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By The People
An address to the Government 2.0 Summit
Washington, D.C., September 10, 2009
h ttp://p ublic. reso urce. org/people/
CC-Zero, No Rights Reserved.
http://creativecommons. org /publicdomain/ zero/ 1 .0/
By The People
1 . Gettsyburg Address in Abraham Lincoln, Speeches and Writings 1 859-1 865,
Library of America (1989). For an analysis of the address, see Gary Wills,
Lincoln at Gettysburg: The Words That Re-Made America, Simon & Schuster
(1992). The definitive Lincoln is Michael Burlingame, Abraham Lincoln: A
Life (2 Vols.) John Hopkins University Press (2008).
2. A good introduction to Franklin is Walter Isaacson, Benjamin Franklin: An
American Life, Simon & Schuster (2003), though one should not neglect Carl
Van Dorn, Benjamin Franklin, Viking Press (1938) nor Benjamin Franklin,
The Private Life of the Late Benjamin Franklin, LL.D. Originally Written By
Himself, And Now Translated From The French, reprinted in Benjamin
Franklin, Collected Writings, Library of America (1793, reprinted 1987). For
Thomas Paine, see David Freeman Hawke, Paine, Harper & Row (1974). For
Paine 's ideas reflected in the tenor of the times, see Eric Foner, Tom Paine
and Revolutionary America, Oxford University Press (1976).
3. A good account of the differing perspectives of the Democratic Republican
populists and the more-establishment oriented Federalists, led by
Alexander Hamilton, can be found in Jeffrey L. Pasley, The Tyranny of
Printers: Newspaper Politics in the Early American Republic, University Press
ofVirgina (2001). The role of printers and the press in fermenting political
change is further set out in Marcus Daniel, Scandal & Civility: Journalism and
the Birth of American Democracy, Oxford University Press (2009).
4. Adams has perhaps received a bum rap from history, though some of that
reputation is self-inflicted, starting when Adams joined Benjamin Franklin
in France to represent the Continental Congress. Franklin promptly wrote
back that "Mr. Adams has given Offence to the Court here." Benjamin
Franklin, Letter to Samuel Huntington, (1780). For a more sympathetic
portrait, see John Patrick Diggins John Adams, Times Books (2003).
By The People
When Abraham Lincoln spoke of "a government of the
people, by the people, for the people," he was speaking of
more than the consecration of a battlefield, he was
speaking of a wave of transformation that was changing
the way government related to the citizens it served.
This transformation was the second of three waves of
change. The first — the Founder's wave — began when
printers such as Ben Franklin and pamphleteers such as
Thomas Paine dared to involve themselves in civic affairs,
publishing their opinions about how government should
function, the policies it should follow, daring even to say
that the people should go so far as to select their own
This first wave of transformation culminated when
Thomas Jefferson took the White House, riding in on a crest
of populist sentiment, a reaction against his more button-
down predecessors, George Washington and John Adams.
While both Washington and Adams were revolutionaries,
they were aristocratic revolutionaries, governing from the
top down, an elite who favored the populace with public
service by governing them.
John Adams took great pains to instill a sense of dignity
(some said majesty) in the new offices of government. He
designed an official vice presidential uniform and
suggested that Washington be addressed as "Your
Excellency." Adams' sense of pomp was such that the
Jeffersonians took to referring to him as "His Rotundity"
5. Jefferson's dining table and informal dress habits are cited in Joyce
Appleby, Thomas Jefferson, Times Books (2003), p. 41. While there is no
direct evidence of passers-by being invited in for breakfast, Jefferson was
known to be a friendly fellow and enjoyed his breakfast. See Henry
Stephens Randall, The Life of Thomas Jefferson, Volume 3, Derby & Jackson
(1858), p. 505, quoting Daniel Webster's visit to Monticello: "His breakfast is
tea and coffee, bread always fresh from the oven, of which he does not
seem afraid, with sometimes a slight accompaniment of cold meat."
6. Though some would argue that Lincoln's sole aims were the preservation of
the Union and the abolition, or resolution through other means, of the
question of slavery, an argument can be made that Lincoln was one of a
series of leaders who also concerned themselves with the role of
government in creating a platform for the country. See Lincoln's advocacy
in the middle of the war for The Homestead Act, The Land Grant College Act,
and The Pacific Railway Acts of 1862 and 1864. George McGovern, Abraham
Lincoln, Times Books (2009), pp. 210-21 1.
7. A good description of the sorry state of "publik printing" in America in the
years leading up to 1861 can be found in Robert E. Kling, Jr., Government
Printing Office, Praeger Library of U.S. Government Departments (1970),
pp. 13-18. See also Robert Washington Kerr, History of the Government
Printing Office, Government Printing Office (1881).
8. Lincoln's use of Defrees as editor is detailed in Douglas L.Wilson, Lincoln's
Sword: The Presidency and the Power of Words, Alfred A. Knopf, (2006), pp.
86-90. Lincoln and Defrees bickered over the use of everything from
excessive commas to "undignified expressions" such as "sugar-coated,"
for which Lincoln stuck to his guns in his Message of July 4, saying "Defrees,
that word expresses precisely my idea, and I am not going to change it."
