If you go to the courthouse, ask the clerk for the records in a case, and you'll get
a big pile of paper.
Nobody charges for access to paper records.
If you want to make a copy of paper records at the courthouse, in most places you still
better bring a lot of quarters and hit the Xerox machine, but if all you want to do is
read a court filing, you can go in any court clerk, go up to the counter, ask for it, and
there's no fee.
In fact, a fee would be unimaginable and almost certainly unconstitutional.
But if you want to do the same thing remotely, if you want electronic access to court records,
you have to pay a significant fee to the federal government.
The Supreme Court has said that you have a First Amendment and common law right of access
to almost all court documents in paper form.
That's well established.
That's uncontroversial.
Leading cases say that.
But whether those cases apply as well to digital access, to electronic court records, is untested.
Filings in court cases under the Federal Court's electronic filing system, called PACER, are
subject to fairly high fees, 10 cents a page, in an era where the cost of storing and transmitting
electronic records has dropped pretty close to zero.
The PACER system's fees have been challenged by a veterans group and other nonprofit groups
that say they can't do their jobs well,
they can't represent their clients, if they don't have free access to legal materials,
so they've gone to court and sued.
The Federal District Court accepted their basic theory, that there are overcharges going
on, that PACER is charging more than it should be, and that case has now gone to a federal
appeals court.
There are three levels of arguments here.
There's a policy argument.
That's really not before the courts.
Many people think that it would be better to run the system by having free access to
court records.
That's not the argument before the courts.
The middle tier of argument is a statutory argument.
Congress has told the judicial system it can charge to the extent necessary, and the statutory
question is, is it charging more than that?
The third argument is a constitutional argument of, is there is a constitutional right of access
to digital records of this sort?
That's not currently before the courts, although it kind of overhangs and shadows the questions
in some of the supporting briefs filed.
PACER generates about 145 million dollars a year.
That's a lot of money, but it's quite a small percentage of the total federal judiciary's
budget, which is about seven billion dollars, so that's about 2% of the total budget, but
it seems to be charging users rather a lot more than what it actually costs to maintain
the system.
The court system uses the money for some interesting things like flat screen TVs for jurors or
studies of the Mississippi judicial system, so it's not clear that those kinds of uses
are consistent with the statutory command to only use the money to the extent necessary.
The court system says that, as a practical matter, most people who want access to most
documents can get them for free.
The real money is paid by, uh, rich law firms and other big companies that can easily pay
for it, that the great bulk of the system is paid for by rich people, and poor people
can more or less get access.
You don't get charged until you've, uh, hit $15 in a calendar quarter.
Maybe the fees are a little bit on the high side, but you can't have a system without
somebody paying for it.
Let me give you an analogy.
Nobody doubts that there's a constitutional right to go see the Supreme Court and have
arguments.
There are real disputes, though, about whether that right extends to electronic access to
the Court.
The question of whether digital access to court records is in that same constitutional
realm is an open question.