Live notes from a lunch talk by Carl Malamud, co-hosted by the MIT Center for Civic Media and the Laboratory for Social Machines. Notes by Rahul Bhargava, Erhardt Graeff, Yu Wang, Chelsea Barabas, and Ed Platt
Ethan introduces Carl as a ferocious public domain advocate with a long history with the internet. He led an election campaign for non-elected office (public printer of the United States). He is working on making existing government docs online and machine readable form. Today he will speak about Yo, Your Honor, which focuses on PACER—a system that provides access to critical government documents for a price.
He started by doing a lot of workshops around the idea of law.gov, coming up with a set of principles about how the laws should be available in the United States. But nothing concrete really came from this effort.Carl mentions his history with the Media Lab; he was here years ago writing a book. His non-profit public.resource.org’s goal is to make all public governmental documents, aka the “raw materials of democracy,” free to access. Carl wants to make the laws available to the people, because in the US the people own the law (unlike other countries). The law has no copyright here.
In 2007–2008, Carl started publishing all the building codes in the country, because these are law in all the states. No one sent him takedown notices, even though they are copyrighted documents published by standards organizations (501c3s). They keep copyright for these documents even though they want to make them into the law. When Carl started posting the safety regulations, and he got sued.
The National Fire Protection Association argues they should be the only ones allowed to publish the code because it is their only revenue stream and if they can’t sustain then… babies will die. But he argues that they are the law, thus they should be public. This case is currently in litigation (he is being defended by the EFF).
At this same time, he started looking at the PACER system. This includes all arguments the lawyers make and all relevant briefs and other documents involved in public cases. If you want access to these documents, you pay 10 cents a page for every single page. That makes research expensive. There are close to 1 billion documents in the system.
He had the idea to have lots of people download documents from PACER and share them for free, which he thought of as “recycling the public domain.”
He received a call from Steve Schultze, saying that he and Aaron Swartz wanted to something big with this project. Aaron took the scraper that Steve first wrote, rewrote it and scraped 700+ GB of PACER data to upload to Carl’s system.
At that point all public access to PACER had been turned off and PACER had called the FBI saying they had been hacked. There was no fair use policy, so the FBI went away and because there was no strong case against what Carl and his colleagues were doing.
Carl knew there would be privacy issues related to the work with PACER documents, since in previous open-access attempts he found social security numbers. He did a comprehensive audit of all the pages and sent his results to district and supreme court judges in various jurisdictions discussing the privacy issues, arguing they shouldn’t be publishing these details in the first place.
His letters were ignored, so he resent the letters a second and a third time, announcing this was the “third and final notice,” at the top of the letter, at which point some judges wrote back, and some even removed documents with social security numbers on them.
This summer (2014) he decided to revisit PACER. The spark was that the Administrative Office of the Courts announced they were going to delete all historical records for five years. They were upgrading to the next generation and he thought this was “dumb” so he starting mobilizing senators around this. In the end, they didn’t have the historical documents… just the docket sheet listing all the cases. All of them were fooled (Carl, the senators, etc).
Carl started working on a memo about PACER to raise awareness about this “brain-dead” system. It was set up in 1994 and the user interface has never improved. Most people don’t see this is a big deal though (so few of the public actually use it).
That year’s Chief Justice Report was about PACER (maybe he didn’t like getting yelled at by the senators). He argued that the judiciary needs to be conservative, and the fee is reasonable. He wants to put all the Supreme Court filings online, but in a new system. So Carl’s memo turned into a letter back to the Chief Justice. His theory is that knowledge of the PACER system will lead to action to fix the problems he sees.
Carl has seven suggestions for what we might be able to do.
1) Let the Judges Know you Care About PACER
When Carl tells judges he cares about this issue, they are surprised and curious. He thinks if these judges got a bunch of notes about this they might look into it, so he has printed out postcards for folks to mail to judges (he has custom stamps with PACER logos, postcards with famous judges, and address stickers for local judges). On May Day (May 1) he’s organizing a “vote” at “polling places” including at the Internet Archive and in Chicago, where they will collect these postcards as votes to the judges.
