September 11, 2013 | By Daniel Nazer and Seth Schoen

Federal Courts Still Scaremongering About RECAP and Spooky "Open Source" Software

Should we fear open source software? Of course not. But that hasn’t stopped federal courts from issuing bizarre warnings like this:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or .plug-in. called RECAP … 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 … .

To understand this strange edict, we need to review the history of RECAP and why it might be unpopular with court officials.

Open courts are essential to an accountable, democratic legal system. With some notable exceptions, court proceedings in the United States are public. But if you want to access these public records online, you will be hit with a big fee. The official PACER system charges for almost any activity (e.g. searching, viewing dockets) and charges 10 cents per page. These fees vastly exceed the actual cost of providing electronic access. And while 10 cents per page may not sound like much, the costs can quickly add up. PACER’s exorbitant rates hit litigants, non-profit media outlets, and citizen watchdogs alike.

In 2008, Aaron Swartz and others began a pioneering campaign to liberate public documents from behind the PACER paywall. At first, Swartz used free library access to collect the documents. When the courts shut down that program, the campaign turned to crowdsourcing – with individual PACER users submitting documents to a public archive. To facilitate this, the Center for Information Technology at Princeton University created a browser extension for Firefox and Chrome called RECAP (which ‘turns PACER around’). Users with the extension automatically send documents uploaded from PACER to a repository hosted by the Internet Archive. RECAP takes great care to protect private information. It only archives public documents and quickly deletes any private information mistakenly released by the courts. Since 2009, the RECAP project has liberated more than 2 million public documents.

The government has responded with hostility. First, in an eerie precursor to his later prosecution for downloading documents from JSTOR, the FBI investigated Aaron Swartz for purported violations of the overbroad and draconian CFAA. After the FBI dropped that investigation, courts began warning lawyers not to use RECAP because it was “open source” software and might facilitate the sharing of sealed documents. These messages were widely criticized as misleading. Yet, years later, a number of courts still insist on posting the same misguided scaremongering.

Of course, there is no reason to fear open source software simply because it is open source. The courts might be under the misconception that RECAP development works something like Wikipedia, where any contributor's changes are adopted immediately. Instead, RECAP, like other open source software, has a maintainer to coordinate its development, actively reviewing all proposed changes to decide which ones to include or reject. (In RECAP's case, the Firefox version is maintained by Harlan Yu, Timothy B. Lee, Stephen Schultze, and Dhruv Kapadia, and the Chrome version by Ka-Ping Yee. These individual developers are directly responsible for the content and functionality of the RECAP software—they just don't try to keep how it works a secret.)

For any sort of software, whether open source or proprietary, the provenance of particular downloads is of crucial importance—since anyone could make a fake download site with malicious versions. So users should always be careful about where their downloads come from and how they know they're authentic. As for RECAP, the best way court officials could help protect user security would be to direct users to the correct RECAP site.

Unfortunately, the federal court RECAP warnings are not the only example of scaremongering and technophobia in the justice system. The government routinely treats computer expertise as stand-alone evidence of nefarious intent. And prosecutors seek excessive sentences in computer-related cases, such as the vindictive prosecution that ended with Aaron Swartz’s tragic suicide (it is particularly sad to see the absurd RECAP warning posted by the Federal Court for the District of Massachusetts, where that prosecution took place). Whether these actions are the result of deep ignorance or deep cynicism, we deserve better.

Aaron Swartz’s campaign to open access to court documents was just one chapter in a brief and extraordinary life. On September 19, we will honor him with an EFF Pioneer Award. Another small way to honor his work is to install the RECAP extension and contribute to open government one PACER download at a time.

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