Steve Schultze, who is Associate Director of The Center for Information Technology Policy at Princeton, gives an excellent history and background to the fee-based PACER (Public Access to Court Electronic Records) system and various attempts to make this public information freely available.

• PACER, RECAP, and the Movement to Free American Case Law, by Steve Schultze, VoxPopuLII, LII / Legal Information Institute, Cornell University Law School (February 3, 2011).

A lot of this information will be old news if you've been following the story over the years, but I've never seen it all brought together so thoroughly in one place with so many good links before. Schultze summarizes the problem:

I was shocked that the system was charging for every single search I performed. With the type of research I was trying to do, it was inevitable that I would have to do countless searches to find what I was looking for. What’s more, the search functionality provided by PACER turned out to be nearly useless for the task at hand — there was no way to search for keywords, or within documents at all. The best I could do was pay for all the documents in particular cases that I suspected were relevant, and then try to sort through them on my own hard drive. Even this would be far from comprehensive.

The sad irony of the PACER fiasco is seeing government officials get upset when their system was being used during a free trial. (They complained because "One request was being made every three seconds"!) They shut down the free-access trial to put a stop to that! And they initiated an FBI investigation of those who were using the system so heavily! In a different world, a government agency would be proud to see its information being heavily used and valued by the public; governments would develop policies, missions, and budgets to encourage this. But PACER generates money through its fees and, in a world in which "cost recovery" and "self sustaining programs" and "pay as you go" and restrictions on access are valued more than free public access, free use is anathema. There is a lesson for all of us here. Budgets are bad and governments are cutting back drastically. We are sure to see rollbacks in free access; restrictions put on access or reuse or both; fees imposed; information taken offline because it is "too expensive" to keep online. Some agencies will fight these restrictions, but will be hard-put to find the resources and support to win those battles. Those agencies will need our help. Other agencies will welcome the excuse to have stricter control over what they reveal and what they hide; they will welcome the opportunity to raise money on their information "assets." We will have to fight those agencies. In general, the economic situation in the nation means that we are going to have to fight to maintain free public access to government information. Free access to information on the web will not be a given at a time when governments are slashing budgets and politicians are campaigning to reduce government services and outsource those services to the private (fee-based) sector. We can certainly fight politically by lobbying and supporting causes we believe in. But we also can fight using our own resources and making our own choices. One way we can do that is to get that information off of government-controlled servers and into the hands of our community libraries where our communities are in control of access. This goes against the now common idea that "everything is on the web" so we don't have to have local collections any more. On the contrary, this is the very time that we need to build digital collections to ensure long term preservation of that information and long-term free public access to it. "Self sustaining" government agencies are the enemy of free public access. We have a lot of flexibility in the digital age; "communities" no longer have to be geographically-based. Every library can have communities-of-interest and users anywhere. Libraries that are confused about their role should see this as a clear, unambiguous opportunity. Rather than shirking the responsibility of building collections and hoping that someone else will keep information freely available, libraries can seize the opportunity to do what no one else is doing: build free digital public libraries. Providing actual collections (rather than links to content that may or may not be there tomorrow) will engender support (and funding) better than vague promises of user-assistance. Providing actual services built on top of those locally-controlled collections will attract users at a time when users are ignoring services-without-collections-libraries in favor of google. The easiest place to start building digital collections is with public domain government information. (Is any library downloading all the documents at fcic.gov? Someone should -- before it is too late!) Continue reading →

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