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According to the Constitution, the law is by, of, and for the people. Congress makes laws, the president enforces them, the courts interpret them. Yet if you want to read federal court documents—to challenge those laws, or analyze them, or simply see them in the making—you must pay. By the page.

Federal courts keep their documents locked within a paywalled database called PACER, an acronym for Public Access to Court Electronic Records. To access documents that are by definition public record, you must pay 10 cents per page. Because a great many people—lawyers, journalists, academics, plaintiffs and defendants—need to view these records, PACER is tremendously profitable.

PACER profits apparently financed flat-screen monitors for jurors and new audio systems for courtrooms.

The database isn't free to run, and some argue that justifies charging people to access it. But a class action lawsuit claims the profits far outweigh those costs. And instead of using those profits to modernize the system, the plaintiffs allege, the government uses them to finance other things. The cost and the crummy tech (the PACER site looks like an artifact of the 1990s) conspire to place those documents beyond public reach.

"It’s quite ironic that the money made from PACER is being diverted to all these other purposes, and yet they’re not even improving the actual system," says Deepak Gupta, a lead attorney on the case.

Using PACER Fees To Buy Flat Screens

The Administrative Office of the US Courts administers PACER and declined to comment. But the agency's own figures would appear to support at least some of the plaintiffs' claims. In 2014, the Administrative Office reported collecting $145 million in PACER fees, five years after projecting annual operating costs of less than $30 million. Meanwhile, the agency reported that in 2012, it spent $12.2 million making PACER more accessible even as it used $28.9 million for courtroom technology upgrades.

PACER profits apparently financed flat-screen monitors for jurors and new audio systems for courtrooms, among other things—expenses the plaintiffs allege are illegal and show the Administrative Office is breaking the law by charging more for PACER than the system costs to run. The E-Government Act of 2002 stipulates that the courts can charge only enough "to reimburse expenses in providing these services," and the plaintiffs hope to recover the cash from what they claim are years of overpaying. By charging more than it should, Gupta says, the federal court system is in effect preventing people from accessing court records.

But a class action lawsuit, which seeks to recover what the plaintiffs say are overcharges, claims the profits far outweigh those costs.

One plaintiff in the suit, the National Veterans Legal Services Program, advocates on behalf of veterans, many of whom represent themselves. "This fee regime is a real barrier for people who are trying to handle their own cases in court," Gupta said. Two other nonprofits named as plaintiffs, the National Consumer Law Center and Alliance for Justice, identify trends and problems in the legal system by analyzing large numbers of cases to find patterns. Such cases can run hundreds of pages, making them prohibitively expensive, Gupta says.

You couldn’t track my cases requesting access to public records at $15 a quarter. Carl Malamud

PACER offers a fee-waiver program, but implementation is spotty. In 2012, the nonprofit Center for Investigative Reporting sought a four-month waiver to research "the effectiveness of the court's conflict-checking software and hardware to help federal judges identify situations requiring their recusal." A judge denied the request, citing the Administrative Office’s warnings against exemptions for media.

Still, PACER doesn’t always cost money. Spend less than $15 every three months and the government won't charge the credit card it keeps on file. “This assumes you have a credit card, and $15 a quarter is not a significant amount of legal research even for an individual case,” says Carl Malamud of Public.Resource.Org, which is involved in several lawsuits to identify documents he claims should be freely available. “You couldn’t track my cases requesting access to public records at $15 a quarter.”

Circumvention Tactics

In 2009, the Justice Department started testing a program offering free PACER access at 17 libraries nationwide. Malamud, who had long taken issue with PACER's pay-per-page system, urged open-government advocates to visit those libraries, download PACER documents, and share them in an online repository that anyone could access.

Malamud’s idea inspired the internet activist and Reddit co-founder Aaron Swartz to write a program that downloaded more than 20 million pages, which he analyzed with Malamud. The documents revealed scores of privacy violations, including the identities and social security numbers of Secret Service agents, and led to stricter privacy enforcement in the federal courts.

The government killed free access that year due to a what a court administrator called a “security breach,” according to a librarian whose branch participated in the program. Around the same time, researchers at Princeton’s Center for Information Technology Policy released a browser plug-in that allows anyone to automatically upload PACER documents to a free database maintained by the Internet Archive. The plug-in is called RECAP—PACER spelled backwards, a reference to "turning PACER around." RECAP now provides free online access to millions of public documents.

“My position is that PACER should cost zero cents per page and that’s because access to our courts is fundamental to the American system of law,” says Malamud. “It’s the whole business about having open courtrooms, why we conduct our proceedings in the public, and how judges make their decisions based on precedent, not on whims.”

Possibility for Reform

But the current lawsuit isn’t about circumvention; it’s about the legality of charging to access documents that are a matter of public record. At best, the suit could bring a reduction in PACER fees, not elimination of the system entirely.

Yes, PACER costs money to run. Upgrading the database and website to improve usability and organization would cost money as well. And it is not at all unreasonable for the judiciary to want the latest technology deployed throughout the federal court system, which certainly could be underwritten by PACER fees if the law allowed it. No one denies this. “What we’re saying is that Congress passed a law; comply with that law,” says Gupta.

He'd like to see the lawsuit prompt policy changes. If the judicial system stops seeing PACER as a revenue stream for other things, perhaps it will have less incentive to maintain the paywall.