The US House of Representatives on Wednesday passed the Open Courts Act. The bill aims to modernize PACER, the website that provides public access to federal court records. It also aims to eliminate PACER’s paywall by 2025.
The PACER system represented a big advance for judicial transparency when it went online in the 1990s. But the system hasn’t kept up with the times, with a user interface that has changed little since the days of dial-up Internet.
Each federal trial and bankruptcy court—around 200 courts in total—has its own distinct PACER website, with limited capabilities to search across multiple sites. Not only is this inconvenient for users, but maintaining dozens of separate websites is an administrative headache.
The PACER system charges users 10 cents per page for documents, with a maximum charge of $3 per document. Searches also incur fees.
The Open Courts Act aims to modernize the system in two phases. In the first phase, scheduled for completion by 2025, the courts would replace the current patchwork system with a national, searchable PACER website.
To finance this overhaul of PACER, the law allows the courts to not only continue collecting current PACER fees through 2025, but also to levy additional fees on customers who spend more than $6,000 per quarter. These high-volume customers include data brokers who scrape the PACER database for background checks and other purposes.
Once the new system is ready—the legislation aims for completion in 2024 but allows a one-year-extension if necessary—the courts will be required to offer free access to the general public. To cover the ongoing costs of running PACER—which advocates hope will be reduced thanks to a consolidated and modernized architecture—the courts will charge fixed annual fees to federal agencies based on the PACER fees they paid in 2018. If that revenue isn’t enough, the courts would raise the fees it charges to litigants.
After the House vote, the legislation must pass the Senate before it can go to President Trump for his signature. On Wednesday, a bipartisan pair of US senators—Rob Portman (R-Ohio) and Ron Wyden (D-Ore.)—introduced a Senate version of the Open Courts Act. It’s not clear if advocates can get the bill through the Senate in the three weeks before the current session of Congress expires. But even if they fail, the successful House vote will give the proposal momentum in 2021.
Court officials claim PACER overhaul will cost $2 billion
The legislation has been strenuously opposed by court officials. They argue that the bill doesn’t provide adequate funding for an overhaul of the judiciary’s IT infrastructure. They say that the bill will require not only rewriting the PACER system but also CM/ECF, a closely related site that lawyers use to make legal filings in court cases. Many documents in the PACER system were originally uploaded using CM/ECF.
Judiciary officials estimate that overhauling PACER and CM/ECF will cost $2 billion and take 10 years. They also say that the PACER-based revenue sources outlined in the bill will be inadequate to cover these costs, forcing the courts to jack up fees to litigants. That could prevent some low-income plaintiffs from having their day in court.
Yet that $2 billion figure isn’t widely accepted outside the judicial branch. Mike Lissner, the executive director of the Free Law Project, is a technologist who maintains a nonprofit archive of PACER documents (full disclosure: Lissner also maintains a PACER-related browser extension called RECAP that I helped to create in grad school). He told Ars that the $2 billion estimate was “obscene.” He signed an open letter estimating that it would cost $10 to $20 million to revamp the PACER system and $3 million to $5 million per year to maintain it.
As a supporter of the Open Courts Act, Lissner might be tempted to underestimate these costs. But the independent Congressional Budget Office did its own analysis and estimated that the project would cost $46 million—higher than Lissner’s estimate but far lower than $2 billion.
Millions and billions
It’s true that government agencies sometimes waste hundreds of millions of dollars on IT projects. The judiciary’s $2 billion figure is based on a failed effort to create a case-management system for California courts. The state spent more than $500 million on the project before abandoning it in 2012. Estimates at the time suggested that it would have cost another $1.5 billion to complete.
But Lissner said there’s no reason government IT projects need to be billion-dollar boondoggles. He urged the judiciary to work with 18F, a federal agency that acts as a kind of in-house consulting shop for federal IT projects. Other agencies hire 18F to develop software for them—and 18F has developed a reputation for doing so quickly and at reasonable cost.
The judiciary’s PACER fee revenue is under attack from multiple fronts. In August, a federal appeals court ruled that the courts had been illegally overcharging PACER users and using the money to fund unrelated projects. That case is still being litigated, and plaintiffs may be entitled to refunds for past charges. But it will become much more relevant if Congress passes new legislation establishing a new framework for the collection and use of PACER fees.