/ Derek Pyle / 4 pm Tue, Feb 21 2017
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  • Federal courts resist transparency, but the Free Law Project fights back

    Federal courts resist transparency, but the Free Law Project fights back

    In the age of Internet, discussions about the federal government and its functions are informed by and rely on our unprecedented access to federal documents. Anyone can freely view public records online, such as proposed Congressional legislation and presidential executive orders. Accessing public court documents, however, is a bit trickier. As Katherine Mangu-Ward wrote for the Wall Street Journal in 2011, "no aspect of government remains more locked down than the secretive, hierarchical judicial branch."

    While the courts resist digital transparency an initiative led by the Free Law Project, RECAP, works to unveil the court's "secrets". Why, and how? Perhaps we should start with some background on how courts share their documents with the public.

    On February 14th the United States Congress's subcommitee on Courts, Intellectual Property and the Internet held an oversight hearing on "Judicial Transparency and Ethics". One of the primary topics for discussion was the Public Access to Court Electronic Records database, commonly referred to as PACER. PACER is the federal courts' primary database utilized by lawyers, journalists, academics, and anyone else wanting or needing to view court documents.

    While technically public, these documents are not so accessible. There are numerous fees for using the PACER database. It costs money to search the database, and even more money to view the actual documents — $.10 for every page of search results, and to view any given document is another $.10 per page.

    These small fees add up. Estimating that the total cost to view all of PACER's documents would be one billion dollars, organizations like the Free Law Project are understandably concerned about the way in which these fees affect accessibility. The government maintains that the cost of using PACER is necessary to pay for the system's maintenance and upkeep, but it appears that PACER generates an extra 80 million dollars beyond than their overhead.

    Despite acts like the Freedom of Information Act and the E-Government Act of 2002, which dictate that various federal documents are public record and should therefore be accessible, making public documents difficult to view or obtain is not a new phenomenon. The government has ways of utilizing bureaucratic and technical hurdles to keep things, well, less than public. The CIA, for instance, was sued by the organization MuckRock in 2014 for inhibiting access to their CREST database. While the 13 million pages of documents contained in the database were technically public, until recently the only way of accessing them was on four computers in a dingy room of the National Archives in College Park, Maryland. In response to the MuckRock lawsuit, the CIA finally made these documents freely available online in January.

    But such lawsuits can take many years, and can render mixed results. The Free Law Project, in collaboration with Princeton's Center for Information Technology, have an alternative way of making various court documents accessible. The project is called RECAP, which takes documents from PACER and makes them freely available online. As Mike Lissner, Executive Director of the Free Law Project states, "PACER is the biggest paywall the world has ever known. With our RECAP Archive, we are chipping away at this paywall by freely sharing as many documents as we can."

    RECAP begins with another story that illustrates the government's reluctance to make documents public. As Internet freedom advocate Steve Schultze recounts in a blog post, the federal government was very concerned when he and Aaron Swartz discovered a way to legally copy and archive 18 million pages worth of PACER documents for free redistribution. The short version of the story is this: make public documents accessible and the FBI just might start writing reports about you while surveilling your parents' house. (Cory Doctorow recently wrote about the FBI's latest efforts to thwart transparency: no longer accepting Freedom of Information Act requests via email, reverting us back a few decades to fax machines and snailmail.)

    While presenting at Princeton about his work with Swartz, Schultze met Harlan Yu and Tim Lee, and the three of them developed RECAP. RECAP works as an easy-to-use extension for Chrome and Firefox. When enabled in the browser, RECAP automatically copies and catalogues all documents viewed on the PACER website. In other words, when Jane goes on PACER to view documents, she still pays her $.10 per page, but every document she views will be forever free to the next person, because now that next person can just view the document in RECAP's archive. Additionally, when Jane is using PACER, the RECAP extension alerts her if the document she's about to purchase is already catalogued for free in the RECAP archive.

    RECAP launched in 2009, with Aaron Swartz's initial 18 million pages making up just a small fraction of the total documents now available. Once viewed in PACER, RECAP documents are automatically uploaded to the Internet Archive, one of the world's largest free digital libraries. Last fall the Free Law Project furthered their efforts at accessibility by launching a new database called Court Listener. A clear innovation to RECAP's archival system, Court Listener makes the documents obtained by RECAP much easier to search through and navigate.

    While Court Listener does not yet contain the entire workings of PACER, the database contains millions of documents. Regardless of whether the Congressional subcommittee on Courts, Intellectual Property and the Internet will follow the CIA and CREST database's example by making PACER's content free and truly available online, it is no doubt that RECAP is making an important contribution to judicial transparency.

    "Anybody that's interested in the workings of our courts or their outcomes needs access to the raw materials — the documents that make up a case," says Mike Lissner. Whether researching specific topics and cases or just looking for something more interesting than endless cat videos, it's fascinating stuff. If you're looking for a place to start, I recommend cases that the relate to the use of paid informants in domestic terrorism cases. If this documentary from Al Jazeera's Investigative Unit is to be believed, many "domestic terrorists" are really just ill-fated individuals groomed and misled by paid informants in an ethically and legally questionable web of federal entrapment. Now that's something we could really use a little more transparency around.


    Derek Pyle is a writer and the director of Waywords and Meansigns, a project setting James Joyce's Finnegans Wake to music

    (Image: Law, Woody Hibbard, CC-BY)

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