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FTC Prebuts Claims to Be Made in Today’s Judicial Conference Testimony Before a House Panel

Judge Audrey Fleissig (E.D. Mo.), chair of the Conference’s admin committee, will testify that the Second, Third, Seventh and Ninth Circuits permit video and the Second, Fourth, Ninth and D.C. Circuits permit live audio. But that’s only a small part of the story.

Fleissig does not point out that convincing all but the Ninth and D.C. Circuits to take these basic steps and permit video or live audio requires sustained outside pressure and patience, as about 95 percent of the requests made for live audio or video in the Second, Fourth and Seventh Circuits, plus 100 percent of requests in the First, Fifth, Sixth, Eighth, 10th, 11th, and Federal Circuits, are denied.

For example, the Second Circuit permits video on average for one hearing every 12 to 18 months. Not great for access. The Seventh Circuit has permitted video all of two times – ever. The Fourth Circuit has also permitted live audio only twice, and the Second Circuit only once. Fix the Court has partnered with local news media and local legal groups to request live audio and video from these and other circuits dozens of times only to get rejection after rejection, in cases large and small.

Fleissig will say she is tepid about video in federal courts due to the 2011-15 cameras pilot program in 14 district courts. It’s true the pilot was a failure. But that’s because the Judicial Conference designed it to fail. 

Somehow, the judges who consented to be part of the pilot could opt out of recording any of their proceedings. Some judges did just that – record zero, or close to zero, hearings. Plus, the camera angles – often askew or from above – did not comport with the type of user experience meant to inform, and the video quality was worse than poor.

Here’s why it was designed to fail: unlike the 1991-94 pilot, no circuit courts were asked to participate. Video-recording in circuits is much easier: shorter hearings, no witnesses and no exhibits. The Judicial Conference knew that a pilot in circuits would succeed – in fact, the two that participated in the 1991-94 pilot (the Second and the Ninth) were the only two that allowed cameras post-pilot for more than a decade – so they created one with districts doomed to fail.

Fleissig’s cost estimates for building and maintaining a modern, free version of PACER are not based in reality. 

Instead of citing what free PACER may cost, her testimony will cite failed, non-germane experiments in online filing (one of which at the FBI cost $425 million), while conveniently omitting all of the successful examples. It did not cost the Supreme Court, for example, $425 million to develop and deploy their successful online document filing and viewing system. The National Science Foundation grantRECAP and most state court filing systems – none of these are even in the tens of millions of dollars, let alone hundreds. Last year, the CBO estimated that non-IFP filing fees would need to rise only seven percent in order to recover the costs of building and maintaining a free version of PACER. And the Internet Archive would not have volunteered to host PACER for free if the Judicial Conference’s cost estimates were accurate.

Maybe the PACER legislation in the House is not perfect since it does not currently include a “pay-for.” (The Senate version’s pay-for would be a filing fee increase.) But the suggestion that the U.S. Courts are incapable of creating a universal system that serves the public in a far superior, more user-friendly and cheaper way than the current one defies logic.

Fleissig will say that PACER will take in $14 million less this year than what the U.S. Courts needs to run their Electronic Public Access program. But there’s no way to independently verify these numbers.

According to Fleissig the U.S. Courts will take in $145 million but will need $159 million to maintain PACER and other electronic assets. But since the judiciary’s budget has been a black box for decades, and the third branch has no inspector general or other disinterested third party checking the numbers, the public is left in the dark as to their accuracy.

Remember, it took a federal court case for the public to learn that over the last decade, the judiciary has misspent $200 million in PACER revenue. But now they’re pleading indigence? Coupled with the fact that the cost to store 1GB of data has dropped more than 99.9 percent since the advent of PACER, the numbers don’t add up.

Fleissig will say that free PACER may reduce court access for litigants because of prohibitive filing fees. But she seems to have no problem with charging to access records for $0.10 a page.

Filing fees may rise to pay for free PACER, but her estimate of an additional $750 per filing in her testimony are not backed up and are not based in reality. Plus, if the courts were so concerned about access, they would, for example, ensure pro se litigants could – for free – access filings in other successful pro se cases.

Free PACER would benefit the public because public documents should not come at a prohibitive cost, period. What’s more, it may also result in innovative tech platforms doing what the judiciary is seemingly unable to: make court records easily searchable – across circuits, across case type and across the years.

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