Categories
Legal, Laws, and Regs

Dry wit among the legalese

I have mentioned, at least once or twice, that legal documents aren’t as dry and obtuse as many people think they are. Indeed, some court decisions display a dry wit that can put any nonfiction best seller to shame.

Take a recent decision by the DC Appeals court in the case Conservation Force, Inc. et al v. Sally Jewel et al. A group of people, wanting to enable rich sportsmen to bring home their trophy kills of the straight-horned markhor, sued the Fish and Wildlife Service (FWS) because it did not respond in a timely manner to a petition to reclassify the endangered markhor as threatened (allowing said rich sportsmen to bring home their trophies, among other things). The court dismissed the claim because it was time-barred. The petitioners promptly filed an appeal.

The DC Appeals court dismissed the complaint because it’s no longer moot—while the case was ongoing, FWS did reclassify the markhor as threatened rather than endangered, so the original claims of injury are no longer relevant.

This case is just one of many challenging endangered status for any number of animals, in this country and out, and as such is of concern to those of us who see such actions as part of an overall campaign to weaken the Endangered Species Act. But it is the wording of the decision that really makes it stand out.

I don’t want to give away the fun bits. Download the decision by Chief Judge Garland, and read at least the first page of the decision (page 2 in the document). Pay particular attention to the first footnote.

And if you’re concerned about the Endangered Species Act, take the time to read the rest of the document.

(h/t to David Ingram)

Categories
Documents Legal, Laws, and Regs

Update on the PACER story

Thanks to tweets from John Hawkinson (@johnhawkinson), I’m now aware that there is a way to access detailed daily transactions.

There is a link to a form that provides this, though the link is not available (as far I can see) from the primary Manage My Pacer page at PACER. The link is available at some district courts ECF systems, via the Utilities submenu. Only some of the courts, though. For instance, it’s available from the Massachusetts district court.

Utilities page at Massachusetts district court

But it’s not available from the Idaho district court’s ECF page.

Utilities page at Idaho district court

Regardless, it works for all courts…once you can find the link. And now we have the link. Hurrah!

John also mentioned about the various forms of querying for the docket. The one I use looks like the following:

https://ecf.idd.uscourts.gov/cgi-bin/iqquerymenu.pl?22237

This is for the court case related to Sackett vs. EPA, one of the court cases I follow. I use this to access documents directly, or print out History, which is the docket sheet.

Query page using first method

There is another method of querying that does give you more finite control of accessing the docket sheet. The query for this looks like the following:

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?156742&98

This is one of the peripheral cases I’m following for my Ringling Brothers book. This query page does provide more finite control over the history page (docket sheet) that’s returned. It is an effective way of only accessing recent docket entries.

Query page using second method

But you’re still going to get charged, even if there’s been no update and no docket entries are returned.

Even no results costs you a dime

PACER should not be charging for queries, it should be charging for document access. And again, consistency would go a long way towards transparency.

John also mentioned that, though the courts follow the same laws, they do have different local rules. So, the Massachusetts district court has one set of local rules, the DC district court has another.

However, the authorization for PACER is federally mandated, and the system is definitely centralized. At least at some point. If it weren’t, when I query for pages in the Idaho court, I wouldn’t be able to access this transaction using the utilities in the Massachusetts court…but I can. Immediately, in fact.

The local rules don’t, and should not, impact on how PACER works. They may impact on what’s filed, fees, when something is filed, what a judge does, how big a document a document can be, how many separate files are uploaded, but it shouldn’t impact on the underlying PACER system. They may impact on each court’s CM/ECF (Case Management/Electronic Case File) system, but that’s not PACER.

Keep the two separate in your mind, because they’re not the same thing. They may run off the same data but they are not the same thing.

By not being consistent, some user accessing the Sackett court case is unaware of the link that allows them to check their daily transactions. However, a person accessing one of the Ringling Brothers court cases can easily access this link from the Utilities menu from the case query page. And no one has access to it from their main Manage My Pacer account page.

That’s just plain cracked.

It gets worse when you access the RSS feeds. Some contain one form of query page for accessing the document associated with the new docket entry; others return a different query page. Sure, this works, if you only access documents for one court. You would never see the inconsistencies. But this is the internet … people using PACER are frequently interested in court cases from multiple courts.

Do I need to repeat my statement about this being just plain cracked?

Lastly, John mentioned the fact that our federal courts are being strangled by the sequester.