The two worked out a detente. Defrees said "he would tell me he would
furnish the words — and I might put the periods to suit."
By The People
and a strong sentiment for a more representative and
responsive government started to take shape.
When Jefferson moved into the White House after his
raucous political campaign, he felt so deeply that his duty
was to form a government for all the people of the United
States that he abolished the formal dining table in the
White House, replacing it with a round one so nobody
could sit at the head. Indeed, if you happened to be
walking by the White House early in the morning and
knocked on the door, you might be greeted by Jefferson
dressed in his bath robe, who would likely invite you in for
a spot of breakfast.
The first great wave of transformation was a
government that spoke, for the first time in modern history,
directly to and with its citizens. The second wave — the
Lincoln Wave — was just as fundamental.
The same day Lincoln was inaugurated in 1861, a new
agency opened its doors, a Government Printing Office
with a mission of "Keeping America Informed." Prior to
Lincoln, the proceedings of government were reported by
the press in a summary and sporadic fashion. The
proceedings of Congress were reported by the
Congressional Globe, a private enterprise, and the
executive and legislative branches were reported only if it
struck the fancy of a newspaperman.
The Government Printing Office created the first
Official Journal of Government, the Congressional Record,
9. The growth of government from Lincoln through the New Deal was driven
by countervailing forces to support yet also control the growth and
consequent abuses as both government and industry scaled to ever larger
sizes. These contradictory impulses led to conservative patricians such as
Theodore Roosevelt taking on the mantle of trustbuster and free-enterprise
businessmen such as Herbert Hoover taking on the mantle of safety
regulator. Two good accounts of these times are John Milton Cooper Jr., The
Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt, Harvard
University Press (1985) and Wiliam E. Leuchtenburg, The Perils of
Prosperity (2nd Ed.), University of Chicago Press (1958).
10. The toll of the industrial revolution on workers and families is told in many
forums, but much can be learned from the stories of two of the hardest hit,
the bakers and the dock workers. See Maria Balinska, The Bagel: The
Surprising History of a Modest Bread, Yale University Press (2008) and Marc
Levinson, The Box: How the Shipping Container Made the World Smaller and
the World Economy Bigger, Princeton University Press (2006).
11. 141 Men and Girls Die in Waist Factory Fire; Trapped High Up in Washington
Place Building; Street Strewn With Bodies; Piles of Dead Inside, New York
Times, Mar. 26, 1911, p. 1. See also Frances Perkins, Lecture, Cornell
University (Sept. 30 1964). The number of dead varies from 141 to 148.
12. Quote is from Dorthy Sue Cobble and Michael Merrill, Working Heroes:
Frances Perkins, AFL-CIO (2009). See also Oral History Research Office,
Interview with Frances Perkins, Columbia University Libraries (1951-1955)
and Frances Perkins, The Roots of Social Security, Social Security
Administration Headquarters (Oct. 23, 1962), in which Miss Perkins
explains how they bootstrapped the Social Security Program by
misappropriating $125,000 from Henry Hopkins. Perkins was also one of
the first beta users of "the new IBM machines." See Frances Perkins, Speech
on the 25th Anniversary of the Social Security Act, Department of Health,
Education, and Welfare (Aug. 15, 1960).
By The People
which recorded the floors in a full and mostly true fashion.
The Printing Office also began publishing the Foreign
Relations of the United States, the official record of the State
Department, and Superintendent of Documents John
Defrees even served as Lincoln's personal editor for
messages of state such as the Emancipation Proclamation.
The Lincoln wave of transformation was one of fully
documenting government, publishing the rule book that
governs our society. But, it was more, it was also the
beginning of a formal process of involving citizens in the
workings of government, a process which culminated
during FDR's New Deal.
This transformation in the nature of government was
spurred by broader changes in society, changes that were
breathtaking in scope, but often wreaked a terrible toll on
workers and families.
In 19 1 1 , in a sweatshop on the 9th and 10th stories of a
New York tenement, the nation reached a watershed. The
Triangle Shirtwaist factory was a sweatshop crowded with
unsafe machinery and combustible materials, with no fire
escapes and the exit doors chained shut to keep workers
from taking breaks. It was a powder keg that would
inevitably explode in a firestorm, and it did. The Triangle
Shirtwaist Fire claimed the lives of 146 garment workers.
Standing across the street that terrible day in 1911 was
a young woman named Frances Perkins, a social worker
and the executive secretary of the New York Consumers
13. Kirstin Downey, The Woman Behind the New Deal: The Life of Frances
Perkins, Nan A. Talese (2009), p. 48. See also David Von Drehle, Triangle:
The Fire That Changed America, Grove/Atlantic (2003).
14. Robert F.Wagner (Chairman), Second Report of the Factory Investigating
Commission, State of New York (1913). One can argue that fire safety dates
back to Benjamin Franklin. (Writing as Anonymous to himself as Editor),
On Protection of Towns from Fire, Pennsylvania Gazette (Feb. 4, 1734).
