Sherwin Siy, Vice President of Legal Affairs at Public Knowledge, discusses emerging issues in digital copyright policy. He addresses the Department of Commerce’s recent green paper on digital copyright, including the need to reform copyright laws in light of new technologies. This podcast also covers the DMCA, online streaming, piracy, cell phone unlocking, fair use recognition, digital ownership, and what we’ve learned about copyright policy from the SOPA debate.

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Related Links

• Sherwin Siy, Public Knowledge
• What the DMCA cell phone unlock ban means to you, Reardon
• Why The Library Of Congress Has A Lock On Your Phone, Henn

Adam Thierer, Senior Research Fellow at the Mercatus Center discusses his recent working paper with coauthor Brent Skorup, A History of Cronyism and Capture in the Information Technology Sector. Thierer takes a look at how cronyism has manifested itself in technology and media markets — whether it be in the form of regulatory favoritism or tax privileges. Which tech companies are the worst offenders? What are the consequences for consumers? And, how does cronyism affect entrepreneurship over the long term?

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Related Links

• A History of Cronyism and Capture in the Information Technology Sector, Thierer
• Video: A History of Cronysim and Capture in the Information Technology Sector, Thierer
• Adam Thierer Biography, Mercatus Center
• Adam Thierer on Anti-Tech Grump Evgeny Morozov, Thierer

Patrick Ruffini, political strategist, author, and President of Engage, a digital agency in Washington, DC, discusses his latest book with coauthors David Segal and David Moon: Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet. Ruffini covers the history behind SOPA, its implications for Internet freedom, the “Internet blackout” in January of 2012, and how the threat of SOPA united activists, technology companies, and the broader Internet community.

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Related Links

• Patrick Ruffini, Engage
• Patrick Ruffini, Huffington Post
• Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists and Suits Teamed Up to Defeat SOPA and Save the Internet, Goodreads

Declan McCullagh, chief political correspondent for CNET and former Washington bureau chief for Wired News, discusses recent leaks of NSA surveillance programs. What do we know so far, and what more might be unveiled in the coming weeks? McCullagh covers legal challenges to the programs, the Patriot Act, the fourth amendment, email encryption, the media and public response, and broader implications for privacy and reform.

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Related Links

• Snowden: NSA snoops on U.S. phone calls without warrants, McCullagh
• Snowden: Feds can’t plug leaks by ‘murdering me’, McCullagh
• Feds: Power grid vulnerable to cyber threats, McCullagh

It’s not the culmination–that will come soon–but a major step in work I direct at the Cato Institute to improve government transparency has been achieved. I’ll be announcing and extolling it Wednesday at the House Administration Committee’s Legislative Data and Transparency conference. Here’s a quick survey of what we’ve been doing and the results we see on the near horizon.

After president Obama’s election in 2008, we recognized transparency as a bipartisan and pan-ideological goal at an event entitled: “Just Give Us the Data.” Widespread agreement and cooperation on transparency has held. But by the mid-point of the president’s first term, the deep-running change most people expected was not materializing, and it still has not. So I began working more assiduously on what transparency is and what delivers it.

In “Publication Practices for Transparent Government” (Sept. 2011), I articulated ways the government should deliver information so that it can be absorbed by the public through the intermediary of web sites, apps, information services, and so on. We graded the quality of government data publication in the aptly named November 2012 paper: “Grading the Government’s Data Publication Practices.”

But there’s no sense in sitting around waiting for things to improve. Given the incentives, transparency is something that we will have to force on government. We won’t receive it like a gift.

So with software we acquired and modified for the purpose, we’ve been adding data to the bills in Congress, making it possible to learn automatically more of what they do. The bills published by the Government Printing Office have data about who introduced them and the committees to which they were referred. We are adding data that reflects:

• What agencies and bureaus the bills in Congress affect;

• What laws the bills in Congress effect: by popular name, U.S. Code section, Statutes at Large citation, and more;

• What budget authorities bills include, the amount of this proposed spending, its purpose, and the fiscal year(s).

We are capturing proposed new bureaus and programs, proposed new sections of existing law, and other subtleties in legislation. Our “Deepbills” project is documented at cato.org/resources/data.

This data can tell a more complete story of what is happening in Congress. Given the right Web site, app, or information service, you will be able to tell who proposed to spend your taxpayer dollars and in what amounts. You’ll be able to tell how your member of Congress and senators voted on each one. You might even find out about votes you care about before they happen!

Having introduced ourselves to the community in March, we’re beginning to help disseminate legislative information and data on Wikipedia.

The uses of the data are limited only by the imagination of the people building things with it. The data will make it easier to draw links between campaign contributions and legislative activity, for example. People will be able to automatically monitor ALL the bills that affect laws or agencies they are interested in. The behavior of legislators will be more clear to more people. Knowing what happens in Washington will be less the province of an exclusive club of lobbyists and congressional staff.

In no sense will this work make the government entirely transparent, but by adding data sets to what’s available about government deliberations, management and results, we’re multiplying the stories that the data can tell and beginning to lift the fog that allows Washington, D.C. to work the way it does–or, more accurately, to fail the way it does.

At this point, data curator Molly Bohmer and Cato interns Michelle Newby and Ryan Mosely have marked up 75% of the bills introduced in Congress so far. As we fine-tune our processes, we expect essentially to stay current with Congress, making timely public oversight of government easier.

