Court Says PACER System Is Illegally Using Fees

from the a-good-start dept

Nearly two years ago, we wrote about an important lawsuit concerning PACER -- the electronic records system of the federal court system in the US. As we've pointed out many, many times over the years, the whole PACER system is a complete scam by the federal courts. Beyond the clunky and vintage 1998 interface, it is insanely expensive. It technically charges 10 cents per "page" but it determines "pages" liberally. Do a search? That'll cost you 10 cents. View a docket in a long case? With no warning, that could add $3 to your bill (there is an upper limit of $3 per document). Want to read a filing that's more than 30 pages? $3. For each one. The only thing that's actually free are opinions -- but even just getting to them could cost you some money as you do the search and load the docket, etc. And I won't get into the convoluted system it takes to sign up for a PACER account (at least when I did it, you had to wait for them to mail you stuff through the physical mail -- though they may have since updated it).

This is ridiculous for a system that should be open to the public. Case law is a part of the law. The public should have free access to it to understand the law. But it's been made incredibly difficult by this system. On top of that, as we pointed out almost a decade ago, it's also against the law. Under the law that set up PACER, Title 28, the courts are only allowed to charge as much as is necessary to pay for the system (realistically, this should come out of filing fees, rather than user fees, but... that's another issue for another day). And, by all accounts, the PACER system was generating a huge profit for the court system -- from 2010 through 2016, PACER brought in $920 million for the courts. Yes, nearly a billion dollars. Admittedly, the US courts say that they've spent that money in other potentially useful ways -- including upgrading computer systems in court rooms and such. But if Congress wants them to spend money that way, they should say so -- rather than have the courts flat out ignore the law (irony!) and overcharge PACER users.

Of course it took until 2016 for the first serious challenge to this practice to be filed, and on Saturday (yes, Saturday), Judge Ellen Huvelle ruled for the plaintiffs, saying that the US Court system was abusing the PACER funds it received. It was not a complete victory, but still an important step in the right direction. As the court notes, the issue comes down to interpretation of the law that enables PACER, and the court actually rejects both sides' interpretation:

Plaintiffs take the position that the statute “prohibits the AO from charging more in PACER fees than is necessary to recoup the total marginal cost of operating PACER.” ... Under plaintiffs’ interpretation, defendant’s liability is established because with the exception of the category of expenditures labeled Public Access Services... most, if not all, of the other expenditures covered by PACER fees are not part of the “‘marginal cost of disseminating records’ through PACER.”... Defendant readily admits that PACER fees are being used to cover expenses that are not part of the “marginal cost” of operating PACER ... but it rejects plaintiffs’ interpretation of the statute. Instead, defendant reads the statute broadly to mean that the Judicial Conference “may charge [PACER] fees in order to fund the dissemination of information through electronic means.”... Under defendant’s interpretation, it is not liable because “every single expenditure . . . [is] tied to disseminating information through electronic means.”

If the Court agreed with either proposed interpretation, the ultimate question of defendant’s liability would be relatively straightforward. If PACER fees can only be spent to cover the “marginal cost” of operating PACER, defendant is liable most expenditures. If PACER fees can be spent on any expenditure that involves “the dissemination of information through electronic means,” defendant is not liable. But the Court rejects the parties’ polar opposite views of the statute, and finds the defendant liable for certain costs that post-date the passage of the E-Government Act, even though these expenses involve dissemination of information via the Internet.

I won't go through the full reasoning, but basically the language of the statute is unclear (good ol' Congress!) and both sides present what the court determines to be strained readings to reach their own interpretations. So the court comes up with its own interpretation of the law -- and finds that under its interpretation, some of the funds were misspent:

Having rejected the parties’ diametrically opposed interpretations, the Court must embark on its own analysis to determine whether defendant’s use of PACER fees between 2010 and 2016 violated the E-Government Act. The Court concludes that defendant properly used PACER fees to pay for CM/ECF and EBN, but should not have used PACER fees to pay for the State of Mississippi Study, VCCA, Web-Juror, and most of the expenditures for Courtroom Technology.

Again, without going too deep into the weeds (though, feel free to read the whole ruling below), the court notes that the law says that PACER fees must be used in ways that "provides the public with 'access to information available through automatic data processing equipment.'" That is more than just PACER, but... does not cover all those other things the federal courts were spending it on. And as the judge notes, while providing jurors with technology is nice, it does not appear to be covered by the law:

From the existing record, it would appear that the only courtroom technology expenditure that might be a permissible use of EPA fees is the “digital audio equipment” that allows digital audio recordings to be made during court proceedings and then made part of the electronic docket accessible through PACER.... But, the Court does not see how flat-screen TVs for jurors or those seated in the courtroom, which are used to display exhibits or other evidence during a court proceeding, fall within the statute as they do not provide the public with access to electronic information maintained and stored by the federal courts on its CM/ECF docketing system.