Likewise, the lore of building codes is that they reach back not only to
Washington and Jefferson, but as far back as the Code of Hammurabi, Rule
229, "If a builder builds a house for some one, and does not construct it
properly, and the house which he built fall in and kill its owner, then that
builder shall be put to death," 1790 BC. The systematic promulgation of
codes of general applicability flourished in the period after 1915 with the
founding of the Building Officials and Code Administrators International
(BOCA). This trend towards formal standardization reflected the broader
trend in the engineering community towards the creation of private codes
and laws. See Edwin T. Layton, Revolt of the Engineers, Press of Case
Western Reserve University (1971).
15. Perkins and Smith had previously become acquainted when she lobbied
the state legislature for a bill to limit the work week for women and
children to 54 hours. Her first reaction upon seeing Smith in action on the
floor of the Assembly was "it's a pity he's a Tammany man." Robert A.
Slayton, Empire Statesman: The Rise and Redemption ofAl Smith, Free Press
(2001), pp. 83-84.
By The People
League, one of a new kind of civic organization advocating
better conditions for factory workers. Perkins watched
helplessly as young women, hands clasped in prayer, leapt
to their deaths. Later, she recalled "the experience was
seared on my mind as well as my heart — a never-to-be-
forgotten reminder of why I had to spend my life fighting
conditions that could permit such a tragedy."
Equally touched by the tragedy was a hard-boiled
politician, Al Smith of Tammany Hall. Smith was horrified
and formed a citizen's commission to investigate. When
Theodore Roosevelt was asked who should serve as the
chief investigator, Teddy thought of the young social
worker he had heard so many good things about, saying
"with Frances, you can't fail."
Perkins worked alongside a retired fire engineer — who
sought her out and insisted on taking part as a volunteer —
and with their commission of citizens they created the first
fire code, spelling out the minimum standards of safety to
be used in factories, offices, and homes. The fire code was
adopted by New York City, then spread throughout the
nation, joined over time by other fundamental public
safety codes governing building, electricity, plumbing,
elevators, boilers, and the other technical aspects of our
When Al Smith took the governor's seat in New York, he
brought Frances Perkins with him, installing her on the
new Industrial Commission, one of the first state bodies to
16. Wilson is particularly known for his reliance on the conference in
international affairs, but even as governor he embraced the commission
form of government for towns and cities and often broke precedent by
personally attending events such as Democratic party caucuses to press
his point. Robert Alexander Kraig, Woodrow Wilson and the Lost World of the
Oratorical Statesman, Texas A&M University Press (2004). Hoover's embrace
of the conference and the public/private partnership are told in F. Robert
van der Linden, Airlines & Air Mail: The Post Office and the Birth of the
Commercial Aviation Industry, University Press of Kentucky (2002), p. 9.
Compelling portraits of Harding and Hoover as bureaucrats beloved by all
Americans before their respective falls can be found in John W. Dean,
Warren G. Harding, Times Books (2004) and William E. Leuchtenburg,
Herbert Hoover, Times Books (2009).
17. Perhaps the best view of the chaos of the New Deal is through those caught
in the eye of the hurricane. See in particular Frances Perkins, The
Roosevelt That I Knew, Viking Adult (1946) and Bruce Allen Murphy, Wild
Bill: The Legend and Life of William O. Douglas, Random House (2003).
18. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935).
See also Office of the Federal Register, The Federal Register: March 14, 1936
— March 14, 2006, National Archives and Records Administration (2006).
The Brandeis warning was delivered by proxy by Ervin Grisworld,
Government in Ignorance of the Law — A Plea for Better Publication of
Executive Legislation, 48 Harvard L. Rev. 198 (1934).
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begin regulating safety in the workplace. Perkins excelled
in the post, and when Franklin Roosevelt took the
governor's seat from Smith, not only did he ask Perkins to
stay on, he promoted her to become one of his senior
This was an era where commissions and conferences
became an important part of government, where citizens
were consulted and their opinions heard in order to form a
consensus on how government should act. Woodrow
Wilson, Warren Harding, and Herbert Hoover used these
boards and commissions to decide how to regulate the
safety of aeroplanes, finance the creation of roads, and
establish new-fangled efficiency mechanisms such as
Daylight Savings Time.
This wave of transformation culminated when FDR
moved to Washington. By then, these ideas of consultation
and documentation had firmly taken root. But in the New
Deal, there was chaos.
In 1934, the Assistant Attorney General went to the
Supreme Court to argue why two oil companies should be
required to obey regulations, only to find out that the
government had never published those regulations. Justice
Louis Brandeis sternly warned that without systematic
publication of the rules, ignorance of the law would
become a defense, and a new Official Journal of
Government, the Federal Register, was created to serve as
19. While 250 years of history has been arbitrarily segregated into 3 waves, we
note that the principle of broad access to the workings of government to
the extent technically possible for the times would have found favor. When
Thomas Jefferson was asked his view about publishing written records
regarding the postal service, he replied that distribution of these
documents should be "not by vaults and locks which fence them from the
public eye and use in consigning them to the waste of time, but by such a
multiplication of copies, as shall place them beyond the reach of accident."
Thomas Jefferson, Letter to Ebenezer Hazard, Philadelphia (Feb. 18, 1791).
