Accessing appellate, district and bankruptcy court records via the Federal Judiciary’s PACER system is clunky, to the point that it gets difficult to determine whether this PACER or this Pacer is the more inefficient use. Plus, PACER charges for documents: 8 cents per page accessed; there’s even an 8 cent charge for a search that yields no results! Now, while 8 cents per page appears cheap on face, and is less than what many law libraries charge for copying, the fact is that multiples of searches add up, especially for attorneys who frequently use PACER. But, if you’re hungry for a break, there is some relief available, if not for the clunkiness, at least for the pricing.

There is a new web plug-in that can get you most of your PACER documents for free.

The system, known as RECAP (“pacer” reversed), was created under the auspices of Princeton’s Center for Information Technology Policy by Harlan Yu, Steve Schultze and Timothy B. Lee, under the supervision of Professor Edward W. Felten. Aside from the fact that it was co-created by someone named Harlan (likely the first “Harlan”d in popular circulation since the immortal Colonel Sanders himself, whose Wikipedia page is criminally brief), RECAP has much to recommend it.

Here’s how it works: PACER users operating the RECAP add-on will have each document they access downloaded to an online repository. Each document so accessed and archived will then be free to every other PACER/RECAP user, via RECAP’s repository, rather than through PACER’s paywall.

The Washington Post has put together a decently bite-sized, informative article on the RECAP system, if you want a quick read. But, if you’d like to Discover Further, the best place to do so, at this point, really, is the source. Our friend Harlan(d) Yu, friend of the little man, has posted, at the Freedom to Tinker blog, one of the better introductions to the service. And, the RECAP homepage has a great deal of information on it, which information is really quite straightforward and easy to follow. There’s a sharp, quick video tutorial (“Watch RECAP in Action”) on the use of the product at the frontpage. And, in addition to basic descriptions covering how the product works, and why the product works, and a link for installing, there is a series of blog-style posts covering discrete topics relating to the RECAP program.

I have found the debate respecting RECAP to be interesting, and have discovered some good back and forth in the comments to blog posts on the topic, especially at Yu’s post. I have, also, found the creators of the system, as represented by their blog posts at the RECAP homepage, and elsewhere, to be refreshingly honest and open with respect not only to the advantages of RECAP, but also with respect to its disadvantages, and potential problems.

What are those, you may ask? Well, here is a list (not exhaustive):

Plug-in. The RECAP system operates by use of a plug-in; but, that plug-in is only available through the Firexfox browser. So you’ll need to use Firefox to access RECAP. Of course, that’s probably for the best, anyway. Firefox is the best browser.

Ex PACER Access. Although you don’t have to log-in to PACER to access RECAP, other access points are, at this point, cumbersome, and intentionally so, due to a desire on the part of the creators of RECAP to protect the privacy of litigants. So, you’ll have to wait until the RECAP team feels as though its security house is in order before you can expect to find an officially supported mechanism for browsing RECAP’s repository.

Is it legal? This is an open question; but, it appears to be. Now, I am not an intellectual property attorney. And, I don’t even practice anymore, at all, for that matter. But, the PACER website itself indicates toward the obvious conclusion that the government works within the PACER database are public record and not copyrighted, and so may be reproduced without permission, which, one could argue, is just what the RECAP program does: reproduces the documents at an alternate archive, for access . . . Of course, one could also argue that, nevertheless, the judiciary/government could prosecute for data collection that avoids billing, based on another indication upon their site; but, that part sounds to me more like the presaging of a crackdown on RECAP (the use of “collect data” rather than ”access data”, whispering so to me), rather than a potential crackdown on users of RECAP, who I think would be safe, under such a scenario. And, although this is likely not the end of the story, the judiciary has released an initial response to RECAP, emanating out of the District of New Mexico Bankruptcy Court (yes, certainly, this is only one district), stating that users, save for exempt users, cannot be prohibited from using RECAP, which does not, as the RECAP site assumes, mean that the use of RECAP is consistent with the law, but which really means that there is nothing the courts can do about it, or are willing to do about it, for now. Implicitly, then, users seem to be protected, for now; of course, the release is silent on whether or not the creators of RECAP have done anything which, to the minds of the judiciary, is untoward; but, that’s not your problem. Although the court warns users rather generically that they may be “posting” private information, like social security numbers, to the web, this seems like tortured logic, and not likely to stand: (1) providing documents to the court, which the court then posts on PACER, is not generally releasing private information to the web–if anyone is posting private information to the web, then, it’s the court; (2) most RECAP users (save for, potentially, those first ones, who have accessed materials that they have, in essence, “donated” to the free archive) are not posting anything to the internet; those users are merely accessing information from the internet; and, (3) it would seem to be difficult to say that even those initial donating users are posting anything to the web; they are merely accessing documents: RECAP takes those documents and reposts them. So, again, this appears as a RECAP challenge, not a user challenge. I don’t think that this s
aber rattling over data privacy concerns will come to anything, or long stand. In any event, I don’t see it as a winning argument against the users of RECAP, at least.

