Burning of the Library of Alexandria

The Burning of the Library of Alexandria, an illustration from ‘Hutchinsons History of the Nations’, c. 1910.

At least since the destruction of the Ancient Library of Alexandria, the world has known the importance of having a backup. The RECAP archive of documents from PACER is a partial backup of documents taken offline by five federal courts. It is impossible to determine how complete a backup we have, because the problem with missing documents is that you cannot even determine that they are missing without a complete list of what used to be available. No such lists exist for the documents from these five courts.

But as coverage of this surprising and unprecedented action by PACER officials continues (see techdirt), the BBC has an article that takes an interesting approach by pointing out some of the landmark civil rights cases taken off PACER through this action.

The BBC mentions the case Ricci v. DeStefano which was decided at the Second Circuit while  Sonia Sotomayor was a Circuit Judge. Sotomayor, now a Supreme Court Justice, had her role in deciding the case closely scrutinized during her Supreme Court confirmation hearings. Many who dug in to Sotomayor’s background during those hearings likely relied on the documents available via PACER related to this and other cases she decided. What will happen when the next individual from the Second, Seventh, Eleventh, or Federal Circuit, is nominated for higher office? Unless PACER officials make some accommodation, such as the one we asked for yesterday, researchers and the public will face the daunting task of requesting these materials individually, possibly in person, at excessive expense and inconvenience for everyone involved.

And as I told Common Dreams, the Administrative Office of the Courts (AO) cannot argue that some of these cases have been closed for “13 years.” Some were closed this year! They also cannot argue that “many had not been accessed in several years” because as we demonstrated in a recent video, it can be very difficult and expensive to use PACER. Thus, PACER usage statistics should tell us nothing about the importance of these files. And often, as was the situation with Judge Sotomayor’s historical record, some cases only become particularly interesting years later and for reasons possibly unrelated to the case itself.

Put another way, libraries should hang on to their copy of Plato’s Crito, even if its been a few years since anyone checked it out.

This PACER situation presses home more than ever the importance of having a backup. Many critics of the PACER system were dissatisfied with many aspects of the AO’s custodianship of America’s judicial record, but no critic ever thought that after so much work to move to online electronic records, we would return to an offline system of access to court records. If we now cannot even count on the courts to keep the electronic records online, even if behind a byzantine paywall, then we really must insist on a backup.