Harvey: Free Public Access to Law and Primary Legal Information as an Aspect of Internet Freedom

Judge David Harvey has posted Free Public Access to Law and Primary Legal Information as an Aspect of Internet Freedom, at his blog, The IT Countrey Justice.

Here are excerpts from the introduction:

The Rule of Law and its protection of human rights is essential to a functioning democracy. The discussion that follows addresses a critical aspect of the Rule of Law and that is the issue of the right of access to legal information. This right is a subset of the right to receive and impart information, but what is of significant importance is the nature of the information that is being imparted and received. It is information about the law – the rules that set the metes and bounds of behaviour in a society and that delineate and define the relationships between citizens and between citizens and the State. [...]

The study firstly examines the rationale for access to legal information, using a “law-based” approach. I then proceed to consider the opportunities provided by the Internet in the onset of the digital paradigm, and then consider the concept of access to law on-line and the development of the Free Access to Law Movement (FALM) and the principles that have developed over the years. Based on these principles a distillation of the responsibilities of the State and of redistributors are articulated, and using these principles a matrix is developed by which the performance of State and redistributor obligations may be measured and assessed as a part of a wider measure of the state of Internet freedom in a society. [...]

For more details, please see the complete post.

HT @djhdcj

Petition to Prohibit Copyright in Sources of Law

Carl Malamud of Public.Resource.Org has posted The Edicts of Government Amendment, a petition calling on the U.S. Congress to amend U.S. copyright law to expressly prohibit copyright in sources of law.

Here is the text of the petition:

To promote access to justice, equal protection, innovation in the legal marketplace, and to codify long-standing public policy, the Copyright Act of the United States, 17 U.S.C., should be amended as follows:

“Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.”

This language comes directly from Section 206.01, Compendium of Office Practices II, U.S. Copyright Office (1984). It reflects clear and established Supreme Court precedent on the matter in cases such as Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Banks v. Manchester, 128 U.S. 244 (1888). The law belongs to the people, who should be free to read, know, and speak the laws by which they choose to govern themselves.

So far more than 100 individuals have signed the petition.

HT @johntrandall

Mendelson: Private Control Over Access to Public Law: Federal Regulatory Use of Private Standards

Professor Nina A. Mendelson of University of Michigan Law School has posted Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards, forthcoming in Michigan Law Review.

Here is the abstract:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. This article evaluates several other considerations, including notice to those who expect to benefit from the way government regulates others, such as consumers of dangerous products, neighbors of natural gas pipelines, and Medicare beneficiaries. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. As shown by an assessment of the institutional dynamics surrounding public and private interaction to define the scope of federal regulation, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law in general, more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.

Freeing the DC Code: An Update

There have been several developments in recent weeks in the effort to make the District of Columbia statutory code freely available.

The project began in February 2013 when Tom MacWright posted You Cannot Have the DC Code, complaining that no free and open version of the DC Code was available for developers or the public to use.

Discussion then occurred regarding how to make the DC Code publicly available online in a version that was free of copyright.

In March 2013, Public.Resource.Org posted a digital version of the DC Code.

Last week, the DC Council said that they would not sue Public.Resource.Org for copyright infringement for posting a digital version of the code.

This week, the DC Council posted an unofficial digital version of the DC Code, licensed with the Creative Commons CC0 license.

This week it was announced that a hackathon to hack the DC Code will be held on 14 April 2013: Open DC Code Hackathon, in Washington, DC.

Click here for archived Twitter tweets from the Open DC Hackathon 2013, in .cvs format.

The Twitter hashtag for the Open DC Code Hackathon 2013 was #openlawdc

IRC discussion during the Open DC Code Hackathon 2013 occurred on Freenode under #openlawdc

Among the notable aspects of this project are that it demonstrates how members of the legal informatics and open-government-data communities can use the Internet to coordinate their efforts to make legal data publicly available, address challenging policy issues, and realize several of the principles of the open government data movement.

Here are selected articles and posts about the effort to make the DC Code publicly available on the Web and free of copyright restrictions:

• Tom MacWright: DC’s laws aren’t yours
• Cory Doctorow: Municipal codes of DC, free for all — liberated without permission
• Waldo Jaquith: Washington D.C. and the Work Ahead
• Steve Schultze: The District of Columbia Claims Copyright on the Law
• Martin Austermuhle: Breaking the Law to Publish the Law: Open Government Advocate Digitizes Entirety of D.C. Code
• Tom MacWright: The Open Code
• Tom Lee: The D.C. Code is Open–Come Hack on It!
• Dr. Joshua Tauberer: DC opens its “code”, embracing principles of open laws

For additional news about development of the Open DC Code, please see the comments to this post.