2) Sue the Courts
We can argue that we are being denied access to the judiciary processes, which are supposed to be held in public. It is a fundamental tenet of insuring that our courts remain open and fair to the public. Unfortunately it is hard to sue the courts. However, Congress told them to charge. In addition, it is hard to argue you have a constitutional right to free documents.
3) Legislative Change via Congress
Congress “told them to charge,” so Congress could simply say not to charge. Courts also charge filing fees, which is a much bigger revenue stream than PACER. They could up those a little and make PACER free. A Congressional member has proposed this, and maybe there will be hearings on the bill.
4) Audit PACER’s Billing System
PACER has billing errors—the system doesn’t work well. You can download a PDF or see unpaginated dockets or search results, cost based on the number of bytes. Carl actually counts his bytes, and found he was being overcharged! He sent in a request for a refund. They replied that they couldn’t do anything until the billing cycle completed. Carl did a formal audit and sent a letter to the boss’ boss saying they are overcharging millions of dollars. He pointed to the fundamental principle of charging what you advertise and not more.
5) Follow-Up on Privacy Issues
As Malamud was writing this, he found that old list of every docket and SSN he found… and they had posted this unredacted. Malamud called this “one stop shopping for identity theft.” They had ignored the privacy issues he pointed out in 2009. Back then the courts had responded to Congress’ letter saying Carl was wrong, but never removed the documents. He wrote a new letter to the judge pointing out the “bureaucracy has failed her.” Malamud is hoping the Senate will follow-up on this.
6) Mass downloads of PACER documents on May Day
In PACER, if you use less than $15 per quarter they don’t actually bill you. Malamud has the idea to invite everyone to use those $15 for free and use their RECAP plugin to download the most documents. There can even be a competition between law schools to see which one downloaded the most documents. In the 1950s, May 1st (International Worker’s Day) was proclaimed “Law Day” but the McCarthy-ites. The legal associations embraced this and celebrate it. He wants to recruit law students to all download from PACER on that day, and could even make it a competition with an award (The Aaron Swartz Memorial PACER Cup) to the school that downloads the most documents.
7) Get a Fee Exemption
Carl has filed an application for a fee exemption. This is a constrained definition that is allowed. This request is trying to get 5 whole courts to give their docUMENTS for free so they can audit them for privacy exceptions. They will create a report back to the court, and let litigants know. So he is providing a service for the court. But at the same time he will post all the records to the Internet Archive. The courts have the authority to grant this exempt. They may be trying to prove this is a stupid idea, but this is a way to bring them onto the table.
These are the 7 approaches Carl is taking right now. He believes some will help, and others won’t. Going to Congress may be the best strategy, but others could be effective as well.
Question & Answer
Saul: What exactly is PACER? Who are you fighting against (besides the judges).
Carl: It is a weird distributed system, built by contractors at a PACER service center in Texas. Each has their own implementation, so you cannot search across sections. It used to be a bunch of PERL code. They are upgrading to the next generation, which may be java based so it can include longer file names. They won’t tell us much more than that (how many dockets, PACER user breakdowns, etc.). They claim that 80% of users aren’t charged, but this seems to be in error, possibly based on people who access it but don’t download documents.
Priya: I’ve heard you talk about other movements for free law and find the arguments compelling. In the PACER case, what is the beneficial use to the public?
Carl: Two important answers: First, laws and opinions of the law should be available, in principle. But the courts are not decided which should be open and which is not. For example, bankruptcy cases have lots of personal information within the files. It’s unclear whether or not those files should be popping up on Google. So that’s worth considering.
