put that blow torch down, and back away slowly.

As time goes by, the statue—the law and its regulations and rules—becomes more rigid and less amenable to change. The legal people call it ‘precedent’ but we can think of it as Monkey Christ. If we sit around, twiddling our thumbs, waiting for some legal mind to suggest we might want to be concerned about this new law, regulation, or court decision, we may lose the opportunity to have input, and get stuck with a really ugly piece of work.

So I’m a PACER pusher, as well as junkie. I created a Documents at Burningbird web site to share my legal and other documents with you. I hope to get you hooked, too.