Private Information in Public Court Filings

Court proceedings are supposed to be public. When they are public and easily accessible, citizens know the law and the courts are kept accountable. These are the principles that underpin RECAP, our project to help liberate federal court records from behind a pay-wall.

However, appropriate restrictions on public disclosure are equally critical to democracy-enhancing information management by the judiciary. Without protections on personal data, trade secrets, the addresses of cooperating witnesses, or other harmful information the courts would become a frightening place for many citizens in need of justice. Peter Winn has described this challenge in detail.

Thus, somewhat counter-intuitively, it is important to restrict some legal information in order to set the rest free. That is why our courts have a strong legacy of sealing cases when, on balance, their disclosure would do more harm to justice than good. When the risks don't require the entire case to be sealed, portions of documents can be redacted. Federal Rule of Civil Procedure 5.2 and Federal Rule of Bankruptcy Procedure 9037 define these instances.

But what happens when mistakes are made or negligence occurs?

Read the rest over at Freedom to Tinker.

What Does It Cost to Provide Electronic Public Access to Court Records?

US Courts have long faced a dilemma. Public access to proceedings is essential to a well-functioning democracy. On the other hand, providing public access requires expenditure of funds. Charging for access works against public access. Traditionally, these costs have been considered to be part of the general operating cost of courts, and there have been no additional fees for public access. The cost of the courthouse, the public gallery, and the bailiff are included. The administrative cost that the clerks incur in providing free public inspection of records is also covered, although the clerk may collect fees for filing actions or making physical copies.

I have been trying to understand how these practices have been translated into the networked digital era by exploring PACER, the US Courts' system for "Public Access to Court Electronic Records." Digital technologies have a way of pushing the cost of information dissemination toward zero, but as I observed in a recent working paper, this does not appear to be the trajectory of public access fees. Congress has provided a statutory limitation that states that the "Judicial Conference may, only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services." In short, you can only charge for public access services if those fees are used to, at most, cover the operating expenses for those same services. What's more, in an accompanying conference report, Congress noted that it "...intends to encourage the Judicial Conference to move... to a fee structure in which this information is freely available to the greatest extent possible."

As described below, the Judiciary's financial reports appear to tell a different story: In the past several years, the Judicial Conference has consistently expanded the scope of its expenditures of public access fees such that the vast majority is now spent on other services.


The Judiciary Financial Plans

The first source for my analysis is the Judiciary's annual set of Financial Plans, submitted to Congress after their funds for that year have been appropriated. These are not made publicly available, but I have obtained the relevant excerpts from 2007, 2009, (appended to my working paper) and 2010 (here). I haven't yet obtained the 2008 Plans, so for two data points from that year I have to estimate based on averages for the prior and following years. You can download my Excel spreadsheet that combines the top-level data and drives the chart below (note the comments in the spreadsheet for details on how the numbers were derived).

EPA (Electronic Public Access) funds are collected solely via PACER fees, and are expended on a variety of programs. One of these expenditures is the PACER program itself, but many other expenditures are not. This includes things like "courtroom technology", "telecommunications", and "CM/ECF" (the electronic filing system). I described some of these in my working paper, but after I published that I had the opportunity to ask a panel made up of staff members from the Administrative Office of the US Courts and federal judges how these fees were used. At the 7th Conference on Privacy and Public Access to Court Records, the Hon. William E. Smith from the United States District Court for the District of Rhode Island explained that PACER fees:

"...also go to funding courtroom technology improvements, and I think the amount of investment in courtroom technology in '09 was around 25 million dollars. [...] Every juror has their own flatscreen monitors. We just went through a big upgrade in my courthouse, my courtroom, and one of the things we've done is large flatscreen monitors which will now -- and this is a very historic courtroom so it has to be done in accommodating the historic nature of the courthouse and the courtroom -- we have flatscreen monitors now which will enable the people sitting in the gallery to see these animations that are displayed so they're not leaning over trying to watch it on the counsel table monitor. As well as audio enhancements. In these big courtrooms with 30, 40 foot ceilings where audio gets lost we spent a lot of money on audio so the people could hear what's going on. We just put in new audio so that people -- I'd never heard of this before -- but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers. So now the back of the courtroom can really hear what's going on. This all ties together and it's funded through these fees."