This is not the culmination of the work. We now require people to build things with the data–the Web sites, apps, and information services that can deliver transparency to your door. I’ll be promoting our work at Wednesday’s conference and in various forums over the coming weeks and months. Watch for government transparency to improve when coders get a hold of the data and build the tools and toys that deliver this information to the public in accessible ways.

Check out how tribal villagers in parts of India are establishing a basic right that we take for granted. Using GPS and satellite imagery, they’re marking out the plots of land that they have lived on, unrecognized, for decades, and they’re making it their property.

The project is described here, and you can noodle around and find plots that they’ve mapped out here.

There’s a powerful irony lurking underneath the executive order and OMB memorandum on open data that the White House released in tandem today: We don’t have data that tells us what agencies will carry out these policies.

It’s nice that the federal government will work more assiduously to make available the data it collects and creates. And what President Obama’s executive order says is true: “making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.” GPS and weather data are the premier examples.

But government transparency was the crux of the president’s 2008 campaign promises, and it is still the rightful expectation of the public. Government transparency is not produced by making interesting data sets available. It’s produced by publishing data about the government’s deliberations, management, and results.

Today’s releases make few, if any, nods to that priority. They don’t go to the heart of transparency, but threaten to draw attention away from the fact that basic data about our government, including things as fundamental as the organization of the executive branch of government, are not available as open data.

Yes, there is still no machine-readable government organization chart. This was one of the glaring faults we found when we graded the publication practices of Congress and the executive branch last year, and this fault remains. The coders who may sift through data published by various agencies, bureaus, programs, and projects can’t sift through data reflecting what those organizational units of government are.

Compare today’s policy announcements to events coming up on Capitol Hill in the next two weeks.

On Thursday next week (May 16), the House Committee on Oversight and Government Reform will host a “DATA Demonstration Day” to illustrate to Congress and the media how technology may cut waste and improve oversight if federal spending data is structured and transparent. (That would include my hobby-horse, the machine-readable federal government organization chart.) We’ll be there demo-ing how we at Cato are adding data to the bills Congress publishes.

On May 22nd, the House Administration Committee is hosting its 2013 Legislative Data and Transparency Conference. This is an event at which various service providers to the House will announce not just policies, but recent, new, and upcoming improvements in publication of data about the House and its deliberations. (We’ll be there, too.)

The administration’s open data announcements are entirely welcome. Some good may come from these policies, and they certainly do no harm (barring procurement boondoggles–which, alas, is a major caveat). But I hope this won’t distract from the effort to produce government transparency, which I view as quite different from the subject of the new executive order and memorandum. The House of Representatives still seems to be moving forward on government transparency with more alacrity.

Andy Greenberg, technology writer for Forbes and author of the new book “This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World’s Information,” discusses the rise of the cypherpunk movement, how it led to WikiLeaks, and what the future looks like for cryptography.

Greenberg describes cypherpunks as radical techie libertarians who dreamt about using encryption to shift the balance of power from the government to individuals. He shares the rich history of the movement, contrasting one of t the movement’s founders—hardcore libertarian Tim May—with the movement’s hero—Phil Zimmerman, an applied cryptographer and developer of PGP (the first tool that allowed regular people to encrypt), a non-libertarian who was weary of cypherpunks, despite advocating crypto as a tool for combating the power of government.

According to Greenberg, the cypherpunk movement did not fade away, but rather grew into a larger hacker movement, citing the Tor network, bitcoin, and WikiLeaks as example’s of its continuing influence. Julian Assange, founder of WikiLeaks, belonged to a listserv followed by early cypherpunks, though he was not very active at the time, he says.

Greenberg is excited for the future of information leaks, suggesting that the more decentralized process becomes, the faster cryptography will evolve.

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Related Links

• This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World’s Information, Greenberg
• WikiLeaks’ ‘PLUS D’ Aims To Digitize America’s Secret Diplomatic History, Greenberg
• A Different Approach To Foiling Hackers? Let Them In, Then Lie To Them., Greenberg
• WCITLeaks, Greenberg

Marvin Ammori, a fellow at the New American Foundation and author of the new book On Internet Freedom explains his view of how the First Amendment applies the Internet through the lens of constitutional law and real world case studies.

According to Ammori, Internet freedom is a foundational issue for democracy, equivalent to the right to vote or freedom of speech. In fact, he says, the First Amendment can be used as a design principle for how we think about the challenges we face as Internet technology increasingly becomes a part of our lives.

Ammori’s belief in a positive right to speech—that everyone should have access to the most important speech tools in society and be able to speak with and listen to any other speaker without having to seek permission— translates to a belief that Internet should be made available for everybody, without restrictions aside from those placed on offlinet speech.

Ammori goes on to explain why he thinks SOPA threatened to infringe upon free speech while net neutrality protects it, suggesting that allowing ISPs to control bandwidth usage is tantamount to forcing internet users to become passive consumers of information, rather than creators and content-spreaders.

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Related Links

• On Internet Freedom, Ammori
• Freedom Boxes, Freedom Voices, Ammori
• The Next Big Battle in Internet Policy, Ammori
• If You’ve Ever Sold a Used iPod, You May Have Violated Copyright Law, Ammori

In my Cato paper, “Publication Practices for Transparent Government,” I talked about the data practices that will produce more transparent government. The government can and should improve the way it provides information about its deliberations, management, and results.