Thanks to Eric Mill and the members of the Legal Informatics Research Network for helping to gather the sources cited in this post.

Knake on Democratizing Legal Education

Professor Renee Newman Knake of Michigan State University and the ReInventLaw Lab has posted Democratizing Legal Education, forthcoming in Connecticut Law Review.

Here is the abstract:

Millions of Americans lack representation for their legal problems while thousands of lawyers are unemployed. Why? Commentators and academics offer a range of answers to this question, from economic factors to regulatory constraints. Whatever the root cause, clearly a massive delivery problem exists for personal legal services. Most individuals simply do not realize when a lawyer might be necessary or helpful. This Article, written at the invitation of the Connecticut Law Review for their Volume 45 Symposium entitled “Are Law School’s Passing the Bar? Examining the Demands and Limitations of the Legal Education Market,” suggests that democratizing legal education — i.e., systematically providing basic information about how to access legal services to the general public — offers a solution to the unmet need for those services, as well as to the unemployment crisis among the legal profession more broadly. Law schools have an important role to play in this effort. This article offers three recommendations.

The recommendations are:

First, law schools can fuel innovation in new markets and in methods for delivery, thereby leading to greater public awareness of legal services. Second, schools and regulators should work together to reduce the cost and time involved in training and licensing for lawyers who desire to engage in limited practice areas that are underserved, such as housing, domestic relations, and child custody. Third, law schools should educate the public about law, lawyers, and legal services through programs that also enhance student learning.

Schuman: U.S. House Convenes Second Public Meeting on Legislative Bulk Data

Daniel Schuman, Esq., of the Sunlight Foundation has posted House Convenes Second Public Meeting on Legislative Bulk Data, at the Sunlight Foundation Blog.

Here is an excerpt:

On January 30th, the House of Representatives held a public meeting on its efforts to release more legislative information to the public in ways that facilitate its reuse. This was the second meeting hosted by the Bulk Data Task Force where members of the public were included; it began privately meeting in September 2012. (Sunlight and others made a presentation at a meeting, in October, on providing bulk access to legislative data.) This public meeting, organized by the Clerk’s office, is a welcome manifestation of the consensus of political leaders of both parties in the House that now is the time to push Congress’ legislative information sharing technology into the 21st century. In other words, it’s time to open up Congress.

The meeting featured three presentations on ongoing initiatives, allowed for robust Q&A, and highlighted improvements expected to be rolled out of the next few months. In addition, the House recorded the presentations and has made the video available to the public. The ongoing initiatives are the release of bill text bulk data by GPO, the addition of committee information for docs.house.gov, and the release of floor summary bulk data. It’s expected that these public meetings will continue at least as frequently as once per quarter, or more often when prompted by new releases of information. [...]

The Bulk Data Task Force was formed in part in response to the #freeTHOMAS movement. That movement seeks free public bulk access to the contents of the THOMAS U.S. federal legislative database, which is gradually being superseded by a new database called Congress.gov.

For more details, please see Daniel’s complete post.

Coglianese: Enhancing Public Access to Online Rulemaking Information

Professor Dr. Cary Coglianese of University of Pennsylvania Law School has published Enhancing Public Access to Online Rulemaking Information, Michigan Journal of Environmental & Administrative Law, Vol. 2, pp. 1-66 (2012).

Here is the abstract:

One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to make rulemaking information available online. Drawing on a review of current agency uses of the Internet, a systematic survey of regulatory agencies’ websites, and interviews with managers at a variety of federal regulatory agencies, I identify both existing “best practices” as well as opportunities for continued improvement. The findings of this research suggest that there exist both considerable differences in how well different agencies are making rulemaking information available online as well as significant opportunities for the diffusion of best-practice innovations that some agencies have adopted. This research also provides a basis for seven recommendations that I offer for enhancing both the accessibility and quality of rulemaking through online technology. A commitment to well-accepted democratic principles applicable to regulatory agencies should lead federal web designers to strive to create websites that are as accessible to ordinary citizens, including individuals with limited English proficiency, vision impairments, and low-bandwidth connections, as they are to the sophisticated repeat players in Washington policymaking circles.

The article focuses on erulemaking systems other than Regulations.gov and RegulationRoom.

