Lawsuit Filed Over PACER Fees

For many years we've pointed out that the fees charged by PACER were clearly outside what the law allows. If you don't know, PACER is the electronic filing system for the federal court system. It is great that all filings in federal cases are available online, but the interface looks like it was designed in 1998, the search is ridiculous, and (worst of all) the system charges you 10 cents per page of download -- excluding judicial opinions, but including HTML pages including search results and docket reports. There is a cap of $3 per document, but that means that every time I call up PACER on a big case -- say the Apple/DOJ encryption battle, there are so many filings that just to look at the docket is basically $3. That adds up.

And, as we noted all the way back in 2011, this appears to violate the law that authorizes PACER to exist. The law makes it clear that the Judicial Conference can only charge "reasonable fees" and that those fees should only be for the purpose of operating PACER itself. Yet PACER makes a lot more money than it takes to maintain the system. The courts do actually use this revenue for good purposes -- such as updating technology in courtrooms -- but it's still troubling that it's violating the law to get that money, and putting many of the fees on the back of the public (and reporters who are trying to inform the public).

A few years ago Aaron Greenspan filed a pro se lawsuit about this issue, and while I appreciate where his heart is, he always seemed to have trouble managing the various pro se lawsuits he had filed (some of which I still argue were just downright nutty). Earlier this year, we highlighted another lawsuit over PACER, arguing that when it charges "per page" fees for HTML results (search, dockets, etc...) that it was overcharging.

But now it looks like we finally have a real lawsuit over the fees themselves, filed by a few different legal advocacy groups: the National Veterans Legal Services program, the National Consumer Law Center, and the Alliance for Justice.

Despite this express statutory limitation, PACER fees have twice been increased since theAct's passage. This prompted the Act's sponsor to reproach the AO for continuing to charge fees"well higher than the cost of dissemination"-"against the requirement of the E-GovernmentAct"-rather than doing what the Act demands: "create a payment system that is used only torecover the direct cost of distributing documents via PACER." Instead of complying with thelaw, the AO has used excess PACER fees to cover the costs of unrelated projects-ranging fromaudio systems to flat screens for jurors-at the expense of public access.

This noncompliance with the E-Government Act has inhibited public understanding ofthe courts and thwarted equal access to justice. And the AO has further compounded thoseharms by discouraging fee waivers, even for pro se litigants, journalists, researchers, andnonprofits; by prohibiting the free transfer of information by those who obtain waivers; and byhiring private collection lawyers to sue people who cannot afford to pay the fees.

It's good that the court system is investing in technology, but it should (1) do so within the law and (2) figure out a way to make PACER information free to the general public already. These documents are critical for the public to understand the judicial system that impacts them on a daily basis. There have been many suggestions for better ways to do this, including making the filing fees for lawyers higher (with exemptions for plaintiffs without means to pay for such lawsuits). You could easily cover the cost of PACER with slightly higher filing fees for corporate plaintiffs, and then still make the overall PACER system better and faster. We have seen companies stepping into this space trying to make better interfaces for the awful PACER system -- companies like PacerPro, Plainsite and Sqoop -- but all of them still rely on the fee-based PACER on the backend.

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