Certainly, then, but in any event, really, the government could seek to shut RECAP down. So, the question of Whether RECAP will remain apparently legal or viable?, is another question, all together. Unless or until then, I’ll say, it appears safe enough to use, so: use it until you lose it, and don’t worry about the popo for now.

Beyond the question of whether the use of RECAP is legal, Is the question of whether RECAP can be trusted. To the extent that the RECAP program derives its archive directly from PACER, the answer is “yes”. To the extent that RECAP is open source, and to the extent that the key to the kingdom lays exposed, there is the potential for malicious persons to add to RECAP’s archive unofficial documents purporting to be official documents; so, the answer then becomes, “probably”. The issue is raised, but not effectively addressed, at a RECAP blog post, where it is classified only as a challenge that the RECAP team will have to deal with. Well, that’s not exactly stirring. In the blog, however, a couple of quoted solutions are applied, one user-based (download important files direct from PACER), the other government-based (the courts should employ government signatures–probably a good idea anyway). Although I’d like to see a more aggressive response here, because the issue could become a large one (wait for the first malpractice claim against an attorney who downloaded a false document purporting to be official from the RECAP archive), I do think that this issues is resolvable, and likely will be resolved. The RECAP team, being led by eminent computer scientist Ed Felten, likely understands that pulling documents is not enough, that their repository must also represent a true collection of official documents to be really usable. My guess, given the RECAP team’s obvious interest in privacy and security, and their other responses to those questions, is that this issue, if it ever comes up, is resolved in the short term. And, in an age when more and more, and already most, people place ever-increasing amounts of private information out on the cloud, archived to some server somewhere, there must be some level of trust between the people and the internet (as represented by vetted, reputable, certifiable programmers with apparent integrity, like Ed Felten and his team). The method to salve the madness is to use your head. You’ll go crazy worrying over what is truly protected and what is not, and, especially, how; and, you’ll be driven to distraction once you realize that every system, no matter how secure, or seemingly unsinkable, can be compromised or breached: see Titanic. But, at some point, you will have done your discovery and due diligence to the best of your ability; and, if you’re then satisfied, you have done all that you can do, and you just have to let it go. My impression remains that there is greater folly in not using RECAP based on this concern than in using it.

Will the free access that RECAP offers and the consequent reduction in PACER revenues end up killing the PACER system? I don’t think anyone can rightly say for sure, and there are vociferous arguments on both sides. Turning to the comments for Harlan Yu’s introductory blog post, there appears some evidence that the judiciary takes in more revenue from PACER than it needs to run PACER, such that, a decrease in revenue, to a certain level, could be handled, PACER then running on a not-for-profit basis. Even if PACER begins to run at a loss, though, the judiciary could still support it by allocating affirmative funding (and, yes, I understand that the courts may use that money in other, perhaps more important, ways, but here I am only discussing the continuing viability of PACER, not the efficacy of that continuing existence), if it determines the program is important enough to maintain. If the government should shut down PACER because it has become too costly to maintain, then there’ll be the RECAP archive for the then-existing documents, and the judiciary would likely still find it an important objective to publish PACER-style documents (especially with government transparency being today’s watchword), and will probably farm out the publication to a third party . . . like RECAP. I guess that, in the final analysis, I can’t see access disappearing, just the mode of access changing, and changing, if it does, to one that is less costly for attorneys, and that’s a good thing. But, RECAP, through Timothy Lee, has answered most of this question already, and in its own way.