Clearly, the costs of expensive multimedia systems for courtrooms are not part of the expenses incurred in providing PACER. The 2007 Judiciary Financial Plans delineate between EPA (PACER) and non-EPA programs, illustrating the substantial discrepancy in funds generated by the PACER program and the funds spent on PACER. As described in my working paper, the Courts can point to no statutory justification for spending PACER fees on these non-EPA programs. As of 2009, the Financial Plans no longer separate EPA and non-EPA expenses, but it is easy to reconstruct these totals based on the individual breakouts included in the plans. By doing this, I generated the following graph:



Income is in green, which consists of either direct collections or carryover from the previous year. Expenditures are in red. As you can see, according to the courts, the cost of running PACER has grown only slowly over time, whereas other services have grown dramatically. The carryforward peaked in 2008 at $44.5m, around the time that the courts decided to start spending more aggressively on non-PACER programs. Specifically, in March 2007, the Information Technology Committee of the Judicial Conference observed that, "In recent years, significant unobligated balances have accumulated," and proposed to, "expand use of Electronic Public Access funds for IT efforts, such as applicable network, courtroom technology and jury management requirements. The IT Committee did not support any reduction to the fee at this time." In 2010, expenditures on non-EPA services will actually exceed EPA revenues. As of 2011, the courts plan to have spent out most of the carryforward they had accumulated.

In their defense, the courts argue that all of the programs on which they spent PACER funds are somehow generally related to electronic public access. The current PACER site notes that PACER fees are "used to finance other expenses related to electronic public access to the courts in areas such as courtroom technology and the Bankruptcy Noticing Center." Nevertheless, the fact remains that many of those do not represent "expenses incurred in providing [the charged for] services." Programs like CM/ECF or Telecommunications represent, at best, ancillary programs. However, most if not all of their expenses would exist regardless of the PACER program. What's more, parties have always had to pay filing fees for certain actions, and although CM/ECF has saved them time and money compared to the days of couriers, public access fees are instead paying for the entirety of the system's development. Likewise, the Telecommunications program extends far beyond anything required to support PACER, and would be necessary regardless of any EPA-related use. Bankruptcy Noticing ($9.7m planned for 2010) is a free service that creditors use to monitor incoming bankruptcy claims.


Long Range IT Plan for the Judiciary

My second source for a big-picture perspective on IT spending by the courts is the annual "Long Range Plan for Information Technology in the Federal Judiciary." The 2010 version is available from the US Courts website, but the link to the 2009 version was broken in the recent upgrade of the site (which was, ironically, intended to make information more easily accessible). Fortunately, I have it. [Update: the 2010 link is now also broken, but I posted a copy here.]

The Long Range Plan covers IT financing of the entire Judiciary, and as such it describes far more than just EPA (PACER) fees. That being said, there is a fascinating shift from the 2009 Plan to the 2010 Plan. Each year, the Judiciary forecasts costs for many different IT-related program areas. We can therefore compare the projections for FY 2010 that are found in the 2009 Plan with the FY 2010 projections found in the 2010 Plan. Four of these program areas immediately pop out in such a comparison: Electronic Public Access Program, Court Allotments, Court Administration and Case Management, and Telecommunications. You can see the changes from one year to the next reflected in the chart below:

Program Costs	FY 2010 in 2009 LRP	FY 2010 in 2010 LRP	% Change	Change
Electronic Public Access Program (PACER)	$26.5m	$105.6m	+298.49%	+$79.1m
Court Allotments	$143.9m	$102.7m	-28.63%	-$41.2m
Court Administration and Case Management	$22.1m	$2.6m	-88.24%	-$19.5m
Telecommunications	$88.8m	$76.8m	-13.51%	-$12m

Somehow, the projected costs of the Electronic Public Access program in 2010 grew by about 300% between 2009 and 2010. The cost of Court Allotments, Court Administration and Case Management, and Telecommunications shrank by an equivalent amount. It is hard to imagine that the actual plans of the Judiciary changed so dramatically from one year to the next. Rather, it seems far more likely that they simply decided to change their accounting practices to portray a cost for the EPA system commensurate with the amount they are collecting.


What Should PACER Cost To Run?

