What is the "PACER Problem"?
In January of 2015, Carl Malamud of Public.Resource.Org posted a memorandum detailing problems with the federal PACER system that is supposed to provide Public Access to Court Electronic Records and outlining a three-pronged approach for addressing these problems this year.
More detail is available in the memorandum or in the video we made last fall, "Using PACER: What Could Possibly Go Wrong?"
However, this is the first of three shorter posts where we will try to address:
- What is the "PACER Problem"?
- Why Should Congress Care About PACER?
- What Should be Done About the PACER Problem?
What is the "PACER problem"?
We define the "PACER Problem" as:
As a result of various problems with the PACER system, the average member of the public has no meaningful access to federal court records. This is the "PACER Problem."
These "various problems" with the PACER system include:
PACER fees are too high, especially in the case of surprise charges for searches where the total charge for the search is not known until after you have incurred the charge. Using PACER's search functionality is terrifying. You have no way of knowing what you will be charged until after you have incurred the charge. In my own experience, slight typos have cost me upwards of $50. Imagine using Google and paying based on the number of results that Google returns, where the number of results that might be returned are completely unknown in advance. On the internet, you could use a different search engine, but PACER is an absolute monopoly, so some times you have no choice but to search and cross your fingers. A system designed only for the wealthy, who have the luxury of having no regard for what use of the system might cost them, is not a public access system.
The user interface is an inexplicable unusable disaster. (See our video for numerous examples .)
There is no document-level search. Unlike modern search engines that index documents and return responsive documents to queries, PACER users can only search for a litigant's name or by using an already-known case docket number. This makes the system utterly unusable for general purpose research. You cannot search for a general word or phrase, like "asylum" and hope to get back responsive documents. Instead one must already know the case one is looking for beforehand.
There is no accountability. The courts recently took thousands of documents offline and after a public outcry and inquiring letters from members of Congress, the courts stated that they would put them all back online, but because no one but the courts has unhindered access to the system, no one can say what was taken offline and whether it was restored or not. As things stand now, fact-checking the courts on this is simply not possible.
So, again: As a result of various problems with the PACER system, the average member of the public has no meaningful access to federal court records.
There is no liberty without access to the law. The guarantees of the First Amendment require that the public and the press have meaningful access to court proceedings and documents. Having an open democratic society requires that the people be able to scrutinize public institutions to ensure their fairness, to enhance their quality, and to safeguard their integrity. We cannot accept a justice system we are prohibited from observing, because the watchful eyes of the public and the press are what diminish injustice, incompetence, perjury, and fraud. Meaningful public access is foundational to the functioning of good government.
We will address in a subsequent post what should be done about the PACER problem, but here we simply want to say: The PACER Problem is a problem of consequence that cannot be permitted to stand.