US Courts Rep Ignores Everything About The Internet, Says PACER Access Can Never Be Free Because It Costs Money To Operate

Open access to court documents is something we still don't have, thanks to PACER. The creation of PACER was supposed to increase public access, but the government erected a paywall between the public and the documents. To make things worse, the PACER's front end is an antiquated nightmare. The system isn't consolidated, so people seeking documents need to know exactly where it was filed before they can even start paying $0.10/page for unhelpful search results.

No one who uses PACER likes it. But it's the government's monopoly, so everyone who uses PACER has to use PACER because there is no alternative. The US Court system rakes in $150-200 million a year in fees, but hardly any of that money is being put towards fixing a system that only barely works and does so in the most begrudging way possible. Lawsuits have been filed and legislation proposed that would give the public free access to court documents, but so far, nothing has changed. PACER is still expensive. And it still sucks.

The sad state of PACER was discussed during a recent Congressional hearing. And it was defended in the worst way possible by the Judicial Conference's speaker.

Judge Audrey Fleissig of the U.S. District court for the Eastern District of Missouri also said in testimony for the House Judiciary Committee’s Subcommittee on Courts, IP, and the internet that shifting costs away from users without another funding plan would burden courts with new costs.

“Our case management and public access systems can never be free because they require over $100 million per year just to operate,” Fleissig said. “That money must come from somewhere.”

Everything about Fleissig's statement is ridiculous.

First and foremost, just because something costs money to operate doesn't mean it can't be free. To use a government example, interstate highways are free to use, yet they cost billions to construct and maintain. ($96 billion in 2014 alone.) The money does come from "somewhere," as Fleissig correctly notes. It's called taxes. The thing about PACER is its funded by both tax dollars and fees. The documents people pay to access are created with tax dollars that pay judges, clerks, and every other government employee involved in creating, processing, and posting documents citizens are then expected to pay $0.10/page to download.

Stepping outside the government, there are countless examples of free services that cost money to run, like Google's search engine… or the numerous browser options people use to run Google searches. Every search engine (and I'm including Bing here) runs better than PACER's internal search engine. And none of those charge users $0.10/page for search results. And then there's email, cloud storage, social media platforms, web-based apps, job-hunting services, classified ad sites, blogging platforms, mobile games, YouTube... a whole internet full of free services that cost money to create and support -- all at no cost to the user.

But that's only part of the ridiculousness. Insisting that it takes $100 million to run PACER is bogus. The US Courts system may spend $100 million doing it but that doesn't mean it couldn't be done more efficiently for less money. A bureaucracy claiming it spends every cent of its budget doing something shouldn't be taken as evidence said thing actually requires that much funding to accomplish. Government budgets are things to be spent, not areas of concern where less-costly options might be explored. The process does not lend itself to efficiency since the only thing that accomplishes is less money being appropriated in the next fiscal year.

While there are the salaries of support staff to consider, the bulk of the claimed expense is processing and hosting of PDFs and digital court dockets. The internet is built for this kind of thing and there are any number of options that would reduce costs and increase user-friendliness… all while giving away PDFs and docket listings for free. The system doesn't necessarily need to be privatized, but perhaps it should be outsourced to vendors that specialize in all the problems PACER has failed to solve for nearly two decades.

And here's another partial solution -- one inadvertently stumbled upon by the US Courts itself:

Approximately “87 percent of all PACER revenue is attributable to just 2 percent of users—large financial institutions and major commercial enterprises that aggregate massive amounts of data for analysis and resale,” the Administrative Office of the U.S. Courts said.

Well, if that's the case, the largest users can subsidize everyone else. Set a monthly cap of 5,000 pages and let those who need more pay for unlimited access. It seems like the top 5% of users could easily guarantee free access for everyone. And if anyone else wants "value-added" access to the court document system (maybe with some sort of fire hose feed), they can pay for it. Those that just want to find relevant case documents can still muddle their way through PACER's broken system to find them, all without having to pay the government for documents they still haven't managed to find yet.