The FY2010 Financial Plan represents the lowest estimate from the Judiciary that I can find for current PACER costs, listing "Public Access Services and Applications" at $21.9m. But is that a reasonable number for what PACER should cost to run? Even if the Judicial Conference believes so, there are several reasons why it could be run far more efficiently:

PACER is run on a highly inefficient decentralized infrastructure
Every court runs its own instance of PACER software, requiring its own hardware, network connection, and support staff. This means that, between district, bankruptcy, and circuit courts, these resources are duplicated approximately 200 times. I have heard various theories for why this is the case, including the notion that control of records has been traditionally delegated to local jurisdictions. It may also be true that at the time PACER was first deployed this was the only technical and operational way to implement it. However, a modern system administrator would never choose to implement a system that exhibited these inefficiencies. Fortunately, the Administrative Office of the Courts already controls the whole network and a first step of physical (if not logical) centralization should be fairly straightforward.

PACER costs include maintaining a staff in San Antonio, TX to answer phones
Although the average PACER user may not be aware of it, there is a full-time staff at the PACER Service Center just waiting to answer their various PACER-related questions (In 2009 this included 135,000 help desk calls, and almost 30,000 support emails). This service helps to overcome some of the more confusing usability barriers of the current PACER system, because these people will walk users through the process. This service is funded out of basic PACER access fees, which are based on per-page access rather than phone calls to the support staff.

PACER costs ironically include overhead from fee collection itself
Every quarter, PACER staff must prepare and physically mail bills to all PACER users that have incurred a billable level of fees. They must deal with all of the administrative overhead of managing these collections, including chasing down delinquent debtors and prosecuting them, if necessary. This portion of costs is a self-fulfilling prophecy.

PACER costs include expenses from upgrading the user interface, when third-parties could do a better job for free
The courts could publish all PACER data in bulk-downloadable format with relative ease and at a low cost. In this scenario, it is very likely that third parties would make the data more easily accessible in a variety of formats, at no cost to the courts. This general principle is laid out by my colleagues in a paper entitled "Government Data and the Invisible Hand."

If providing electronic public access can be grounded in free bulk access, the costs might well be manageable even within a no-fee system. The courts might also find it easier to avoid straying from their statutorily constrained requirement to, "only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services."

[An advance copy of this post was sent to the Administrative Office of the Courts, which declined to provide comments, corrections, or additional documentation.]

E-Government Oversight Committee Writes Appropriators About PACER Fees

The Senate's Committee on Homeland Security and Government Affairs has oversight over the implementation of the E-Government Act of 2002. Chairman Lieberman just sent a letter (PDF) to the Senate appropriators for the Judiciary explaining that the courts are using PACER fees to fund unrelated expenses, which is "against the requirement of the E-Government Act."

The Judiciary presented its budget request to the House appropriators last week. This letter suggests that the unrelated expenses should be funded via direct appropriations rather than out of PACER fees.

The committee had written an initial letter to the courts in February 2009, asking whether they were complying with the Act. The courts replied in a letter the following month. Evidently their answer was not satisfactory.

For context, you might find my working paper on PACER finances illuminating, as well as my recent thoughts on where the PACER fee debate is going.

United States Senate
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

March 25, 2010

The Honorable Richard Durbin
Chairman
Subcommittee on Financial Services and General Government
Committee on Appropriations
184 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Susan Collins
Ranking Member
Subcommittee on Financial Services and General Government
Committee on Appropriations
125 Hart Senate Office Building
Washington, DC 20510

[...]

Public Access to Court Electronic Records (PACER)

I have concerns about how the Administrative Office of the Courts is interpreting a key provision of the E-Government Act relating to public access to Court records. Given the transparency efforts that have been made a priority across the Federal Government - as well as the recent call in the FCC's Broadband plan for increased online access to court records - I believe more attention needs to be paid to make these records free and easily accessible.

As you know, Court documents are electronically disseminated through the PACER system, which charges $.08-a-page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts "may, only to the extent necessary" (instead of "shall") charge fees "for access to information available through automatic data processing equipment." The Committee report stated: "[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible... Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information."

