RECAP Project — Why It Matters

The right of access to criminal trials in particular is properly afforded protection by the First Amendment both because such trials have historically been open to the press and public and because such right of access plays a particularly significant role in the functioning of the judicial process and the government as a whole.

We are a nation of laws. Our law is created not only via legislation, but also through the adjudicative process of the courts. Whereas we generally have open and free access to the statutes that bind us, case law has had a more mixed history. Earlier experiments in secret proceedings did not go well. Western law subsequently developed strong precedents for access to judicial proceedings -- citing the importance of transparency in promoting court legitimacy, accountability, fairness, and democratic due process. When the law is accessible, "ignorance of the law is no excuse"

Legal accessibility has traditionally meant that citizens may review the law via the contemporary technology, and redistribute it at will. In ancient courts, this implied open public access to the proceeding itself. Indeed, the principle was literally built into the architecture of the courthouses. As American law matured, it incorporated a right to read and reproduce the text of decisions without paying a license fee. The Copyright Act specifically exempts all government works from monopoly protection because such works essentially "belong" to the people. In the internet age, what constitutes a public right to court records?

[I]t would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?

Internet natives expect the government to be accessible online. The US Courts were remarkably prescient in this regard, implementing electronic access to case information as early as the 1980s. However, this access came at a price. In order to fund electronic access to court records, the judiciary decided to charge user fees for every minute of dial-up access. As the web matured, the courts transitioned to the new platform and perpetuated a fee-based model. The motivation was understandable: new services cost money. However, some people began to argue that the price for this model included not only transaction costs for users, but also decreased legitimacy, accountability, fairness, and democratic due process at the heart of of the open access doctrine.

The fee-supported structure of PACER has been allowed by Congress, most recently in the 2002 E-Government Act. The courts use the fees they collect from PACER users to maintain and upgrade the PACER system, but also for for other purposes. The E-Government Act also made clear that the courts should be moving toward free public access to court records. Indeed, in February 2009 Senator Joe Lieberman (I-CT) wrote a letter to the judiciary encouraging the courts to expand free public access to court records, and followed up in March 2010 indicating that spending on non-PACER expenses may work against the Act's mandate.

The Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible.

We created RECAP in hopes of hastening the day when court records would be freely available to the general public via the Internet. RECAP contributes to this goal in three important ways. Most obviously, we are directly increasing public access to legal documents by creating a free repository that anyone can access. Second, by donating bandwidth and CPU cycles to the cause of public access, we are reducing the load on the PACER servers and making it feasible for the courts to make more documents freely available with the computing resources they already have. Finally, we think that building and running RECAP will give us the opportunity to study the practical challenges involved in large-scale open access to public documents. We hope to learn lessons that will help the judiciary improve its own systems. And we hope our efforts will inspire the Administrative Office of the Courts to accelerate its own movement toward an open access regime.

There are others working on these issues as well. See, for instance:

• Carl Malamud has published millions of documents and privacy audits on public.resource.org
• Erika Wayne, Law Librarian at Stanford, is mobilizing people through her Improve Pacer petition
• Senator Lieberman has asked some pointed questions about judicial compliance with the E-Government Act of 2002
• Alan Sugarman has detailed the many ways in which PACER "free" opinions are inadequate
• Justia posts many dockets, along with PACER documents
• Many academics have created smaller litigation clearinghouses with PACER documents related to civil rights, citizen media, intellectual property, and more.
• The American Association of Law Libraries advocates for no-fee access to PACER
• RECAP co-author Timothy B. Lee wrote an article about PACER and the prospects of reform for Ars Technica in April.