Courts

PACER Is Getting Dragged And I'm Here For It

Longtime public records scam is getting some attention now.

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The disruption of legacy media has produced many sad results. Journalism is worse. Headlines are bait. I have a job. There are many unfortunate outcomes.

But this story can be viewed as one of the few benefits of the decentralization of media. When journalists could expense PACER fees to their large, financially sound employer, the unholy vig PACER charges people to access public documents went unnoticed. If it’s not your money it’s hard to care about how it’s being wasted.

Now that we have everybody from citizen journalists to professionals without access to a corporate card trying to download and understand what is in the latest public filings, people are realizing that PACER is a giant scam that should probably be burnt to the ground. It’s kind of glorious. I’m lucky enough to work for a company that pays for my PACER access (see Law, Above thereof), and I still use it only at the very end of need. People realizing that PACER should not be able to charge what it charges was not a lesson I expected the larger world to learn in my lifetime.

I was too defeatist. Here’s the New Republic sharpening an pitchfork and brandishing it towards PACER:

Three legal nonprofit groups—the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice—filed a class action lawsuit against the federal government in 2016 to challenge PACER’s fee structure. They argued that by charging more than the marginal costs to keep the system functional, the judiciary had run afoul of a federal law dedicating PACER’s fees solely to that purpose. “Instead of complying with the law, the [federal judiciary] has used excess PACER fees to cover the costs of unrelated projects—ranging from audio systems to flat screens for jurors—at the expense of public access,” they told the district court in 2016.

The case hinges on a single phrase in the E-Government Act of 2002. The statute authorizes the judiciary to levy fees “only to the extent necessary” to provide “access to information available through automatic data processing equipment.” Though data storage costs have plummeted over the past two decades, PACER’s fees rose from seven cents a page at its establishment to ten cents a page by 2011, which remains the cost today. That may not sound like much, but it adds up fast. The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.

I knew it was a scam, but goddamn, $146 million? I guess I should have PACERed the lawsuit to see the details earlier.

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One of the class actions is supported by former Senator Joe Lieberman. Now, I wouldn’t piss on Lieberman if he was on fire in a desert, but he has some authority to speak on the matter.

In his friend-of-the-court brief, Lieberman argued that the lower court had misinterpreted the law and its intent. He speaks with some authority on the matter, having introduced the Senate’s version of the E-Government Act and overseen its passage as a committee chairman. In his filing, Lieberman warned that excessive PACER fees would “impose a serious financial barrier to members of the public who wish to access court records, and these fees thereby create a system in which rich and poor do not have equal access to important government documents.”

Call me elitist, but I really don’t think the problem with PACER fees are the barriers they impose on the Area Man who wants to look at court records. I mean, it does impose those barriers but… a tinfoil hat and unlimited PACER access is a dangerous combination.

I’m much more concerned about how PACER fees impact journalism:

Media organizations also warned that PACER’s fee structure undermined journalists’ ability to report on legal affairs. The groups, which included news outlets like The New York Times, Politico, and BuzzFeed, raised First Amendment concerns about the system’s effect on public access to the courts. Digital journalism’s dire financial straits—another troubling sign for American democracy—made the situation even more acute. “In this environment, many news outlets simply cannot afford large fees for court records,” the groups told the court in their brief last week.

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When PACER first came online, being able to access documents from your “home computer” felt like a luxury people should be willing to pay for. If you really needed to see the documents, you were expected to go down to the courthouse. Now, accessing documents online is a basic expectation of modernity. It strains the definition of “publicly accessible” if I can’t pull it up on my phone at little or no charge.

PACER is going to have to update its fee structure. I just didn’t think anybody outside of the legal community would ever notice that.

The Courts Are Making a Killing on Public Records [New Republic]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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