Three Efforts to Crowdsource Amendments to the Computer Fraud and Abuse Act, in Honor of Aaron Swartz: Lofgren-Wyden, EFF, and ForktheLaw

At least three separate efforts to crowdsource amendments to the U.S. federal Computer Fraud and Abuse Act (CFAA) appear to have recently been launched:

• Representative Zoe Lofgren and Senator Ron Wyden have been using Reddit as a platform to crowdsource revisions to the statute; they call their amendments Aaron’s Law;
• The Electronic Frontier Foundation has been crowdsourcing revisions to the statute on its Website (e.g., here and here);
• Nadim Kobeissi is crowdsourcing revisions to the statute at a new site called Fork the Law.

[UPDATE: Daniel Schuman kindly just told me of a fourth effort: Professor Orin Kerr has been crowdsourcing revisions to the statute at Volokh Conspiracy. In addition, Meredith L. Patterson just told me that Fork the Law is run by a group, of which she and Nadim Kobeissi are members; the Fork the Law personnel are listed here.]

At least the first three of these efforts are being undertaken expressly in honor of Aaron Swartz, who, before his death, was prosecuted for alleged violations of the CFAA, among other statutes.

What’s notable to me about these efforts is their variety:

• variety of leaders (official legislators, public interest lawyers, a programmer, a law professor)
• variety of ideological perspectives (from moderate Democratic to libertarian)
• variety of intended audiences (including a broad general Internet audience, civil libertarians, programmers, the legal community)
• variety of platforms (a general social news site, a collaborative legal blog, the Website of a public interest law firm, a purpose-built site)
• and a variety of tools with which public attitudes and comments are posted, aggregated, processed, and then re-published for further public input.

The potential value of distributed and parallel crowdsourced drafting efforts is also apparent. Holding these different drafting efforts, targeted at different audiences with different types of knowledge and experience, in public on the open Web allows each of these drafting communities to learn from the others and adjust its draft accordingly, while maintaining its distinctive perspective. In particular, each drafting community can benefit from both legal and policy expertise expressed in other communities. So certain of the potential information advantages of working on the open Web — notably increased quantity, quality, and diversity of input — seem very likely to be realized through these CFAA crowdsourcing efforts.

HT Alex Howard, Eric Mill, and Stephen Schultze

Strauss on Private Standards Organizations and Public Law

Professor Peter L. Strauss of Columbia Law School has posted Private Standards Organizations and Public Law, on SSRN.

Here is the abstract:

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute, and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors OSHA requires for use in workplace caution signs, one must purchase from ANSI the standard OSHA has referenced in its regulations, at the price ANSI chooses to charge for it.

The regulations governing incorporation by reference as a federal matter have not been revised since 1982, and so do not address the changes the digital age has brought about in what it means for incorporated matter to be “reasonably available,” as 5 U.S.C. §552(a)(1) requires. This essay seeks to bridge that gap, suggesting a variety of approaches that might bring the use of incorporation by reference into conformity with modern rulemaking practices and respect the general proposition that documents stating citizens’ legal obligations are not subject to copyright, while at the same time both honoring clear federal statutory policy favoring the use of privately developed standards in rulemaking and respecting the needs standards organizations have to find reasonable means to support the costs of their operations. Business models created in the age of print need to change; the challenge is to find ways to permit the market in privately developed voluntary standards to thrive, without thereby permitting the monopoly pricing of access to governing law.

For background on this free-access-to-law issue, please see: Published Free on the Web: Full Text of 317 Proprietary Standards Incorporated by Reference in the U.S. Code of Federal Regulations.

Bruce, Mill, Schuman, Tauberer & Wonderlich: Recommendations on Public Access to Legislative Data

Tom Bruce of the Legal Information Institute; Daniel Schuman, Eric Mill, and John Wonderlich, all of the Sunlight Foundation; and Dr. Joshua Tauberer of GovTrack and POPVOX, have posted a new report entitled On Public Access to Legislative Information: Recommendations to the Bulk Data Task Force (2012).

The report “provides a roadmap” that the U.S. Congress’s Bulk Data Task Force can use “to implement[]” free public “bulk access to” the THOMAS database of U.S. federal legislative information.

The report is a product of the effort — known as #freeTHOMAS — to provide free online public access in bulk to THOMAS.

For more information, please see Daniel’s post entitled How to #FreeTHOMAS: A report on implementing bulk access.

HT @danielschuman