Everything wrong with PACER

March 2, 2016

Mention PACER in a roomful of attorneys, paralegals or docketing staff and you’re sure to get a strong reaction. You’re likely to hear strong opinions, and few of them positive. Not too many subjects elicit such unequivocally negative feelings in the litigation community as PACER.

PACER’s high cost

Six years ago, a survey conducted by Sabrina I. Pacifici’s LLRX reflected that law firms spent in the five-figure range on PACER costs – with one firm spending almost $110,000 a year. Some of the comment in the survey bemoaned the inevitability of this cost, with sentiments such as “it gets expensive rather quickly,” and “there is no way to limit costs.”

While PACER administrators have defended the system’s fees as necessary to run the database, a 2006 Annual Report seems to point at a gap between expenses and earnings, indicating that PACER may in fact be twice as expensive at is needs to be. (A revenue of $62.3 million, compared to expenses totaling $27.6 million).

PACER’s lack of accountability

But the problems with PACER extend well beyond costs. A recent article in the Free Law Project outlines four key problem areas – cost being the first one. Two other PACER failings mentioned in this list have to do with the PACER user interface – from the overall poor user experience to the lack of document-level search. The fourth (and most important) shortcoming is the lack of accountability. As more and more law firms rely on PACER to provide accurate information and comprehensive access to public records, the system’s glitches can have a critical impact on both attorneys and clients.

Last year, when PACER took over 10,000 documents offline (Aug 11, 2014), Senator Patrick Leahy – chairman of the Judiciary Committee – sent a formal letter to Judge John D. Bates, head of the Administrative Office of the Courts (AOC), urging him to replace the removed documents.

The documents were eventually brought back online in September, 2014 (as announced on the PACER site). But for over a month, these documents remained unavailable, negatively impacting anyone depending on this public information.

While it is unclear who is ultimately accountable for correcting PACER’s shortcomings, this responsibility may belong to the chair of the Committee on Court Administration and Case Management – as of this writing Judge Wm. Terrell Hodges (M.D. Fl.). It should be noted that Judge Julie A. Robinson (D. Kan.) was chair of this committee at the time the large document removal took place. Some responsibility may also fall on the subcommittee for Information Technology, currently chaired by Rep. Will Hurd, R-Texas.

What PACER lacks are feedback mechanisms for users to steer its framework, and transparency as to the decision-makers governing how the system is run.

PACER’s violation of reader privacy

PACER violates user privacyThe Fourth Amendment grants U.S. citizens a right to privacy over their papers, and the First Amendment grants a right to free association, unmolested by government agencies – which has been linked by legal scholars with the right to read anonymously, without one’s reading selections being tracked or recorded. Both rights are deeply undermined in our new digital age.

A brilliant analysis of PACER’s privacy problem was written by Michael Price of the Brennan Center for Justice. Price states that the problem is doctrinal, not generational – and calls for the creation of new frameworks to protect our privacy in the digital age.

Nearly a decade ago, legal scholar Julie Cohen wrote her landmark article “A Right to Read Anonymously.” She famously wrote, “A fundamental assumption underlying our discourse about the activities of reading, thinking, and speech is that individuals in our society are guaranteed the freedom to form their thoughts and opinions in privacy, free from intrusive oversight by governmental or private entities.”

“A fundamental assumption underlying our discourse about the activities of reading, thinking, and speech is that individuals in our society are guaranteed the freedom to form their thoughts and opinions in privacy, free from intrusive oversight by governmental or private entities.”

In its current configuration, PACER is an Orwellian nightmare. Each user’s reading selections are monitored, tracked, and stored for an indefinite period in PACER’s government-controlled databases. In order to read PACER’s documents, a user must give their full name, date of birth, phone number, physical address, email address, and a valid credit card. The intrusive nature of this system has led writers such as Brian W. Carver, of the Free Law Project, to call the system unconstitutional.

PACER’s flawed user interface

In a recent ARS-Technica article, Timothy B. Lee pointed at the sharp contrast between solid, usable interfaces at government sites such as Recovery.gov (showing detailed data on the spending of stimulus money within the Obama administration), and the Search system at the Library of Congress (Congress.gov) and the creaking maze that is PACER.

