I’ve been involved with a few initiatives seeking to promote wide access to scholarly articles, but have not spent as much time thinking about what open access means when applied to the raw materials of law: judicial briefs, caselaw, statutes, Congressional reports and hearings, executive regulations, grants, audits, and so on. This all changed on Wednesday, when Carl Malamud and Tom Bruce came up to the Yale Information Society Project during the afternoon to discuss the law.gov movement, and I joined Carl and Helen Nissenbaum of NYU for a panel on law.gov that same evening at New York Law School.
Law.gov is an attempt to create a distributed registry and repository of primary legal materials. Carl is participating in a number of workshops this winter and spring at law schools, NGOs, courts, and governmental agencies; his goal is to figure out what the main obstacles and objections will be in promoting broad legal access through a repository such as law.gov.
At our NYLS panel, Helen, who has written a great new book called Privacy in Context, wondered how public legal materials changed when they were taken out of dusty physical court archives and released online. She illustrated the privacy problems with a story about a county clerk in Ohio who put all of his town’s legal records online, including criminal and divorce records, and encountered a fair amount of pushback in response from townsfolk who were worried about the resulting potential intrusion into their lives from snooping neighbors and curious officials. Helen raised the question whether placing legal information on the Internet merely revealed the potential privacy problems that up until now have been practically obscured through physical access restrictions, or whether the online move fundamentally transforms public information and leads to a whole new set of privacy concerns.
During my talk, I mentioned my sympathy to the stronger (latter) notion of Helen’s that information leads a very different life once it’s released online. danah boyd, for one, has carefully catalogued and beautifully narrated the numerous advantages and problems of the persistence, searchability, replicability, and aggregation of online information. And it’s very much an open question as to where the norms will come from that will resolve these privacy and reputational problems—particularly as traditional information fiduciaries and duties of professional confidentiality are replaced by more mechanistic data-aggregation and distribution services. But while I would definitely want any release of governmental information to take account of the unique characteristics of online information—both from the perspective of the agencies/courts releasing the legal datasets and from the perspective of the decentralized third parties building apps, interfaces, data-harvesting tools, and search engines on top of that information—I wouldn’t necessarily want to let this become an argument against releasing onto the open Internet legal information-sets that Lexis and Westlaw have *already* digitized and made available to anyone who can pay for access. Beyond the limits on downstream innovation that would be implied by limiting the organization of legal information and the accumulation of legal data to a couple of existing providers, such a strong imbalance of access to the fundamental raw materials and organizational tools of legal communication should be troubling to any society that considers itself a nation of laws. It seems inevitable that coming up with the “rough consensus and running code” around which different levels and branches of the government can congregate (and interface with users) will require broadening the conversation beyond archivists and private legal information providers to include attorneys, judges, legislators, agency regulators, computer scientists, and other non-administrative users of laws. This is, I think, exactly what the law.gov movement is trying to accomplish.
My other contributions to the conversation at NYLS were mainly along the lines of figuring out (a) what was unique about legal materials as opposed to other kinds of archived works and (b) how to design archives and interventions that accounted for the unique linguistic economies of legal works. That is, how best can one develop metadata and standards that identify the hierarchical and jurisdictional interoperability (or lack thereof) of caselaw, statutes, and regulations? I also brought up a variety of distinctions between transparency and access, direct vs. indirect court functions, and public vs. private archivists, and examined how our evaluations of these distinctions would affect efforts at broadening access to law. I’ve put up my slides for anyone who is interested, and am glad to talk with anyone who’s interested in continuing these conversations.
Thanks to the Yale ISP and to NYLS for convening this fascinating set of initial discussions.
(cross-posted to yaleisp.org)