Wednesday, September 16, 2009

Submitted to the National Law Blog- Pacer: What Public Access?

The opinion, What public access?, by Erika V. Wayne, September 14, 2009, should help in generating awareness of a critical widespread problem - "Digital Pollution" - large computer systems in both government and public corporations, which were either never validated (logic-verified), and/or were fraudulent by design, and/or were corrupted over time.

The duality of PACER vs CM/ECF as docketing systems of the U.S. Court system, must be the subject of careful review. It was established by the U.S. judiciary with no reasonable opportunity for public review and challenge, and therefore - with no authority at all. Pacer and CM/ECF were constructed as separate but unequal systems, and the courts segregate parties at will into one or the other. Pro se filers, and practically all prisoners, are limited to Pacer access.

The main point that was missed in the opinion, was that Pacer eliminated all NEFs (Notices of Electronic Filings - comparable to Proofs of Service, or Notice of Entry and Certificate of Mailing by Clerk) from the system. Therefore, the Pacer user is blind - he or she cannot tell which records are valid, and which are not. The NEFs today are the attestations by Clerks, pursuant to the Act of May 26, 1790. Absent the attestations, no determination can be made relative to authenticity of records.

Such key systems, of which Pacer and CM/ECF are but one example, signal severe deficiencies in the infrastructure of U.S. government agencies and financial institutions, which call for immediate attention. The solution must involve a long-term effort, guided by the U.S. government, with reasonable timed goals set for enforcement, incentive for public corporations for early compliance, and intensive education efforts at various levels – from the public at large, to specific professional groups. Outside observers may also assist in such process, because one of its stated goals must be the re-establishment of credible U.S. regulation in the financial sector:

1) The required technology is readily available. Moreover, the field represents an enormous business opportunities in an initiative to rebuild major systems in public agencies and public corporations, including critical reevaluation of all steps of the process: design, implementation, validation/logic verification, and long-terms safeguard of integrity. Separately, attempts would have to be made to clean up or salvage parts of existing machines and databases.

2) The legal framework is likewise largely in place, albeit promulgation of effective regulations is required.

3) Public education must be integral to the process: The public must be re-educated to demand its Common Law ACRIP right ("Access to Court [or public] Records to Inspect and to Copy") and the right for Competent Tribunals with published laws and rules of court, subject to public review. Gains of generations were lost in the transition from paper to digital media. Nothing short of public educations would re-establish and secure integrity of the courts and of public corporations.

4) Professional education must be integral to the process: Standards of care, development and recognition of new professional titles, and related education is required in order to have the computing community assume a more responsible role in this area.

5) Periodic visits by international friends, who would be willing to provide observations, would benefit the interests of all involved.

The U.S. government is not ready, able, willing to address conditions in Los Angeles County and elsewhere. Conditions at the courts veered far off the course and should amount upon review to major violations of the Universal Declaration of Human Rights. Conditions at financial institutions are likewise - far from compliance with the Basel Accords.

SEC v BAC (1:09-cv-06829): Notice to SEC and BAC of intent to intervene, and offer to confer

Timely response requested by Friday, September 18, 2009, 5:00 pm


Please take notice. Following the September 14, 2009 Memorandum Order [i] by the Honorable Jed Rakoff, please be informed of my intent to further explore conditions at the U.S. District Court, NY, aiming to intervene in the action. I therefore also offer hereby to confer in re: Case Management Plan, required by the Court in the same Order, so that no delays would be later incurred.

No doubt, I was delighted to notice in the September 14, 2009 Order, wording such as:

"the proposed Consent Judgment was a contrivance designed to provide the SEC with the facade of enforcement" .

The Proposed Settlement was "neither fair, nor reasonable, nor adequate."

The Court considered SEC less than eager to inflict penalties on BAC and its senior executives. It is only common sense to make the inevitable next logical step: SEC and BAC came to court on friendly terms - SEC not truly intending to enforce the law, and BAC not truly intending to comply with the law. It was unlikely that the Court would be able to compel adversary between such friends. Since the U.S. justice system was founded on the adversarial principle, it was also unlikely that instant proceedings would materialize as effectual litigation, unless conditions were generated that would allow at least one additional party, truly adversarial, to step in on a level playing field.
I therefore copy below the ending of the August 30, 2009 letter, verbatim:
Please fax and/or email ... copies of the following records, together with a declaration by a Custodian
of Records in this regard:

1. NEFs (Notices of Electronic Filing) of all papers filed by parties and of all
orders filed by the Court in this action so far (each NEF is about 1-2
pages long, for a total of about a dozen records), both as PDFs and as
digital files such as they are displayed in CM/ECF. Copies of the records
themselves are not requested.

2. Summons, as issued by clerk.

3. Summons, as an executed record.

The litigation records in SEC v BAC, as they were so far published, must be
deemed uninformative and confusing, vague and ambiguous ...
The only change is in timing the request for Friday, September 18, 2009, 5:00 pm, and adding to it a request for response in re: the offer to confer by that time as well.

Dated: September 16, 2009 Joseph H Zernik


Joseph H Zernik

Pro Se

The complete letter can be viewed at: