U.’s RECAP project seeks to broaden public access to federal court documents

At a time when public access and privacy in an electronic age has come to the forefront of national attention, a University project to make federal court documents available free to the public has received renewed attention and funding. RECAP, a project of the University’sCenter for Information Technology Policy, crowdsources the court documents purchased by its users to give the public free access to them.

The U.S. District, Bankruptcy and Appellate Courts began offering electronic access to its database of federal court records through Public Access to Court Electronic Records, orPACER, since 2001. PACER charged a pay-per-page fee, which has fueled objections due to the public’s right to access federal court documents that legally belong in the public domain.

Launched in August 2009,RECAP— “PACER” spelled backwards — is a browser extension that allows paying users of PACER to upload documents downloaded from PACER, making them available to the public free of charge. The project had stagnated in the three years since its launch, but the Jan. 11 suicide ofAaron Swartz, Internet activist and cofounder of the popular website Reddit,has renewed public attention in questions of public access and privacy in the Internet age. At the time of his death, Swartz faced legal action for alleged data theft.

The increased attention to these issues has reinvigorated RECAP. In Swartz’s memory, software entrepreneur Aaron Greenspan is offering three grants worth $5,000 each to developers who make meaningful improvements to RECAP.

RECAP was first conceived in 2008 by Stephen Schultze, associate director for the Center for Information and Technology Policy. Schultze became familiar with PACER when he was doing research on a First Amendment issue as a fellow at Harvard’s Berkman Center for Internet and Society. Like many users, Schultze was frustrated with the system’s pay-per-page requirement. Registration with PACER is available to any member of the general public, but users are charged 10 cents per page for documents accessed and $2.40 per audio file. This paywall has been met with public resistance.

“The problem is that, unfortunately, the courts are restricting Americans from accessing their own public information,” Greenspan said. He likened the paywall to “double taxation,” as it requires payment for access to materials that are already funded by public tax dollars.

A spokesperson for the U.S. courts, Karen Redmond, told the New York Times in 2009 that the charge was minimal to support the costs of running PACER. “We’re about as cheap as we can get it. We’re talking pennies a page,” Redmond said. However, in a presentation by the Advisory Committee on Transparency, Schultze noted thatin 2012, PACER received $120 million in revenue while spending only $20 million to maintain the website. The committee aims to educate policymakers on transparency issues and is currently advocating an Open PACER bill to provide the public with open access to the database.

At the invitation of Center for Information Technology Policy director and computer science professor Ed Felten, Schultze discussed this hurdle to public information access in a talk at the University in February 2009. After the talk, he was approached by two of Felten’s former graduate students, Harlan Yu GS ’12 and Timothy Lee GS ’11. Yu and Lee suggested a potential browser plug-in that could make PACER’s documents accessible to all users.

“I had identified the problem, but they proposed this creative technical solution,” Schultze said.

According to Yu, the project spread mostly through word of mouth and social media and received an enthusiastic following from law librarians.

“Our goal from the start was to have the federal courts change their policy in charging money for public documents,” he said. Such a goal, however, initially raised legal concerns as well. Yu explained that while the team was cautious because it did not want PACER users to suffer consequences for sharing their document access, legal counsel assured them of the legality of the project. Because PACER’s court documents are the property of the federal government, they do fall under the purview of copyright law and are left to the public domain. Thus, PACER users are able to share these documents through RECAP without legal consequences. While some documents in the PACER database include briefs filed by third parties, there is little precedent that prohibits the redistribution of such copyrighted third-party court documents.

“I was certain that we were on solid legal ground. However, I wasn’t sure the courts and the government were going to react the same way,” Schultze said. “I half-expected a knock on the door and someone to come and maybe seize my laptop for investigation.” While the courts running PACER have not legally prohibited RECAP, they have warned users against using “open-source software” that could be accessed and potentially modified by anyone with Internet access.

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The broader public access that RECAP enables may also come at the cost of personal privacy.

“As far as privacy goes, that’s always kind of another side of the same coin with public access,” Greenspan said. “There are a lot of people’s private lives embedded in these court documents that are not properly redacted and need to be cleaned up.”

“The courts are behind in understanding how to protect personal privacy in public records in an electronic age,” Schultze said. In most cases, according to Schultze, private information that is publicly posted on the RECAP site should not have been included in the court document in the first place. While it is the responsibility of the lawyer to keep certain personal information from public records, identifiers such as Social Security numbers sometimes slip through the cracks.

To that end, RECAP takes steps to rectify the error. Schultze explained that the team developed detectors that block Social Security numbers from being uploaded. If the RECAP team receives requests from people whose personal information has been revealed in a document, it usually takes down the information and advises the individual to ask the court to redact or seal the original document.

Schultze acknowledged that while RECAP is an important tool to solving the problem of public access to federal court documents, it is only an intermediate solution. “The real solution is to change the practices and opinions of the courts,” he said.

For Greenspan, the solution would require legislation forcing courts to open PACER to the public for free, as well as reform of the Computer Fraud and Abuse Act that may prevent what he called “overzealous” prosecution in cases such as Swartz’s. Many have characterized Swartz’s treatment by the federal government as overly harsh. Shortly after Swartz’s death, California representative Zoe Lofgren (D-CA) announced plans to introduce “Aaron’s Law” to modify the terms of the CFAA.

While a research fellow at Harvard in 2010, Swartz allegedly downloaded millions of scholarly documents from the digital libraryJSTOR using the MIT network with the intent to publicly distribute them free of charge.At the time of his death, he faced numerous felony charges including wire fraud, computer fraud, unlawfully obtaining information from a public computer and recklessly damaging a protected computer.

Swartz’s belief in public access to academic journals extended to court documents as well. In 2009, he legally downloaded almost 20 million pages of documents from PACER through a free trial and released them to the public.

“This issue was something that Aaron believed strongly in, if you look at a lot of the causes that he fought for, especially on the side of government transparency,” Yu said, adding that Swartz’s death has raised a lot more “energy” around these causes.

RECAP is one project that can benefit from greater public attention. Greenspan runsPlainSite.org, which translates court cases in RECAP’s database into explanations that can be understood by the average citizen. Through the Aaron Swartz Memorial Grants, which are administered by the Think Computer Foundation, Greenspan hopes to encourage the development and release of RECAP for Google Chrome and Internet Explorer, as well as the expansion of the existing Firefox version to encompass appellate court documents. RECAP currently only supports trial, federal district and bankruptcy court documents.

Felten, Greenspan, Schultze and Yu all agreed, however, that the project’s ultimate goal will be reached when courts decide to allow open access to its documents. To that end, according to Schultze, “RECAP succeeds when it makes itself obsolete.”

Correction: Due to an editing error, an earlier version of this article misstated the nature of the legal action Aaron Swartz faced at the time of his death. He was charged for data theft, including wire fraud and computer fraud. The ‘Prince’ regrets the error.