Since the passage of the E-Government Act, the vision of having information "freely available to the greatest extent possible" is far from being met, despite the technological innovations that should have led to reduced costs in the past eight years. In fact, cost for these documents has gone up, from $.07 to $.08-per-page. The Judiciary has attempted to mitigate the shortcomings of the current fee approach in a variety of ways, including limiting charges to $2.40-per-document and the recent announcement that any charges less than $10-per-quarter will be waived. While these efforts should be commended, I continue to have concerns that these steps will not dramatically increase public access as long as the pay-per-access model continues.

To move closer to the mandate of the E-Government Act, the Administrative Office of the Courts should reevaluate the current PACER pay-per-access model. Even to retrieve free materials such as opinions, PACER currently requires the individual to establish a PACER account. One goal of this review should be to create a payment system that is used only to recover the direct cost of distributing documents via PACER. That review should also examine how a payment system could allow for free bulk access to raw data that would allow increased analytical and oversight capability by third parties.

Additionally, in 2007, the Judiciary asked for and received written consent from the Appropriations Committees to "expand use of Electronic Public Access (EPA) receipts to support courtroom technology allotments for installation, cyclical replacement of equipment, and infrastructure maintenance." As a result, funds collected by the $.08-per-page charge have been used for initiatives that are unrelated to providing public access via PACER and against the requirement of the E-Government Act. The Appropriations Committee should review the Judiciary Information Technology Fund Report provided each year to ensure the funds generated from PACER are only going to pay for the direct costs of disseminating documents via PACER, and not for additional items which I believe should be funded through direct appropriations.

[...]

Sincerely,
Joseph I. Lieberman
Chairman

My Latest Thoughts on the PACER Debate

Over at Freedom to Tinker:

Round 2 of the PACER Debate: What to Expect
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. (more...)

Let's Hear it for Renegade Law Librarians!

Video: Interview with Stephen Schultze, co-creator of Recap

Today, Stephen Schultze and Harlan Yu from the Center for Information Technology Policy at Princeton, and two of the creators of the Recap project, presented Recap at Yale Law School. Afterwards I had a chance to record a short video interview with Stephen Schultze about issues related to Recap and online access to government records. My hand was a little unsteady, so it’s a little Blair Witch, but think it’s an interesting interview, enjoy.

Here’s the links for the petition to improve PACER and Fedthread, both of which he discusses.

(via Jason the Content Librarian)

AO and GPO to Host A Discussion on PACER Pilot "Lessons Learned"

I'm curious about what this will entail.

At its September 2007 session, the Judicial Conference endorsed a joint pilot between the Government Printing Office (GPO) and the Administrative Office of the U.S. Courts that was not to exceed two years in length. The GPO sought volunteers to participate in the pilot from among its 1265 depository libraries. Forty-nine depository libraries responded to the call for volunteers. In consultation with the GPO, the Administrative Office selected seventeen depository libraries to participate in the pilot.

The pilot commenced in October 2007 and was suspended after 11 months for an evaluation. The data collected during that time suggests that the target population, a segment of the public that would be unlikely to go to the court house or establish a PACER account, was not reached as anticipated. In October 2009, the GPO and the Administrative Office will be holding a "Lessons Learned" focus group session with the librarians who participated in the pilot to pin point what worked and what could be improved.

Although the pilot was initially well publicized, the level of ongoing public outreach about the pilot did not reach the desired level. More fundamentally, PACER is a tool, not a program. Therefore, the American Association of Law Libraries (AALL) has been contacted to discuss ways the pilot could be reinvented to make PACER part of a legal research and training program for librarians and the users. The AALL strongly supports the GPO and the FDL program, and is willing to assist with developing a proposal to move forward. Once a proposal is developed, it will be submitted to the Judiciary's advisory groups and the Judicial Conference Committee on Court Administration and Case Management for consideration.

-- Pilot for PACER Access at Federal Depository Libraries, FDLP Desktop

My New Working Paper on PACER

Electronic Public Access Fees and the United States Federal Courts’ Budget: An Overview

Stephen Schultze, Fellow, Berkman Center for Internet & Society at Harvard

Abstract: This draft working paper examines the role of user fees for public access to records in the budgeting process of the federal courts. It sketches the policy principles that have traditionally motivated open access, describes the administrative process of court budgeting, and traces the path of user fees to their present-day instantiation. There has been considerable confusion about motivation and justification for the courts charge for access to PACER, the web-based system for “Public Access to Court Electronic Records.” Representatives from the Administrative Office of the Courts describe the policy as mandated by Congress and limited to reimbursing the expenses of operating the system. This paper identifies the sources of these claims and places them in the context of the increasing push to make government data freely accessible.