20. Pace et. al., The Global Positioning System: Assessing National Policies,
RAND Corporation (1995). Mary C. Rabbitt, The United States Geological
Survey: 1879-1989, Government Printing Office (1989). The emphasis on
cartography as a national resource dates back to the Founders and in
particular the work of the Lewis and Clark Expedition. See Thomas
Pynchon, Mason & Dixon, Henry Holt (1997) and John Noble Wilford, The
Mapmakers, Knopf (1981). Similar open systems were created to
disseminate weather information. See Hughes Patrick,^ Century of Weather
Service, Gordon & Breach (1970).
21. The classic statement of Internet as platform isYochai Benkler, The Wealth
of Networks: How Social production Transforms Markets and Freedom, Yale
University Press (2006). The TCP/IP protocol suite was based on the end-to-
end principle and was characterized by open standards. See Saltzer, J.,
Reed, D., and Clark, D.D., End-to-End Arguments in System Design, ACM
Transactions on Computer Systems, 1984, Vol. 2, No. 4 and, for the open
standards argument, Malamud, Exploring the Internet, Prentice Hall (1993).
The open protocol suite was not pre-ordained. OSI, an alternative network
architecture with very different characteristics, was a strong contender to
beat out TCP/IP to become the Internet. Marshall T. Rose, The Open Book: A
Practical Perspective on OSI, Prentice Hall (1990).
By The People
the vehicle for systematic publication across all agencies
of the regulations and notifications of the executive branch.
To recap this history: The first wave — the Founder's
wave — established the principle that government must
communicate with the people. Next, the Lincoln wave
established the principles of documentation and
consultation. We are now witnessing a third wave of change
— an Internet wave — where the underpinnings and
machinery of government are used not only by
bureaucrats and civil servants, but by the people. This
change has the potential to be equally fundamental.
This transformation has its roots in unlikely quarters.
The military took one of the first definitive steps, when a
series of satellite launches by the U.S. Air Force from 1978
to 1993 created a Global Positioning System to guide not
only the aircraft and ships of the military services, but
opened the system to make navigational information
available for private cars, truck fleets, commercial
aviation, and even unanticipated applications such as
location-enabled telephones and digital cameras. At the
same time, the U.S. Geological Survey began releasing
high-quality digital maps into the public domain.
With the growth of the global Internet as a
communications platform, opportunities arose to offer
government information differently. It suddenly became
possible, and then trivial, to copy entire databases and
serve them in a totally different manner.
22. Tim O'Reilly, Government as Platform, Government 2.0 Summit (Sept. 9,
2009). The Internet itself is, of course, partially a creation of government, a
platform constructed in part as a vehicle for national laboratories, NASA,
and other agencies to do their daily work. The interaction between early
engineers and government officials is told in John Markoff , What the
Dormouse Said: How the Sixties Counterculture Shaped the Personal
Computer Industry, Viking (2005) and Katie Hafner, Where Wizards Stay Up
Late: The Origins of the Internet, Simon & Schuster (1998).
23. John Markoff, Plan Opens More Data to Public, New York Times (Oct. 22,
1993), John Markoff, Group to Widen Access to Federal Data Bases, New York
Times (Dec. 23, 1994), John Markoff, .U S. Is Urged to Offer More Data on
Line, New York Times (May 4, 1998), John Markoff, U.S. to Release Patent Data
On a World Wide Web Site, New York Times (June 25, 1998). See also John
Schwartz, Idea Whose Time for Free Access Has Come, Washington Post
(June 29, 1998), James Gleick, Washington Unplugged, New York Times
(Aug. 6, 1995), and David Bank, Agent of Change, San Jose Mercury News
(Jan. 8, 1995).
24. The creation of the "one at a time" retail model of selling information is
well-documented in Charles P. Bourne and Trudi Bellardo Hahn, A History
of Online Information Services: 1963-1976, MIT Press (2003). Several
commentators have recommended that government focus on bulk access
to databases first and single-document delivery ("retail") access second.
See David G. Robinson et. al., Government Data and the Invisible Hand, Yale
Journal of Law & Technology, Vol. 1 1, p. 160 (2009) and Carl Malamud,
Federal Register 2.0, Change.Gov (2009).
25. Carl Malamud, EDGAR Access Statistics, Internet Multicasting Service (July
31,1 995) , Edward J. Markey, Markey Applauds SEC Initiative to Put Corporate
Fillings on Internet, U.S. Congress (Aug. 16, 1995).
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The operation of a Global Positioning System, coupled
with the release by government of extensive digital maps,
is an example of what Tim O'Reilly calls "government as
platform," the creation of systems that are used not only by
government to fulfill its own tasks, but form the basis for
private activities, both for profit and not for profit.
An example of "government as platform" is a database
I helped put on-line in the early 1990s, the Securities and
Exchange Commission's EDGAR database of filings of
public corporations and other financial institutions. For
many years, in order to read SEC reports, one had to go to
a special reading room in Washington, asking for specific
documents as one would in a closed-stack library or in
approaching the service window at the County Clerk's
Alternatively, one could subscribe to a few
computerized retail information services, and pay the
operators $30 to read just one document. In this system,
the government produced products to sell, and
information was viewed as a profit center for the
government and for a few selected concessionaires.
