At the Freedom to Tinker Blog, Steven Schultze (who has posted a draft bill to make court records freely available), lists the top ten excuses the courts offer to justify the confiscatory fees charged on PACER. Here are some excerpts:

Excuse #1: “PACER is cheap”
Whether or not PACER is subjectively inexpensive is immaterial. The law says that the fees can only reimburse for the expense of the service, and the courts are charging more than that. End of story.

Excuse #2: “Fee waivers are available”
So, if you are willing to give the courts your credit card, file a formal application to all of the courts for which you seek access, if the courts like the “purpose” that you state, and if they don’t arbitrarily decide to revoke your waiver, you can download (but not share) documents. What happens when a watchdog organization applies for and receives a fee waiver? Evidently they receive it, only to have it revoked shortly thereafter. Likewise, if you’re an academic, don’t criticize the court that gave you the waiver, because they may not renew it next time

Excuse #3: “You won’t be charged for fees under $15 per quarter”

Excuse #4: “Congress said that we’re allowed to spend PACER funds on other things”
This is false. It’s shameful that the US Courts are mis-representing the law. They should know better. Their excuse here is that the appropriators have indicated in a series of committee reports and letters that they have no problem with the courts expanding PACER fee use to other areas. The appropriators have a vested interest, which is of course to appropriate less. That being said, they have not made any changes to the law

Excuse #5: “We are making opinions available for free via the GPO”
The metadata isn’t as complete as what’s on PACER, and it’s hard to monitor for updates. More fundamentally, the archive omits everything other than final opinions (and it relies on judges to appropriately flag what is an opinion and what is not, which they have had trouble doing in the past). It is useless for following ongoing cases or for many types of research, but it’s better than nothing.

Excuse #6: “You can always go to the courthouse”
This is a good one. The Administrative Office will tell you that you can go to your local courthouse to access PACER records for free. Well, maybe not “local”, but you can go to the district, bankruptcy, or circuit courthouse and access PACER. Of course, you can only access records for that particular court. You can’t access other PACER records. You also can’t download the records. You can only view them. If you want to print them, that will be 10 cents per page. That’s not lega

Excuse #7: “The heaviest users are rich”

Excuse #8: “There is a high cost to providing electronic public access”
Here is how the PACER system architecture works: every court runs its own local PACER server, with local support staff and a private leased network link to Washington, DC. Are you a system administrator? Are you an average citizen who has heard the word “cloud” in the past five years? Does this system architecture seem insane? It is. It is even more offensive in light of the fact that the GSA has had, for years, a streamlined government procurement system for cloud hosting. This system is certified at FISMA level 2 security, and is hosted in a “private cloud” for the government, which is good enough for the Department of Homeland Security. It is provided by companies like Amazon, at only a fraction higher cost than their commercial offerings. The courts could host all of the PACER services in the cloud–tomorrow–for under a $1 million per year. They could allow all of these local system administrators to control their own PACER installations. They could obtain greater cost savings (and security) by further consolidating PACER hosting and system administration. Of course, they feel no pressure to do so when they interpret the law to allow them to charge whatever they deem necessary.

Excuse #9: “The Judiciary does not charge for access to judicial opinions”
At some point, PACER added the option for judges to specify that a particular document was an “opinion.” When users download these documents, they are not charged. But what is an opinion? There have been years of hand-wringing over this question. Courts have been wildly inconsistent in their rate of accurately flagging opinions. The Administrative Office commissioned an expensive study. This is all ridiculous, because the law makes no distinction between fees for opinions versus other records. What’s more, in order to find the opinions in the first place, the average user has to search for them (and pay) and view the docket (and pay).

Excuse #10: “PACER users are happy”

I have written at some length how PACER not only thwarts access to Court documents, but inhibits the study of law as data. I am very eager to see where this proposal goes.