“But transparency is not an automatic or instant result of following these good practices,” I wrote, “and it is not just the form and formats of data.”

It turns on the capacity of the society to interact with the data and make use of it. American society will take some time to make use of more transparent data once better practices are in place. There are already thriving communities of researchers, journalists, and software developers using unofficial repositories of government data. If they can do good work with incomplete and imperfect data, they will do even better work with rich, complete data issued promptly by authoritative sources.

We’re not just sitting around waiting for that to happen.

Based on the data modeling reported in “Grading the Government’s Data Publication Practices,” and with software we acquired and modified for the purpose, we’ve been marking up the bills introduced in the current Congress with “enhanced” XML that allows computers to automatically gather more of the meaning found in legislation. (Unfamiliar with XML? Several folks have complimented the explanation of it and “Cato XML” in our draft guide.)

No, we are not going to replace the lawyers and lobbyists in Washington, D.C., quite yet, but our work will make a great deal more information about bills available automatically.

And to build society’s capacity “to interact with the data and make use of it,” we’re hoping to work with the best outlet for public information we know, Wikipedia, making data about bills a resource for the many Wikipedia articles on legislation and newly passed laws.

Wikipedia is a unique project, both technically and culturally, so we’re convening a workshop on March 14th and 15th to engage Wikipedians and bring them together with data transparency folks, hopefully to craft a path forward that informs the public better about what happens in Washington, D.C. We’ve enlisted Pete Forsyth of Wiki Strategies to help assemble and moderate the discussion. Pete was a key designer of the Wikimedia Foundation’s U.S. Public Policy Initiative—a pilot program that guided professors and students in making substantive contributions to Wikipedia, and that led to the establishment of the Foundation’s Global Education Program.

The Thursday afternoon session is an open event, a Wikipedia tutorial for the many inexperienced editors among us. It’s followed by a Sunshine Week reception open to all who are interested in transparency.

On Friday, we’ll roll up our sleeves for an all-day session in which we hope Wikipedians and experienced government data folks will compare notes and produce some plans and projects for improving public access to information.

You can view a Cato event page about the workshop here. To sign up, go here, selecting which parts of the event you’d like to attend. (Friday attendance requires a short application.)

For some Wikipedians, particularly, this may be their first direct experience with the Cato Institute. We are known, of course, for policy positions that contest the current size and scope of government, but transparency, and the hope with getting data on to Wikipedia, is meant to provide the public with neutral information tools that all communities can use to oversee the government and advocate for what they want.

From Cato’s first event on transparency, and again in “Publication Practices,” I’ve emphasized that transparency is a sort of win-win bet.

Government transparency is a widely agreed-upon value, but it is agreed upon as a means toward various ends. Libertarians and conservatives support transparency because of their belief that it will expose waste and bloat in government. If the public understands the workings and failings of government better, the demand for government solutions will fall and democracy will produce more libertarian outcomes. American liberals and progressives support transparency because they believe it will validate and strengthen government programs. Transparency will root out corruption and produce better outcomes, winning the public’s affection and support for government.

Though the goals may differ, pan-ideological agreement on transparency can remain. Libertarians should not prefer large government programs that are failing. If transparency makes government work better, that is preferable to government working poorly. If the libertarian vision prevails, on the other hand, and transparency produces demand for less government and greater private authority, that will be a result of democratic decisionmaking that all should respect and honor.

…

By putting out data that is “liquid” and “pure,” governments can meet their responsibility to be transparent, and they can foster this evolution toward a body politic that better consumes data. Transparency is likely to produce a virtuous cycle in which public oversight of government is easier, in which the public has better access to factual information, in which people have less need to rely on ideology, and in which artifice and spin have less effectiveness. The use of good data in some areas will draw demands for more good data in other areas, and many elements of governance and public debate will improve.

Hope to see you March 14th and 15th.

Jerry Brito and WCITLeaks co-creator Eli Dourado have a conversation about the recent World Conference on International Telecommunications (WCIT), a UN treaty conference that delved into questions of Internet governance.

In the lead-up to WCIT—which was convened to review the International Telecommunication Regulations (ITRs)—access to preparatory reports and proposed modifications to the ITRs was limited to International Telecommunications Union (ITU) member states and a few other privileged parties. Internet freedom advocates worried that the member states would use WCIT as an opportunity to exert control over the Internet. Frustrated by the lack of transparency, Brito and Dourado created WCITLeaks.org, which publishes leaked ITU documents from anonymous sources.

In December, Dourado traveled to Dubai as a member of the U.S. delegation and got an insider’s view of the politics behind international telecommunications policy. Dourado shares his experiences of the conference, what its failure means for the future of Internet freedom, and why the ITU is not as neutral as it claims.

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Related Links

• WCITLeaks, Brito and Dourado
• Final Acts of the World Conference on International Telecommunications, ITU
• Behind closed doors at the UN’s attempted “takeover of the Internet”: Conflicting visions for the future of the Internet collide in Dubai., Ars Technica
• WCIT is about People vs. Their Governments, The Technology Liberation Front

New York University law professor James Grimmelmann eulogizes Aaron Swartz, the open information and internet activist who recently committed suicide in the face of a computer trespass prosecution.

