It appears that the US Courts, concerned about competition from software that offers the possibility of widespread free access to documents filed on federal judicial dockets, for which the public would otherwise have to pay the courts at the rate of 8 cents a page, are ready to resort to scare tactics to discourage lawyers from using that software.
As recently announced, RECAP is a Firefox plug-in that automatically downloads to a free, public archive all documents that a lawyer or other consumer uses when obtaining paid access to court documents on the PACER web sites maintained by federal trial and appellate courts. At the same time, users of RECAP can tell whether the documents that they are trying to access have already been downloaded to the public archive by another RECAP user; if so, the user can avoid the $.08 per page charge that the user would otherwise pay to view the document on the judicial electronic docket. These are public documents — if RECAP is willing to maintain them and make them available for free, the courts have no business stopping them.
In this regard, we are advised that the court system is charging far more than the cost of maintaining is electronic dockets as the fee for viewing and downloading documents. Because PACER has become a profit center for the courts, when Public Citizen lawyers decided to adopt RECAP for our own downloads, we recognized the possibility that the courts might take some action to protect their revenue source.
We did not have long to wait. I received the following shot across RECAP’s bow in the form of a notice to all ECF filers sent today by the United States District Court for the Eastern District of Michigan:
Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. At this time, RECAP does not appear to provide users with access to restricted or sealed documents.
Please be aware that RECAP is “open-source” software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes. This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.
The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.
In other words, the courts’ experts have not been able to find any present security concerns, but they want users to worry that “open source” software is more vulnerable to malign modifications. Be afraid. Be VERY afraid.
There is one aspect of this warning from the Eastern District of Michigan that does bear consideration, in light of the point made about RECAP by Eric Turkewitz that the free availability of PACER documents makes it easier to obtain private information that is often included in court filings. It is certainly true that public availability of these documents -- especially if the RECAP archive will be searchable -- will significantly increase the consequences of filings that inadvertently disclose private information such as social security numbers and exact birth dates that Federal Rule 5.2 requires to be redacted from electronic filings and only submitted in paper form if it is essential that the information be provided to the court. The rise of RECAP should give lawyers an added incentive to be careful about their redactions to comply with Rule 5.2.
It does appear that there is a concerted campaign to send these scare messages, and that the message that I got from ED Mich was disseminated by the AO to all districts. Today, however, I received a lower key message from the Northern District of Georgia, as follows:
It is not clear whether the AO itself has decided to tone down its communications, or whether this modification of the message was developed by the ND Ga on its own.