I am more than sympathetic to the courts when it comes to the fact that they don’t have sufficient funding. I’m appalled we would strangle an important component of our government over childish bickering on budgets. Our Congress should be deeply ashamed.

However, the absurdities due to sequester are not PACER’s responsibility. And PACER can’t be used to fix a broken Congress.

Categories
Critters

Eating Flicka: A Good Idea?

Single horse on hillIf we separate the moral argument about eating companion animals and instead focus on the safety of horse meat, the end result remains the same: starting up the horse meat industry in the United States is not a good idea. To get a good understanding why, we need to take a closer look at what’s happening with the horse meat industry where the meat is currently allowed: The European Union (EU).

The EU has had procedures in place to ensure healthy horse meat for years, yet stories this year about horse meat incorporated into beef products, and horse meat testing positive for drug residue have surfaced repeatedly.

Horses in the EU are required to get a “passport” by six months of age, and all administered medications get recorded in the passport. Yet there have been a significant number of incidents where a passport for one horse is used with another, as well as incidents of fake passports.

Equine Essentials notes the issues in The Problem with Horse Passports:

The passport system has had plenty of criticism for not functioning properly, not being enforced and being subject to a lot of abuse. In February 2013 the BBC reported that 7000 unauthorised documents have been circulating in the UK since 2008. Not to mention the fake horse passports that are being made continuously. Owners report that veterinarians often don’t use the passport to record care history and many opt for the old way of doing things and issue vaccination cards instead. Many competing grounds are also happy to just see the vaccination card and don’t check passports.

Problems aside, the supposed benefit of the Passport system is it provides traceability of the horse, ensuring that meat from horses that have received hazardous drugs doesn’t enter the food chain. There is no such system in the United States. At one time, the USDA considered implementing a system of traceability known as the National Animal ID System, or NAIS. However, because of pushback from farmers and livestock associations, the USDA dropped its plans. Instead, the USDA adopted a relatively weak rule that animals transported across border will have to be accompanied by formal identification, including a veterinarian certificate or owner statement. No passport, no electronic tracking, just paperwork.

The new rule’s purpose is to track the course of a diseased horse across state borders. However, tracking a diseased horse is only one component of ensuring the safety of the meat. It’s also important to know what drugs a horse has been given. As the USDA notes in its inspection procedure, horses are companion animals and are usually given medications forbidden a food animal like a cow. In particular, one drug, phenylbutazone or “bute” as it’s commonly called, is frequently used with companion horses. But bute can also cause a fatal disease in humans called aplastic anaemia. The drug is so dangerous that any use in the horse makes that horse ineligible for processing as meat.

To check for drugs, the USDA implemented an inspection routine that randomly samples horses, based on the number of horses within a “lot”. If the lot consists of 10 horses, the USDA inspectors will test 1 horse; between 11 and 50, 2 horses; between 51 and 100 horses, 3 horses are tested; and if the lot consists of 100 or more horses, a maximum of 4 horses are tested.

Is this random sampled testing sufficient to ensure that the horse meat is free from drug or other residue that can cause harm? Well, to answer that, we have to visit our neighbors to the north.

The Toronto Star has written a series of investigative stories about the processing of horse meat in Canadian factories. It followed a race horse named Backstreet Bully, as it left a race course only to be shot dead in a knacker’s yard. The story detailed how, through a series of deceptions widely practiced in the kill horse auction community, a horse who had been administered drugs typically given to companion horses, ends up at a horse meat slaughter auction house. The story effectively demonstrates how ineffectual Canada’s own “passport”, the Equine Information Document, is when it comes to preventing drug tainted meat from entering the human food chain.

The federal government relies heavily on the accuracy of the passports, which have been in existence since 2010 and are the first line of defence in keeping tainted horse meat from the human food chain. The government does not require owners selling a horse for meat to provide additional medical history such as veterinary records.

Dr. Martin Appelt, the Canadian Food Inspection Agency’s national veterinary program manager, acknowledged the government relies on an honour system and hopes that the documents are “a reflection of the truth.”

But it’s far from a foolproof system: last year, tainted horse meat from Canada, bound for Belgium, was found to contain traces of two controversial drugs, bute and clenbuterol, the latter on the list of drugs in Canada that are never to be given to animals sold for human food.

The Canadian Food Inspection Agency began testing horse meat for bute in 2002. In detecting prohibited veterinary drug residues in meat, there is an overall compliance rate of 96 to 98 per cent, according to an agency spokesperson. Testing is random though a horse or its carcass will be tested if there are red flags or concerns.

