from public.resource.org/law.gov to law.gov

March 15th, 2010

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)


Lessig on Google Books & cultural environmentalism

February 1st, 2010

Long and interesting critique of the google books settlement: http://www.tnr.com/print/article/the-love-culture.

Lessig argues that GBS is effectively creating the kind of celestial jukebox that some early digital media analysts (e.g., Paul Goldstein) thought might be the savior of the content industries; Lessig questions what we lose when we “make every access to our culture a legally regulated event.” Although I’m a little skeptical of the basis of his preservationist rhetoric–for one, he frequently appeals to a mythical library & used bookstore culture that likely doesn’t exist today for most people–this doesn’t mean that library-talk isn’t metaphorically useful to the larger project of preserving balance “between the part of culture that is effectively and meaningfully regulated by copyright and the part of culture that is not.” Still, it’s notable that this distinction between regulated and unregulated culture is challenged by the private regulation system (Samuelson, pdf) set up by the settlement. Does this imply that public regulators should take it as their task to carve out regulation-free zones so that private entities can’t determine and control access within those spaces? Anyway, well worth a read.

Also, his proposed registration/formalities solution dovetails with my recent submission (pdf) to the FCC’s National Broadband Plan inquiry, which is nice. Here’s Lessig’s proposal:

A better solution would be to shift to the copyright owners some of the burden of keeping the copyright system up to date, by establishing an absolute obligation to register their work, at least after a limited time. Thus, for example, five years after a work is published, a domestic copyright owner should be required to maintain her copyright by registering the work. Failure to register would mean that the work would pass into the public domain. Successful registration would mean a simple way to identify who owned what. … The government should not run these registries. They are the sort of thing that the Googles and Microsofts of the world should do. Rather, the government should establish the minimal protocols for these registries, and permit registrars to compete to service that registry.



September 17th, 2009

Siva Vaidhyanathan has written a book highly critical of Google’s practices and impact in the information ecosystem, and has titled his work The Googlization of Everything. My immediate reaction is that it would be useful to put forth a vision of the world where the capital-G Googlization of Everything has been replaced with the small-g googlization of everything; where a company like Google remains incentivized to take the admirable steps it has taken in finding, organizing, and granting access to various information and knowledge sets, but does not gain, through the development of this information platform, the ability to restrict public or private entities from replicating the Google-developed knowledge-sets or organizing these knowledge-sets in new ways. Perhaps this world is already the world we have; perhaps it is not; more likely, we’re somewhere in between. In any case, once the full vision of this world has been conceived and articulated, it would then be useful to rewrite Siva’s book.


Essentially, this ambition entails decomposing the wholesale task of “googlizing everything” into tasks that can be accomplished by separate entities and then contributed back into a common access pool. Ideally, these entities would not be working at cross-purposes on the task (e.g., by signing multiple contracts with the same libraries to gain access to the books therein), but would instead coordinate their efforts to the extent needed, and no further than that. For instance, most upstream content & goods & media – and some downstream innovations upon these materials – would be deemed part of the commons (the river, the village green, whatever you want to call it) that all would be permitted to innovate upon. This commons would thus grow, although perhaps it would not contain all downstream innovations; rather, it might be delimited by the extent to which innovating parties agreed, in a rough consensus manner, that certain tools and goods were, or were likely to become, essential facilities to further downstream innovation. Designing the governance mechanisms by which this pool of essential facilities could expand and evolve would obviously be… a challenge.


how different countries regulate communications infrastructure

August 19th, 2009

OK, say you’re not totally put off by my last post, and you still want to explore the magical world of…. I’m not going to use the phrase “access to knowledge” ever again, I’m instead going to say….

the magical question of how to promote wider distribution of the conversational tools by which we come up with the know-how, narrative shortcuts, mnemonics, stylistic moves, inventions, and other valuable things that make up ‘knowledge’ within our networked information society.