This is a win, though I imagine it's not the final word on the matter as there may still be appeals. The case is a class action, and this could mean that the court system will have to cough up a lot of money to all of us who use PACER regularly. Meanwhile, Stephen Schultze, who has been talking about this issue for a while notes that the judge's interpretation (agreeing with neither the plaintiff nor the defendant) has its own problems:

Judge Huvelle is a good and fair judge. She rejected the reasoning of both the plaintiffs and the defendants (the Judiciary). Instead, she substituted her own analysis. Unfortunately, her analysis was both legally and technically flawed. Under her ruling, PACER fee-payers will not recover another $750 million (or so) of fees that I think are unlawful.

Schultze post then goes into great details on why the Judge was too broad in her reading of the statute, and how the judicial system could still be abusing its powers here. It's a worthwhile read.

Filed Under: access to law, fees, judicial system, pacer

With So Much Public Interest In Our Judicial System, It's Time To Free Up Access To Court Documents

from the pacer-isn't-keeping-pace dept

Like hundreds of thousands of Americans, I am closely following the "airport cases" around the country. In order to keep abreast of the latest developments in one of the fastest-moving cases, Washington v. Trump, I built a Twitter bot that scrapes the public docket mirror hosted by the Ninth Circuit and tweets about new documents and links as soon as they're added.

This case leads a legal push that has attracted incredible amounts of public attention. There have been tens of thousands of protestors, dozens of organizations and companies that submitted amicus briefs (including Techdirt's think-tank arm, the Copia Institute), and over 135,000 people who tuned into the audio-only livestream of the Ninth Circuit oral arguments (which was also broadcast live on multiple news channels).

Those numbers reveal a public demand to be informed and to participate in the law. But they also show the limitations on the kind of transparency that can satisfy that demand. Most notably, any attempts to make court proceedings more accessible to the public has to contend with the expense and overhead of dealing with PACER. My bot is only possible because the Ninth Circuit provides a public docket mirror for individual "cases of interest," essentially duplicating the existing system outside the paywall. Those mirrors are manually updated, which means they are labor-intensive, error-prone, and not always up to date.

By contrast, look at the @big_cases bot run by USA Today reporter Brad Heath. It monitors a set of district court cases, selected by hand, and posts new documents as they get filed. These district court cases don't have public docket mirrors, so @big_cases accesses PACER directly -- and for that, it needs user credentials and ultimately to pay for the documents it downloads. For a journalist whose job is reporting on legal developments, paying these costs makes sense -- and sharing the documents further is a valuable public service. Without institutional backing, though, it's hard to justify the PACER expenses.

The costs go beyond the financial. These bots represent an experiment in meeting members of the public where they are, and those efforts are less likely if they come with a pricetag. Worse, it means these experiments will be limited to cases of widespread general interest. To pick a trivial example: Techdirt readers might be interested in a bot that tweets updates from privacy or copyright dockets. If those public documents were freely accessible, anybody could build a tool like that without worrying about subsidizing the ongoing PACER costs.

At a time when the president and his press secretary are calling into question the legitimacy of factual news reporting, an informed public requires more than ever access to primary sources. Moreover, they need to be confident in the integrity of those sources. Journalists reporting on court proceedings increasingly post the original source documents. Without a free and public government source file, though, most readers can't see the context of the case, and they have to trust that they're getting the full and unmodified documents in question.

The procedural stance of Washington v. Trump is unclear. A Ninth Circuit judge has made a request that both sides brief whether a larger panel should re-hear the question. The White House has issued conflicting reports about whether or not it will appeal Thursday's order to the Supreme Court. And the District Court has indicated that a new briefing schedule might be appropriate. These paths offer various levels of transparency, and it's frustrating to know my bot may not be able to keep up with, say, district court proceedings simply because of the antiquated PACER system.

Meanwhile, the issue continues to attract attention from lawmakers. The House Judiciary Committee will hold a hearing on Judicial Transparency and Ethics on Tuesday, February 14, and is expected to include testimony on PACER. Hopefully, the Committee uses this to recognize that a truly transparent judiciary requires rethinking how PACER functions.

