The Rabbit Hole: Freeing the Courts

Editor’s Note: In 2025, our PACER bill, the costs of pulling court records from an antiquated government database, was more than $11,000 dollars. We’ve gone so far as to call PACER an ‘online scam’ and the ‘only judicially-approved money laundering’ operation. And while that is not a matter of opinion, but instead a simple statement of fact, it could be reasonably said we may not be unbiased observers of newly proposed bipartisan legislation to make PACER free of fees. However, in this week’s Rabbit Hole, we tried to take an honest step back and review the bill’s language and the judiciary’s modernization efforts to see what may be improved for the public’s access to its courts. Stay with us till the end of the piece, where we opened up our reporting notebook to tell stories of late-night emails to chief judges, prosecutors playing fast and loose with local rules, and other outstanding issues of transparency that will still be with us even if Congress passes a free PACER bill. -Seamus

The Library of Congress meticulously records every bill introduced by members of Congress. The Federal Register publishes executive orders that contain presidential directives to the whole federal government. Both have websites that are comprehensible and easy to navigate. But when it comes to the Third Branch, the federal judiciary, records are blocked behind a paywall and virtually inaccessible to the public at large because of how difficult they are to find.

In Federalist No. 62, James Madison wrote, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

Today’s problem is not that the laws themselves are unknowable, but that the entire corpus adjudicating and interpreting them is beyond the reach of Americans with average time and resources, and even the lawyers responsible for shaping them. Whether it be a court order restricting access to abortion drugs, upholding a state’s election map, or blocking national immigration policies, it takes effort and money—that adds up considerably over time—to read federal court documents.

However, a new bipartisan bill introduced by senators John Kennedy and Ron Wyden of Louisiana and Oregon, respectively, could be the most promising attempt in years to overhaul the Public Access to Court Electronic Records system, the online federal court database known as PACER. (Editor's note: for clarity purposes, we’re using PACER and CM/ECF interchangeably because it’s a pedantic distinction for most of the public.) On June 2, the senators issued a joint press release announcing the Open Courts Act, which they plan to present to the Senate Judiciary Committee.

If enacted, the bill could radically transform public access to court records. The bill proposes ending PACER’s paywall, allowing Americans to access millions of documents that currently accrue fees for every single page accessed. It would also modernize PACER’s website and searchability, which are so antiquated that they appear a product of the early internet age, a relic in an era increasingly shaped by artificial intelligence.

“Americans should not have to sell plasma or wrestle with clunky government websites just to read public court records. PACER is old, very expensive and extremely burdensome to use. The Open Courts Act would drag this outdated system into the 21st century, protect court records from hackers and give taxpayers a better deal. Government services ought to serve the American people – not make them want to put their head through a wall,” Kennedy said, announcing the bill.

“For far too long, unnecessary paywalls have kept the American people from freely accessing public court records. The Open Courts Act will deliver a long-overdue upgrade to PACER, saving taxpayers more than $60 million dollars in operating costs every year. Federal courts will then be able to remove burdensome paywalls and provide the public, including researchers and journalists, with free access to public court documents,” Wyden said.

But the bill has hurdles to face before its passage. And it’s not the first legislative attempt to fix PACER and end its burdensome fee structure. Even with bipartisan support, the bill has a long road ahead in overcoming both legislative gridlock and opposition from the judiciary itself.

PACER was revolutionary at one point. In 1988, the U.S. Judicial Conference first tested it through dial-up internet access, and it was launched for regular internet access a decade later. At the time, records in both state and federal courts could only be retrieved by physically traveling to the courthouses. Congress signed off on the plan, allowing the judiciary to fund it through user fees rather than appropriating taxpayer funds.

As it currently operates, PACER is maintained by the Administrative Office of the U.S. Courts, which charges 10 cents per search and per page accessed on the federal court database. The Administrative Office, however, offers two reprieves in terms of the fee structure: Any documents exceeding 30 pages will be capped at $3, and users who accrue less than $30 per quarter will have their fees waived. This leads to only 25% of PACER users having to pay the fee. However, among the 25%, the costs add up dramatically.

