In late 2020, H.R. 8235, the Open Courts Act of 2020 (OCA), passed with overwhelming bipartisan support in the U.S. House of Representatives, but without any further action in the U.S. Senate last year, the promise of the OCA to finally make federal court data freely available to all still remains elusive.
While it’s unclear where the OCA sits on the docket for the 118th Congress, the reason for bringing it to the forefront is as compelling as ever: public access to the federal court data locked behind PACER’s paywall is a necessary and vital ingredient for improving access to justice and driving data-based criminal justice reforms.
It’s simply too costly for lawyers, legal tech companies, advocates, activists, and academics to pay the millions of dollars needed to access all of the court data and documents in PACER to fully investigate disparities in the legal system, develop new technologies targeting injustices, and make data-driven recommendations to improve our system of justice.
In this article, we’ll explore some of the more compelling arguments for pushing the OCA forward as a top priority in the 118th Congress, detail what it would mean for modernizing and streamlining PACER, and how it can directly inform and impact criminal justice initiatives.
Modernizing and Streamlining PACER
When it first came into being, PACER offered an innovative step forward for federal courts to track cases and provide remote access to court documents and data over the internet. But as it stands now, PACER’s fee structure, its Case Management/Electronic Case Filing (CM/ECF) system, and its search and access options are bloated and outdated.
Directly before the bipartisan passage of the OCA in the House, UniCourt, along with several other leading legal data and legal research providers, including Fastcase, Docket Alarm, Casetext, Justia, Gavelytics, Trellis Research, and others, signed onto a letter delivered to the U.S. Speaker of the House outlining background information regarding the OCA.
As we noted in our letter, “PACER operates wastefully, with hundreds of different software services in courthouses across the nation,” and “without critical updates since the days of the early internet, the system is straining badly to keep up with usage.” Having myriad, separate CM/ECFs across our federal courts has created not only a complex and expensive system to maintain, but it has also made uniform standardization of court data more meaningfully difficult across jurisdictions.
Beyond making court data freely accessible for all, the OCA’s real cornerstone is the unambiguous mandate to update, centralize, and streamline PACER to provide full text search, to make documents automatically available upon receipt, and to “develop, deliver, and sustain… one system for all public court records.”
While some have argued that it would cost “at least $2 billion” to make these updates and overhaul PACER, these scare estimates must be taken in the context of where legal technology is today. The cost associated with storing data at scale is but a small fraction of what it was at PACER’s inception, and many of the signatories to our informative letter to the Speaker are already “hosting large portions of the PACER database, with modern search functionality, at a tiny fraction of the cost to maintain hundreds of legacy PACER databases in each courthouse.”
We can do better and improve upon the “crown jewel of America’s open government infrastructure” and “make PACER once again a beacon of open government.” The OCA is a bold, bipartisan, and reasoned response to the need for open, public access to federal court data, and it has the opportunity to spark real access to justice research and reforms of criminal justice in the federal courts.
Realizing Criminal Justice Reform in the Federal Courts
Making significant and meaningful criminal justice reforms founded on data-driven insights and academic research is difficult to do without data.
The sheer cost of downloading all of the federal criminal court data from just one U.S. District Court, let alone all of the criminal court data from an entire Circuit, makes it nearly impossible for innovators to tackle criminal justice reform head on armed with the wealth of knowledge and insights contained in PACER.
PACER’s paywall is blocking free, public access to federal criminal court data and documents, which are public records published by the federal judiciary. And SCOTUS has already spoken strongly that “no one can own the law,” and has spoken out against pay-per-law services that would restrict access to the law and create tiered levels of access to legal information in the U.S.
How is PACER’s paywall any different from the stratified, pay-to-play, privileged-based systems that SCOTUS admonished?
Realizing true criminal justice reform requires unfettered access to federal docket level criminal court data and documents. The billions of data points available within PACER can help spur needed legislative and policy changes, provide unparalleled training sets for the next generation of legal AI, and give life to a whole host of new legal tech solutions to make the criminal justice system work for everyone.
Without question, there are many pressing issues at the front of Congress’ legislative agenda this year, but if 2021 is to be the year of progress in the access to justice space, then the Open Courts Act needs to remain at the top of the list.
As the saying goes, Congress can “walk and chew gum at the same time.” It’s time to keep walking, keep chewing, and pass the OCA through the House and the Senate without delay.
Josh Blandi is the CEO and Co-Founder of UniCourt, a SaaS offering using machine learning to disrupt the way court data is organized, accessed, and used. UniCourt provides Legal Data as a Service (LDaaS) via our APIs to AmLaw 50 firms and Fortune 500 businesses for accessing normalized court data for business development and intelligence, analytics, machine learning models, process automation, background checks, investigations, and underwriting.
