Those of you interested in transparency and “Government 2.0” issues will absolutely want to pick up Open Government: Collaboration, Transparency, and Participation in Practice, a terrific collection of 34 essays edited by Daniel Lathrop and Laurel Ruma. Much like Access Controlled, the collection of essays on global Internet filtering and censorship that I praised here last month, Open Government is a resource like no other in its field. It offers an amazing diversity of viewpoints covering virtual every aspect of the debate over transparency and open government.

The collection was published by O’Reilly Media and Tim O’Reilly himself has one of the best chapters in the book on “Government as a Platform.” “The magic of open data is that the same openness that enables transparency also enables innovation, as developers build applications that reuse government data in unexpected ways.” (p. 25)  This explains why in their chapter on “Enabling Innovation for Civic Engagement,” David G. Robinson, Harlan Yu, and Edward W. Felten, of the Center for Information Technology Policy at Princeton University, speak of “a new baseline assumption about the public response to government data: when government puts data online, someone, somewhere will do something valuable and innovative with it.” (p.84) “By publishing its data in a form that is free, open, and reusable,” they continue, “government will empower citizens to dream up and implement their own innovative ideas of how to best connect with their governments.” (p. 89)

Indeed, just think about some of the many exciting sites and projects (both public and private) that have been developed thanks to government data becoming more accessible in recent years. Here’s a short list of some of the best:

Regulation

• Regulations.gov (public)
• OpenRegs.com (private)

General Spending

• USASpending.gov (public)
• FedSpending.org (private)

Stimulus Spending

• Recovery.gov (public)
• StimulusWatch.org (private)

Legislation / Govt. Activity

• THOMAS (public)
• GovTrack.us (private)
• WashingtonWatch.com (private)
• RealTimeCongress.org (private)

Campaign Spending

• OpenSecrets.org (private)
• MapLight.org (private)
• TransparencyData.com (private)

Court Records

• PACER (public)
• RECAP (private to open-source PACER)

Corporate Financial Information

• EDGAR (now public; was private)

City Affairs

• EveryBlock.com (private)

And there are many additional examples featured throughout the essays in Open Government. As Beth Simone Noveck, the U.S. Deputy Chief Technology Officer for open government in the Obama Administration notes, “Countless civic groups already use new communication and information-sharing tools to promote political action, operate an opposition movement, or mobilize community activism.” (p. 53)

The book also features interesting essays by my TLF blogging colleagues Jerry Brito and Jim Harper. Jerry’s is creatively-entitled, “All Your Data Are Belong to Us: Liberating Government Data” and Jim’s (along with Jeff Jonas) is on “Open Government: The Privacy Imperative.” Both are worthy of your attention (and I’m not just saying that because they paid me to).

I certainly didn’t agree with everything I read in the book. In particular, the chapter on “Open Government and Open Society” by Archon Fung and David Weil troubled me greatly. Fung and Weil make two dangerous arguments that deserve refutation. First, they fear that “the progressive impulse for transparency… may well produce conservative or even reactionary effects of deligitimizing government activity quite broadly as public discourse feeds more and more stories of government waste, corruption, and failure.” (p. 107)  Sorry, but for those of us who question Leviathan and consider “waste, corruption, and failure” to be standard operating procedure for government, it’s hard to have much sympathy for this concern.

Regardless, they argue that “the solution to this problem is not to reduce government transparency, but rather to create a fuller accounting of it.”  They think that will help enlighten the masses and convince them of the many unappreciated benefits of Big Government.  More realistically, in my opinion, it will just lead to even more skepticism about the wisdom of expansive State power — and that’s just fine with me, of course.  But I wonder what Fung and Weil would recommend if increased transparency goes hand in hand with increased distrust in government? Would their passion for (so-called) “progressive” government trump further transparency it it undermined their desire for expansive State power and action?