In 2019, litigation over PACER’s fee structure revealed that the actual cost to retrieve each page is $0.0000006. At the time, hosting the roughly one billion documents on PACER was estimated to cost about $600,000, about half a percent of PACER’s reported revenue of $146.4 million in 2016. Another source said that PACER’s operating costs were slightly higher at around $3 million. At the high end, a group of IT experts concluded that building a new federal court database would cost $10 to $20 million and then $3 to $5 million annually to maintain—still a large gap between the system’s costs and its profits. Before a 2020 ruling, the judiciary used part of PACER’s revenue to cover costs associated with courthouse maintenance and other filing systems.

The operating costs and total revenue are stark, too, because of how poorly PACER functions. Its website has received minimal updates since its launch in 1998. The search bar does not allow users to query the text of the documents or even the dockets themselves, both of which users pay to access. 

In 2015, UC Berkeley Law Professor Jonah Gelbach reported that the federal judiciary estimated that law firms accounted for 63% of PACER usage. Litigants themselves and commercial users contributed 12% and 10% of usage, respectively. Academics were only 3%, which Gelbach attributed to the enormous costs that research projects using PACER would incur by pulling so many documents. In theory, PACER allows researchers to apply for a fee waiver, but it comes with a crippling caveat: Any document the researchers download can only be for their access, a requirement that is incompatible with basic research principles of citing sources. 

The result is that the people with the deepest pockets can access documents, as the public is largely walled off. Some initiatives, such as the Free Law Project’s CourtListener website, have attempted to fill the gap by allowing users to upload and access court documents free of charge that others have paid for. It’s impossible to know, however, how representative the documents stored on CourtListener’s website are of PACER, and what’s been left out.

Several civil suits have attempted to challenge the judiciary’s hold on PACER. Three nonprofit organizations filed a class action lawsuit on behalf of all PACER users in 2016, arguing that the judiciary improperly collected fees from PACER users by exceeding the amount required to fund the running of the online database. The case, National Veterans Legal Services v. United States, dragged on for almost a decade, but resulted in a pyrrhic victory for the plaintiffs. In 2018, U.S. District Judge Ellen Huvelle ruled that the judiciary could collect fees beyond PACER’s operating costs, but that the additional fees had to be allocated to programs that enhanced public access to court records. The U.S. Court of Appeals for the Federal Circuit affirmed the ruling in 2020. Four years of litigation and negotiations later, the nonprofits and the judiciary agreed to a $125 million settlement.

Some advocates for ending PACER fees also point to a 2020 Supreme Court case, Georgia v. Public.Resource.org, as precedent against the judiciary placing legal restrictions on public documents. In Public.Resource.org, the Court heard a challenge to the state of Georgia’s attempt to copyright the annotations—but not the actual laws themselves—in the “Official Code of Georgia Annotated.” On behalf of the narrow 5-4 majority, Chief Justice John Roberts wrote, “If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. A State could monetize its entire suite of legislative history. With today’s digital tools, States might even launch a subscription or pay-per-law service.”

It’s doubtful, however, that federal courts would intervene to end a practice that Congress expressly authorized to fund the Third Branch. Such a move would undermine a core judicial purpose of applying the law as enacted by Congress, as well as their own self-interest. There’s likely no other path to fix PACER besides legislative action.

From 2018 to 2022, there were a series of legislative attempts to get rid of PACER’s fee structure. In 2018, then-Representative Doug Collins (who now serves as Secretary of Veterans Affairs) introduced the Electronic Court Records Reform Act of 2018. The bill, however, gained little traction beyond the House Judiciary Committee, which led a bipartisan group of representatives, including Collins, to propose the Electronic Court Records Reform Act of 2019. Again, it went nowhere, as did its companion bill in the Senate and two others in the House.

