Nonprofit Forced To Delete Thousands Of Court Documents Obtained With A Fee Waiver Because PACER Is Greedy And Stupid
from the if-you-can't-pay-us-twice-for-these-documents,-then-I-guess-you-can't-ha dept
If you're not familiar with the Free Law Project, you should be. It's a nonprofit that does everything it can to make access to court documents free. It all starts with the RECAP extension, which automatically saves copies of documents downloaded from PACER to CourtListener.com, giving people without PACER accounts and/or the funds (or patience!) to utilize the federal government's broken-down, overpriced system, access to federal court documents.
Unfortunately, the Free Law Project still has to play by PACER's exceedingly stupid rules, even when it's doing nothing more than automatically archiving documents accessed by PACER users with the RECAP extension enabled. The US Courts system continues to believe it needs to generate a profit, even when it does nothing more with millions in PACER fees than purchase new perks for the people who work for the court system or have the ability to actually visit federal courthouses.
That's not what PACER fees are supposed to be used for. They're supposed to be used to modernize the PACER system and eliminate barriers to online access -- the chief among those being fees. Instead, fees have increased while the front end of PACER -- along with its completely broken search function -- have mostly remained unchanged.
The US Courts PACER program has always been extremely mercenary, even when it's engaging in acts of temporary benevolence. Users can sometimes obtain fee waivers to lower the cost of accessing multiple documents. In this case, a researcher obtained a waiver and accessed thousands of court records. Great news for the beneficiaries of the Free Law Project's CourtListener site… or so you would think.
But that's not how this works, as the Free Law Project recently tweeted. [Threadreader version.] It had to delete thousands of court records this researcher legally obtained with a fee waiver because the federal court system says users with waivers can't do what they want with the data and documents they've obtained.
We scraped these records for a researcher using a fee waiver they got. According to the fee schedule, any content that you get while using such a waiver cannot be shared. This is the extremely absurd official policy:
If you can't read/see the embedded picture, it contains a portion of the restrictions on users who secure fee exemptions:
- the user receiving the exemption must agree to not sell the data obtained as a result and must not transfer any data obtained as the result of a fee exemption, unless expressly authorized by the court…
This means the Free Law Project downloads the content as instructed by the RECAP extension. Then it has to delete the content to comply with the user's fee exemption. Why does it have to do this? Because the federal court system says so. And why does the court system say users with fee exemptions can't share the documents with others? Well, I'm sure court reps would say several things in response to this question, but none would be as true as the answer once given to the Free Law Project:
Once, in a fit of honesty, a high-level member of the AO [Administrative Office] explained that the reason for this was because otherwise it would undermine the fee schedule.🤯
In other words, if researchers could share their raw data, the AO wouldn't make as much money off court data
PACER is here to provide access to court documents. But not without making some money first. Hence the numerous restrictions on seldom-granted fee waivers. As the Free Law Project points out, this is not how PACER is supposed to work.
Obviously, this contravenes the goal of PACER. It also makes reproducing research largely impossible.
The documents were obtained legally. But the court system says it's against the rules for another party to continue to retain them. And now documents that could have increased the public's understanding of the court system have been vaporized because the government doesn't want the PACER money train even slightly derailed. And stupidity like this is only going to continue until PACER is deprived of its revenue stream with legislation making PACER access free.
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Filed Under: court documents, free law project, pacer, recap, transparency, us courts
Companies: free law project
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Was that a contract or a typical click through Terms of Service? Cause as we have seen other branches of the government show, Terms of Service are more like suggestions (police and federal agents making fake accounts for law enforcement activities).
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One rule for me, another for thee
Oh no no no, TOS' are only optional if you work for the government, try to bypass their TOS' and you can be sure they'll treat that as a heinous crime deserving of the most iron-fisted of punishments.
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Mike from Free Law Project here. It's the terms that the judge grants the researcher. They could probably be violated and they might even be an illegal 1A restriction on speech, but none of that matters. No researcher in their right mind is going to violate the terms a judge grants them for their research.
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'How else will be pay for our next flat-screen tv?'
Another fine example of why some things should never be for-profit as it results in all the wrong incentives and behaviors.
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Re: 'How else will be pay for our next flat-screen tv?'
the new 144"? Laser based display that never fails?
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"the AO wouldn't make as much money off court data"
Sounds like someone needs an audit & punishment for ignoring what the law says.
But I guess this just makes it crystal clear they don't want us to see the documents we pay to generate that show courts ignoring our rights & giving a pass to murder because no one ever explained it in the right terms to tell the cop shooting unarmed people is bad.
Tell me the justice system isn't corrupt, then explain PACER & where all that money went instead of making the law more available to citizens.
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Who is responsible for writing the rules about how the PACER money is allocated? And, how do we light a fire under their asses?
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Mike here from Free Law Project. The rules are written by the Judicial Conference of the U.S. Courts, which is filled by a number of federal judges, who you'll note have lifetime appointments.
That said, we're working on legislation to fix this.
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I'm just wondering if it is possible to use a FOIA request to bypass the fee waiver rules?
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they are a private company not part of the gov.
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Taking half a second, you might realize the court documents are government records (its why PACER exists). Under the Cyberninja's rulings, PACER is likely a state entity for FOIA purposes. But assuming that didn't fly...
FOIA the court for court documents, rather than PACER. The court still has the documents. That said, FOIA can allow reasonable fee requests, and it wouldn't be a difficult pretzel for a court to agree that having a court clerk doing the lookup work ends up being more expensive.
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But that still stiffs PACER out of money since the records can then be put up for public access by the Free Law Project.
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Mike from Free Law Project. PACER is run by the the federal judicial branch. FOIA doesn't apply to the judicial branch, so there's no opportunities there.
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New menaing
To ignorance of the law?
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This is just one more corrupt practice in our government. I once started making a list, but found I was adding 3-5 new examples daily. Bottomline: government is supposed to be a non-profit activity. The Courts are part of government. The citizens of this country are entitled to access to court documents. Profiting (as opposed to cost recovery) from putting them online is criminal and should be prosecuted. Of course, like so many other instances of government corruption, it will be ignored. There's good reason so many people have concluded that "the system" isn't fair (unless, of course, your mega-wealthy). I was a liberal Democrat, but I'm rapidly becoming a MAGA supporter.
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'I don't like the frying pan so I dove into the fire.'
Oh thanks for that, with all the bad news these days I needed a laugh ever so badly and that was certainly worth one.
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Because the bumbling buffoon showed with his bancruptcies how it's done properly?
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Thing is, first sale doctrine is a doozie.
They've sold it to someone and now it's theirs. Documents are not under copyright, so they can't make a copyright claim, and under the first sale doctrine they can distribute it out to anyone they want, as the SCOTUS made clear in Kirtsaeng.
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Seems like a Sci-Hub clone of Pacer is imminent...
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