The Open Courts Act of 2026 and the Push to Eliminate PACER Fees
The Open Courts Act of 2026 aims to eliminate PACER fees and modernize federal court access
The Electronic Frontier Foundation (EFF), alongside a broad coalition of civil society groups, open government watchdogs, and media organizations, is supporting the Open Courts Act of 2026. This legislation seeks to eliminate the fees associated with the Public Access to Court Electronic Records (PACER) system and replace the aging PACER and CM/ECF infrastructure with a modern, unified platform. The goal is to improve public access to court records, strengthen cybersecurity, and reduce long-term operational costs.
PACER fees create barriers to democratic accountability
Court records are public documents, yet the current PACER system requires users to pay fees to search for and view federal court filings. These fees act as a significant barrier to transparency, particularly for low-income individuals, making it difficult for the public to monitor the work of public servants. According to the EFF, PACER collects more than $150 million annually in fees from the public for access to these public documents.
The role of RECAP and CourtListener
Because court records are not copyrighted, once a user pays for a document via PACER, they are free to redistribute it. This legal reality has allowed the Free Law Project to maintain RECAP, a software tool that automatically archives purchased PACER documents into CourtListener, a free public archive of legal opinions and court records. While these tools fill a vital niche, supporters of the Open Courts Act argue that the government should provide this access directly and for free.
Perspectives on the cost and accessibility of legal records
While there is strong support for free access, the debate involves complex trade-offs regarding funding, privacy, and professional subsidies.
Economic and Policy Trade-offs
Some critics argue that "free" access is a misnomer because the costs of maintaining the system must be covered by taxpayers. One perspective suggests that since PACER is primarily used by well-compensated legal professionals, eliminating fees would effectively mean that general taxpayers are subsidizing the legal profession.
Privacy and Data Concerns
There are concerns that making every court filing instantly and freely available worldwide could expose sensitive information about litigants. Some argue that the current friction provided by the paywall offers a layer of protection against the mass scraping of sensitive personal data.
State vs. Federal Disparities
While the Open Courts Act targets federal courts, users have noted that state-level access can be even more restrictive. For example, some users reported that while PACER charges roughly $1 per page, certain state courts (such as in Idaho) may charge significantly more, such as $10 per page, further complicating the public's ability to access judicial records.
Global Context: The Case of Israel
Similar tensions between official government systems and private repositories exist internationally. In Israel, official case records are available through a government entity (Net Hamishpat), but most legal professionals use a private repository called Nevo. This has led to the emergence of "renegade" scrapers like Tola'at Hamishpat, which scrape the government website to avoid agreements that allow the government to remove cases without a formal court order, highlighting a global struggle between administrative control and the principle of public availability.