Saturday, January 19, 2013

The Meaning of Free

Last week, as tributes were being posted in the wake of Aaron Swartz' suicide (including my boys Babbage, Yglesias and Worldwide's Blogcrush Andrew Sullivan) she asked me if he had been the person I had been talking to last year in the context of a threat to sue the federal courts for not providing free and better access to court documents online. Turns out that it was another Internet whiz kid with the same first name, but I had a phone call with him. I was hoping to explore parlaying my expertise in public access with his technical acumen into a competitor for PACER, or possibly an advocate for better and cheaper public access. Or something.

The judiciary asked Congress to fund electronic access pilots (remember bulletin boards and 900 numbers?) in the late 1980s, but Congress directed that the courts should charge user fees instead, and use the money to make improvements to the program. By happy accident, the Internet blew up a few moments later, and the program has now grown to practically ubiquitous electronic access and filing at the federal level.

As access improved, the fees continued to drop, until recently, when the Judicial Conference raised them, thus ending my belief that the path toward zero would continue as usage continued to increase and the universe of available material continued to expand. The fees are still low, mind you, and free for most occasional users of the service, and, for the most part, lawyers love it. Twenty years on, as state courts continue to struggle to improve electronic access, the federal courts are leaders in providing electronic access and e-filing, justifiably proud of the improvements afforded by the imposition of user fees.

But a vocal minority has continued to advocate the position that electronic access should be free, just as physical access is at the court. The problem with this argument, as a recent FT piece articulates, is that by "free" they mean funded by appropriations rather than the more Pigovian method of actual users. Does anyone think that the people cleaning the monkey house at the National Zoo are volunteers? The money has to come from somewhere, and in the time of ceilings, cliffs and austerity measures, there is not a lot of money for operations, let alone R&D.

Anyway, I tried to explain this to the free access crusader--about how great the PACER model has been, but that the judiciary seems to have gotten a little greedy lately--but he decided that a lawsuit was preferable to an advocacy campaign or a competing service and that was that. Good luck with that.

Still, people need to understand that government programs cost money, and that those funds have to come from somewhere. We can increase taxes, or keep printing dollars and borrowing from China, but no-one seems to favour either of those approaches, and sometimes, as with the federal courts, user fees are an efficient way of funding programs that people want, and they should not be dismissed out-of-hand.


  1. User fees for using the system are all well and good, but users also need to have the capability of accessing the information in the system outside of restrictions imposed by that system, or, indeed to build new systems based on the data. The cost here is not just monetary, its also in the opportunity cost that the information monopoly causes, which is precluding the development of new software systems and business models based on that data. For example, if you could feed IBM's Jeopardy-winning Watson computer all the information contained in PACER, I imagine you could build yourself a pretty impressive legal analysis tool. However, as long as the remains locked up in a proprietary system, that type of development is going to be severely restrained.

  2. Couldn't agree more, and I pushed hard, albeit unsuccessfully to open up. "Severely restrained" is putting it rather mildly in terms of development, but I stand by my position that without user fees we never would have gotten out of the gate.