Even more disturbing — but hardly surprising once they reveal their true colors — is the argument Fung and Weil make in favor of imposing the identical transparency requirements on private organizations that are imposed on government. They argue that:

a very substantial part of the energies of transparency advocates should be redirected toward making corporations and other organizations in society meet the same standards increasingly demanded of open government. This shift requires the transparency movement to reorient itself in several substantial ways. Government assumes a different role in the political imagination. Rather than a looming specter of threat that society must tame through transparency, government becomes an ally of society whose strength is required to make businesses transparent. In many cases, private and civic organizations will not disclose information voluntarily, and the force of law and policy — and the kind of authority that can only come from government — will make them do so. (p 109)

Not once in the essay — not once — do Fung and Weil stop to reflect upon the core difference between state power and corporate power: the scope of coercive powers and the possibility of escape. That is, the State has the power to tax, fine, punish, imprison, wage war, etc.  Corporations have none of these things.  And if you hate or fear a certain company, you almost always have another choice to turn to. Not so with the State.  Escape from its tentacles is not so easy.  They even have the audacity to claim that, “In American society, the threats to citizens individually and to society generally come as much — perhaps much more — from powerful private sector actors as from government.” Really? That’s certainly news to me.  Were companies locking up people in Gitmo, storming compounds in Waco, TX, or raiding people’s homes in outrageous drug busts?  Uh, no.

This is not to say that companies don’t make profound mistakes or that more transparency isn’t a beneficial thing even at the corporate level, but Fung and Weil are engaged in a dangerous game of moral equivalency here that we should not let them get away with.  Moreover, they completely ignore the many good reasons why companies shouldn’t be perfectly transparent. Business plans and methods, for example, need to be kept somewhat secret for obvious reasons.

Finally, when they make the argument that, “This shift requires the transparency movement to reorient itself in several substantial ways” and asking us to welcome government “as an ally,” they are essentially politicizing the transparency movement and fracturing what, at least so far, has been a very non-partisan affair. If they succeed in leading the movement down their preferred path, it will destroy that alliance. I certainly realize that the majority of people in the transparency and “Govt 2.0” movement do not share my radical pacifism when it comes to the dangers of State power, but I would hope they would want to keep at least some of my type in the movement and maintain a non-partisan approach to the issue. I think transparency and open government advocates should check their ideologies at the door, so to speak, when they approach these issues.

Regardless, don’t let my disdain for that particular chapter discourage you from picking up Open Government. (In fact, I think it’s great that the editors included one such extreme chapter in there to give a flavor for what some people at the fringe of the transparency movement are likely thinking.) Overall, this is a terrific set of essays and it deserves a place on your bookshelf if you care about transparency and Government 2.0 issues.

P.S. #1: This is probably a “no-duh” recommendation for those of you who already actively follow “Gov 2.0” developments, but for those who are not already aware of Alex Howard and his prodigious and impressive output on this front, start reading him now.  Alex is the Government 2.0 Correspondent for 
O’Reilly Media, and he’s a machine. I’m not sure how he manages to crank out so much material on these issues but he is an indispensable resource and not to be missed.

P.S. #2:  As always, you find all my book reviews here. Next up: Shirky’s Cognitive Surplus.

Just the other day, I complained about the fact that New York Federal district court overseeing the Google Books settlement apparently doesn’t plan to webcast the final public hearing that will take place on February 18 in this hugely important case about the future of digital books and copyright. Now I discover that the 11th Circuit Court of Appeals (which covers Florida, Georgia & Alabama) has issued a decision with even more far-reaching applications—allowing prosecutions for online obscenity distribution according to local “community standards” wherever a user might have downloaded the material—without even publishing the landmark decision!

Adam discussed this obscenity/localism issue in detail back in 2004. Eugene Volokh explains the substance of this decision:

United States v. Little concludes that Internet obscenity distribution prosecutions may rely on the community standard of the place in which the material was distributed — which means the government can try to download the material in the most restrictive community, and prosecute the distributor there.