In 2020, some progress was made with the Open Courts Act of 2020, which the full House passed. But the Senate never took it up. It led the Senate to consider another bill, the Open Courts Act of 2021, which the Senate Judiciary Committee favorably advanced. The House began the process to consider the bill on its end, and then the judiciary got involved.

We’re going to try a social experiment of whether people are inherently decent human beings. As a Sunday story, this piece would typically be behind a paywall. We can only continue Court Watch with the paid supporters but we genuinely hate the concept of paywalling the news. If ten readers become paid subscribers today, we can make next week’s The Rabbit Hole free too. And then keep the momentum going every week. Make the jump.

The Judicial Conference of the United States, the congressionally established body that represents federal judges nationwide and is headed by Chief Justice Roberts, began outwardly lobbying against the bill. In a letter to Congress, the Conference warned that eliminating PACER fees would negatively affect filing fees, the amount litigants are required to pay to initiate civil suits in federal court. Filing fees are already $405, making it a high cost for most Americans.

The conference asked Congress to pause the legislation to allow for “dialogue.” In a letter to Representative Hank Johnson, the Georgia Democrat and chair of the House Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet, Judge Roslynn Mauskopf wrote on behalf of the Judicial Conference: 

The OCA would require dramatic changes to the backbone system upon which the federal courts depend for mission critical day-to-day operations. H.R. 5844, as introduced, would not only put at serious risk litigants’ access to justice, but also potentially disrupt the funding needed for modernizing, operating, and maintaining the very systems the bill seeks to improve. The judicial branch, the litigants desiring to have their cases heard in the federal courts, and the public seeking access to court case records, will bear the consequences if the legislation proves operationally or budgetarily infeasible…

Professor Jonah Gelbach was also critical of the 2021 Act’s funding mechanisms. Under the proposal, Congress would appropriate enough money to modernize PACER. The money to run the system in the future, however, would come from fees paid by federal agencies for their access. Gelbach estimated that federal agencies would not contribute enough in fees to fund PACER, meaning the judiciary would have to raise filing fees or absorb a loss in revenue. He encouraged Congress to appropriate the $150 million the judiciary currently earns from PACER, comparing PACER’s revenue to the amount Americans spend on wild bird food (25 times as much) and the overall funding for the judiciary in 2020 (50 times as much).

The Open Courts Act of 2021 stalled in both the House and Senate amid pressure from the Judicial Conference and as legislators shifted their focus to the 2022 Midterm Elections. 

Four years later, the latest edition, the Open Courts Act of 2026, plans to modernize PACER with a new database that will replace the current electronic filing and PACER. The bill includes a number of new proposals compared to the 2021 version, such as requiring permanent URLs for each filing, citations that don’t rely on Westlaw, open-source coding access, a public testing process, and making the database mobile-friendly. 

The Kennedy and Wyden proposal seeks to fund PACER through high-volume users, who spend more than $25,000 per quarter on fees, and federal agencies. The Judicial Conference would be able to decide an appropriate fee for high-volume users, many of whom are private legal research companies, including Westlaw and Lexis. Meanwhile, charging federal agencies would bring in at least several million annually. The Department of Justice, PACER’s largest user, spends roughly $5 million each year in access fees. Under the bill, any negative difference between the new system’s operating costs and its revenues would be made up by filing fees for high-earning litigants, who have incomes of more than $250,000 annually.

And while a free PACER would be welcome news to many academics, lawyers, and other court watchers, systemic issues would still hinder access to public records. 

Chief among them, every court district has a distinct set of local rules and standards for filing and unsealing court records. In some districts, cases are automatically unsealed after 90 days; in other districts, records are sealed indefinitely pending an expressed motion from the plaintiffs, which rarely comes. 