Some of PACER’s shortcomings are the lack of a full-text searching option, and very limited keyword search. White such limitations might have been understandable in 2006, or even in 2009, they are an anachronism in 2015.

The main problem with PACER’s interface is what’s been called a myopic fixation with its current core user base – i.e. lawyers and law students. For the lay person, the system is so deeply challenging as to be unusable.

As Brian Carver describes in his video, “Using PACER, what could possibly go wrong?” a search for a Maryland case leads a user to the Maryland District Court. This proves a dead end. The user finds a (partial) list of “recent opinions,” with no link to PACER. Should the user persevere, they may eventually run into a link to CM/ECF – a term not defined anywhere on the site, which stands for Case Management, Electronic Case Filing.

At that point, the user would face seven options, one of which is PACER.

That link takes the user away from the District of Maryland site and lands them on the main, federal PACER site – so that proves fairly useless. Instead, the user should click the unintuitive link “Electronic Case Filing,” and then somehow understand that they should further click on Document Filing.

This finally leads the user to the PACER login page for the District of Maryland.

At this point, the system expects the user to understand such terms as “appellate” and “legacy filing.” Not knowing these terms, a user is likely to click the “START” button, where the options to “E-File” or “View” are displayed. Choosing “View,” the user is then required to provide a credit card, as there will be a $0.10 per page fee. As Carver points out, It is extremely unlikely an average user would pursue their search beyond this point.

The registration page is quite heavy: 14 fields and a CAPTCHA feature.

Once registered, the user finally faces a Case Locator. As Carver’s video demonstrates, a search which costs the user $0.10 yields seven results – none of them relevant to their case of interest. (Carver goes out of his way to insist he did not specifically select a failing scenario – that this is a typical user experience).

Assuming the user would, incredibly, persist on their search, they will log in again. They’re now asked for a client code – which has not been defined at any previous stage of the process. They also face a dire warning: “WARNING: Search results from this screen are NOT subject ot the 30-page limit on PACER charges. Place be as specific as possible with your search criteria.” Carver’s assertion is that he himself has been charged over $50 for a single useless search.

An important distinction is that the user is alerted to transactions, and charges on their card, AFTER such charges have already been applied. A user familiar with e-commerce as it takes places on Amazon.com, Target.com etc. would be surprised by such site behavior.

Carver proceeds to show in his video how the user is greatly hindered in their search (12 “O’Malley” results, with no context – each resulting on fees and charges if clicked.) In Carver’s example, it takes nine tries to locate the relevant case. This is not a docket, however – it’s just a query. There are 10 possible links to click – with no explanation as to how to proceed, or the charges one may incur by clicking on each.

Carver clicks on “View a Document,” to face a dead end. He clicks on “History/Documents,” is charged $0.80 without warning, and has now found the court opinion he seeks.

Carver’s experience goes on, but it’s clear from his experience thus far that PACER proves a challenge – probably an insurmountable challenge – for the uninitiated user.

The particular failing that is most alarming for a new user is the way PACER surprised the user with fees and charges, notifying them AFTER the fact. This, combined with the arcane nature of the links, proves a mine field, punishing the user with fees for every wrong click.

As a result of various problems with the PACER system, the average member of the public has no meaningful access to federal court records. This is the “PACER Problem.” – Free Law Project

Why is PACER so challenging?

PACER runs on outdated technologyAccording to Tom Bruce, director of Cornell University’s Legal Information Institute, PACER is a case of “the wrong technology at the wrong time.” It came online in 1990, just before the Internet. At its heart, PACER is more a local bulletin board than a robust data-delivery website.

One can also blame the mindset of PACER’s administrators, who seem more focused on excuses for the status-quo than in finding solutions. These excuses are many – and most of them are wrong. They say that a user won’t be charged for fees under $15 per quarter. But this use-case is nearly non-existent for active users. They say opinions will soon be available via the GPO (Government Printing Office) – but only 19 out of 95 district courts are participating. The excuses go on, and reflect a fixed mindset unyielding to change.

But the real reason may be – as it usually is – a matter of money.