Download here.

RECAP the law

I'm proud to announce the launch of a new project that I've been working on with my colleagues at Princeton's Center for Information Technology Policy.

RECAP is an extension to the popular Firefox web browser that gives PACER users a hassle-free way to contribute to a free, open repository of federal court records. When a RECAP user purchases a document from PACER, the RECAP extension helps her automatically send a copy of that document to the RECAP archive. And RECAP saves its users money by notifying them when documents they’re searching for are already available for free from the public archive.

Check it out at http://www.recapthelaw.org

Can Parties Sue Counsel for Wrongful Publication of Personal Information?

Spam Notes has a good summary of a recent decision on the matter.

The Killians filed for bankruptcy in 2005 and Green Tree (on its own, not through a lawyer) filed a proof of claim which attached a document containing the Killians' "social security numbers, full account number, and legal names." In 2008, Green Tree (this time, through its lawyer) filed a Motion for Relief from Stay, and attached Green Tree's original filing, which contained the Killians' social security numbers and account numbers. The Killians brought an adversary proceeding asserting claims under state law, Gramm-Leach-Bliley, and other statutes.

Read the rest of the analysis here.

I've uploaded the text of the opinion. There will be a hearing on October 15th to further address the matter.

Update: They settled. I guess we won't get to find out how the court would deal with this.

Balancing Access and Privacy: Free PACER

The latest issue of AALL Spectrum has an essay on PACER. It's fairly conservative in its recommendations, but certainly captures the issues and suggests some positive steps.

Balancing Access and Privacy: Free PACER
By Susan Lyons

[...]

• Release all court decisions and briefs in motions and appeals without restriction on the open Internet and make the files available in bulk to anyone requesting them. These two categories of documents pose little risk to privacy and are among the most used and valuable of the materials in PACER. Exhibits and attachments with private information could be excluded from the release.
• Give attorneys and litigants free and unlimited access to their own dockets. Under the current system, when a new document is uploaded to the court’s electronic docket, parties receive an e-mail notice that allows them one opportunity to download the document to their own computer without charge. While large law firms may capture these documents in sophisticated case management systems, many smaller firms may need to log in to PACER and incur charges to view documents in their own cases. Free access is especially critical for pro se litigants, who may not have regular access to computers and need to access PACER repeatedly to view files in their own cases.
• Allow scholars doing empirical research on court records full access to bulk data. The Judicial Conference could establish reasonable limits on the terms of this access that would protect sensitive data.
• Reinstitute the PACER pilot program and expand the pilot to all federal courthouses. Full release of the database could be prevented by restricting the number of downloads permitted at any one site and instituting reasonable guidelines to prevent abuse. Access should be provided through IP authentication rather than passwords.

Read the full article.

Petition: Improve PACER

We ask the Administrative Office of the U.S. Courts to improve PACER by enhancing the authenticity, usability and availability of the system.

We the undersigned, urge the Administrative Office of the US Courts (AO) to make the following changes to the PACER system:

• For verification and reliability, the AO should digitally sign every document put into PACER using readily available technology.
• PACER needs to be much more readily accessible if it is to be usable for research, education, and the practice of law. Improved accessibility includes both lowering the costs for using PACER and enhancing the web interfaces.
• Depository libraries should also have free access to PACER.

Sign now.

Ars: The case against PACER: tearing down the courts' paywall

I'm quoted in this new Ars Technica article by Tim Lee
The case against PACER: tearing down the courts' paywall

In this feature, Ars takes stock of online access to federal court records in the United States. We'll discuss how the system got where it is today, look at where there's room for improvement, and talk to two experts on open government about the prospects for reform. The bottom line is that the courts deserve credit for the progress they made in the 1990s, but a lot more work is needed to bring PACER into the 21st century.
[...]
Schultze and Grimmelmann agree that the solution to PACER's problems is for the courts to make court records available for free download. Schultze points to a recent paper from Princeton's Center for Information Technology Policy arguing that governments should stick to releasing raw information and allow private parties to build organization and search tools. Schultze predicts that if private parties were given free access to the raw PACER documents, they would quickly build websites that surpass PACER in functionality and ease-of-use.