Grimmelmann describes Swartz’s journey from “wunderkind prodigy who came out of nowhere when he was 14” to “classic activist-organizer,” paying special attention to the ideas that motivated his work. According to Grimmelmann, Swartz was primarily interested in power being held by the wrong people and how to overcome it through community organizing. Swartz was dedicated to his personal theory of change and believed that people who know how to use computers have a duty to undermine the closed-access system from within.

It was this ardent belief that led Swartz to surreptitiously download academic articles from JSTOR. Grimmelmann closely analyzes the case, providing a balanced view of both the prosecution’s and Swartz’s view of the issue. Grimmelmann additionally suggests possible policy reforms brought to light by Schwartz’s case.

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Related Links

• Aaron Swartz, Was 26, Grimmelmann
• My Career as a Bulk Downloader, Grimmelmann
• Aaron Swartz, Coder and Activist, Dead at 26, WIRED
• Law Professor James Grimmelmann Explains How He Probably Violated The Same Laws As Aaron Swartz, Techdirt

It’s time to roll out transparency grades!

This isn’t anything innovative, but part of my strategy for improving government transparency is to give public recognition to the political leaders who get ahead on transparency and public disapprobation to those who fall behind. So I have a Cato Institute report coming out Monday that assesses how well government data is being published. (Oversight data, that is: reflecting deliberations, management, and results.)

I went ahead and previewed it on the Cato blog last night. The upshot? I find that President Obama lags House Republicans in terms of data transparency.

Neither are producing stellar data, but Congress’s edge is made more acute by the strong transparency promises the president made as a campaigner in 2008, which are largely unrealized. My pet peeve is the lack of a machine-readable government organization chart, not even at the agency and bureau level. The House is showing modest success and promising signs with some well structured data at docs.house.gov and good potential at beta.congress.gov.

I hustled to get these grades out before the election, and maybe there are one or two marginal voters who this study might sway. How it might sway them is an open question, and I’ve had some interesting reaction to the release of the study, such as: Is this electioneering? Shouldn’t there be an assessment of Romney on transparency?

It’s not electioneering, which is advocating for a specific candidate or party. The study says nothing about what to do with the information it provides. I do believe politicians should be held to account for their transparency practices. The primary way politicians are held accountable is at the ballot box. Thus, communicating to the public about the performance of public officials in a given area at election time is one of the best ways to affect their behavior.

The methodology used in this report gives us the ability to track progress going forward, and it creates better incentives for improvement because you can tie the quality of actual important data to the officials responsible for it. But it doesn’t allow us to go back in time and grade the condition of data in the past (barring a huge effort to recreate what resources were available). And it doesn’t allow us to grade candidates for office, who don’t have any responsibility for any data we care about. So I can say, because I believe it, that President Obama is almost certainly better than President Bush was, and I’ve heard that Mitt Romney was bad on transparency as a governor. But I don’t have data to confirm these things.

We’ll do this study again—and better!—in two years, and again in four. We will be measuring progress and calling it out for the public to consider. We’ve put together a pretty good methodology for assessing data publication, I think, and the division of responsibility for data among political leaders is pretty clear. So this instrument will be a way for the public to assess progress on something they want.

Thanks to the folks at GovTrack.us, the National Priorities Project, OMB Watch, and the Sunlight Foundation, who helped me review the government’s data publication practices. (Their help does not imply agreement with MY conclusions.)

Elections are coming up, but though we’re well into the 21st century, we still can’t vote online. This archived episode discusses the future of voting.

Joseph Hall, Senior Staff Technologist at the Center for Democracy and Technology and a former postdoctoral researcher at the UC Berkeley School of Information, discusses e-voting. Hall explains the often muddled differences between electronic and internet voting, and talks about security concerns of each. He also talks about benefits and costs of different voting systems, limits to having meaningful recounts with digital voting systems, and why internet voting can be a bad idea.

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Related Links

• “E-voting and Direct Democracy,” by Hall
• “Security debate grows over Internet voting,” USA Today
• “Hacker infiltration ends D.C. online voting trial,” Washington Post

Perry Keller, Senior Lecturer at the Dickson Poon School of Law at King’s College London, and author of the recently released paper “Sovereignty and Liberty in the Internet Era,” discusses how the internet affects the relationship between the state and the media. According to Keller, media has played a formative role in the development of the modern state and, as it evolves, the way in which the state governs must change as well. However, that does not mean that there is a one-size-fits-all solution. In fact, as Keller demonstrates using real-world examples in the U.S., U.K., E.U., and China, the ways in which new media is governed can differ radically based upon the local legal and cultural environment.

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Related Links

• Sovereignty and Liberty in the Internet Era, by Keller
• European and International Media Law: Liberal Democracy, Trade and the New Media, by Keller
• Media Law in Britain, by Keller

Scott Shackelford, assistant professor of business law and ethics at Indiana University, and author of the soon-to-be-published book Managing Cyber Attacks in International Law, Business, and Relations: In Search of Cyber Peace, explains how polycentric governance could be the answer to modern cybersecurity concerns.

