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'National PACER Day of Protest' Set for May 1

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By Mark Wilson, Esq. on January 12, 2015 2:13 PM

Dear, sweet PACER. Its existence is begrudgingly accepted thanks to the convincing argument, "Hey, there's nothing better out there yet." Its Web 1.0 interface is clunky, but usable. There's something charmingly antiquarian about the interface.

But there's a reason we don't use typewriters anymore. PACER is outdated, but more importantly, its business model is undemocratic. That's why Carl Malamud of Public.Resource.Org has declared May 1, 2015, to be a "National Day of PACER Protest."

Summary Judgments Want to Be Free

Public.Resource.Org is devoted to ensuring that the nation's laws -- with which we're charged with knowing -- remain freely accessible. It wouldn't be very democratic to charge someone with a crime if she had to pay to find out it was a crime.

So, too, is it with PACER: The orders and opinions of the nation's courts -- that is, our courts, the ones that are answerable to you and me -- live behind a paywall. PACER demands 10 cents per "page" for transactions that produce no paper and use no consumable materials -- unless you count bandwidth, processing power, and disk space as "resources" like that.

To that end, Malamud proposes a national day of civil action involving three steps:

  1. Sending notes to the chief judges of your district to express your opinion of PACER;
  2. Having a lot of people download a lot of documents -- but each person downloading just under the minimum of $15 per quarter, under which fees can be waived; and
  3. Writing to Congress, which is as yet the only entity that can truly change how PACER is governed.

A Matter of Principle

In his annual report on the judiciary, Chief Justice Roberts wrote in December that he knows how frustrating it is when the courts don't adopt new technology, and announced that the Supreme Court would be moving ahead on its own docketing system, separate from PACER. There was, however, no indication whether the system would be free for the public to access.

The May 1 date wasn't an accident. In addition to being the traditional Labor Day (in most other countries, but not the United States and Canada, for some interesting reasons), President Eisenhower declared May 1, 1958, to be Law Day, something the American Bar Association continues to celebrate every year.

Even though most people probably won't have to pay the PACER fee, it's the principle of the thing (also, as Freedom to Tinker's Steve Schultze points out, PACER can become expensive for novices, as it charges per search, something you'd have to go to the worst legal research plan to find these days). Taxpayers fund PACER, which then gets to charge taxpayers again in order to recover the costs to operate the system, even though PACER's revenue from fees outstrip PACER's costs by about $150 million. Finally, it's not clear that the revenue being generated from PACER is going back into the PACER system; the courts could be spending it on other electronic-ish, public access-ish programs.

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