Victory on the horizon in the “Free PACER” fight

Parker Higgins

Advocacy Director

CC BY-SA 4.0, Tamanoeconomico on Wikimedia Commons

The fight to free PACER, the federally managed database of public court records that has sat behind a paywall since its inception, has stretched on for more than a decade now. These efforts may finally pay off in 2022 with a bill poised for the Senate floor that achieves many of the aims of the "free PACER" movement.

The Open Courts Act of 2021 was approved by the Senate Judiciary Committee last month with no recorded opposition, clearing the path for the bill to go to the full Senate. Not only that, nearly all of the committee members have now co-sponsored the legislation — a clear indication of the bill's popularity. If passed, the Open Courts Act would standardize search and filing mechanisms between different federal courts and eliminate fees for all but the highest-volume users (those who are currently spending more than $25,000 a quarter) and federal agencies.

That matters because under the current system, people who want to access court records on PACER are first charged 10 cents for search results, and then 10 cents per page of document downloaded — despite the fact that every single record is part of the taxpayer-funded court system. Because of its clunky and non-standardized interface, it’s not unusual to rack up fees just in the searching step. This arrangement is wildly hostile to transparency, and the result is a dramatically diminished public understanding of what is actually happening in American courts.

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Predicting the course of legislative proceedings is always a challenge, and has become even more complicated with such a tightly divided partisan split. Fortunately, this bill seems to transcend typical partisan divides, attracting support from both sides of the aisle. The current House companion to the bill was introduced with bi-partisan sponsors, and an earlier version passed easily through the House.

What opposition there is comes mostly from representatives of the court system itself. Earlier this month, Judge Roslynn R. Mauskopf published a letter to House and Senate leaders calling for delays in action. Indeed, pushback from the judiciary, which estimated last year that it would take in $142 million in fees for access to the public records, was instrumental in earlier efforts to stall legislative action.

Their arguments remain unpersuasive. Unrestricted access to public records is essential, both for the practice of journalism and for the cultivation of an informed public. Court records shape the law itself. Fortunately, activism and advocacy in this space, including the efforts of rogue archivist Carl Malamud to publish state laws online — a practice that was upheld by the U.S. Supreme Court — have successfully moved the needle on these questions.

Beyond the basic press freedom principles at stake, this issue hits close to home: Aaron Swartz, the online activist who founded the SecureDrop project we now maintain, was also an early contributor to RECAP, the paywall-free alternative to PACER that today makes tens of millions of documents freely available.

We urge the full Senate to take up the Open Courts Act, and for the House to pass it as well. The barriers to access for PACER constitute a challenge to a free press, and lawmakers must remove those restrictions as soon as possible.

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