The Federal Courts Are Running An Online Scam
The website everyone uses to follow the Mueller probe is a hopeless, costly disaster.
By SEAMUS HUGHES (2019)
Seamus Hughes is deputy director of George Washington University’s Program on Extremism. He also runs a company providing services on navigating the federal court records system.
Every day, dozens of hungry reporters lurk inside something called PACER, the online records system for America’s federal courts. These days, they’re mostly looking for the latest scraps of intel on special counsel Robert Mueller’s investigation of Russian inference into the 2016 presidential election. And everyone, from lawyers to researchers to activists, uses the system to find similar criminal cases, track the latest arrests of terrorism suspects or argue for sentencing reform.
But I’m here to tell you that PACER—Public Access to Court Electronic Records—is a judicially approved scam. The very name is misleading: Limiting the public’s access by charging hefty fees, it has been a scam since it was launched and, barring significant structural changes, will be a scam forever.
The U.S. federal court system rakes in about $145 million annually to grant access to records that, by all rights, belong to the public. For such an exorbitant price—it can cost hundreds of dollars a year to keep up with an ongoing criminal case—you might think the courts would at least make it easy to access basic documents. But you’d be wrong. The millions of dollars the courts have reaped in user fees have produced a website unworthy of the least talented of Silicon Valley garage programmers; 18 years since its online birth, PACER remains a byzantine and antiquated online repository of legal information. As a result, the public routinely misses key developments in the evolution of the criminal justice system.
It was never supposed be this way. In 1991, Congress passed legislation to allow for “reasonable fees … for access to information [federal court records] available.” By 1998, one could get access to records by going to a terminal at a courthouse, and in 2001, PACER was launched online. A year later, Congress, responding to outcries from public records advocates, sought to strike a balance between the public’s need for access and the cost of providing access by allowing PACER to “charge for services rendered” but limited the charge “only to the extent necessary … to reimburse expenses in providing these services.”
The federal courts ignored Congress. PACER, which is run by the Administrative Office of the United States Courts, instead substituted a broad and convoluted reading of the congressional intent so that it could charge for access far beyond what is allowed by Congress. In the past, PACER funds have been used for flat-screen TVs for courthouses.
All told, some 319 million documents are available on PACER, flung across 94 district-level courts and 13 appellate circuits. These hundreds of millions of documents detail various cases making their way through the system, capturing the jousting between lawyers for the plaintiffs and defense, the judges’ opinions and a litany of court motions. Want to know how the rich and famous paid for their children to get into the Ivy League? Read the indictment in several different states. Or how an American defense official secretly worked for Chinese intelligence for years? Maybe you’re interested in the latest search warrants unsealed in the special counsel’s investigation?
This light reading will cost you in time and frustration as well as money. There is no uniformity in the way federal courts file and save case information. Each district has its own idiosyncratic way of filing documents. If you were looking for a search warrant in say, the Eastern District of Virginia, you’d have to search “USA vs.” Run the same search in the District of Maryland and you would find not one warrant as they file them “In the matter.” While “United states v.” works in some districts, it gets you nothing in another. Add an “s” (vs).” and you get radically different search results. This isn’t PACER’s fault, exactly—but the Administrative Office could insist on uniform standards to make things easier for everyone.
None of this would be half as infuriating if it didn’t cost a user 10 cents for each mistake or wrong search. And that is just for the search: To download or print the document will cost you more—10 cents per page, as if PDFs somehow become prohibitively more expensive to create the longer they are. My work at The George Washington University’s Program on Extremism generates a quarterly PACER bill that could fund a coup in a small country. It doesn’t help that PACER is a monopoly and it is the only way to do substantive searches on warrants and arrests.
PACER is maddening in many ways, but I’ll give you just one concrete example of why it is so awful. If you’re a terrorism researcher in the United States, like me, you ought to read every case on the material support of terrorism. But there is no simple and cost-effective way for outside researchers to search PACER for all charges related to a specific federal statute. As it stands now, you have to rely largely on Department of Justice news releases announcing a new federal charge.
But what happens when the U.S. Attorney’s Office stops putting out news releases? Last year, while perusing PACER, I stumbled upon the previously undisclosed case of a California man who attempted to join the Islamic State. The man was arrested by the FBI and ultimately sentenced by a federal judge with not announcement in the press. The same lack of timely disclosure was true of a Coast Guard official who in his vehement support of white nationalism created a media hit list. The DOJ did not initially release information on this arrest and the department’s lack of transparency would likely have hidden this case from public eye. That in turn would have skewed the public’s understanding of terrorism, Islamic State-inspired terrorism and, of course, right-wing terrorism.
Given the media sensationalism on terrorism, having good data matters—and that requires complete access to cases. Getting that through government news releases has proved inadequate. politico.com