Filed Under: access to information, courts, judicial system, pacer, records, transparency

Top German Judges Tear To Shreds EU's Proposed TAFTA/TTIP Investment Court System

from the wrong-way-forward dept

As Techdirt has repeatedly pointed out, one of the most problematic aspects of the TAFTA/TTIP deal being negotiated between the US and the EU is the inclusion of a corporate sovereignty chapter -- officially known as "investor-state dispute settlement" (ISDS). Techdirt isn't the only one worried about it: no less a person than the EU's Trade Commissioner, Cecilia Malmström, said last year that she "shares" the concerns here. Her response was to draw up the new "ICS" -- "Investor Court System -- as an alternative. US interest in ICS is conspicuous by its absence, but Malmström keeps plugging away at the idea, evidently hoping to defuse European opposition to TTIP by getting rid of old-style corporate sovereignty.

That plan has just received a huge setback in the form of an "Opinion on the establishment of an investment tribunal in TTIP". It comes from the German Magistrates Association, which Wikipedia describes as "the largest professional organization of judges and public prosecutors in Germany." So these are not a bunch of know-nothing hippie activists, but serious establishment figures with a deep knowledge of the law. Here's their basic position on Malmström's ICS, translated from the original German by TNI:

The German Magistrates Association [DRB] rejects the proposal of the European Commission to establish an investment court within the framework of the Transatlantic Trade and Investment Partnership (TTIP). The DRB sees neither a legal basis nor a need for such a court.

The clearly implied assumption in the proposal for an International Investment Court that the courts of the EU Member States fail to grant foreign investors effective judicial protection, lacks factual basis. Should the negotiating partners have identified weaknesses in this area in individual EU Member States, these should be taken up with the national legislature and clearly defined. It would then be up to the legislators and those responsible for the judiciary to provide remedy within the proven system of national and European legal protection. Only in this way can the full legal rights to which any law-seeking party in Germany and the European Union is entitled, be guaranteed. The creation of special courts for certain groups of litigants is the wrong way forward.

The judges then spell out in more detail what they see as the problems with the idea, and they are pretty damning. First, they point out that the ICS would have power over the entire European Union and its member states, and that its decisions would be binding:

The establishment of an ICS would oblige the European Union and the Member States, upon the conclusion of an agreement, to submit to the jurisdiction of an ICS and the application of certain international procedures chosen by the plaintiff.

Presumably, the same would be true of the US and its state governments, which may be why the USTR is not hugely keen on the idea. Not content with undermining the EU's political system, ICS would do the same to the EU's judiciary too:

an ICS would "deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law"

The German judges go on to repeat a point many others have made: that there is simply no need for any kind of ISDS or ICS system. Here's why:

The Member States are all constitutional states, which provide and guarantee access to justice in all areas where the state has jurisdiction to all law-seeking parties. It is for the Member States to ensure access to justice for all and to ensure feasible access for foreign investors, by providing the courts with the relevant resources. Hence, the establishment of an ICS is the wrong way to guarantee legal certainty.

Finally, the judges note that one of the claimed advantages of the ICS system over the current corporate sovereignty approach, judicial independence, is illusory:

Neither the proposed procedure for the appointment of judges of the ICS nor their position meet the international requirements for the independence of courts. As such, the ICS emerges not as an international court, but rather as a permanent court of arbitration.

In other words, Malmström is simply re-branding ISDS, and trying to put lipstick on a pig.

This attack from a very unexpected quarter is a really devastating blow for the ICS idea. It will be hard for Malmström to claim with a straight face that, unlike the current corporate sovereignty system, ICS is a real court, with all the protections that ISDS lacks, because a large number of EU experts in this area have just stated unequivocally that it isn't. The judges' opinion makes it even more likely that the US will reject the ICS idea out of hand, not least because it can now simply point to the German Magistrates Association's analysis as proof that ICS doesn't do what Malmström says it does.

That leaves the really interesting question: where does the EU's Trade Commissioner go from here? She can hardly return to the old-style ISDS for TAFTA/TTIP, since she has been busy rubbishing it in order to promote her new ICS idea. Moreover, this latest rejection comes at just the wrong time, since it is widely expected that corporate sovereignty will be one of the main items on the agenda for the next round of TAFTA/TTIP negotiations. Awkward.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: corporate sovereignty, courts, eu, germany, isds, judicial system, tafta, ttip

DOJ Redefines Separation Of Powers, Tells Court It Has No Power To Order Government To Hand Over Documents

from the stand-by-for-OLC-memo-justifying-destruction-of-First-Amendment... dept

The US government is comprised of three branches: legislative, judicial and executive. The branches are supposed to work to balance the government, with each one acting as a check against excesses by the others. As a theory, it's impeccable. In practice, it's a mess.