Shackelford  originally began researching collective action problems in physical commons, including Antarctica, the deep sea bed, and outer space, where he discovered the efficacy of polycentric governance in addressing these issues. Noting the similarities between these communally owned resources and the Internet, Shackelford was drawn to the idea of polycentric governance as a solution to the collective action problems he identified in the online realm, particularly when it came to cybersecurity.

Shackelford contrasts the bottom-up form of governance characterized by self-organization and networking regulations at multiple levels to the increasingly state-centric approach prevailing in forums like the International Telecommunication Union (ITU).  Analyzing the debate between Internet sovereignty and Internet freedom through the lens of polycentric regulation, Shackelford reconceptualizes both cybersecurity and the future of Internet governance.

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Related Links

• Managing Cyber Attacks in International Law, Business, and Relations: In Search of Cyber Peace, by Shackelford
• Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, by Shackelford
• Is There a Cybersecurity Market Failure, by Eli Dourado

Vinton Cerf, one of the “fathers of the internet,” discusses what he sees as one of the greatest threats to the internet—the encroachment of the United Nations’ International Telecommunications Union (ITU) into the internet realm. ITU member states will meet this December in Dubai to update international telecommunications regulations and consider proposals to regulate the net. Cerf argues that, as the face of telecommunications is changing, the ITU is attempting to justify its continued existence by expanding its mandate to include the internet. Cerf says that the business model of the internet is fundamentally different from that of traditional telecommunications, and as a result, the ITU’s regulatory model will not work. In place of top-down ITU regulation, Cerf suggests that open multi-stakeholder processes and bilateral agreements may be a better solutions to the challenges of governance on the internet.

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Related Links

• Keep the Internet Open, by Cerf
• Information about the World Conference on International Telecommunications (WCIT), Internet Society
• WCITLeaks.Org

The Cato Institute’s jobs page has a new posting. If you have the right mix of data/technical skillz, public policy knowledge, love of freedom, and vim, this could be your chance to advance the ball on government transparency! [Added: For more background on Cato’s transparency work, see this and this.]

Data Curator, Center on Information Policy Studies

The Cato Institute seeks a data curator to support its government data transparency program. This candidate will perform a variety of functions that translate government documents and activities into semantically rich, machine-readable data. Major duties will include reading legislative documents, marking them up with semantic information, and identifying opportunities for automated identification and extraction of semantic information in documents. The candidate will also oversee the data entry process and train and supervise others to perform data entry. The ideal candidate will have a college degree, preferably in computer science and/or political science, and experience using XML, RDFa, and regular expressions. Attention to detail is a must, with an understanding of U.S federal legislative, spending, and regulatory processes preferred.

Applicants should send their resume, cover letter, and a short writing sample to:

Jim Harper
Director of Information Policy Studies
Cato Institute
1000 Massachusetts Ave. NW
Washington, DC 20001
Fax (202) 842-3490
Email: jharper@cato.org

Here’s an exclusive insider tip for TechLiberationFront readers. Don’t send your application by fax! That would send the wrong signal…

Paying close attention to language can reveal what’s going on in the world around you.

Note the simple but important differences between the phrases “open government” and “open government data.” In the former, the adjective “open” modifies the noun “government.” Hearing the phrase, one would rightly expect a government that’s more open. In the latter, “open” and “government” modify the noun “data.” One would expect the data to be open, but the question whether the government is open is left unanswered. The data might reveal something about government, making government open, or it may not.

David Robinson and Harlan Yu document an important parallel shift in policy focus through their paper: “The New Ambiguity of ‘Open Government.'”

Recent public policies have stretched the label “open government” to reach any public sector use of [open] technologies. Thus, “open government data” might refer to data that makes the government as a whole more open (that is, more transparent), but might equally well refer to politically neutral public sector disclosures that are easy to reuse, but that may have nothing to do with public accountability.

It’s a worthwhile formal articulation and reminder of a trend I’ve noted in passing once or twice.

There’s nothing wrong with open government data, but the heart of the government transparency effort is getting information about the functioning of government. I think in terms of a subject-matter trio—deliberations, management, and results—data about which makes for a more open, more transparent government. Everything else, while entirely welcome, is just open government data.

President Obama’s third full year in office came to an end last week, and I’ve reviewed how well he’s doing with one particular campaign promise on the Cato@LIberty blog. “Sunlight Before Signing” is the moniker for the president’s campaign promise to post online the bills Congress sends him for five days before signing them.

As we start the fourth year, he’s at just over 50% on fulfillment of the promise. Far less if you measure based on the number of pages that got the sunlight he promised.

At last Thursday’s FCC Open Commission Meeting, the Commission proposed to require television stations to make their “public inspection file” available online. But availability is not accessibility. If the FCC follows its usual practice of having filers submit PDFs (many of which are often scanned from printed documents), this data may be nearly useless to the small number of researchers who would really benefit from having a large set of public inspection files available online.

The public inspection file, a traditional hallmark of broadcast regulation, is a collection of documents that all radio and television stations must maintain and make available to anyone who asks to see it. Under the FCC’s existing rules, the file must contain, among other things:

1. A complete record of airtime purchases by, or on behalf of, any political candidates or political issues of national importance.
2. A quarterly report on the “programs containing [the station’s] most significant treatment of community issues.”

