This article will discuss the impact of the court's ruling against the broader backdrop of the push to improve online access to court data, as well as the implications it has for the future of the legal profession and lawyers' ability to better manage their practices and further improve access to justice.
Categorical Bans of Court Data Scraping Violate the First Amendment
In the wake of a statewide eviction crisis in South Carolina, the South Carolina State Conference of the NAACP (“NAACP”) launched a Housing Navigator Program in February 2021, which provides free eviction-prevention services, investigates community-wide patterns of eviction filings, and advocates for greater access to fair housing through Fair Housing Act litigation and other means.
To address the housing crisis in South Carolina, the NAACP’s Housing Navigator Program sought to scrape online housing court records, so it could uncover tenants with eviction actions filed against them and further assist them with fighting those eviction actions. The NAACP also sought to acquire South Carolina court data through automated data collection to conduct broader statewide advocacy armed with data-driven evidence of issues connected to the eviction crises.
However, the Court Administration of the State of South Carolina has sought to categorically ban any automated collection of court data from the Public Index, the state’s repository of public court records. This in turn ultimately led to the NAACP, represented by the American Civil Liberties Union (ACLU), filing a lawsuit in March of 2022, asserting that South Carolina’s blanket ban on court data scraping violates the First Amendment by “restricting access to, and use of, public information, and prohibiting recording public information in ways that enable subsequent speech and advocacy.”
Fast forwarding to January 2023, the NAACP and ACLU scored a critical victory and a first step in their lawsuit, when Judge Mary Geiger Lewis denied a motion to dismiss brought by South Carolina, ruling that litigation to lift the categorical ban on automated data collection of online court records can proceed.
While the developments in NAACP v. Kohn et al represent a positive step forward for cementing the position that categorical bans of court data scraping are unconstitutional violations of the First Amendment, there are other cases, such as Courthouse News Service v. Hade et al, which present other challenges to the ability to aggregate court data online.
In Courthouse News Service v. Hade et al, U.S. District Court Judge Henry E. Hudson for the Eastern District of Virginia granted summary judgment in favor of the Commonwealth of Virginia, finding that the public does not have a protected First Amendment right to remotely access civil court records online, even though attorneys are granted access to those same records electronically.
Reaching this ruling, Judge Hudson decided that the Commonwealth of Virginia’s decision to restrict public access to online court records was a time, place, and manner restriction, leading to relaxed scrutiny of the Commonwealth's decision to severely limit the fundamental First Amendment right to access court records in the twelfth most populous state in the United States of America.
Soon after this ruling, Courthouse News Service filed an appeal in October with the Fourth Circuit Court of Appeals, where the case is now pending.
Implications for the Future of the Legal Profession
Automated data collection of online court records has enormous implications for the future of the legal profession, as the ability to easily access aggregated court data directly impacts law firm operations, the quality of legal services, and meaningful access to justice for consumers.
Docket Management
The ongoing growth of the legal technology ecosystem has allowed for great innovation in the way lawyers manage litigation, and especially as it relates to docket management with the proliferation of practice management and docketing solutions.
However, without automated access to the underlying court data to power these tools, lawyers and legal professionals have to use time-intensive processes requiring them to manually enter court records data from government databases into their practice management solutions and other downstream systems.
With the increasing adoption of legal data APIs that automate the discovery and delivery of court data, the laborious, manual transfer of legal information is no longer needed to effectively manage court dockets. Forcing legal professionals into the sisyphean task of constantly copying and pasting countless case updates directly detracts from the quality of legal services and negatively impacts their clients.
Litigation Strategy
The incredible advances in the development of legal analytics to build winning litigation strategies is in large part due to the growing availability of electronic court data across the United States, as well as the maturity of machine learning models and other forms of artificial intelligence to draw insights from court data.
Automated collection of court data has empowered the legal technology ecosystem to develop a range of legal analytics solutions allowing for better, quicker resolutions in litigation. When the lawyers and parties involved in a case can make data-driven decisions connected to settling cases faster, it further increases judicial economy while reducing crowded court dockets judges and their staff face.
Business Development
As economic uncertainty is still spilling into 2023, reliable access to external court data and other public records data sources is becoming an even more important factor for law firm business development and managing the business of law.
With real-time access to court data aggregated, cleaned, and normalized by legal technology companies, law firms can more easily combine internal and external data sources together to drive the insights needed to keep their practices profitable. This gives firms a distinct advantage when they are engaging new clients and conducting market share analyses, as well as when they are seeking to proactively grow their business with existing clients through available cross selling opportunities.
Access to Justice
In many jurisdictions across America, the only viable method for acquiring the court data and court documents needed to conduct meaningful research and studies on the widening gap of unmet legal services needs is through the use of automated data collection.
As Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project, recently shared, “Scraping is often a necessary method of gathering public data efficiently, and enabling digital-era research and journalism in the public interest.”
Outside of the prime example of the NAACP scraping South Carolina court records to find tenants to assist in eviction actions, another great instance of leveraging court data to generate positive outcomes for consumers can be gleaned from law professor Claire Johnson Raba’s use of court data from UniCourt to bring about legislative change in California.
Through analyzing twelve years of court record data for private student loan debt collection cases filed in California, Claire’s research gave California legislators the data they needed to better understand the magnitude of the issue their constituents faced. This ultimately led to the passage of Assembly Bill 424, providing important consumer protections for student loan borrowers facing debt collection abuses in California state courts.
Another Step on the Stairway to SCOTUS
The NAACP has taken an important first step on the winding stairway to the Supreme Court of the United States in NAACP v. Kohn et al, as it continues to fight to protect the fundamental First Amendment right to access court data through automated collection of court records.
The ability to aggregate court records through automated data collection has real-world implications for access to justice for consumers, and significant impacts on docket management, litigation strategy, and business development for lawyers. However, where states seek to restrict the right to access court data through automated means, it creates persistent court data deserts, leading to legal technology deserts causing lawyers and their clients to face far greater uncertainty in the court system and take on unnecessary risks that could be avoided in litigation.
As the march continues forward for open data advocates, we’ll be keeping an eye out for future developments in this case.
