The Right to Read Anonymously

In 1996, in the Connecticut Law Review, legal scholar Julie Cohen wrote what has become a landmark article in Internet Law entitled, “A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace.” She began by stating,

A fundamental assumption underlying our discourse about the activities of reading, thinking, and speech is that individuals in our society are guaranteed the freedom to form their thoughts and opinions in privacy, free from intrusive oversight by governmental or private entities.

Cohen notes that, in the past, our right to read anonymously has been protected by libraries and librarians. See, for example, the American Library Association’s Freedom to Read statement, adopted in 1953. Our American experience has generally been that one is able to walk into a public library, take almost any book off the shelf, sit down, and read without ever identifying oneself or asking anyone’s permission. Most libraries, as vigorous defenders of reader privacy, only maintain information about which books you check out until you return them and then they destroy any record connecting your identity to the books checked out. It was, in 1996, the growing prevalence of electronic dissemination of information and technologies to monitor …

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What Should be Done About the PACER Problem?

This is the third in a series of posts about PACER:

  1. What is the “PACER Problem”
  2. Why Should Congress Care About PACER?
  3. What Should be Done About the PACER Problem?

Let’s outline what you should do, what Congress should do, and what the courts should do:

Uncle Sam (pointing finger)

By James Montgomery Flagg - Public Domain via Wikimedia Commons

What you should do about the PACER Problem

As we mentioned in our first post, Carl Malamud of Public.Resource.Org has written a memorandum detailing a three-pronged approach that average individuals can take to address the PACER Problem: Litigation, Supplication, and Agitation. Let’s consider each.

Litigation

It’s probably not fruitful if everyone runs out and sues the courts over PACER. Carl’s memorandum sketches many of the challenges that such cases would face. There are people thinking about this carefully, however, and so if you believe you are particularly likely to have standing, or have other resources to contribute to such an effort, feel free to get in touch with us and we can direct you to the folks having these conversations.

Supplication

Carl’s memorandum also explains that Public.Resource.Org is asking for a fee exemption from the courts …

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Why Should Congress Care About PACER?

This is the second of three short posts on PACER:

There are several reasons that Congress should care about PACER:

  1. The Courts are ignoring the law that Congess passed. In our tricameral system of government, it is the Congress that holds the power of the purse. The E-Government Act of 2002 (P.L. 107-347) provides with respect to PACER fees that the “Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services.” So, they can only charge for public access services such as PACER if those fees are used to cover the operating expenses for those same services. In an accompanying Senate report, Congress noted that it “…intends to encourage the Judicial Conference to move… to a fee structure in which this information is freely available to the greatest extent possible.” 107. S. Rept. 174.

    However, figuring out exactly how much revenue PACER generates and how much it costs to operate is such an overcomplicated task that only one person has ever tried to do it. In 2010, Steve Schultze, the then …

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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”?

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:

  1. 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 …

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Help Agitate to Open Up PACER

Update: This initiative has ended.

In Chief Justice Roberts’ End of Year Report there were some astounding figures about the size and scope of PACER, the Federal system for court filings. Among his figures was the fact that there are more than “one billion retrievable documents” in PACER:

We believe that this means that PACER is the largest collection of public domain documents locked behind a pay wall. Having access to this information is vital to a functioning judiciary and we are working to break it open.

Public.Resource.org recently published an excellent memo outlining a campaign to retrieve from PACER more of its contents and to create pressure for it to be opened completely. The memo, which is worth a read in itself, defines a strategy of “litigation, supplication, and agitation.”

Today we’re announcing a plan that should help with the third part of the strategy: Agitation.

Here’s how it will work:

  1. Today, you sign up for our email list.
  2. PACER provides a fee waiver for …
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Senator Leahy Wants PACER Documents Back Online

Last Friday, it was reported by the Washington Post and Ars Technica that Chairman of the Judiciary Committee, Senator Patrick Leahy, had sent a letter to Judge Bates, the head of the Administrative Office of the Courts (AO), urging the AO to put back online the recently-removed PACER documents from five courts. I had not seen the full letter posted anywhere yet, so I present it here.

Free Law Project agrees with Senator Leahy that taking these documents offline represents “a dramatic step backwards” and that the Courts’ currently proposed work-around represents “a troubling increase in costs…” We hope the AO will be open to restoring online access to these documents and stand ready to help make these documents freely available online for the public were that agreeable to the AO.

