Whose information is it? (Schultze lunch talk)


In honor of Open Access Day (who knew there was such a thing?) my fellow fellow Stephen Schultze gave a great talk at lunch today on what he calls his “glorified pet peeve” — Open Access to Government Documents. Actually of course the talk was really about the lack thereof, in the United States. (below pseudo-live blogging, inaccuracy, inarticulate and incomplete – please go to Berkman site and watch the video to get the real thing)

Although, as Steve points out, per Section 105 of US Copyright Law, “Copyright protection under this title is not available for any work of the United States Government,” this has not meant in practice that they are freely available.

He cites 3 examples, all really interesting.

1) CRS – the Congressional Research Service

We pay for it, it does vast amounts of research on many topics for Congress, its reports by definition are not copyrighted and are frequently made public yet it does its best to keep its work limited to Congress. Steve notes that the problem with this is not only only that the public doesn’t benefit from all this work (as someone in the auience points out, the folks who work at CRS are desperate to circulate their stuff, to give meaning to their work) it’s that what happens is that the CRS reports are made public selectively. They tend to get leaked to lobbyists and others with good connections and used to support specific positions. Not so good. In April 2007, CRS director wrote (see Secrecy News blog post with link to the internal memo) defending their reasons for not making CRS reports public, which boiled down to they are worried that if their work were public, they would come under political pressure.
Meanwhile, a couple of places do publish them – one is Penny Hill Press, which charges money for them (something like $30/report) but is complete and easy to search. Then there is Open CRS, a project of the  Center for Democracy and Technology (CDT), whose database is free but not complete.

We discuss briefly why CDT doesn’t just buy the reports from Penny Hill and post them. Apparently, Penny Hill’s contracts forbid subscribers from re-publishing the reports.

Example 2 – Oregon State Codes

Steve tells the story of Public.Resource.org, whose director Carl Malamud is one of Steve’s heroes it would seem. They were sued by State of Oregon for publishing the Oregon statutes online  not for the text which is of course non-copyrightable, but for the formatting, etc. Steve plays video of Carl testifying as to why it is ludicrous that the laws that rule our lives should not be freely available. The deal is that Oregon had been selling the codes both to Lexis-Nexis and Westlaw as well as in books. They gave up on this case (and presumably on the Lexis and Westlaw revenues.

This all sounds so bizarre to me after my time in the democracy industry, where one of the things we tried to promote to ostensibly less-wonderful governments was e-government, which was meant to promote transparency. Apparently we don’t practice what we preach. I’m learning so much about the Untied STates here at Berkman.

Now to number 3 Public Access to Court Electronic Records (PACER) (which is nearly the same as Case Management Electronic Case Files CM/ECF)

It’s a system to provide access to documents from Federal court cases. It’s separate for every court, so you have to know which court’s records you want. You have to give them a credit card to login but the first $10/year of documents are free, at $.08/page, which for a minute sounds like it might be enough for personal use.  But Steve does an excellent demo of just how easy it is to rack up charges, just about everything costs a few pennies, even figuring out what you’re looking for. (He explains that his obsession with this moved from pet peeve to “glorified pet peeve” partly after a wrong click on PACER led him to receive 100s of links, costing him several dollars  for things he didn’t actualy need/want)

In fact, PACER is mostly used by and useful to, lawyers with budgets. Again, the Public.Resource folks are doing God’s work, they encourage people to “recycle” their docs by sending them in and making them available, and our own CMLP also shares PACER docs they buy.

Steve points out how nonsensical the fee structure is – the 8 cents isn’t what the system needs to cover their costs of copying an electronic page. In fact the JITF (Judiciary Information Technology Fund) had a huge, $100 million surplus.

Steve gives a lot more detail and insight into why the folks in charge of PACER and other systems might be worried about (people re-writing and misrepresenting laws or other gov’t info and personal privacy being the two most salient – he notes that these are very real but that they have been solved in other arenas) and a couple of people discuss European examples. Apparently the E-government law of 2002 doesn’t give enough detail on how this stuff should work. So the question is where is the most effective place to put pressure to make these things happen and getting it paid for. Steve notes that getting Congress to do something about it is probably the hardest way that it might be easier in some strange way to look for commercial sponsors (this database of Massachusetts court cases brought to you by Dewey, Cheatham and Howe?)

Fascinating stuff, a bit depressing to me thinking of all those smart people at CDT, Sunlight Foundation, Public.Resource and so on having to do so much hard work to undo the stupidities that we have paid various branches of our government to do. At least it’s easier to do the work free a court document than, say, a prisoner in Guantanamo.

American Freedom
by Freedom Toast

Freedom & Truth
by nati

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