Interesting "Warning" About RECAP at the WDNY ECF Query Screen

Most of the Federal Courts use a system called PACER to allow people to access public court records (PACER stands for Public Access to Court Electronic Records).  Almost all law firms have PACER accounts to access court documents, which are stored in PDF format.  PACER charges 8 cents per page to retrieve documents, with certain exceptions (most courts cap the charge if a document is over 30 pages; many courts don't charge for court orders or opinions; there is no charge for the first time a counsel of record in a case downloads a document). 

Since court records are not subject to any copyright protection, this charge for public access is a tax or subsidy by lawyers to pay for the upkeep of the PACER system.  While 8 cents per page isn't a huge amount, it can add up, especially for big cases or cases of public interest where many people want to get the public filings.

RECAP is a Firefox add-on that compiles an open repository of Federal Court public filings -- if a RECAP user buys a document from PACER, RECAP retrieves it and stores it on a central database for other RECAP users to get for free.  (RECAP is PACER spelled backwards.)  Alternatively, if you have signed up for RECAP you can often get a document for free if another user has already bought it.  It's like a file sharing system for public documents.  But the main difference compared to music or video sharing services is that the government can't claim any copyright in government-generated PACER documents, so once someone has bought it, they are in fact free to share it.  (At a minimum, it's fair use for third party documents.)

I recently logged into PACER at the Western District of New York.  At the Query screen (where you would request information for a particular case), I saw the following notice:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality.  At this time, RECAP does not appear to provide users with access to restricted or sealed documents.  Please be aware that RECAP is "open-source" software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

Interesting.  I checked a few other districts (Northern and Central Districts of California, Eastern District of Texas, Northern District of Illinois, and the Southern District of New York) and didn't see this.

NOTE:  Although the label for this post is "copyright," in fact it should be "non-copyright" -- there is no copyright in government-created public records.