In the time since I was interviewed for this article, I had a conversation with one of the attorneys for the Administrative Office of the Courts. He was very friendly and candid, answering my questions to the best of his ability. I got the impression that the AO is passionate about access to court records, but struggles with the practicalities of no-fee access. This makes me hopeful that we can constructively work toward a solution.

Techliberation Podcast on PACER

In the latest episode of the Tech Policy Weekly from the Technology Liberation Front, I discuss the nature of public access to court records along with:

• Tim Lee, who’s written about the problems with PACER.
• James Grimmelmann of New York Law School, who has written a great essay on Copyright, Technology, and Access to the Law.
• Berin Szoka, our gracious host.

Listen here.

Lieberman Letter on PACER

Press Release here.

LIEBERMAN SEEKS INFORMATION ON FEDERAL COURT COMPLIANCE WITH TRANSPARENCY, PRIVACY REQUIREMENTS

WASHINGTON – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., Friday sent the following letter to the policy-making body of the Federal Court system requesting proper compliance with the E-Government Act of 2002 on transparency and privacy issues as they relate to court documents: February 27, 2009 The Honorable Lee H. Rosenthal Chair, Committee on Rules of Practice and Procedure Judicial Conference of the United States Washington, D.C. 20544 Dear Judge Rosenthal: I am writing to inquire if the Court is complying with two key provisions of the E-Government Act of 2002 (P.L. 107-347) which were designed to increase public access to court records and protect the privacy of individuals’ personal information contained in those records. As you know, court documents are electronically released through the Public Access to Court Electronic Records (PACER) system, which currently charges $.08 a page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts “may, to the extent necessary” instead of “shall” charge fees “for access to information available through automatic data processing equipment.” The goal of this provision, as was clearly stated in the Committee report that accompanied the Senate version of the E-Government Act, was to increase free public access to these records. As the report stated: “[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. ... Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.” Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system. In addition I have concerns that not enough has been done to protect personal information contained in publicly available court filings, potentially violating another provision of the E-Government Act. A recent investigation by Carl Malamud of the non-profit Public.Resource.org found numerous examples of personal data not being redacted in these records. Given the sensitivity of this information and the potential for indentify theft or worse, I would like the court to review the steps they take to ensure this information is protected and report to the Committee on how this provision has been implemented as we work to increase public access to court records. I thank you in advance for your time and I look forward to your response. Sincerely, Joseph I. Lieberman Chairman

Coverage:

• Lieberman: What Is Up with PACER? - Congressional Quarterly
  
• Lieberman questions accessibility, privacy of court docs - CNet
• Lieberman Questions PACER Fees - WSJ Blogs
• Lieberman to Courts: What’s the Deal with PACER? - WSJ Blogs
  
• Sen. Lieberman Requests Answers from the Judicial Conference on Compliance with Court Provisions of the E-Government Act of 2002 - American Association of Law Libraries
• Federal Judiciary Grilled for Charging for Access to E-Filed Documents - The National Law Journal
  
• Lieberman: Why Do We Have to Pay for PACER? - PC Magazine
• Lieberman Asks Why US Court Documents Aren't Free To The Public - TechDirt
  
• Senator Wants to Scratch a Seven-Year Itch - Center for Democracy and Technology
• Lieberman Questions Courts on Information-Sharing Law - FederalComputerWeek
  
• Lieberman Pushes for Free Online Access to Court Docs - Appscout
• Lieberman Launches PACER Inquiry - ZiefBrief
• Senator Questions Pacer Practices - Peter Suber
• Senator Lieberman to Federal Courts and PACER: "Let us keep the change!" - The Freedom of Information Law Blog
  
• ...and tons of tweets
  

Video from "Selling the Law: The Business of Public Access to Court Records"

CITP has posted the video of the talk that Shubham and I gave a couple of weeks ago. You can also download the slides.

NYTimes: "An Effort to Upgrade a Court Archive System to Free and Easy"

Earlier today I urged folks to vote for PACER on the new Show Us the Data site. Tonight, the NY Times posted a well-researched article entitled "An Effort to Upgrade a Court Archive System to Free and Easy" on the latest efforts to "liberate" the court documents.