Neither is filed with the FCC and thus both are available only directly from the station. But accessing the file shouldn’t be difficult. The FCC’s rules clearly state that the file should be “available to members of the public at any time during regular business hours.” You can even ask the station staff to make photocopies for you (though you’ll have to pay for the copies).

Although the proposal voted on yesterday hasn’t yet been released publicly, the plan as reported would require stations to submit information to the FCC, which will develop a publicly-searchable online database of the submissions. This is in marked contrast to a 2007 FCC rule which required stations to put public inspection files on their own websites. Broadcasters sued to block the implementation of the previous rule, arguing that the FCC underestimated the paperwork burden and voicing First Amendment concerns. The court sent the previous rule back to the FCC for revision, which the FCC had been silent about until today.

At yesterday’s meeting, Commissioner Clyburn complained that most public inspection files are “in the deep recesses of broadcast stations, in dilapidated filing cabinets,” but this complaint misses the point. Stations don’t bring members of the public into their “deep recesses.” They ask them to have a seat in their lobby while some station staffer retrieves the file. What could be easier? You might even see a local celebrity while you wait!

But in fact, the public inspection files of most stations are almost never requested. In 2007, Viacom stated that visits to its stations’ public inspection files were “exceedingly rare … less than one annually, virtually all of whom are college students on assignment.” That’s probably because most people don’t know of their existence.

Just putting the public inspection files online would certainly make them more accessible and might lead to more public review. But the real beneficiaries of the FCC’s new rule are researchers. The primary “research” that researchers do is comparing data across stations and/or across time to identify larger trends. But if the new system the FCC develops for the public inspection file data is like many of the FCC’s existing online databases, it will be of limited use. Most FCC databases allow users to only search for a single licensee and most of the data they contain is only available in separate PDF files for each licensee. This makes it very time-consuming to, for example, determine which station in a city receives the most political airtime purchases, or to track political airtime purchases over time.

This outdated approach to disclosure is fundamentally inconsistent with the broader efforts of the Obama Adminstration to implement Open Government through meaningful disclosure. The Open Government Directive directs agencies to

“publish information online in an open format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. An open format is one that is platform independent, machine readable, and made available to the public without restrictions that would impede the re-use of that information.”

In a 2010 memo to the heads of executive departments and agencies, Cass Sunstein, head of the Office of Information and Regulatory Affairs, explained “There is a difference between making a merely technical disclosure–that is, making information available somewhere and in some form, regardless of its usefulness–and actually informing choices.” Sunstein’s vision of transparency isn’t merely a means of opening up government, but also a less restrictive alternative to prescriptive regulation. That’s exactly why we have public files in the first place: because forced disclosure is less restrictive than limiting political advertisements or meddling (even more) with public interest programming.

The idea of transparency as an alternative to regulation goes all the way back to President Clinton’s Executive Order 12866 (1993): “Each agency shall identify and assess available alternatives to direct regulation, including … providing information upon which choices can be made by the public.” And in another memo to agency heads from just last month, Sunstein explained the benefits of Smart Disclosure, which

“makes information not merely available, but also accessible and usable, by structuring disclosed data in standardized, machine readable formats. … In many cases, smart disclosure enables third parties to analyze, repackage, and reuse information to build tools that help individual consumers to make more informed choices in the marketplace.”

Thus, if the FCC is going to require stations to collect certain information and make that information available to the public, it should make that information accessible too. That means requiring stations to submit the data in machine-readable format and ensuring that the submitted data is then made available in compliance with the 8 Principles of Open Government Data. While these principles were not developed by the Federal government, they are in keeping with the spirit of the FCC’s Data Innovation Initiative. FCC Chairman Julius Genachowski is exactly right: “public data should be accessible to the public in meaningful ways using modern digital tools.”

Fine words, Mr. Chairman. Why not start with public files?

Remember when you had to wait until the end of the month to see your bank statement?

Last week, on the cusp of failing to pass any annual appropriations bills ahead of the October 1 start of the new fiscal year, congressional leaders came up with a short-term government funding bill (or “continuing resolution”) that would fund the government until November 18th. For whatever reason, that deal (H.R. 2608) wasn’t ready to go before the end of the week, so Congress passed an even shorter-term continuing resolution (H.R. 2017) that funds the government until tomorrow, October 4th.

Every weekend, I hunch over my computer and update key records in the database of WashingtonWatch.com, a government transparency website I run as a non-partisan, non-ideological resource. Then I put a summary of what’s going on into an email like this one (subscribe!) that goes out to 7,000 or so of my closest friends.

Last weekend, the Library of Congress’ THOMAS website, which is one of my resources, was down a good chunk of the time for maintenance. Even after it came up again, some materials such as bill text and committee reports weren’t available. (They had come up by the wee hours this morning.) Maintenance is necessary sometimes, though when the service provider I use for the WashingtonWatch.com email does maintenance, it’s usually for an hour or so in the middle of a weekend night.

But when I went to update the database to reflect last week’s passage of H.R. 2017, I could find no record of its public law number. When a bill becomes a law, it gets a public law number starting with the number of the Congress that passed and then a sequential number, like Public Law No. 112-29. The Government Printing Office’s FDsys system lets you browse public laws. At this writing, it isn’t updated to reflect the passage of new laws last week. When THOMAS came back up, its public laws page also had no data to reflect the passage of that continuing resolution last week (and still doesn’t, also at this writing).