What we found when we placed these so-called
products on the Internet — for free — was that these reports
were not just fodder for a few well-heeled financial
professionals, a commodity used to make the Wall Street
money machine function, but instead that these public
reports of public corporations were of tremendous interest
26. Carl Shapiro and Hal R. Varian, Information Rules: A Strategic Guide to the
Network Economy, Harvard Business Press (1998). The classic statement of
information as the antidote to corruption in the marketplace is Louis D.
Brandeis, Other People's Money and How the Bankers Use It, Bedford/St.
Martin's Press (1914, reprinted 1995). See also William O. Douglas,
Democracy in Industry and Finance, Speech before the Bond Club of New
York (Mar. 24, 1937).
27. On the intertwined nature of government, infrastructure, and industry, the
defining work is Alfred D. Chandler, Strategy and Structure, MIT Press
(1969). An excellent history of the spread of public lighting as an act of
government and a spur to industry can be found in Wolfgang Schivelbusch,
Disenchanted Night: The Industrialization of Light in the Nineteenth Century,
University of California Press (1988). See also Maury Klein, The Power
Makers: Steam, Electricity, and the Men Who Invented Modern America,
Bloomsbury Press (2008). On the importance of postal system as platform
for the modern age, see David M. Henkin, The Postal Age: The Emergency of
Modern Communications in Nineteenth-Century America, University of
Chicago Press (2007) and Gerald Cullinan, The Post Office Department,
Praeger Library of U.S. Government Departments (1968).
28. Barack Obama, Memorandum on the Freedom of Information Act, White
House (Jan. 21 ,2009).
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to journalists, students, senior citizen investment clubs,
employees of the companies reporting and employees of
their competitors, in short a raft of new uses that had been
By exposing the EDGAR database in bulk, the SEC
became the platform for a host of new distribution
channels, spreading the public filings into the
infrastructure and helping to fulfill the SEC's mission of
making our markets more efficient and transparent.
"Government as platform" means exposing the core
information that makes government function, information
that is of tremendous economic value to society.
Government information — patents, corporate filings,
agriculture research, maps, weather, medical research — is
the raw material of innovation, creating a wealth of
business opportunities that drive our economy forward.
Government information is a form of infrastructure, no less
important to our modern life than our roads, electrical
grid, or water systems.
What is hopeful in what we are witnessing today is that
some quarters of government appears to be embracing
this new role instead of fighting it. One of President
Obama's first acts was a memorandum that stated that
documents should be no longer be guarded and only
grudgingly released, but instead that "all agencies should
adopt a presumption in favor of disclosure."
29. While the view that the current system of outsourcing the custody of
primary legal materials to 3 foreign-owned multinational corporations is
heartily defended by many in the legal profession, we are reminded of the
statement of Thomas Paine that "a long habit of not thinking a thing wrong,
gives it a superficial appearance of being right, and raises at first a
formidable outcry in defense of custom." Thomas Paine, Common Sense, in
Collected Writings, Library of America (1776, reprinted 1955).
30. U.S. Courts have been extremely clear that no copyright is available to a
state actor promulgating a law. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591,
668, 8 L.Ed. 1055 (1834), "no reporter has or can have any copyright in the
written opinions delivered by this Court." See also Banks v. Manchester, 128
U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425 (1888), quoting Nash v. Lathrop, 142 Mass.
29, 6 N.E. 559 (1886), "[I]t needs no argument to show that justice requires
that all should have free access to the opinions, and that it is against sound
public policy to prevent this, or to suppress and keep from the earliest
knowledge of the public the statutes, or the decisions and opinions of the
Justices." Lack of copyright in "private laws" such as building and other
public safety codes was specifically addressed in Veeck v. Southern
Building Code Congress, 293 F.3d 791 (Fifth Circuit, 2002). Salaries and
revenues for nonprofits that create standards border on the spectacular.
See National Fire Protection Association, Form 990, 1.R.S. (2007), total
revenue of $94 million and CEO compensation of $740,960.
31 . See John Markoff, A Quest to Get More Court Rulings Online, and Free, New
York Times (Aug. 20, 2007), John Markoff, Documents of Library in Boston to
Go on Web, New York Times (Dec. 27, 2007), John Schwartz, An Effort to
Upgrade a Court Archive System to Free and Easy, New York Times (Feb. 12,
32. For executive branch spending on PACER, see James C. Duff, FOIA
Response to Public. Resource. Org, Administrative Office of the U.S. Courts
(June 19, 2009). A survey of 66 major law libraries indicated that 63 of them
carefully ration PACER use. Erika V.Wayne, Survey of Law Libraries, Stanford
University Law Library (Aug. 17, 2009).
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While there is much to applaud, not all is sunlight. For
too long, access to public information has been a matter of
access to inside information, a matter of access to money
and power. There is no better illustration of this than
access to primary legal materials of the United States: the
court cases, statutes, hearings, regulations, codes,
administrative decisions, and other materials that define
the operating system of our society, the law of the land.
