Pay-For-Use Pacer/ECF Systems Violate Freedom of Information Principles

As political centrists, we are sometimes on the side of government, and sometimes we are against government. It just depends on the issue.

One of the most ill-conceived ideas in modern legal research comes from the US courts, which require online payment by credit card to access PACER/ECF Systems online, the US courts’ electronic database:

The PACER Service Center is the Federal Judiciary’s centralized registration, billing, and technical support center for electronic access to U.S. District, Bankruptcy, and Appellate court records.”

As can be read at LawLibTech: Recovering Costs on Pacer/ECF Systems and the comments thereto, this makes practical access cumbersome, problematical and far more difficult than it should be, even to professional librarians, so what about the public?

From a legal point of view, the fact that access to legal documents is unnecessarily cumbersome and monetarily encumbered is a clear violation of Freedom of Information principles. The argument that one is paying for “online access” rather than for “viewing” the documents themselves (which must be free to view) is absurd. You might as well charge a “door charge” at county courthouses. There is no difference. Besides, you pay per page. That’s viewing.

From an economic point of view, the requirement of payment probably causes more societal actual costs than benefits, and should be scrapped for that reason alone.

The requirement of payment by credit card and the logging of access also raise clear privacy issues. Freedom of Information principles require that government documents be made public and be easily and freely available to everyone. Permitting access to information was not intended as a means for the government to keep track of what its citizens were reading, what credit cards they had, or anything similar.

In our view, the entire PACER/ECF payment scheme is clearly illegal.

Indeed, we find that the following “clearly chilling” notice with which a user is confronted when accessing a document at PACER/ECF is contrary to the spirit of free information. It is the reverse of “inviting” and is downright unfriendly.

Here is what you get at EDF/PACER if you try to access – as we did – the complaint in the $5 billion patent suit against Google by some company called RTI (Rates Technology Inc. v. Google Inc), another of the farcical blackmail-like patent cases which our inept patent laws are germinating:

Notice

This is a Restricted Web Site for Official Court Business only. Unauthorized entry is prohibited and subject to prosecution under Title 18 of the U.S. Code. All activities and access attempts are logged.

Instructions
Enter your ECF login and password for electronic filing capabilities. If you do not need filing capabilities, enter your PACER login and password. If you do not have a PACER login, contact the PACER Service Center to establish an account. You may register online at http://pacer.psc.uscourts.gov or call the PACER Service Center at (800) 676-6856 or (210) 301-6440.

An access fee of $.08 per page (rate increase effective January 1st,2005), as approved by the Judicial Conference of the United States, will be assessed for access to this service. All inquiries will be charged to your PACER account. If you do not need filing capabilities, enter your PACER login and password. The Client code is provided to the PACER user as a means of tracking transactions by client. This code can be up to thirty two alphanumeric characters long.”

How about, as an alternative suggested text: “Welcome to ECF/PACER, the electronic database website of the federal U.S. Courts. According to Freedom of Information principles, all citizens are entitled to free and easy access to government documents. This website is designed to provide that service for the federal US courts. Thank you for visiting and come again.”

Copycense CommuniK™ Series on Copyright

Copycense is a blog of news and commentary about law and technology, particularly copyrights and licensing.

Recent postings by K. Matthew Dames on copyright issues are well worth reading, e.g. the first article of a series of so-called CommuniK™ postings:

that reviews several ways information professionals can use protected works freely without getting written permission from the copyright owner, signing a license, or working with a third-party publisher representative such as the Copyright Clearance Center. The goal of the series is to arm information professionals with the tools to help them analyze and properly use what federal law describes as “limitations” on the exclusive rights that copyright owners receive.”

We have added Copycense to our blawgroll.
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