Though Canada has implemented it’s own passport system, it also relies on random testing, just like the USDA. Yet horse meat tainted with dangerous drugs has still managed to slip through to the European market. We, in the US, rely only on random testing—how safe do you think the meat will be?

Of course, one can always choose not to eat horse meat. We’re not going to be exposed to bute-tainted meat if we don’t eat horse meat. The problem with this approach, though, is that sometimes people are eating horse meat and aren’t even aware they’re doing so.

This year, the EU and the UK were shaken when horse DNA was found in meat labeled as 100% beef. Food Safety News put together an infographic charting the early days of the scandal, but the problem is ongoing. Just last week, authorities noted that two people involved in the horse meat contamination were arrested in Britain.

The Horse DNA tainted beef has shown up all throughout Europe and the UK: in foods ranging from fast food burgers to the famous IKEA meat balls. Recent testing has shown that over 5% of meat labeled “beef” in Europe is contaminated with horse meat DNA. This isn’t a small percentage, and demonstrates that the horse meat contamination is endemic—especially when we consider the DNA testing is more thorough in some countries, than others.

What’s more critical is that testing also discovered that one half of one percent of the horse meat tested positive for bute—a far more alarming discovery. Authorities downplayed the findings, saying the percentage is trivial, but the assertion of “no worries” doesn’t jibe with the laws restricting any presence of bute in the human food chain.

The EU may state that the issue is a matter of food fraud and not of food safety, but in the end, it’s all about food safety. Food safety is about preventing harm to people, regardless of the impetus behind the harm: human greed or human carelessness. And, as noted in the NY Times article just linked, Europeans have only been testing for bute…there are other drugs used with horses that can also potentially cause harm if consumed by humans or other animals.

If you live in the United States, you may think this isn’t a problem for any of us. After all, we don’t typically eat horse meat in this country. None of the horse meat processed in the country is targeted for human consumption within the country. The meat is intended for human consumption in other countries, or supposedly for animals in zoos. Why should we worry, then?

Leaving aside the fact that we should question our indifference about inflicting potentially dangerous meat on the rest of the world, not to mention tigers, lions, and bears in zoos, we are at risk for our own version of the European horse meat scandal by starting up horse meat processing in this country.

Horse meat is generally less expensive than beef, especially horse meat from older horses or scrawny wild mustangs. It’s going to be tempting to shove a little horse meat into the beefwhen creating cheap frozen foods, or foods served at inexpensive restaurants. In addition, horse meat is leaner than beef, which has an appeal for a different reason. Because of our insistence of shoving corn down cows’ throats, we have almighty fatty beef in the US. Yet weight conscious people want low fat meats. Access to lean meat to mix with our fatter beef in order to control fat content is an attractive proposition. Right now, we’re actually importing lean beef trim from countries like New Zealand, just to get that “98% lean” label in the supermarket. Why not toss in a little leaner horse meat rather than import lean meat scraps?

We wouldn’t need to be concerned about our own version of “food fraud” if we did DNA testing on our meat in order to ensure that “beef” is “beef”. Canada did this recently, to assure its citizens that Canadian beef is real beef (they hope, because just like testing for drugs in horse meat, the horse DNA testing samples were limited). The problem is, the US doesn’t do any DNA testing of our locally derived meat. Some folks did for our seafood, and found a whole lot of “mislabeling”. We do species testing for imported meat, but we don’t do any DNA testing of our locally derived meat.

Well, isn’t that just peachy?

Let’s be blunt, we’re right there with the folks in Canada and the EU: food safety is based on the honor system more often than not. Most of the time, it works. Sometimes, though, the honor system doesn’t work as well as we’d like. Once we start processing horse meat in the US, the only way we can guarantee we don’t get any horse meat in our hamburgers is not to eat hamburgers.

Or chicken.

I’d stay away from goat, too.

Categories
Documents Legal, Laws, and Regs

Satisfied with PACER? Nope

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.

duplicate docket charges highlighted in bill

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.

Categories
Documents

First release of documents related to Aaron Swartz

Kevin Poulsen of Wired has released the first 100 pages of documents related to the investigation about Aaron Swartz. These are the first of the documents released to him by the government. You can also download the PDF for the release directly. Note, it’s a big file.

The court case is still ongoing, as Poulsen notes. I have new filings for it, and will post a docket sometime in the next week or so. I’m behind on my docket postings.

I really appreciate Poulsen making these documents easily available. Not every reporter is good about this.