When access to primary legal materials are contracted
out to private concerns, as when a state court gives an
exclusive contract to a corporation to publish its opinions
or when a safety code becomes a revenue opportunity for
a nonprofit paying million-dollar salaries, the public
domain becomes private property, fenced off to extract
value for a few, instead of open as a common good for us
We have seen this dramatically in the practice of law,
where lawyers in public interest law firms and in
government agencies — even the Department of Justice —
carefully ration their use of the federal judiciary's PACER
database and of the three retail services that monopolize
the legal market. They limit their use because of cost
considerations, meaning they are more poorly prepared
than their adversaries from the private sector.
The costs are not insignificant. The Administrative
Office of the Courts has charged the executive branch $50
million simply to access district court records. Law schools
33. Public. Resource. Org and Creative Commons purchased 50 years of circuit
court decisions for $600,000. See Cory Doctorow, 1.8 Million Pages of US
Federal Case Law To Go Online For Free, Boing Boing (Nov. 14, 2007). An
offer for a collection of Federal opinions, including District Court opinions
equivalent to F. Supp, was made by lllllllllllll, one of the larger vendors,
for $6.5 million. Public. Resource. Org declined that offer due to lack of
funds. See also Cory Doctorow, Oregon: our laws are copyrighted and you
can't publish them, Boing Boing (Apr. 15, 2008), Cory Doctorow, Begging
states to try to enforce ridiculous assertion that the law is copyrighted, Boing
Boing (Sept. 3, 2008), Cory Doctorow, Public Resource demands the source
code to America's operating system, Boing Boing (July 13, 2009). Shrink-
wrap agreements on standards incorporated by reference have become
common. See American Society of Mechanical Engineers, Safety Code for
Existing Elevators and Escalators, ASME Al 7.3-2002, "Opening this sealed
package constitutes your acceptance of all the terms and conditions...
Licensee may not lease, publish, assign (whether directly or indirectly, by
operation of law or otherwise) , create derivative works from the Product or
any portion thereof." See State of Texas, Texas Administrative Code, Rule
135.53 (June 18, 2009), "the elevator recall smoke detection system in
existing ambulatory surgical centers (ASCs) shall comply with
requirements of ASME/ANSI A17.3, Safety Code for Existing Elevators and
Escalators, 2002 edition."
34. Public access to PACER data led to the uncovering of substantial privacy
issues in 30 District Courts. See Carl Malamud, Letter to Judge Rosenthal re
Audit of District Courts, Public.Resource.Org (Oct. 24, 2008), Peter Martin,
Letter to Judge Rosenthal re Audit of District Courts, Cornell University
School of Law (Nov. 17, 2008), Senator Joseph I. Lieberman, Letter to Judge
Rosenthal re Audit of District Courts, U.S. Senate (Feb. 27, 2009), James C.
Duff and Lee H. Rosenthal, Letter to Senator Lieberman, Judicial Conference
of the United States (Mar. 26, 2009), Noel J. Augustyn, Enhanced Notice of
Attorney Redaction Responsibility, Administrative Office of the U.S. Courts
(July 23, 2009).
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all carefully ration their use of PACER because the cost
make it unworkable for them to grant law students the
ability to read the proceedings of our federal trial courts at
will. The Administrative Office of the Courts itself spends
$150 million to access U.S. law from private contractors, a
small fraction of the $10 billion per year Americans spend
to access the raw materials of our democracy.
This is an issue of fundamental importance under our
constitution. How can there be equal protection under the
law or due process under the law — how can we be a nation
of laws, not a nation of men — if the law is locked up behind
a cash register, stamped with an unwarranted copyright
assertion, and then shrink-wrapped in a license
agreement, creating private parcels from the public
domain? To purchase in bulk a collection of legal materials
costs tens of millions of dollars, a barrier to competition
that has resulted in decades of lost innovation for the legal
The fees for bulk legal data are a significant barrier to
free enterprise, but an insurmountable barrier for the
public interest. Scholars, nonprofit groups, journalists,
students, and just plain citizens wishing to analyze the
functioning of our courts are shut out. Organizations such
as the ACLU and EFF and scholars at law schools have long
complained that research across all court filings in the
federal judiciary is impossible, because an eight cent per
page charge applied to tens of millions of pages makes it
35. Carl Malamud, Loaner Agreement for the SEC, Internet Multicasting Service
36. See also Appendix A, 29 Things The Government Could Do Today.
Numerous other lists of actionable items exist at organizations such as the
37. See Ryan Singel, Fire fox Plug-In Frees Court Records, Threatens Judiciary-
Profits, WIRED (Aug. 14, 2009), Martha Neil, Tired of Paying for PACER Docs?
Princeton Group Offers Alternative, ABA Journal (Aug. 14, 2009), Ryan Paul,
Fire fox Extension Liberates US Court Docs From Paywall, Ars Technica
38. "Public Means Online" is a slogan from Andrew Rasiej, Opening Welcome,
Personal Democracy Forum (June 29, 2009). For efforts to place more
government video on the Internet, see Carl Malamud, Report to Speaker
Pelosi, Public.Resource.Org (Mar. 13, 2007), Carl Malamud, All the
Government's Information, Google Tech Talks (May 24, 2006), Nancy Pelosi,
Letter to Carl Malamud re FedFlix, U.S. Congress (Apr. 17, 2008) , Carl
Malamud and Donald Hagen, Joint Venture NTIS-1832, National Technical
Information Service (Nov. 2, 2007, extended May 14, 2009), Andrew Noyes,
FedFlix Video Project Gains Steam, National Journal (July 6, 2009) .
