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Information Should Be Free, Unless You're Already Paying For It

Aug 24, 2009
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Law, Technology

Quoted text of an email I just received from the Clerk of the United States District Court for Eastern North Carolina:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or plug-in called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet. Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District Court and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents. Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised. The court and Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related software and advise you of any ongoing or further concerns.

On one level, I appreciate the warning.  For those not in the know, access to documents filed in United States District Courts (which account by far for the majority of federal court suits and decisions) is public, but not free.  To review such documents for "free," one has to drive to the Clerk's office where the file is located physically, and endure the equivalent of an alien rectal probe.

Or, one may view them online, through PACER ("public access to court electronic records") at the staggering, and antediluvian, cost of eight cents a page.  Websites like Justia have made a selection of such documents available for really free, but only a tiny selection.  For the rest, one has to pay the freight, for which the government makes a hefty (they're not saying how hefty) profit.  Eight cents a page adds up.  I couldn't tell you how much of my clients', and my own, money I've blown through the years looking up information on PACER at an utterly inflated price.  But as most people who own or publish web pages can tell you, the actual cost of a page view is generally … well, far less than eight cents.  Far less than one cent.

The rest goes to the federal court purse.  PACER is a tax on the curious and busybodies, those who seek to access public records already paid for by their income taxes and court filing fees.

And PACER sucks.  The system navigates about as badly as a Tripod or Geocities page designed in 1998, and at 1998 speeds to boot.

Enter RECAP.  If I install RECAP, any time I access a document in one of my cases, or someone else's, you can access it too, without paying eight cents a page.  (God only knows why you'd want to.)  Without paying anything, apart from what you're already paying to subsidize my litigation habit through your taxes.

As mentioned above, I do appreciate the warning that, if I'm using RECAP, I should take care not to let it see documents filed "under seal,"  generally those involving matters of national security, or in my case minors and alleged sex offenses.  As if.  And the project does raise identity theft concerns, but then, if I want to steal your identity through federal court records, nothing will stop me from getting the information.  Why should lawyers have all the fun?

But I'm not the first to speculate that the reason for this "warning," with its security overtones reminiscent of a "YOUR COMPUTER MAY BE INFECTED! DOWNLOAD SECURITYROJAN!" popup ad, is really aimed at scaring lawyers, hardly the most tech-literate class of professionals, into believing that the extension may compromise their internet security.  OMG!  TEH CLERK SAYS RECAP IS A VIRUS!!!  Or something.

And in the process preserve a valuable, but dubious, stream of revenue to the federal courts, charging people inflated prices through a badly designed system for information they already, allegedly, own.

In fact, if the courts are so concerned that lawyers may inadvertently download malware, compromising federal security through maliciously modified versions of RECAP, you'd think they'd direct lawyers to the official, malware-free site?

Last 5 posts by Patrick Non-White

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9 Comments

  1. Mike  •  Aug 24, 2009 @3:11 pm

    The NY PI law blog post is just a great example of an elitist not realizing he's an elitist. His post presupposes that all the lawyers and others who have access to PACER are Just Good and Right People. How does he know this?

    He doesn't. It's just ASSUMED. Bias is a mother fucker like that.

    Also, if my family were rich, I'd be able to search people on PACER/Lexis-Nexis/AmeriSearch. Actually, I'd be able to run an NCIC database query; but that's another story.

    Why don't people who want to limit RECAP also want to limit PACER? Make it a blanket rule that you can't access PACER unless it's for official business. I'm not sure the statute, but I know I can't run your credit just because I want to see it.

    Yet they don't want to do limit PACER. Like me, they are hobbyists, too; and also like to snoop. But, again, we are Just Good and Right people, and therefore may be trusted.

    Fuck everyone else.

  2. Eric T.  •  Aug 25, 2009 @6:39 am

    The NY PI law blog post is just a great example of an elitist not realizing he’s an elitist. His post presupposes that all the lawyers and others who have access to PACER are Just Good and Right People.

    This would be accurate, except for the fact that the post says the exact opposite.