On Friday, a Court Watch reporter traveled to the U.S. Court in Alexandria, Virginia, to review dockets for free at a computer in the clerk’s office. In a little less than five minutes, we identified at least a dozen dockets this year that had been ordered unsealed by a federal judge but were not available on PACER. We requested paper copies but were told by the clerk’s office that even though there is a judicial order on each docket to unseal, we would have to file a motion with the court to get them truly unsealed for public review. 

With a fee of $405.00, filing motions in a dozen cases would cost roughly $5,000, and that is before accounting for the cost and time of hiring a lawyer and arguing the case. There is no formalized avenue to address these gaping holes. As a result, Court Watch has resorted to spending hundreds of dollars to unseal dockets, including one where a federal judge simply concluded the court’s "inadvertent error” sealed the docket. The judge did not offer to reimburse our filing fees and attorney costs for the court’s mistake. 

In other times, lawyers work the system without judges realizing it. Shortly after Court Watch broke a story of a corruption investigation into the L.A. City Council, which involved a recently unsealed search warrant, prosecutors in the Central District of California began filing all search warrants as automatically sealed, shielding them from the public and in direct violation of the court’s local rules. 

Recognizing that a game of cat and mouse was playing out over public access, our editor emailed the court’s chief judge to raise our transparency concerns. The result was a judicially-ordered comprehensive review of all past search warrants and their sealing status. All told, for the first time, thousands of pages of legal filings were made available to the public. However, that was 2020. Six years later, and a quick review of the current records in the Central District of California reveals that prosecutors are back to their old tricks of defaulting to sealing of search warrants. 

The system shouldn’t have to rely on a random reporter’s late-night cold email to a chief judge to fix itself. 

In the area of perceived security versus actual transparency, the courts have chosen security every time. In August 2025, when law enforcement investigators discovered that hackers aligned with the Russian government had breached PACER, giving them access to sensitive and nonpublic court records, some of which implicated Russia. (this was at least the second major hack of the U.S. courts in as many years). The judiciary responded by pulling the records off PACER, requiring law enforcement to file sealed copies physically rather than through the courts’ electronic filing system. The chief judges in most districts implemented local rules designating the records as ‘highly sensitive documents’ (or HSDs). These HSDs are filed with the court under seal, but never uploaded to PACER. They are typically filed on an air-gapped computer to prevent them from being hacked in the future. 

As we wrote in the past, HSD designations are all over the map. In some districts, an Assistant U.S. Attorney can decide what is a sensitive document and file it as such (with the judge's approval). In others, only certain documents can get that designation. But, in nearly all of them (if not all of them), there is no system to trigger the courts to review whether to ever unseal the documents, and as such, they languish in a forever-sealed land. 

Assistant U.S  Attorneys move on; they take fancy jobs at fancier law firms, they retire, they do all the things normal lawyers do. And if, by chance, and usually by standard, they do not file a motion to unseal the HSD documents that are no longer sensitive, the documents will never see the light of day. Even more so, the public can’t petition to unseal the documents because—and we can’t believe we’re writing this in an open democracy—they don’t know the documents exist.

In the vast majority of districts, there is no notice in the system that an HSD has been filed. You can’t file a motion to unseal something you don’t know is there. As such, highly sensitive documents are a perfect black hole for public access. In the districts where they do note that an HSD has been filed, one doesn’t have enough information to form a coherent unsealing motion to pitch to a judge. Additionally, just to add insult to injury, the courts charge individuals 10 cents to download a one-page document from the docket that literally just says HSD in big black letters.

A free and searchable PACER solves a lot of problems for the public's access to public records. If the judiciary is unwilling to part with its $145 million fee slush fund, it may want to consider how to standardize its rules to allow for more unsealed documents on its system and not permit a patchwork process to limit access. At the very least, it’s good for their bottom line. 

Access to public records is an inherent right in a functioning democracy. The judiciary’s status quo of exorbitant fees and labyrinth of disparate local rules is direct affront to that right.