There is barely any news reporting on humdrum details about governing like the passage of a law expending $40 billion in taxpayer funds. (That’s about what H.R. 2017 spends to operate the government four more days, roughly $400 per U.S. family.) Where can you confirm with an official source that this happened?

The winning data resource this week, if by default, is Whitehouse.gov, which has a page dedicated to laws the president has signed. That page says that President Obama signed four new laws on Friday (Sept. 30). When might FDsys or THOMAS reflect this information? It’ll happen soon, and that data will start to propagate out to society.

But I think that’s not soon enough. A couple of days’ delay is a big deal.

If I were to take $400 in cash out of my bank account at an ATM, I could review that transaction from that instant forward on my bank’s website. If I had a concern or even a passing interest, I could just go look. That is an utterly unremarkable service in this day and age.

But it’s remarkable that such a service doesn’t exist in systems that are as important as our bank accounts. When Congress and the president pass a bill to spend $40 billion dollars, the fact of its passage is pretty much undocumented by any official sources until enough Mon-Fri, 9-to-5 work hours have passed.

In my recently published paper, Publication Practices for Transparent Government, I go through the things the government should do to make itself more transparent (thus improving public oversight and producing lots of felicitous outcomes). A practice I cite is “real-time or near-real-time publication.” Why? Because then any of the 300 million Americans who have an interest, real or passing, can see what is happening with their money as it happens, just like they can with their bank holdings. People like me (and many more) can propagate complete and timely information, making it that much more accessible.

When you’re talking about a potential audience of 200 million people and $40 billion in expense (one of the tiniest spending bills—others are much larger), it is not too much to ask to have the data published in real time.

I don’t expect a lot of people to join me at the barricades with pitchforks and torches on this one. Government transparency is an area ruled by implicit demand. People don’t know what they are missing, so they don’t know to suffer a sense of deprivation. I do that for them—all of them. (Heroic, idn’t it?)

Before too long, though, the government’s opacity will be recognized as a contributor to the public’s general—and strong—distaste for all that goes on in Washington, D.C. The idea of spending $400 per U.S. family without documenting every detail of it on the Internet will seem as absurd as waiting until the end of the month to see what happened in your bank account.

The Cato Institute is doing a live-streamed Capitol Hill briefing this morning—start-time 9:00 a.m. Eastern—on congressional transparency.

You can see and download all the materials being released to Hill staff on a Cato@Liberty blog post summarizing where congressional transparency stands: “needs improvement.”

You can watch the event live (or later on tape) and join the conversation at the Twitter hashtag #RateCongress.

The White House’s release of its “Open Government Action Plan” today is timely. I’ll be rolling out the product of several months’ work on government transparency Friday at a Cato Institute event called “Publication Practices for Transparent Government: Rating the Congress.”

The paper we’ll release commences as follows:

Government transparency is a widely agreed upon goal, but progress on achieving it has been very limited. Transparency promises from political leaders such as President Barack Obama and House Speaker John Boehner have not produced a burst of information that informs stronger public oversight of government.

The reason is not lack of planning documents, meetings, or websites, as reading the White House’s announcement today might suggest, but lack of specifically prescribed data publication practices that foster transparency. The government should publish data about its deliberations, management, and results in ways that make it amenable to all the varied uses of websites, researchers, reporters, and the public at large.

We’ll be grading the Congress on how well it’s doing with publication of data about formal legislative process. Congress is first because it’s low-hanging fruit. We’ll soon be turning to information the executive branch can make more transparent: budgets, appropriations, and spending.

The programs featured by the White House today—a new “We the People” petition platform, whistleblower protection, and an “Extractive Industries Transparency Initiative”—are fairly tangential. Fuller government transparency will be a product of specific good publication practices applied to data about the government’s deliberations, management, and results.

More information, and registration for Friday’s event, can be found here.

Data-transparent government is still a ways off, but some small steps forward are underway. To wit, my project WashingtonWatch.com, which is adding new data going to the costs of bills in Congress.

As detailed in an announcement that went up this morning, many more bills on the site will have cost estimates associated with them, the product of research being done at the National Taxpayers Union Foundation. Some bills spend pennies or less per U.S. family. Some spend $5,000 per family and more. Wouldn’t you like to know which are which?

The site has also begun displaying national debt information on a per-family, per-person, and per-couple basis. (Your debt—just for being an American—is about $45,000 dollars.)

I’ll have much more to say on government transparency in the coming months. In the meantime, you might do your part to avoid the next calamitous debt ceiling debate by following the day-to-day, month-to-month, and year-to-year in Congress using things like the WashingtonWatch.com weekly email newsletter.

Daily news service TechLawJournal (subscription) reports that the U.S. District Court (DC) has granted summary judgment to the National Security Agency in EPIC v. NSA, a federal Freedom of Information Act (FOIA) case regarding the Electronic Privacy Information Center’s request for records regarding Google’s relationship with the NSA.

EPIC requested a wide array of records regarding interactions between Google and the NSA dealing with information security. Reports TLJ:

The NSA responded that it refused to confirm or deny whether it had a relationship with Google, citing Exemption 3 of FOIA (regarding records “specifically exempted from disclosure by statute”) and Section 6 of the National Security Agency Act of 1959 (which prohibits disclose of information about the NSA).

