We’ve gotten our first official reaction from the judiciary, in the form of a statement on the New Mexico Bankruptcy court’s website. It contains two important points about the PACER terms of use, and a misleading statement about privacy that we want to correct.

First, the good news: the court acknowledges the point we’ve made before: use of RECAP is consistent with the law and the PACER terms of use. The only potential exception is if you’ve received a fee waiver for PACER. In that case, use of RECAP could violate the terms of the fee waiver, which reads: “Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court.” We’re not lawyers, so we don’t know if the court’s interpretation is correct, but we encourage our users to honor the terms of the fee waiver.

Now, an important correction. The statement raises the concern that RECAP could compromise sealed or private documents that attorneys access via the CM/ECF, the system attorneys use for electronic filing and retrieval of documents in pending cases. Protecting privacy is our top priority, and we specifically designed RECAP to safeguard the privacy of CM/ECF documents. As we describe in our privacy FAQ, RECAP is carefully designed not to upload documents from the CM/ECF system. When a user logs into the CM/ECF system, a cookie is set on the user’s browser that’s different from the cookie that’s set when a user is logged into the public PACER system. RECAP monitors for this cookie and automatically deactivates itself whenever the user is logged into CM/ECF. We tested this thoroughly, with some CM/ECF users, before we released the public beta.

We’re confident that RECAP maintains the security model set up by the courts, and that it will never upload documents while a user is logged into CM/ECF. The code is open source, so anyone with concerns is welcome to inspect it for themselves. We’d like to work with the judiciary in the coming weeks to ensure they understand how RECAP protects privacy and security, and to incorporate any further enhancements they might suggest. In the meantime, users can continue using RECAP with the knowledge that it’s designed with privacy as our top priority.

Update: A final reason users should be comfortable with using RECAP is that the extension’s operation is extremely transparent. The little “R” icon in the lower-right-hand corner of every browser window turns blue when RECAP is enabled (which should only happen when you’re logged into PACER) and grey when it’s disabled (which should happen when you’re logged into CM/ECF). We don’t think you’ll ever see a blue icon when you’re browsing CM/ECF, but if you do, you should immediately disable recap and let us know about it so we can investigate the problem. In addition, RECAP notifies you about every document it uploads (unless you choose to turn this feature off). Again, you should never see an upload notification while you’re on an CM/ECF page, but if you do you can contact us and we’ll delete that document from our database. So you don’t have to take our word for it when we say RECAP won’t upload CM/ECF documents, you can monitor what it’s doing and verify for yourself.