A Sad Irony: The Federal Judiciary's PACER Pricing Is Illegal
aarongreenspan.com
aarongreenspan.com
What. The. Fuck.
It has not been upgraded since then, largely because Congress has not provided sufficient funds to the courts for them to do so (appropriations in the past two decades have largely been reserved for operations or for courtroom construction, but not technological upgrades. Much of the money from PACER access fees goes toward meeting the shortful in the operation budget, because Congress in its infinite wisdom has underfunded the federal courts for most of the last two decades.
(It's wierd that I have spent most of the last two days defending the American court system...)
Increase the fees that Lexis-Nexis pays. Or charge more to submit documents. There's lots of solutions that could work to create a site that's usable and free to the American people.
This blame Congress crap has gone on long enough. When will the U.S. court system take its responsibility to the American people seriously? The answer: when people like you stop parroting its rationale.
The US Courts are underfunded and have crippling case loads. Beyond that, is it even clear that any court has the authority to "increase the fees that Lexis-Nexis pays"? Or to charge more to submit documents?
He's making the same argument the U.S. court system has made, sub-rosa, for years, as it's raised fees for accessing court documents. It used to be 8 cents a page. Jumped to 10 cents earlier this year.
What about the $65,000,000 surplus that the service generates?
I'd imagine the system could be drastically improved using a tiny fraction of that income. (Of course it could only get worse if they spent $65M on it...)
There is quite a bit of a business opportunity in there (at least in theory as it a slimy red tape mess) for small and agile teams to come in and clean up the crap left by the large botched up jobs like these.
http://www.thinkcomputer.com/corporate/whitepapers/restassur...
What often happens behind the scenes is that requirements are written to a specific software product that is already effectively pre-determined. Like let's say it is a complicated inventory tracking system, out of 50 or so requirement points, every one basically matching the system that L3 provides without naming L3. Stuff like that.
It is vital to do behind the scenes networking, hiring insiders, that needs to happen besides also having someone full time that knows how to jump through the "official" red tape.
I don't think the government means to lock out small vendors. It's just that bureaucracy tends to generate bloated and inefficient systems like this, in which the only part of the contract the vendor can afford to skimp on is the implementation itself (and not the lawyers, negotiators, managers, etc.) The people who work for the government want good, working systems, they're just prevented from choosing vendors who can produce them because using common sense is not sufficiently bureaucratic.
In addition to the two or three people you need to actually do the work, you need a head count of at least 6 more just to manage customer expectations.
And you are right, meeting, trade shows, filling out red tape, security audits all those need full time position to be handled.
What it looks like to me is the usual scenario in decentralized organizations. Different pieces adopted systems as the need for them arose, and various systems were layered on top over that over the years to try and achieve some uniformity in certain areas.
I would imagine each court has no incentive to play nice with other courts, since it would basically simplify the process for challenging their judgments. Also, a higher court can basically use the court-to-court impedance barrier as a low-level filter to reduce their workloads.
"What does RECAP do? RECAP is an extension (or “add on”) for the Firefox web browser that improves the PACER experience while helping PACER users build a free and open repository of public court records. RECAP users automatically donate the documents they purchase from PACER into a public repository hosted by the Internet Archive. And RECAP saves users money by alerting them when a document they are searching for is already available from this repository. RECAP also makes other enhancements to the PACER experience, including more user-friendly file names."
Not only that, but I've pledged $5,000 to anyone who can extend RECAP to Chrome:
There are a couple of factual errors in this post:
"When you further consider that in the course of prosecuting one's own court case, one must refer to many, many other cases because of the nature of legal precedent, legal research can suddenly cost thousands of dollars—and that's without even hiring an overpriced lawyer."
Aaron misunderstands the nature of legal research. Legal research is done at the appellate level. In the course of prosecuting a case, legal research is necessary, but you won't be conducting legal research with PACER--it's not that kind of system. District court cases are not precedential with respect to other district court cases and it is rare that there is a usable opinion deciding the case. At the appellate level things are different, and there are both free and paywalled systems containing those precedents, such as Google Scholar (free) and Lexis/Nexis (paywall).
Putting aside legal research, it is not impossible to follow a case from court to court. Upon filing a notice of appeal, a district court case will be given an appellate court number which can then be followed on the appellate court's version of PACER.
From what I've seen, research is done at all levels, though the higher the level, the more likely the citation. For example, district judges like to cite other district decisions in their same courts for routine boilerplate, such as the conditions when a 12(b)(6) motion is appropriate.
I have conducted legal research with PACER multiple times in the course of handling litigation. One key time was when I had to look up ALA v. Pataki--a district decision--which has key implications in the FaceCash case because it deals with the right of states to regulate the internet. It never got to the appellate level, but it's the law of the land now. So I would disagree with your statement that "district court cases are not precedential," because they sometimes are. Many other times I wanted to see how particular motions were drafted in other cases (having never written them before), which is something that you can really only do if you have access to the PDFs of the motions themselves.
Google Scholar does not contain district case dockets or documents at this time, though it is a great resource. LexisNexis is barely usable for novices, expensive, and simply not a realistic option for many people involved in litigation who aren't lawyers.