The FOIA merits of EPIC’s suit are one thing. It’s another for Google to have an intimate relationship with a government agency this secretive.

This would be a good time to not be evil. Google should either sever ties with the NSA or be as transparent (or more) than federal law would require the NSA to be in the absence of any special protection against disclosure.

If you haven’t seen it already, be sure to give a read to Friedman Prize winner Hernando de Soto‘s recent piece in Business Week, “The Destruction of Economic Facts.” It’s a fascinating perspective on the economic and financial turmoil that is wracking the United States and the world.

As de Soto perceives more easily from working in developing economies, an important input into functioning markets is good information—about property, ownership, debts, and so on. The “destruction of economic facts” is one of the roots of instability and uncertainty in Europe and the United States, he says. “In a few short decades the West undercut 150 years of legal reforms that made the global economy possible.”

The law and markets are information systems, says de Soto:

The rule of law is much more than a dull body of norms: It is a huge, thriving information and management system that filters and processes local data until it is transformed into facts organized in a way that allows us to infer if they hang together and make sense.

If you’re interested in information and transparency, it’s worth a read.

Here’s a quick excerpt from an interesting press release sent out over PR Newswire last week—it sounds like someone is angling for a fat government contract:

EMC® announced the 2011 Data Hero Awards winners and finalists First annual Data Hero Visionary award goes to Vivek Kundra, the first Chief Information Officer (CIO) of the United States of America

EMC just happens to be huge provider of cloud storage solutions, which they’re actively trying to sell to the public sector, and apparently already have.

Kundra, of course, was honored:

I’m truly honored to be recognized for this 2011 Data Hero visionary award. The modern economy is powered by data and technology. That’s why we strive to find innovative paths to lower government cost, engage citizens and institute radical transparency to bring them closer to their government and to help move us all forward, together.

I really like the way he worked in the bit on “radical transparency.”  It’s not as though if you say something enough, it magically changes reality, but that doesn’t stop the flow of awards.

Be on the lookout for an EMC press release involving a massive federal government cloud computing project.

Late last week, the Project on Government Oversight‘s Danielle Brian took a little umbrage at a Huffington Post piece by former U.S. Deputy Chief Technology Officer Beth Noveck, who had been implementing the Obama Administration’s Open Government Initiative until she recently returned to New York Law School.

Brian’s piece suggests a slight schism in the transparency community, between what I believe are the “insider” and “outsider” camps. Brian leaves to the end a crucial point: “[C]an’t the two camps in the open government world peacefully co-exist? There’s just too much work to be done for us to get bogged down in denigrating each others’ agendas.” They most certainly can.

Noveck was a bit dismissive of the open government movement as perceived by much of the transparency community. “Many people, even in the White House,” she wrote, “still assume that open government means transparency about government.” Actually, Noveck continued, open government is “open innovation or the idea that working in a transparent, participatory, and collaborative fashion helps improve performance, inform decisionmaking, encourage entrepreneurship, and solve problems more effectively. By working together as team [sic] with government in productive fashion, the public can then help to foster accountability.”

Visualize the difference between these two approaches: open government as a tool for public oversight and open government as a tool for public participation. When open government is about public oversight, the wording connotes the public looking down from above on the work its servants are doing. When open government is about collaboration, the public is at best an equal partner, allowed to participate in the work of governing. Noveck’s unfortunate language choice treats accountability as a kind of dessert to which the public will be entitled when it has donated sufficient energies to making the government work better.

The administration’s December 2009 open government memorandum predicted this divide. In calling for each agency to publish three “high-value data sets,” it said:

High-value information is information that can be used to increase agency accountability and responsiveness; improve public knowledge of the agency and its operations; further the core mission of the agency; create economic opportunity; or respond to need and demand as identified through public consultation.

As I noted at the time, it’s a very broad definition.

Without more restraint than that, public choice economics predicts that the agencies will choose the data feeds with the greatest likelihood of increasing their discretionary budgets or the least likelihood of shrinking them. That’s data that “further[s] the core mission of the agency” and not data that “increase[s] agency accountability and responsiveness.” It’s the Ag Department’s calorie counts, not the Ag Department’s check register.

Noveck wants us to put the calorie counts to use. Brian wants to see the check register.

There is no fundamental tension between these two agendas. Both are doable at the same time. The difference between them is that one is the openness agenda of the insider: using transparency, participation, and collaboration to improve on the functioning of government as it now exists.

The openness agenda of the outsider seeks information about the management, deliberation, and results of the government and its agencies. It is a reform (or “good government”) agenda that may well realign the balance of power between the government and the public. That may sound scary—it’s certainly complicates some things for insiders—but the “outsider” agenda is shared by groups across the ideological and political spectra. Its content sums to better public oversight and better functioning democracy, things insiders are not positioned to oppose.

I think these things will also reduce the public’s demand for government, or at least reduce the cost of delivering what it currently demands. But others who share the same commitment to transparency see it as likely to validate federal programs, root out corruption, and so on (a point I made in opening Cato’s December 2008 policy forum, “Just Give Us the Data!”) There are no losers in this bet. Better functioning programs and reduced corruption are better for fans of limited government than poorly functioning programs and corruption.

Forward on all fronts! The existence of two camps is interesting, but not confounding to the open government movement.