from the why-are-we-even-doing-this? dept

The Courts’ Solution To Overpriced Court Records: Make Them More Expensive

For many, many years on Techdirt we’ve bemoaned the fact that federal court documents are not available for free as they should be. Instead, we have PACER, a bloated, expensive, difficult to use system that charges you for every “page” it loads up for you (including search results). The whole thing is a sham. Indeed, the law that allowed PACER to be established was based on the idea that, like photocopies, it cost money to “print” every page of every document. It also said that the fees PACER collected could only be used for… PACER. Instead, the fees far outpaced the actual costs, and the federal judiciary started using them for all sorts of other expenses. Courts have even told their own bosses at the judiciary that they’re overcharging beyond what the law allows.

And, really, it’s not even about the overcharging, though that is problematic. It’s about the freaking principle. Court documents are public documents and there is zero reason — when hosting a PDF costs essentially nothing and a server is not a photocopier — that they are not freely and immediately available to everyone.

The judiciary has claimed, for years, that making PACER free would be way too costly, which was totally undermined by a Congressional Budget Office analysis that said it would… effectively be free (PACER’s payment and user system is costly, ditching it and just making docs available would save money).

This week we were going to run a repost of an EFF blog post supporting a bill that would make PACER free, also known as the Open Courts Act. Of course, similar bills come up almost every year… and… go nowhere. Because Congress does not care. They don’t believe they’re serving the public, so why should they make sure that the public has access to court documents?

Instead… the judiciary has spit in the face of the public and announced it’s actually jacking up the fees:

The U.S. federal judiciary on Friday said it will temporarily hike fees to download documents from its online court records system known as PACER in order to accelerate the development of a new, more secure case management and public ​access system.

The executive committee of the Judicial Conference of the U.S., the judiciary’s top policymaking body, agreed ‌to increase the cost of downloading a court filing to 12 cents per page, up from the current 10 cents, for a five-year period starting January 1.

Let me let you in on a secret that isn’t much of a secret. There’s basically no chance — absent Congress doing what it should and making PACER free — that the judiciary will ever allow the price to go back down from 12 cents a page. Hell, I still remember reporting when the Judicial Conference hiked the price from 8 cents a page to 10 cents. As we noted at the time, this was already an illegal overcharge. Hiking the price to 12 cents per page is an even bigger violation of the law.

There is zero basis for charging 8 cents or 10 cents or 12 cents or any cents a page for a freaking PDF. It may have been more expensive to host PDFs when PACER started, but it’s not now.

The Judicial Conference is simply blowing smoke when they claim this increase is necessary to make PACER secure.

“Unfortunately, without a modest increase in ⁠fees, we will not be able to collect enough money to cover the costs of delivering the case management system that ​the federal courts must have to continue to operate securely,” Judge Robert Conrad, the director of the Administrative Office of the U.S. ​Courts, said in a statement.

Or — and this is the part the Judicial Conference doesn’t want to say out loud — if you made the documents publicly available without a login, you wouldn’t have any user data to secure in the first place. The security problem is a direct consequence of the fee system. Eliminate the fee system, eliminate the problem.

As always, the Judiciary pretends to then throw a bone to those who use PACER by saying they’ll up the “free” allocation:

To soften the blow, the judiciary said it would waive fees for users who spend $40 or less per quarter, an increase from the current $30 waiver. It said that will ensure that the vast majority of individual users, as opposed to law firms and other heavy PACER users, can ​avoid paying anything.

How magnanimous: a few extra free documents before the meter starts running — on records that, by every reasonable principle of democratic accountability, belong to the public.

The federal judiciary is now demanding more money for PDF downloads to fix a security problem that is mostly caused because… they’re charging the public money for PDF downloads. There’s a simpler solution and it is: make these public documents public for free.