At a hearing today on a lawsuit seeking to make videotapes of force-feedings at Guantánamo public, Justice Department attorneys argued that the courts cannot order evidence used in trial to be unsealed if it has been classified by the government. “We don’t think there is a First Amendment right to classified documents,” stated Justice Department lawyer Catherine Dorsey.

The judges, of course, reserve the right to tell the DOJ it's full of crap. It hasn't yet, but that may be coming. It did, however, get off a shot of its own in response.

“Your position is that the court has absolutely no authority (to order disclosure), even if the government is irrational?” [Judge Merrick] Garland asked, pointedly raising a scenario in which the government classifies a copy of the Gettysburg Address.

The information being argued over is recordings of Guantanamo Bay detainees being force-fed. These were ordered to be released last October by District Judge Gladys Kessler, who granted a stay while it was appealed.

In the arguments presented here, the government claims to be the sole arbiter of any information it deems classified -- something that's only going to lead to more classification and more secrecy. Judge Garland pressed the US attorney on this disturbing claim and found the government was saying exactly what he thought it was saying.

Chief Judge Merrick Garland characterized the government’s position as tantamount to claiming the court “has absolutely no authority” to unseal evidence even if it’s clear the government’s bid to keep it secret is based on “irrationality” or that it’s “hiding something.”

“That is our position,” Dorsey agreed.

Dorsey did, however, point out an option that didn't include the judicial system. (Well, at least not immediately…)

She added that a more appropriate tool to compel the release of the videos was through a Freedom of Information Act request.

Hilarious.

The government is trying to prevent these videos from being released, citing national security concerns. Does anyone actually feel a FOIA request will result in anything more than a rejection on the same grounds? And when it happens, the FOIA request refusal will eventually end up in court… where the government's "right" to declare information too secret to be released will still keep these recordings out of the public's hands.

The executive branch's position is clear: it feels it should have sole control over the release of classified documents. The courts are welcome to ensure its assertions remain unchallenged, but in no way is it invited to second guess its secrecy efforts, or the motivations behind them.

Filed Under: classification, classified, first amendment, judicial system, olc, separation of powers

CAFC: The Rogue Patent Court, Captured By The Patent Bar, Needs To Go Away

from the make-it-stop dept

Back in 2004, when I first read the book Innovation and Its Discontents, I was convinced that the Court of Appeals for the Federal Circuit, better known as CAFC, or the "patent appeals court" was a huge part of the problem with the patent system. It was the special court that had been set up in the early 80s to handle all patent appeals, based on the totally misplaced notion that because patent issues were so technical, regular appeals courts wouldn't be able to handle the nuances. What we got instead was a court that became "patent specialists" in that they spent much of their time with the patent bar -- who tended to be lawyers who profited handsomely from an ever expanding patent law. It didn't help that one of the original CAFC judges was Giles Rich, a former patent attorney who almost single-handedly wrote the Patent Act of 1951. Rich more or less made it his lifetime goal to expand the patent system to cover "everything under the sun made by man," and he came close to succeeding.

In fact, some important research pointed out that the structure of the court means that it's really designed to only expand what is patentable, and never to contract it.

Two years ago, Tim Lee had a fantastic expose on CAFC and how it turned patents into a megabusiness by expanding them massively (often ignoring the Supreme Court to do so) and had become way too chummy with the patent bar. It appears that others are catching on as well. Over at the Cato Institute, Eli Dourado has a good article discussing just how "the patent bar captured a court and shrank the intellectual commons." It's a good read, going back over much of the territory that Lee and others have covered previously, but doing it in a nice succinct fashion. It also has a nice empirical summary of just how broadly the CAFC expanded patent law:

The creation of the court has significantly altered the law. Using a dataset of district and appellate patent decisions for the years 1953–2002, economists Matthew Henry and John Turner find that the Federal Circuit has been significantly more permissive with respect to affirming the validity of patents. They estimate that patentees are three times more likely to win on appeal after a district court ruling of invalidity in the post-1982 era. In addition, following the precedents set by the Federal Circuit, district courts have been 50 percent less likely to find a patent invalid in the first place, and patentees have become 25 percent more likely to appeal a decision of invalidity.

With patents more likely to be upheld in the Federal Circuit era, the incentive to patent has increased. Bronwyn Hall finds a highly significant structural break in patent applications occurring between 1983 and 1984. The number of patents granted by the U.S. Patent and Trademark Office also increased, from 63,005 in 1982 to 275,966 in 2012—a quadrupling of the rate in only 30 years.

This is important, in part, because one of the suggestions that's been floated to "fix" the problems of the patent system is actually to create another specialized patent court, this time at the district court level, with the claim being that this would stop things like the rush to bring patent lawsuits in east Texas, or unsophisticated juries deciding big patent cases. Except that, as we've pointed out, this would just exacerbate the problem.

