In a few minutes after I hit publish, the United States Court of Appeals for the Federal Circuit will hear oral argument in National Veterans Legal Services Program v. United States. For a brief description of the issues, the New York Times has a solid writeup. That I generally support the view of the plaintiffs/appellants is not much of a surprise. But I nonetheless find myself a bit frustrated by the fact that even winning this case doesn’t solve a fundamental problem: this case can’t be solved in court alone.

Without going into too much detail, the case is about the PACER (“Public Access to Court Electronic Records”) system, which is the federal courts’ database of filings. It is massive, and it is not free. Specifically, searches and downloads cost 10 cents per page. In 2020. It’s literally a mental model of photocopying at my local library. But on the internet.

Why so expensive, you might wonder? Well, the plaintiffs argue, it’s because the courts are redirecting money away from the PACER system to fund things like fancy electronics for the courtroom. The plaintiffs argue that this redirection contravenes congressional intent, and is unlawful.

Nevertheless, what is not at issue is whether the courts can charge at all for public records. Every one agrees, for the sake of this case, that the courts can do that, because the law provides for it.

And that’s the shame of the case. Congress has allowed this and, indeed, enabled it. It may be admirable that Senator Joe Lieberman is on the side for greater access to court records. But for all of former Senator Lieberman’s protestation about how PACER fees are “at odds with the principle that all Americans should have equal access to the courts and to the documents that are essential to understanding the operation of our government,” the fact remains that he was responsible for the statute allows the courts to “only to recover the direct cost of distributing documents via PACER.”

In other words, even if the courts went too far in PACER, who can really blame them if they perceive that Congress is underfunding the courts’ modernization efforts and explicitly authorized them to charge fees for it. The fact that the courts may have overcharged is a scandal, but the fact that Congress continues to enable federal courts to charge for access to public records and allow this to persist is an enduring shame.