Even though appellate courts obviously track cases with numbers, those cases are not directly linked from PACER such that you can follow a case backwards or forwards with one click. I've used these systems pretty extensively. I stand by what I wrote.
Aaron
"Courts within a given District and Circuit are bound by precedents within their own Districts and Circuits, respectively."
Also:
http://scholar.google.com/scholar_case?about=101740948891558...
I'm pretty sure I didn't make a mistake here.
The decision of one district judge does not bind another district judge in the same district. In the Mariel Boatlift cases, the U.S. District Court for the Southern District of Florida sat en banc precisely to avoid the problem of inconsistent decisions.
The decisions of one federal appellate circuit are not binding on other federal circuits. There are frequently conflicts, even amongst panels of the same circuit. These are first resolved by the circuit court sitting en banc to resolve the conflict. If there are conflicts among the circuits, these are resolved by the Supreme Court. The Supreme Court is not obligated to take these cases and sometimes the conflict is resolved by Congress passing legislation adopting one circuit court's view over another.
These are ancillary and non-essential points to your main argument, but are easily corrected. Pacer can be made better, (criminal cases are generally not included; why?) but lawyers simply do not need Pacer to research substantive or procedural federal law.
Lawyer and former litigator here. It's true that district-court decisions have the status of binding precedent authority only within their own districts. Such decisions, though, can be and regularly are cited elsewhere as "persuasive" authority.
For example, in a California case, a lawyer might argue, in effect, "Your Honor, in a similar situation in New York, Judge So-and-So took Action X, for the reasons explained in her published opinion; we submit that you should take Action X too."
> Any startup could design a system better than this
> for $10,000. (For a frame of reference, PlainSite,
> which is roughly as complex as PACER, has cost Think
> about $1,000 so far.
Also, even if the system could be designed for $10,000, the yearly cost of operating it (hardware costs and personnel) would be significant, since all the data from the various courts would need to be entered daily, and someone would need to verify that the data in the system was complete and accurate. Plus, the system would need to be backed up and have redundancy and disaster recovery plans. You can't afford to shut down the legal system across the entire country because one data center loses power. We're not talking about Twitter here; we're talking about critical national infrastructure.
And who said anything about the yearly cost of operating it?
> I'm a senior developer and I cost about that, at freelance rates.
For a month? Do you live in a place with really low cost of living?
But in general: More money is better than less money. Especially for essentially the same amount of work.
For a senior freelancer, different standards would apply, I'd hope.
The point of PACER is to get to documents quickly, which it does very well.
Last year they ditched the database for ideological reasons (over the protests of the public security sector who were finding it critical for officer safety).
That's government IT. Spend absurd amounts of money building something that you could assemble for next to nothing using off the shelf parts, underfund the maintenance, and then throw it away.
However there is widespread speculation that the PACER incident was behind why prosecutors may have wanted to throw the book at Aaron.
1. http://techventures.columbia.edu/news/professor-bellovin-nam... 2. https://www.recapthelaw.org/about/
1. http://www.pacer.gov/announcements/general/exemptnotice.html
1. http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is...
I'd rather assume that we can find smart, honest experts who happen to disagree, and that we can trust what they are saying to be their view of reality.
I can understand an advocate stretching the truth, but when the lies are this obvious, it gets insulting.
Stamos had nothing to gain from pushing a particular perspective. He was attached to the case as an expert witness and drew reasonable conclusions from the issues he was directly confronted with.
Nobody is trying to insult you.
I get that the case is complex. But there's just no excuse for writing that "Aaron did nothing to cover his tracks or hide his activity". None at all. And if Stamos was willing to update his blog and explain that that statement is not true, I'll happily agree that he made a mistake while acting in good faith.
But until he does that, I think it is fair to assume that he either acted dishonestly with intent to deceive or that he's really incompetent.
Look, everyone makes mistakes. I do all the time. But when honest people make mistakes, they fix them. I'd be happy with a correction on his personal blog where I first saw the statement rather than io9. Just fix a single sentence.
But if Stamos refuses to fix that sentence which is glaringly wrong, then it indicates he either doesn't know the most basic facts of the case or he's trying to deceive people.
>"The per page charge applies to the number of pages that results from any search, including a search that yields no matches with a one page charge for no matches. The charge applies whether or not pages are printed, viewed, or downloaded. There is a maximum charge of $3.00 for electronic access to any single document."
It is also interesting to note that pricing is decoupled from actual bandwidth usage, or any other metric that could be correlated directly with the cost of providing the service.:
>1. We use a formula to determine the number of pages for an HTML formatted report.
>2. Any information extracted from the CM/ECF database, such as the data used to create a docket sheet, is billed using a formula based on the number of bytes extracted (4320 Bytes equals one page).
>3. For a PDF document, the actual number of pages are counted to determine the number of billable pages.
Our startup is basically tackling that problem - and one of the side benefits will be dramatically reduced PACER bills. There is no reason firms should ever be looking up their own case documents on PACER, since they get them for free in the first place.
A lot has been written by many people about JSTOR, so I wanted to focus on PACER and its pricing, but I do mention JSTOR here: http://www.aarongreenspan.com/writing/essay.html?id=82
Aaron
"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."