NAACP and ACLU Sue South Carolina Court Administration Over Categorical Ban on Automated Court Data Collection

By Jeff Cox on Topics: Future Law | News

NAACP and ACLU Sue South Carolina Court Administration Over Categorical Ban on Automated Court Data Collection

The battle to improve access to court records in state courts across the United States wages on with the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) taking center stage with their newly filed lawsuit against the South Carolina State Court Administrator and the Chief Justice of the South Carolina Supreme Court: South Carolina State Conference of the NAACP v. Kohn et al.

Beyond protecting the constitutional First Amendment right to access and record public court records, this case also has significant implications for access to justice initiatives and advocates. In this blog, we’ll walk through some of the most salient arguments of the ACLU and NAACP against the complete prohibition on automated collection of court data, and also touch on the real-world consequences of restricting access to this data. 

Protecting First Amendment Rights to Access and Record Public Court Records

In an announcement directly after the filing of this lawsuit, the ACLU succinctly summed up the crux of their case against South Carolina, noting that “Scraping is a legitimate method of collecting information online that is often necessary to efficiently and systematically gather records that might not otherwise be possible to record…” and that “the South Carolina Court Administration is violating the First Amendment by prohibiting scraping of its court docket information, which is already publicly available online.”

As pointed out by Allen Chaney, legal director for the ACLU of South Carolina, “Modern American courts churn out case filings at a rate unimaginable to our Founders.” Chaney goes on to explain that “For the public to have a meaningful discussion about the role our courts play in matters of public concern, the right to use noninvasive technical means to capture public court information must be protected.” For Chaney, “This case is about ensuring core First Amendment principles, like the right to access public court filings, are applied in a way that meets our rapidly expanding digital reality.”

At the heart of this lawsuit is the argument that the prohibition on data scraping is an unjustified limitation on First Amendment rights to record public information. The argument being that the South Carolina Court Administration chose to create the Public Index, which makes certain court records available to the public for collection and review, and that by granting access to the public at large, the Court Administration cannot then turn around and impose unreasonable restrictions on people’s ability to capture or record the information from the Public Index. 

In its complaint, the NAACP alleges that the “Court Administration’s categorical prohibitions on scraping are unjustifiable and do not survive either strict or intermediate scrutiny under the First Amendment,” and goes on to assert that “Defendants’ ban on scraping is not tailored at all. Nor is any ‘important interest’ furthered by prohibiting automated searches of already-public records.” The NAACP also notes in its complaint that many other court systems make their dockets available online without categorically banning scraping, with one of the best examples being the federal court system’s Public Access to Court Electronic Records (“PACER”) website. 

Adding to the allegation that “measures employed by Court Administration indiscriminately block anyone seeking to scrape the Public Index, regardless of the methods used and whether the impact on the Public Index’s operations is de minimis,” the NAACP also alleges that the technical prohibitions put in place by the Court Administration have also blocked users who attempt to manually run multiple queries on the Public Index, further inappropriately denying them protected access to public records.

Here below are the requests for relief from the NAACP:

  1. Declaring that Plaintiff South Carolina NAACP has a protected right under the
  2. First Amendment to the United States Constitution to scrape docket information from the Public Index;
  3. Declaring that the terms of service that govern the Public Index violate the First Amendment to the United States Constitution;
  4. Declaring that the current technical measures employed by Court Administration, which indiscriminately and categorically prohibit all scraping activity, violate the First Amendment to the United States Constitution;
  5. Permanently enjoining Defendants—including their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of the injunction—from enforcing a categorical prohibition on scraping the Public Index, through the current technical measures or terms of service, against Plaintiff;
  6. Awarding the South Carolina NAACP reasonable costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 and other applicable laws; and 6. Granting the South Carolina NAACP such other relief as the Court deems just and proper.

Why Protecting First Amendment Rights to Access and Record Matters

Outside of the strong and concise legal arguments put forth in its complaint, the NAACP also highlights the access to justice implications of states unconstitutionally restricting access to court records. 

As the backdrop for this lawsuit, the NAACP notes that “South Carolina faces a statewide eviction crisis” with South Carolina counties accounting for 12 of the 20 highest eviction rates in the United States, including some of South Carolina’s most populous counties, such as Richland, Berkeley, and Anderson. To combat this crisis, the South Carolina NAACP launched a Housing Navigator Program providing free resources to individuals and families facing eviction, including information about legal and nonlegal services and alternative affordable housing opportunities. The Housing Navigator Program is also focused on investigating and responding to community wide patterns of eviction filings, and advocating for greater access to fair housing through Fair Housing Act litigation.

By preventing the South Carolina NAACP from using automated data collection to gather and record information that is publicly available on the court Public Index, it directly impacts the NAACP’s ability to act and respond to the “eviction crisis” and work toward alleviating the “cascading harms for tenants, their families, and the communities in which they live.” It also prevents the NAACP and others from better studying what exactly is happening in the courtroom for tenants, who face the dizzying process of going through eviction litigation without a lawyer, so that they can advocate for legislation to make the law work better for everyone. 

As UniCourt’s CEO and Co-Founder, Josh Blandi, shared on Twitter, banning the use of modern tools for automated data collection of court records prevents the public and organizations like the NAACP and ACLU from exercising their First Amendment rights. Josh also noted that it “prevents legal tech companies like UniCourt from assisting non-profits, legal aid, and law school clinics like the University of California, Irvine School of Law’s Consumer Law Clinic from uncovering systemic access to justice issues in state courts.” 

For another great example of how automated collection of court data can make a meaningful impact on the access to justice gap, you need look no further than the three-part guest post blog series UniCourt conducted with Claire Johnson Raba of the UCI Law Consumer Law Clinic:

Through using UniCourt California state court data, Claire and her team were able to uncover significant and serious hardships faced by student loan borrowers in California state courts. Her findings would later culminate in a report co-authored by UCI Law and the Student Borrower Protection Center entitled, Co-opting California Courts: How Private Creditors Have Turned the Judiciary into a Predatory Student Debt Collection Machine. Armed with this report, California state legislators were provided with the data driven analysis they needed on what actually happened in state courts, which led to the passage of California Assembly Bill 424, a bill dramatically increasing protections for student loan borrowers facing debt collection abuses in state court.

“Advocates for low-income litigants in the court system recognize through the experiences of their individual clients that systemic injustices and structural inequities impact the way low-income and unrepresented litigants experience the court system,” shares Claire. However, she also emphasized that “The data to show the big picture of how these cases proceed, and the outcomes for the litigants, is often buried in a myriad of different case management systems. In many states, this data remains inaccessible to the public, standing as a barrier to quantitative analysis of how courts operate, but when the data is made available to the public, it becomes a valuable resource to drive legislative change.”

When public court data is made more available and accessible by modern automated data collection tools, it not only ensures the protection of fundamental First Amendment rights cemented in the very foundation of the United States Constitution, but it also ensures that access to justice advocates can get their hands on the data needed to push our courts and legislators for the changes needed to remedy systemic issues. 

As ardent proponents of improving access to court records, we will be closely watching for new updates in South Carolina State Conference of the NAACP v. Kohn et al. To ensure our readers have access to the latest updates in this case, we have also made all of the documents and the full docket of this case freely available on our website. 

Want to learn more about UniCourt’s mission to make court records more accessible and useful? Or want to submit your own ideas for guest posts on why better access to court data means better access to justice? Contact Us and we’ll be in touch.

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