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The Importance of Backups

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 …

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Free Law Project Joins Request for Access to Offline PACER Documents

A recent announcement on the federal PACER website indicated that PACER documents from five courts prior to certain dates (pre-2010 for two courts, pre-2012 for one court, etc.) would no longer be available on PACER. The announcement was reported widely by news organizations, including the Washington Post and Ars Technica. The announcement has now been changed to explain, “As a result of these architectural changes, the locally developed legacy case management systems in the five courts listed below are now incompatible with PACER; therefore, the judiciary is no longer able to provide electronic access to the closed cases on those systems.” See a screenshot of the earlier announcement without this explanation:

Original PACER announcement

Original PACER announcement

This morning, Free Law Project signed on to five letters from the non-profit, Public.Resource.Org, headed by Carl Malamud, asking the Chief Judge of each of these five courts to provide us with access to these newly offline documents. The letter proposes that we be provided access in order to conduct privacy research, particularly with respect to the presence of social security numbers in court records, as Public.Resource.Org has done previously in several contexts. In addition we offer to host all the documents …

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Using PACER — What Could Possibly Go Wrong?

If you only watch one video about using the federal Public Access to Court Electronic Records (PACER) system, make it this video by Free Law Project’s Brian Carver: “Using PACER: What Could Possibly Go Wrong?”

The video provides a demonstration of what a regular member of the public might experience trying to find a copy of a recent newsworthy federal district court opinion on the court’s website and through the federal PACER system. This example was genuinely chosen because Brian himself had heard about a recent newsworthy case out of the District Court for the District of Maryland. In fact, we’re fairly sure that other examples might cast these sites in an even worse light.

Free Law Project believes that Congress should provide adequate funding to the federal courts so that the financial argument for PACER’s fees would be moot and everyone could agree that public access to court records should be free. But even in the absence of that, we conclude from this demonstration that the non-document related fees in PACER for search results and reports that are charged without an interstitial warning of their magnitude are particularly onerous and should be abolished. The courts …

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Free Law Project Calls for License-Free Government Data

Today a group of non-proft public interest organizations have released updated Best-Practices Language for Making Government Data “License-Free.” Free Law Project is glad to sign on to their statement and to support the effort to assist government agencies in making clear that their data is free of copyright or contractual restrictions and can be re-used freely.

The details can be found at http://theunitedstates.io/licensing/ See also Josh Tauberer’s blog post announcing this release.

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Free Law Project Joins Free Access to Law Movement

Free Law Project is proud to announce that it has been officially accepted as a member of the Free Access to Law Movement. FALM is a consortium of non-profit institutions dedicated to providing free and open access to the world’s law. Its members subscribe to the Declaration on Free Access to Law.

The Declaration explains in part that,

  • Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;
  • Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;
  • Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published by other parties.

We have been operating consistently with the principles laid out in the Declaration for some time. Finding ourselves in complete agreement with the Declaration on Free Access to Law, we are excited now to make it official and to formally join with our colleagues around the globe engaged in these endeavors.

FALM members …

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Further privacy protections at CourtListener

I’ve written previously about the lengths we go to at CourtListener to protect people’s privacy, and today we completed one more privacy enhancement.

After my last post on this topic, we discovered that although we had already blocked cases from appearing in the search results of all major search engines, we had a privacy leak in the form of our computer-readable sitemaps. These sitemaps contain links to every page within a website, and since those links contain the names of the parties in a case, it’s possible that a Google search for the party name could turn up results that should be hidden.

This was problematic, and as of now we have changed the way we serve sitemaps so that they use the noindex X-Robots-Tag HTTP header. This tells search crawlers that they are welcome to read our sitemaps, but that they should avoid serving them or indexing them.

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Respecting privacy while providing hundreds of thousands of public documents

At CourtListener, we have always taken privacy very seriously. We have over 600,000 cases currently, most of which are available on Google and other search engines. But in the interest of privacy, we make two broad exceptions to what’s available on search engines:

  1. As is stated in our removal policy, if someone gets in touch with us in writing and requests that we block search engines from indexing a document, we generally attempt to do so within a few hours.
  2. If we discover a privacy problem within a case, we proactively block search engines from indexing it.

Each of these exceptions presents interesting problems. In the case of requests to prevent indexing by search engines, we’re often faced with an ethical dilemma, since in many instances, the party making the request is merely displeased that their involvement in the case is easy to discover and/or they are simply embarrassed by their past. In this case, the question we have to ask ourselves is: Where is the balance between the person’s right to privacy and the public’s need to access court records, and to what extent do changes in practical obscurity compel action on our …

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