...a small group of dedicated open-government activists teamed up to push the court records system into the 21st century — by simply grabbing enormous chunks of the database and giving the documents away, to the great annoyance of the government.

[...]

To Mr. Malamud, putting the nation’s legal system behind a wall of cash and kludge separates the people from what he calls the “operating system for democracy.” So, using $600,000 in contributions in 2008, he bought a 50-year archive of papers from the federal appellate courts and placed them online. By this year, he was ready to take on the larger database of district courts.

Those courts, with the help of the Government Printing Office, had opened a free trial of Pacer at 17 libraries around the country. Mr. Malamud urged fellow activists to go to those libraries, download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them.

Aaron Swartz, a 22-year-old Stanford dropout and entrepreneur who read Mr. Malamud’s appeal, managed to download an estimated 20 percent of the entire database: 19,856,160 pages of text.

Then on Sept. 29, all of the free servers stopped serving. The government, it turns out, was not pleased.

Carl has posted his correspondence with various courts related to their redaction errors and privacy issues.

What can you do? Vote for PACER on Show Us the Data!

"Show Us the Data": Vote for Access to PACER

A great new project on access to government documents was just announced:

The Center for Democracy & Technology and OpenTheGovernment.org today announced the launch of Show Us The Data: The Most Wanted Federal Government Documents, a project aimed at identifying vital government information and encouraging the federal government to put it within easy reach of the public. This project will lead to a report, recommending documents and data that the federal government should make easier to find and use. The project's launch follows up on a directive from President Obama to federal agencies to proactively make information available to the public. The goal is to identify the documents and databases the public most wants to be made publicly available in usable formats. The items can be information known or thought to be in the federal government’s possession, or information that the federal government should be collecting or generating. (more...)

The project comes out of Sunlight Labs, and the top 10 documents will be announced during Sunshine Week. You can also see past years' results.

I just added a comment to the PACER entry. Vote for free, open access to federal court documents!

Talk at Princeton CITP, Feb 5th

I'll be giving a talk at the Princeton Center for Information Technology Policy on February 5, along with Shubham Mukherjee. This will be a trial-run of a paper we're working on.

Title: Selling the Law: The Business of Public Access to Court Records
When: Thursday, February 5, 2009 - 4:30 PM
Where: Sherrerd Hall, Room 101

As government documents are increasingly digitized and put online, two orthogonal approaches to distributing these documents have developed. Under one approach, the documents are made easily and freely accessible. In others, the government retains or introduces barriers to access that are inspired by traditional physical access. When these barriers are fee-based, the government can inadvertently create downstream monopolies or architectures of control over public information. This problem is especially severe in the case of federal district court documents, which are available only via an outdated, fee-based, court-run system or from expensive aggregators like Lexis or Westlaw. Indeed, evidence indicates that the courts are using public access fees to subsidize other activities. If we are to be a nation of laws, citizens must have access to the law. The upfront cost of making court documents freely available is far outweighed by the long-term benefits to society. Widespread digitization combined with Internet connectivity has placed these benefits within reach. The courts must now address the task of revamping outmoded policies and funding structures in order to align their practice with this reality.

Open Access to Government Documents ...or, "Federal Court Documents: Even Google Can't Find Them"

In honor of Open Access Day yesterday, I gave a talk at Berkman about the federal court's policy regarding public access to electronic records. You can watch it here or download the slides here. The description for the talk was:

In the past twenty years, a remarkable number of government documents have been put online. In some cases, these documents are made easily and freely accessible. In others, technology has failed to overcome barriers or even created new barriers to access. One particular subset of documents -- opinions, dockets, and the full public record in federal court cases -- remain behind a pay wall. Although the U.S. Government cannot hold copyright in documents it creates, it has for a long time long charged for the cost of creating and maintaining these documents. While the courts understandably seek to pay for the services they provide, this talk will argue that there is an alternative path in which the public benefits far outweigh the costs. Stephen Schultze makes a dynamic case for free access to government documents, in honor of Open Access Day 2008.

Also, check out this great essay by James Grimmelmann, discussing the Oregon statutes battle, as well as his recent lecture on the issues more generally.

Also, the European Transparency Initiative was mentioned during my talk, as well as this Dutch report.