It seems to me the first thing you’d want to do is get a rough sense for the lay of the regulatory land. To do this, maybe you’d compile a cross-section of different countries’ approaches to regulation of communications platforms — with an eye towards what entities/agencies are actually *doing* the regulating in various locations, and what these countries conceive of as the *purpose* of regulating communications networks. Some might say they craft their communications policy in order to promote citizen safety and national security, others might say the point is to foster innovation and promote economic development, a few might have higher aspirations of protecting citizen autonomy and privacy, many would agree that it’s important to encourage investment in communications infrastructure, etc. Different countries, and different regulatory bodies within those countries, would have all kinds of mixed and imperfectly overlapping motivations. That’s kinda the nature of governance.

Then, with these different approaches and goals in mind, it would be useful to analyze how best to formulate and implement a constitution or set of internationally acceptable first principles regarding the future of these communication platforms — because, and this is important, no one doubts that communications have become and will continue to become less provincial and more international in scope, both in terms of who’s doing the communicating and what kind of platforms the communicating is being done upon.

Maybe the *substance* of the constitution and its first principles isn’t as important as figuring out how best to *structure* the multi-stakeholder networked governance institution that will formulate and implement these principles. WIkipedia, for instance, didn’t get mired in debates over the substantive details of its encyclopedia; it just set people to work and gave them a rough (and editable) framework for resolving the disputes that would inevitably arise about substantive details. Writing a global network constitution would be as or more difficult than writing an encyclopedia, so it likely makes more sense to start by outlining the broad procedural contours of this governance institution: who would have a seat at the table? which private vs. public entities should be included and how much relative bargaining power should each have? what procedures would be required to amend the constitution?

What other structural and procedural concerns would need to be resolved before vesting the parties with any substantive powers to negotiate a shared communications infrastructure?


you lost me at “access to knowledge”

August 19th, 2009

I’m on a bus heading to a conference that is about access to knowledge (“a2k,” for those who enjoy hip-sounding acronyms), and that bus is stuck in heavy traffic (of the sort that occurs when they close the right two lanes of I-95), so I reckon I should take this chance to figure out what access to knowledge is. And by “figure out,” I mean come up with a totally provisional definition based on a set of examples or activities that, in my bus-addled mind, *seem like* they should fall under the framework of access to knowledge.

First of all, let’s stipulate that access to knowledge is a clunky term. “Access” sounds too passive, as if all we care about is ensuring that people have the ability to view something, rather than really work with its raw materials and read/write/remix its elements into something new, interesting, and immediate. The preposition “to” makes it sound like there’s something out there already, and we just have to point people in the right direction and they’ll find it (“go to that knowledge, Lassie, and bring me back some of it!”). Even “knowledge” carries connotations of experts and academics imparting their wisdom from on high in neatly packaged bundles.

When I hear the words “access to knowledge,” then, the image that comes to mind is quite *boring*, and not worth repeating, not even on a blog. It’s too final, it’s too authoritative, and it ignores the extent to which know-how, narrative shortcuts, mnemonics, stylistic moves, inventions, and the other valuable things that make up “knowledge” within our networked information society emerge not as finished products but instead through the conversations and interactions we have with ourselves and others. Knowledge is the means by which we reconstitute ourselves and generally keep things fresh in the different kinds of language-games we play on a daily basis. Knowledge frees us from the past, and misleads us in all kinds of interesting ways. Knowledge is fun, not boring — not that calling something “fun” makes it any less powerful, but “fun” is a more useful way of thinking through a2k because it shows us how hard it is to plan for knowledge and how easy it is for knowledge to sneak up on us and catch us unaware.


Total Civic Relevance

July 17th, 2009

Starting afresh with this blog (or, if you prefer, “collection of unfocused anecdotal accounts”), I’d like to refocus the conversation here towards civic participation, and away from amateur photography. We’ll see how well that works….


ode to metrobus

July 14th, 2009

the 5A metrobus is impossible to find at Dulles, but it is a pretty
good deal.


oh boulange de cole valley

July 10th, 2009

I have missed thine chai tea and array of diabetes-inducing condiments.


delayed gratification

July 5th, 2009

this was actually the second WH i went to in the last half hour in the
Richmond area. now I'm at the third and things are looking up (no 25
min wait, no overpowering smell of cigs).


striped crooked

July 4th, 2009

on the porch overlooking the swamp that borders the beach. (swamp =
muchos de mosquitos.)