By The People
prohibitive to identify systematic discrimination, privacy
violations, or other structural deficiencies in our courts.
Access to the law, and more broadly access to the
workings of government, the fundamental databases and
systems that make up government as a platform for our
society, is about more than economic activity, more than
improving democracy and justice, it is an opportunity for
citizens to help make government more efficient. For
example, when we operated the SEC EDGAR database, it
was our pleasure to turn all our source code over to the
government — and even configure the SEC's routers and
loan them hardware — a service we gladly performed at no
charge as part of our mission as a 501(c)(3) nonprofit.
I would like to leave you with three propositions that
should be true in a democratic society, challenges our
government can and should address today:
First, if a document is to have the force of law, it must be
available for all to read. Artificial restrictions on access are
not appropriate for the law of the land. The federal
judiciary, in particular, must make their data much more
broadly available or they will find others owning their
databases, claiming authority and authenticity that should
emanate directly from the courts themselves. This is a
foundational issue, one that goes to the very heart of our
system of justice.
Second, if a meeting that is part of the law-making
process is to be truly public, in this day and age, that
39. Although the most pressing concern for transparency of public meetings in
Washington, D.C. rests with the legislative branch due to the sheer number
of hearings, a strong argument can be made that a lack of cameras in the
Supreme Court permits only those well-heeled law students who happen to
be enrolled in school Inside the Beltway to attend oral arguments, which
feature the best legal practitioners in the country at the top of their form,
while depriving poorer students of the same experience. See Fred Rodell,
TV or No TV in Court? reprinted in Rodell Revisted: Selected Writings of Fred
Rodell, Fred B. Rothman (1994). See also, Brian P. Lamb, Letter to Chief
Justice William Rehnquist, C-SPAN (1988), Brian P. Lamb, Letter to Chief
Justice John G. Roberts, C-SPAN (2005). The UK Supreme Court has recently
confirmed its proceedings will be televised. See Dominic Casciani, Inside
the UK Supreme Court, BBC (July 15, 2009).
40. A patchwork of uneven policies in states and municipalities has
fragmented the "market" for access to primary legal materials. For
example, California asserts copyright over the California Code of
Regulations with an exclusive contract with West for commercial
publication. See Office of Administrative Law, Paperwork Reduction Act
Response to Public. Resource. Org, State of California (June 4, 2009).
Likewise, exclusive rights to publish California Title 24 public safety codes
have been farmed out to 3 different organizations. See Building Standards
Commission, State Building Standards Code Agreement Between California
Building Standards Commission and the International Code Council, State of
California (Aug. 1, 2007). See also Noam Cohen, Who Owns the Law?
Arguments May Ensue, New York Times (Sept. 28, 2008).
41 . A variety of legislative proposals could be used to enshrine into law or
directive the 8 Principles. See Ad Hoc Working Group of 30, 8 Principles of
Open Government Data, Public. Resource. Org (2008). Given the sheer
number of lawyers working in the federal government, combined with the
200 ABA-approved law schools (many of which receive state support),
there is an opportunity to exercise the power of the purse to create an
alternative means for distributing and accessing primary legal materials.
By The People
means it must be on the Internet. Today, public means on-
line. When Congress holds hearings, hearings that lead to
laws that we must all obey, those hearings must take place
in a forum that all may attend and observe. Today, they do
If you want to attend a hearing today, you'd best live
inside of the Beltway and have the means to hire
somebody to guard your place in line. When Congress
does webcast, the efforts are half-hearted and of poor
quality. Many committees webcast a few select hearings,
but then systematically withdraw their archives from the
net. Shielding hearings from the public eye reduces the
legitimacy of the Congress. Broadcast-quality video from
every hearing should be made available on the Internet so
our legislative process becomes more visible to all
Third, the rule of law in our federalist system is a matter
that applies to all three branches of the federal
government, and also to all 50 states and the local
jurisdictions. The principle that primary legal materials
should be available to all is a principle that needs to be
driven by the leadership of the executive branch and
applied to all levels of government.
Our new administration has many noted constitutional
scholars — Solicitor General Kagan, Attorney General
Holder, President Obama — who must surely understand
the importance of making America's operating system
42. The author would like to thank Martin R. Lucas for his careful review and
helpful comments and the Sunlight Foundation, Elbaz Family Foundation,
and Omidyar Network for their generous support. The author would also
like to thank for their comments and suggestions Sally Greene, Clay
Johnson, Paul Jones, Lawrence Lessig, Ellen Miller, Tim O'Reilly, Tim Stanley,
and Nathan Torkington. All errors of fact and historical interpretation
remain the sole responsibility of the author. Cover photograph of the
author's great-grandparents taken in Kishinev, Moldova (1911).
By The People
open source. Through litigation, legislation, and executive
memorandum, the Administration could and should lead a
fundamental reform in how we make our laws available to
our citizens, turning the private enclaves of today into the
public parks of tomorrow.
