December 10, 2020

Judicial Website, No Money Downsustainability, government style

The United States House of Representatives, the lower chamber of our legislature, has passed The Open Courts Act, a bill to replace the United States federal courts’ craggy, usurious online filing and records systems with a new, unified system freely available to the public. I’d rank this a very good thing, mostly in light of how very bad PACER and CM/ECF remain now, and I hope it’s signed into law, nowish. But I mention all this here to highlight a detail: The cocktail of funding angles the House proposes for the new, open system.

Under the law, the director of the Administrative Office of federal courts would “develop, deliver, and sustain” a new, unified system for public court record filing and retrieval by January 1, 2025. Until then, the law authorizes a new “progressive schedule of reasonable additional fees for persons, other than government agencies, who accrue fees for electronic access to information under [section covering appellate court fees] in an amount of $6,000 or greater … according to the level of use …”.

In other words, initial development will be funded by additional charges to high-volume customers of the existing system. These fees “may not impair access to justice and the public right of access to court records, restrain innovation in the provision of legal services and access to public court records, nor inhibit not for profit research of the business of the Federal courts”. But if you’re in the top tier of current users, you will probably pay more, not less, in the short term.

In addition, the law allows the Administrative Office to make up new fees for “high-volume, for-profit public users of the system … to facilitate service-level agreements for maximum response times, integrations, high availability, and service and support”. In industry, we’d call this an “enterprise tier”. That tier could include not just current, high-volume users, but also new users leveraging the features or consolidation of the improved system, such as companies developing commercial legal research services or even companies using court data to develop artificial intelligence or statistical models.

Once the new system is stood up, the courts may establish user fees. However, unless those fees fail to cover costs, they aren’t allowed to charge for filing. In any event, the core use case—access—must be free. Materials in the system must be “publicly accessible, free of charge and without requiring registration”. Other provisions require “modern technology”, including the ability to link to documents from other sites and “widely accepted, non-proprietary, full text searchable, platform-independent computer-readable” data. Sounds nice.

What about the fed? Fees for other parts of the government, who already pay a lot, would be pegged at 2018 levels, adjustable for inflation. Other parts of the government make up some of the heaviest user of the system now.

A few things jump out at me about this approach.

One is the obvious aversion to adding a big new chunk of additional funding from budget. Despite laughably high estimates of program cost—the leg said $2 billion, people who know better said $10 or 20 million, and Congressional Budget Office said $46 million—they want to spin this up by charging users, via fees, rather the general public, via taxes. From there, the dimensions along which they “segment” potential users and use cases say a lot:

It’s also abundantly clear which use cases are being subsidized: those searching for and downloading materials, and folks defending themselves in lawsuits, referred to as “pro se litigants” in the biz. The bill actually uses the phrase “access to justice”, which is a bit of a buzzword, but the right one.

Transposing this into the software biz, which is what happens around here, it’s interesting to compare the approach of an actual public body offering an actual public service that is critical to core rights and concerns—justice—to what companies and foundations do.

On its face, through business glasses, all of this looks a great deal like “freemium”. The masses get served for free. Bigger dogs, including government agencies, foot the bill, and potentially get special deals with SLAs and other assurances not extended to hoi polloi.

But that’s looking at this backwards. Free access for most uses and users isn’t a means to selling pricey contracts here. Free access to a modern system, with all its widespread, knock-on benefits, is the point. Segmenting users and uses cases into paying and paid-for aims to achieve that goal. An obvious, and proper, case of the “sustainability” mindset. Subsistence, and nothing more, gladly.

Mass public goods don’t cost nothing. Money has to come from somewhere. The government has a certain amount of leverage that we don’t usually see among private firms looking to bootstrap a tech project. If you want to sue in federal court, you have to deal with the federal courts’ filing systems. Which partly explains how bad that system is now. But like many a fledgling firm, the leg has preferred to “bootstrap” the capital for its new investment, by charging from the get-go, with a longer-term plan to knock down fences when the seeds begin to sprout.

As with all projects of this kind, and especially projects of this kind attempted by government, the question of “execution”, or getting it done, looms large. As surely as we know this system shouldn’t cost a billion dollars, much less two billion dollars, we can be equally sure that if any institution can make it cost two billion dollars, the fed can. Aided and abetted by its cawing, fatted flock of credential-carrying carrion contractors, lethargically flapping their wings over each newly downed carcass of fiscal responsibility, there is little preventing them picking bones right through the five-year time line, or even spending more than projected.

But the bill itself is littered with nods to the work of 18F and similar efforts of the last few years to break old habits in federal work, especially software services. Remember healthcare.gov? The crisis we needed, and probably deserved.

This would be a worthwhile test of that progress. And God knows we need to pass. As it stands, the fed’s approach to court records would be an international laughing stock, if anyone deeply invested in open access and judicial paperwork could still feel their funny bone.

Your thoughts and feedback are always welcome by e-mail.

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