If left to stand, this decision could essentially amount to a ban on hardcore pornography in the U.S.—with the definition of “obscenity” being left to local puritanical politicians in the country’s most socially traditionalist backwaters, subject only to some general restraint by the courts as to just how far the definition of “obscenity” can be pushed. Volokh continues:

[The 11th Circuit’s decision] may well be correct, given the Court’s decision in Ashcroft v. ACLU (I); and the Ninth Circuit’s contrary decision in United States v. Kilbride might well be mistaken. Still, it seems odd that the Eleventh Circuit’s opinion — which apparently considered this argument for the first time in that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit — was unpublished.

In case you non-lawyers are wondering how the heck this travesty of transparency happened, the short explanation is that the Supreme Court regulates much of the practice of the federal courts through the Federal Rules of Civil Procedure, Appellate Procedure and Evidence.  But beyond those basic rules, every Circuit makes its own rules on many other issues—including under what circumstances a district or appellate court may decide not to publish a particular decision. Why not publish all decisions? Because courts issue lots of opinions and other less significant orders and memoranda and it’s just easier for them not to have to give each one the attention it would deserve if it were going to be published officially.

This is a pretty arcane debate involving multiple questions (you can read more here if you’re interested). The Supreme Court finally barred the Circuits from prohibiting the citation of unpublished opinions in 2006. So at least now, if a decision’s out there and you manage to find it, you can cite it as support for your argument before any federal court. That was a major step to ensuring that the rule of law wasn’t undermined by allowing courts to issue decisions that were both hard to find and ostensibly disclaimed any precedential effect on other cases.

The next big challenge facing the judiciary is publishing more, if not all, decisions. I’m no expert in this area and I have very limited appellate experience (having clerked for a lowly district judge). But In an era of information abundance and perfect searchability, it’s really hard to see why any court decision shouldn’t be published and made as easily accessible as possible.

At the very least, there’s simply no excuse for not publishing decisions as important as this one. Was the court perhaps hoping to minimize criticism of its decision by “hiding the ball?” I’d like to think we could expect better from those to whom we give life-time appointments and trust to be above the pressures of politics and public opinion.

On the issue of accessibility, I point you to the excellent RECAP project led by my former TLF colleague Tim Lee, which aims to break down the silly barriers the Judiciary has erected around published court documents with their pathetically antiquated and user-unfriendly PACER database. It’s also worth noting that Google Scholar late last year began allowing users to search some published legal opinions. This kind of innovation will certainly make the workings of the judiciary more accessible to citizens, but until the judiciary starts publishing more of the decisions, we’ll all be left in the dark about important decisions like this one by the 11th Circuit (which is available neither on PACER nor on the 11th’s Circuit’s webpage for recently released decisions).

Conversations about how the Internet can be used to increase the openness and accountability of government usually focuses on the Executive and Legislative branches of the Federal government.  But on this week’s episode of Technology Policy Weekly, I hosted a discussion of the equally vital issue of public access to court records, joined by:

• The TLF’s own Tim Lee,  who’s written about the problems with PACER , the arcane and expensive system by which court documents are currently made publicly available—with a separate system for each of the 100+ Federal courts!
• James Grimmelmann of New York Law School, who wrote Copyright, Technology, and Access to the Law: An Opinionated Primer.
• Steve Schultze, of Harvard’s Berkman Center, who’s  been writing about these issues on his own blog, especially about Sen. Lieberman’s recent laudable efforts.  Also check out a talk he gave recently on “Selling the Law: The Business of Public Access to Court Records.”

We discussed a wide range of issues, including:

• Why lay people should care—this is ultimately about reducing the legal profession’s monopoly over access to the courts!
• The philosophical reasons why better access to court records is important – little things like democracy, fairness, consistency, equality, the rule of law, etc.
• The copyrightability of legal records
• The history of the problem & what can be done about it

There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!

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