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Full text of "By The People"

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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 



Carl Malamud 



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 
leaders. 

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 
modern society. 

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). 



By The People 

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 
administrators. 

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). 



By The People 

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 
office. 

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). 



By The People 

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 
impossible before. 

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, 
2009). 

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). 



By The People 

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 
all. 

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). 



By The People 

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 
profession. 

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 
(Sept. 11,1995). 

36. See also Appendix A, 29 Things The Government Could Do Today. 
Numerous other lists of actionable items exist at organizations such as the 
Sunlight Foundation. 

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 
(August 14,2009). 

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 
not. 

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 
Americans. 

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. 



Appendix A 



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 
domain. 

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 
effectively. 

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 
and NASA. 

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 
patent. 

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 
charge. 

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 
Tesseract. 

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 
freely available. 



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a superficial appearance of being RIGHT, and raises' 
at first a formidable outcry in defense of custom. 

Thomas Paine, Common Sense (1776)