Will RECAP always remain free? Maybe not. Maybe RECAP goes to a per page charge (less than what PACER charges if PACER is still around; some other, settled number if PACER dies). But, for now, Who cares? It’s a forward-looking argument, and one that would have ramifications for attorneys down the line who come to rely on RECAP; but, this program will move forward regardless of those folks attempting to stopper the dike with their fingers. “Free” (even if just “free for now”) is too hard to resist. Making a theoretical argument, and griping upon the conclusions of same is one thing; not using the program based on that argument will just be an added business cost for you that your competitors are not accruing. And, they’d say go-ahead. This is sort of like refusing to purchase $5 footlongs from Subway based on the fact that they may raise the price one day. I don’t know; I’ll save money today, though.

So, go ahead, take the top down, and try out RECAP. It’s party time. Like it’s 1975. Excellent.

It may not make this PACER that Pacer, but RECAP is a great way to keep pace, while keeping expenses down.

P.S.–There are so many great AMC Pacer pictures on Google images, it’s redonculous.

. . .

Johnny Cash probably would have used a program like RECAP if he were a lawyer without a second thought. But, fortunately, Johnny Cash wasn’t a lawyer. He was the man (in black) instead. My affinity for Johnny Cash is well-known; just ask the Mass Bar’s Joe Caci.

Now, when you’re talking J.R. Cash, you’re talking just a mammoth corpus, including 96 albums, 153 singles, one feature length biopic (with an award-winning performance by the brilliant Reese Witherspoon (and by “brilliant”, I mean, just outrageously hot)) and one famous photo that I can’t rightly link off this blog, but which an industrious Google search will yield for the
curious and curioser.

Johnny Cash is an American icon, and his songs are iconic. “I Walk the Line”, “Ring of Fire” and “Folsom Prison Blues” are parts of the very stitching of the large quilt of Americana including apple pie. And, there are so many other Cash hits and history that I could go on and on . . . but I won’t, I’ll just go on, and leave a large amount of stuff out in the process. Suffice it to say that Cash was probably the coolest musician ever, and the fact that he’s getting posthumous shout outs from Snoop Dogg as “a real American gangsta”, as part of Snoop’s country foray, just sort of seals the deal.

Cash’s recording career covered almost 50 years of continuous production from Sun Records to American Recordings to sunset. The breadth of his catalogue is staggering. And, I like to wander around, about it, to pick up some of my favorites from time to time, like “Wanted Man”, At San Quentin, co-written with Bob Dylan, “Cocaine Blues”, At Folsom, “The One on the Right is on the Left”, “Jackson” (the movie version’s pretty darn good, too; and, yes, that is really Joaquin Phoenix, one of my all-time favorite actors, singing with Reese) and “Long-Legged Guitar Pickin’ Man” the last two with wife June Carter Cash, and “Committed to Parkview” (that one’s for you, Lottie–should you ever walk by the LCL-LOMAP offices, only to hear the strains of Johnny Cash, you’ll know it’s just me and Lottie in the office).

Particularly stunning, I think, though, is the depth of feeling present (whether in rockabilly numbers or on more morbid fare) on the American Recordings (isn’t that appropriate) Cash made near the end of his life. His “Hurtcover is well-known. But, there are lesser-known treasures, also, including a duet with Carl Perkins on a sweet, re-done version of Brown-Eyed Handsome Man“, a strange, wild duet with Fiona Apple on Cat Stevens’ “Father and Son”, with Tom Petty on Petty’s “I Won’t Back Down” (Petty on background vocals), covering Neil Young‘s “Heart of Gold” with Red Hot Chili Peppers’ guitarist, John Frusciante, and Johnny solo on “The Man Comes Around”, “Solitary Man”, “Like the 309”, and others.

And, How about Eric Clapton, Cash and Perkins doing “Matchbox” together! Yeah, here it is. Alright, I have to stop, otherwise I’ll be watching clips from The Johnny Cash Show until 2 am.

You might think I’d feel bad about using an ostensibly legal blog to pawn off upon you my thoughts on music from time to time; but, I really don’t. And neither would Johnny Cash.

P.S.–Merry Christmas from Johnny Cash.