If you are a journalist you have to check with your editor first before pulling hundreds of dollars of case dockets. You can’t do that empirical research on PACER right now. If you are an academic researcher looking at a problem like civil rights, or patent litigation, or other such empirical research you are precluded from doing it because of the way PACER is set up. There are also “big data” analysis approaches to understanding this data, for instance trying to figure out which cases are important because they are cited so much. For instance, with Marberry vs. Madison you can see it emerge as important in the late 1800s. And there are also citizens who want to follow the cases. They were thinking that if the PACER is only made for lawyers, they have plenty of money. But this thought precludes all the possible users of the system.
Charlie DeTar: It seems like Yo! Your Honor! is written as a legal memo, not very friendly to a lay audience. What’s your intention? To build up a broader movement?
Carl: It’s all of those. In part, I wanted to write a memo to myself, and if someone else took this and needed to explain it to someone else they would have all the details. In building a broad movement around this, I have failed every time I have tried to do that. When I was working on Smithsonian copyright issues, I got 300 people to write postcards but that was because I strong-armed them to write those. Aaron had seemed to figure that out on SOPA—a huge outpouring on an obscure unit. I’ve never been able to figure out that magic ticket. So this is a broad array of tactics and I hope so of them work. When you sit down with a policy maker, after five minutes you can get them shaking them heads and starting to understand it. And then they can ask a staffer to do something about it. And that’s a start.
There is an example of a corporate code of a state protected under copyright law, and you will be end in jail for 3 months if you copy the code, which is unconstitutional.
The law is public but in litigation and judicial review, you are often arguing legislative intent so you need the supporting materials that led to those laws. We don’t have those for the Constitution.
Q: Why do you think more people in law schools are engaged by this?
Carl: I was hoping more law students would see this as a fundamental issue. Law librarians totally get it. Law faculty stand back and say they study Constitutional or other area of jurisprudence but dismiss this issue as a law research thing.
Q: What’s the technical path towards a machine readable format?
Carl: It’s increasingly common to see results in structured formats like XBRL. It turns out that if you want to e-file something to the circuit, you can only do that when you’re appealing a decision. For example, URLs are included in some document, but they are removed before being released. Maybe there’ll be someday we can convince the judges that URLs are OK. If we have a broader base of users, they will stand up for a better format of the data.
Ethan: Zooming out for a bigger picture, what’s the larger arc of your work this point? How do your many projects fit together to achieve a bigger vision?
Carl: Let anybody having a computer to educate themselves of the laws. To me, the entire library of congress should be digitized. He is doing with State and Federal government because this is a hook, and the laws should not be copyrighted. The building codes of the states are key of researching how to increase safety in the modern world. We are in a world much lawyered, but you still need to be a part of the guild to get access of the information.
Ethan: So your vision is to make law information available to non-professional?
Carl: we are doing not only US, but India and other countries. In India, there’s a fundamental constitution of the right to practice your professional. This is a strong argument that technical information should be available.
Tal: What about the State Decoded Project? They are taking an inverted project.
Carl: This is an XML standard for municipal codes that I have helped promote. Washington, DC did an amazing job putting an official version of the DC Code with a CC-0 license on it. We have had a much more responsive experience with cities because people actually read city codes! They get fan mail from real estate offices and others when they can get these codes easily. I don’t know what it doesn’t propagate to the state level or higher.
Ethan: This is an important open question in civics: we see great opportunity to take action and be effective at the city level and scale it to state or federal level.
Carl: I’m giving a talk at Civic Hall tomorrow in NYC about the progressive era reforms in civil service under Theodore Roosevelt and others. I think one of the key barriers at the state and federal levels is the lack of civil service reform, which means it’s really hard to do things better, e.g. replace legacy systems. The tools we give our civil servants suck. It is fundamentally hard to change the IT system of governments, which is a way to bring change to public service. And we are not going to solve this problem incrementally.
Saul: Two suggestions for PACER. I think you have a great public shaming case here in the style of Roger and Me (Michael Moore’s film). And the other is about how much the federal government pays itself to get access to PACER.
Carl: I think a big PACER hearing in Congress would be a great thing, if they invited the right people to talk. Currently, it’s really hard to get people to pay attention to these issues.