Dourado's article -- as did Lee's -- quotes the astounding blog post by patent attorney (and unabashed patent system cheerleader) Gene Quinn after the Supreme Court struck down medical diagnostic patents in the Promethus v. Mayo Labs case (a precursor to later striking down or massively limiting gene and software patents), in which Quinn happily awaits CAFC "overruling" the Supreme Court:

How long will it take the Federal Circuit to overrule this inexplicable nonsense? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court.

There is, of course, some hope that maybe things are actually changing. The number of cases in which the Supreme Court has smacked down the CAFC grow each year, and in some of the more recent ones the Supreme Court's impatience with CAFC and its inability to properly interpret patent law have become clear. On top of that, CAFC is under new management, due to an ethics scandal involving the former chief judge. And the most recent few decisions have suggested that, perhaps, finally, CAFC is changing and getting the message.

That said, it still makes no sense at all to have a specialized court like CAFC for patent appeals. Like nearly all other kinds of cases, patent lawsuits should go up through the circuit courts. There, those courts will be more likely to actually listen to the Supreme Court, rather than think they can "overrule" the Supreme Court -- and on difficult cases there's more likely to be a circuit split where different opinions are discussed. And, most importantly, it means that the patent bar can't so aggressively lobby just a small group of "friendly" judges that they see over and over and over again.

Filed Under: cafc, circuit splits, giles rich, judicial system, patent bar, patents

Supreme Court Says No Cameras In The Courtroom

from the aren't-the-courts-public? dept

In something of a repeat of the judicial system barring the videotaping and live broadcast of Joel Tenenbaum's trial, the Supreme Court voted to bar video streaming of a controversial court case in California. The 5 - 4 ruling was supported mainly on procedural grounds -- about how the courts couldn't make such a "change" without giving more notice. It's difficult to comprehend how that makes any sense. This is not a massive "change" in procedures or anything that affects how the judicial system works. It's merely an attempt to provide more transparency to what goes on in the court rooms, which seems like an extremely laudable goal, no matter where you stand on the various cases where this issue has come up.

Of course, while officially the ruling was about procedural issues, the majority did also claim a fear that broadcasting the trial would put a chill on witnesses. This seems backwards. This is the public court system, and reporters are allowed to report on (most) cases, so anyone who testifies is going to be known to the public anyway and what they say will be reported on, too. How is that any different than if the video is recorded and broadcast in some manner? If there are special cases where video might create a real chilling effect, deal with those special cases, rather than pushing a blanket "no video rule." As Justin Silverman wrote before the ruling came out, the idea that videos in the courtroom would lead to attacks on witnesses made no sense, since it was already illegal to attack witnesses and we have a legal system to deal with that:

What good is giving the press freedom if it is not allowed to use the tool of its trade? In this case, that tool is a video camera. Similarly, law enforcement has many tools of its trade, the most important being the law. In California, the law includes prohibiting the very acts Prop 8 supporters and--apparently--the Justices are so concerned about. Perhaps it's too much to ask, but can we just let both journalists and police do their jobs?

By staying the broadcast of this trial--and impliedly finding that Prop 8 supporters will suffer "irreparable harm" absent a stay--the Supreme Court seems to be advocating curtailment of the press as a means of law enforcement. In a sense, there's a backwards Heckler's Veto at play: the Court is protecting the right of witnesses to speak by limiting the ways in which they will be heard and preventing retaliation by those who will not have heard them. Instead, those witnesses should take the stand knowing they will be given the largest forum possible in which to speak and the strongest protection against those who may retaliate when they do so.

And that retaliation is a big may. Among their reasons for requesting a stay, the petitioners say that "public broadcast can intimidate witnesses who might refuse to testify or alter their stories when they do testify if they fear retribution by someone who may be watching the broadcast." Further, "all of the petitioners' witnesses have expressed concern over the potential public broadcast of trial proceedings and some have stated that they will refuse to testify if the district court goes forward with its plan."

In a controversial case such as this one, no doubt the unpopular speaker is a nervous one. But I'm skeptical that witnesses already committed to testifying will suddenly shy away because of the prospect of video dissemination. Do they not realize that, without a single camera, the San Jose Mercury News is reporting live accounts that include the names of those taking the stand? That special interest groups will be Twittering their testimony as they speak? That there are already websites identifying Prop 8 supporters and where they live? Banning a broadcast, I believe, will not change this. But to allow a broadcast, I'm certain, will further enlighten the debate....

Filed Under: courtroom, judicial system, supreme court, transparency, video