PACER’s money goes elsewhere

One of the many reasons PACER never gets fixed is that the money goes elsewhere. Back in 2010, Steve Schultze – Associate Director of the Center for Information Technology Policy at Princeton, wrote a piece describing where PACER’s earnings end up. The system’s earnings have been routinely used to fix up courtrooms nationwide.

Schultze quotes the Hon. William E. Smith, from the District Court of Rhode Island, speaking at the 7th Conference on Privacy and Public Access to Court Records, as saying, “…also go to funding courtroom technology improvements, and I think the amount of investment in courtroom technology in ’09 was High-tech court roomaround 25 million dollars. […] Every juror has their own flatscreen monitors. We just went through a big upgrade in my courthouse, my courtroom, and one of the things we’ve done is large flatscreen monitors which will now — and this is a very historic courtroom so it has to be done in accommodating the historic nature of the courthouse and the courtroom — we have flatscreen monitors now which will enable the people sitting in the gallery to see these animations that are displayed so they’re not leaning over trying to watch it on the counsel table monitor. As well as audio enhancements. In these big courtrooms with 30, 40 foot ceilings where audio gets lost we spent a lot of money on audio so the people could hear what’s going on. We just put in new audio so that people — I’d never heard of this before — but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers. So now the back of the courtroom can really hear what’s going on. This all ties together and it’s funded through these fees.”

According to a chart from the Administrative Office of the US Courts, over half of PACER’s $146 million revenue in 2013 went to fund other initiatives.

Another drain on PACER’s coffers is the collection itself: Every quarter PACER mails out paper bills to delinquent users, and then deals with the onerous collection process – which may include prosecution of delinquent debtors.

Fixing PACER

Considering how antiquated, poorly designed and error-prone PACER’s interface proves to be, why hasn’t anyone tried to fix it? The answer is that someone did try.

Aaron SchwartzBack in 2009, the late Reddit co-founder and internet activist Aaron Swartz collaborated with open government advocate Carl Malamud (founder of PublicResource.org) and a few others to create a better PACER. They aimed to scrape the entirety of the database and provide a better user-experience. “PACER is just so awful…” Malamud told New York Times, “The system is 15 to 20 years out of date.”

The pair downloaded 20 million pages of documents – about 20 percent of the contents in PACER’s database – before the initiative was shut down by the FBI.

Alternatives to PACER

Law students are likely to have free access to LexisNexis and WestLaw. (Neither of these is quite as comprehensive as PACER’s database, but they’re both immeasurably more user-friendly.)

Other valiant efforts have been made to offer PACER alternatives.

RECAP (ironically named as PACER spelled backwards) is a great little tool that alerts PACER users of documents already available in the RECAP archive – potentially saving the user some fees. Currently, RECAP includes all US District and Bankruptcy courts, has an advanced search feature and offers free browsing.

Inforuptcy offers a similar service to RECAP. Downloads from Inforuptcy cost 5 cents, as opposed to PACER’s 10 cents or more. For those documents not currently in Inforuptcy’s database, the user is re-directed to PACER.

Justia Dockets & Filings is a free service that includes U.S. District Courts and Circuit Courts of Appeal. Users can search by party name, judge, type of suit, court and date range. Justia is not as complete as PACER, but users are re-directed to PACER for those cases not in its database.

eDockets helps overcome PACER challenges

We’ve done our part as well. In developing the eDockets docketing & calendaring platform, we have included a set of solutions that guarantee our users won’t get tripped up by PACER’s charges and unreliability. One of those tools is ECF Verify, which scans for any changes in the court dockets that did not generate email notifications from PACER, and sends an alert to the subscribing attorney.

Should PACER be fixed? Overhauled? Or replaced by something new?

What is your opinion? Should PACER get a facelift to improve its troublesome interface? Should its confounding e-commerce methodology be overhauled for greater transparency, with a shopping cart process similar to retail sites such as Amazon.com? Or should it be scrapped altogether, replaced by a new system built on present-day technology?

Also, share your thoughts on the challenges you face in your day-to-day interactions with PACER. Have you tamed the beast? Have you found an alternative? Or is it, as it is for most, an unavoidable daily struggle?

 

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