  3. Patrick  •  Aug 25, 2009 @7:12 am

    For the record, I linked to Eric T.'s site because he raised the exact concern that bothers me about PACER as it exists: that as it stands it's a hive of identity theft. I don't give my clients' SS numbers and addresses in federal filings either. Their addresses are always "care of [me]" and no one bothers me about numbers.

    But the PACER system, and its charges, bother me because I'm a strong believer in open courts and open records, and I disapprove of taxes masquerading as fees. More lawyers need to be concerned about what they file, and to know that if you make your client's address "care of [you]" and omit to give Social Security numbers, no court will dismiss your suit. At least none in which I practice.

  4. Ken  •  Aug 25, 2009 @8:52 am

    The concern about revealing personal information in federal filings is absolutely a valid one. But that's the responsibility of the lawyers filing documents, and not a justification for making public documents harder to get.

    PACER is fantastic because it is a relatively cheap (cheaper than getting copies at the clerk's office, and vastly easier) method of accessing public docs. As Patrick suggests, the clerk's warning smacks of government rent-seeking.

  5. matthew  •  Aug 25, 2009 @10:33 am

    Patrick, you must not work in Bankruptcy,

    In two of the cases, Adair and Austin, the debtors had social security numbers and chose not to disclose them to the court. Both courts held that providing a social security number is of substantive importance and not a matter of form. This Court agrees with the holding in those cases; if a debtor has a social security number, FRBP 1005 requires that number to be disclosed.

    In re Merlo 265 B.R. 502, 504 (Bkrtcy.S.D.Fla.,2001)

  6. Patrick  •  Aug 25, 2009 @10:36 am

    Matthew, I sure don't.

  7. Mike  •  Aug 25, 2009 @11:23 am

    This would be accurate, except for the fact that the post says the exact opposite.

    Not at all.

    Of course ID theft is a risk. It has always been a risk. Except that people are only NOW screaming, "Look at the risk!" because the unwashed masses might soon be able to access PACER filings. The presupposition of that position is that only certain types of people should be able to access PACER.

    It's like when people started getting all uppity over gay adoption. Those same people, never in their lives, had an opinion on adoption. Suddenly, when gays want to adopt, those until-now-uninvolved people had all sorts of opinions on adoption. It made one wonder: "What is really motivating your arguments? Is it adoption qua adoption; or gays qua gays?"

    You must look beneath the surface of an argument. Not are premises are stated. Many unstated premises are not even known to the one making the arguments. Indeed, that is why there are shelves on research on cognitive bias.

    Also, too, I didn't see Eric T. suggesting that PACER access be limited on a need-to-know basis. I.e., if the case ain't yours, you shouldn't be able to access case documents. Really, why are you on PACER looking things up if it's not your case?

    Thus, one can only infer that the current arrangement of PACER is OK. Or at least OK enough that we don't need posts about ID theft and other horribles.

    Incidentally, I am contra Ken and Patrick on PACER. I think PACER is great, and cheap. If the government is able to turn a profit by providing a valuable and time-saving service (I use PACER to find complaints when researching an unfamiliar area of law)…. Man, that's almost libertarianism.

    PACER is, to me, something majestic. It's not perfect, but it's damned good.

    But what about tax dollars funding PACER? Well, how tax money actually goes into PACER? I doubt much. So it seems that the taxpayer protest is really a protest over not being able to obtain a disproportionately large benefit. It's like people who end up paying 5% in incomes taxes and who send their kids to public school attending Tea Parties. Um, you already get much more than you give. My ears are deaf.

    Now, in a perfect world, we'd have PACER stop receiving taxpayer funding. Make it self-funding. It clearly could be. Of course I'm sure there'd be some protests over that, too (though perhaps not necessarily from Ken and Patrick). How dare the PRIVATE SECTOR get control over PUBLIC documents!?!

    Sometimes you just can't win. All of this is enough to make a guy a cynic.

  8. Ken  •  Aug 25, 2009 @11:25 am

    I'm not sure how, exactly, you are contra me.

  9. Mike  •  Aug 25, 2009 @2:06 pm

    Ken, I re-read your comment. I am contra reading comprehension.

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