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