The promise of the Internet wave is the promise of an
opportunity for more efficient government, for more
economic activity, and for a better democracy. Artificial
and unjust limits on access to information based on money
and power can be abolished from our society's operating
system, giving us at long last a government that truly is of
the people, by the people, and for the people.
29 Things Government Could Do Today
29 Things Government Could Do Today
OMB Circular A- 130 should be modified to specify 3 levels
of distribution for government data: first government
makes bulk data available; second, government creates an
API to access the bulk data; third, government builds a
web site using their own API.
The 8 Principles of Government Bulk Data should be
encoded into law, supplementing the case-by-case access
of the Freedom of Information Act with basic principles of
distribution for all government information.
The House of Representatives Broadcast Studio contains
hundreds of congressional hearings. Congress should
make this archive available to digitize so we can re-release
this important historical material back into the public
When Congress webcasts, they usually use proprietary
webcast technologies, such as RealVideo. But, all of these
proprietary solutions also contain the capability to encode
content in less-proprietary formats, such as MPEG4. All
committees in the U.S. Congress that webcast should be
required to switch to open formats.
Broadcast-quality video from Congressional hearings
could be made available today for download by FTP for
selected committees. Congress should start trials now
instead of continuing to delay.
Credentials to broadcast or film congressional hearings
are controlled by the Radio-TV Correspondents Gallery,
governed by a committee of old media stalwarts. It is no
surprise "new" media are always denied credentials.
Conqress should reform the credentials process.
29 Things Government Could Do Today
The Supreme Court should install their own cameras to
provide footage of oral arguments. Allowing print
reporters and releasing audio, but refusing to provide
video is an artificial barrier on access that is elitist,
benefiting those who live and work inside of the Beltway at
the expense of the rest of America.
All PDF documents entered into the judiciary's PACER
system should be signed by the court indicating when they
are received and showing that no changes to the
documents have been made since filing.
All PACER documents should be made available to the
Federal Depository Library Program so that libraries might
archive and preserve the records of the federal judiciary.
A complete audit of the PACER system for privacy
violations, such as Social Security Numbers, names of
minor children, and improperly unsealed documents
should be conducted as a matter of pressing urgency.
Bulk access to the PACER system should be provided to
allow download of large numbers of documents.
The PACER system brings in far more in revenue than it
costs to operate the system. Even if free access is not
provided, costs should be immediately reduced to comply
with the law.
The Federal Judicial Center spends millions of dollars
producing video that is only available on J-Net, an intranet
that reaches only courtrooms. This educational material
should be made available to the public on the Internet.
29 Things Government Could Do Today
The Librarian of Congress, Smithsonian Secretary, National
Archivist, and Public Printer should get together to create
a public domain video library.
The Government Printing Office should make press-
quality PDFs available of any documents they print that are
not subject to security or privacy considerations. In
particular, press-quality masters for any high-end books
should be made available so the private sector can reprint
and repurpose them.
The Government Printing Office runs an Institute of
Federal Printing right next to Union Station. They should
dramatically upgrade the program into a U.S. Publishing
Academy that provides comprehensive training to the rest
of the government on how to publish and communicate
The Government Printing Office has infinite power in its
downtown location and is directly on most major fiber
routes. GPO should put in an extensive machine room in
cooperation with other government "cloud" efforts at GSA
Congressional computer systems are so antiquated that
House mail accounts are limited to 200 Mbytes. The
Government Printing Office should provide 1 petabyte of
disk to the Congress.
The Federal Depository Library Program archive should
be immediately scanned and the legislation governing
FDLP modified so that dual regional repositories per state
are no longer required.
29 Things Government Could Do Today
The Library of Congress should withdraw copyright
assertions and stop charging for bibliographic data and
copyright registration databases.
Binders for all U.S. Patents should be digitized and
released in bulk at no charge. Binders contain the
application, any rulings, the grant, and any appeals for a
The IRS should stop selling non-profit tax returns as a
series of DVDs containing one TIFF file per page and
should instead publish PDF files for FTP access at no
The CIO in the Executive Office of the President should
fund the immediate creation of an open source redaction
toolkit built on top of open source OCR software such as
The Official Journals of Government should be modified to
include basic formatting features such as indented lists,
tagging of dates, and tagging of cross-links.
The Smithsonian has 6,288 public domain photographs
available as high-resolution scans. They should release
those photos back in the public domain and lead in the
creation of a public domain stock footage library for
creative applications such as films.
The Smithsonian should host a Maker Faire on the National
Mall to spotlight the "risk-takers, the doers, the makers of
things" both inside and outside of government.
29 Things Government Could Do Today
OMB should periodically audit all government web sites
for broken links, invalid HTML, and Section 508 violations
and publish ranked charts of how different departments
compare with each other.
The State Department should commission an immediate
audit of the U.S. Passport and Secure Travel Document
programs to assess if the use of RFID chips pose a danger
to the bearers.
Private and proprietary law should not be used in federal
or state law. Incorporation by Reference of standards from
bodies such as ANSI or Underwriters Laboratories should
only be allowed if the underlying standards are made
Vt y M
a superficial appearance of being RIGHT, and raises'
at first a formidable outcry in defense of custom.
Thomas Paine, Common Sense (1776)