The FCC Releases an Improved Electronic Filing System: ECFS 2.0

This is a super-wonky item, but I am truly excited. This morning, the FCC went live with a new version of its Electronic Comment Filing System (ECFS). Anyone who has worked on policy issues that touch the FCC is probably familiar with this system. Any time the Commission solicits comments on an issue, ECFS is used for filing and lookup. ECFS is the venue for a great deal of data and debate on the core issues of communications policy in the United States. However, the earlier version of ECFS didn't allow very sophisticated searching, direct-linking to search results, RSS feeds, or the like. As such it was often a pain to get a sense of what was on the record or to follow a particular issue or docket.

These limitations were nothing, of course, compared to the physical limitations that existed before ECFS 1.0 (and, thankfully, before I ever had to work on FCC issues).

In the era of ECFS 1.0, I actually spent many hours building a system for automatic download and RSS-ification of dockets. However, this was an extremely painful process, fraught with errors. ECFS 2.0 introduces a series of improvements, which are detailed in the following video of this morning's FCC presentation. Good job FCC! I'm sure we'll have suggestions for improvements, but this is a huge step forward.

Let's Hear it for Renegade Law Librarians!

Video: Interview with Stephen Schultze, co-creator of Recap

Today, Stephen Schultze and Harlan Yu from the Center for Information Technology Policy at Princeton, and two of the creators of the Recap project, presented Recap at Yale Law School. Afterwards I had a chance to record a short video interview with Stephen Schultze about issues related to Recap and online access to government records. My hand was a little unsteady, so it’s a little Blair Witch, but think it’s an interesting interview, enjoy.

Here’s the links for the petition to improve PACER and Fedthread, both of which he discusses.

(via Jason the Content Librarian)

Android Open Source Model Has a Short Circuit

Last year, Google entered the mobile phone market with a Linux-based mobile operating system. The company brought together device manufacturers and carriers in the Open Handset Alliance, explaining that, "Together we have developed Android™, the first complete, open, and free mobile platform." There has been considerable engagement from the open source developer community, as well as significant uptake from consumers. Android may have even been instrumental in motivating competing open platforms like LiMo. In addition to the underlying open source operating system, Google chose to package essential (but proprietary) applications with Android-based handsets. These applications include most of the things that make the handsets useful (including basic functions to sync with the data network). This two-tier system of rights has created a minor controversy.

A group of smart open source developers created a modified version of the Android+Apps package, called Cyanogen. It incorporated many useful and performance-enhancing updates to the Android OS, and included unchanged versions of the proprietary Apps. If Cyanogen hadn't included the Apps, the package would have been essentially useless, given that Google doesn't appear to provide a means to install the Apps on a device that has only a basic OS. As Cyanogen gained popularity, Google decided that it could no longer watch the project distribute their copyright-protected works. The lawyers at Google decided that they needed to send a Cease & Desist letter to the Cyanogen developer, which caused him to caused him to take the files off of his site and spurred backlash from the developer community.

Android represents a careful balance on the part of Google, in which the company seeks to foster open platforms but maintain control over its proprietary (but free) services. Google has stated as much, in response to the current debate. Android is an exciting alternative to the largely closed-source model that has dominated the mobile market to date. Google closely integrated their Apps with the operating system in a way that makes for a tremendously useful platform, but in doing so hampered the ability of third-party developers to fully contribute to the system. Perhaps the problem is simply that they did choose the right location to draw the line between open vs. closed source -- or free-to-distribute vs. not.

The latter distinction might offer a way out of the conundrum. Google could certainly grant blanket rights to third-parties to redistribute unchanged versions of their Apps. This might compromise their ability to make certain business arrangements with carriers or handset providers in which they package the software for a fee. That may or may not be worth it from their business perspective, but they could have trouble making the claim that Android is a "complete, open, and free mobile platform" if they don't find a way to make it work for developers.

This all takes place in the context of a larger debate over the extent to which mobile platforms should be open -- voluntarily or via regulatory mandate. Google and Apple have been arguing via letters to the FCC about whether or not Apple should allow the Google Voice application in the iPhone App Store. However, it is yet to be determined whether the Commission has the jurisdiction and political will to do anything about the issue. There is a fascinating sideshow in that particular dispute, in which AT&T has made the very novel claim that Google Voice violates network neutrality (well, either that or common carriage -- they'll take whichever argument they can win). Google has replied. This is a topic for another day, but suffice to say the clear regulatory distinctions between telephone networks, broadband, and devices have become muddied.

(Cross-posted to Freedom To Tinker)

AO and GPO to Host A Discussion on PACER Pilot "Lessons Learned"

I'm curious about what this will entail.

At its September 2007 session, the Judicial Conference endorsed a joint pilot between the Government Printing Office (GPO) and the Administrative Office of the U.S. Courts that was not to exceed two years in length. The GPO sought volunteers to participate in the pilot from among its 1265 depository libraries. Forty-nine depository libraries responded to the call for volunteers. In consultation with the GPO, the Administrative Office selected seventeen depository libraries to participate in the pilot.

The pilot commenced in October 2007 and was suspended after 11 months for an evaluation. The data collected during that time suggests that the target population, a segment of the public that would be unlikely to go to the court house or establish a PACER account, was not reached as anticipated. In October 2009, the GPO and the Administrative Office will be holding a "Lessons Learned" focus group session with the librarians who participated in the pilot to pin point what worked and what could be improved.

Although the pilot was initially well publicized, the level of ongoing public outreach about the pilot did not reach the desired level. More fundamentally, PACER is a tool, not a program. Therefore, the American Association of Law Libraries (AALL) has been contacted to discuss ways the pilot could be reinvented to make PACER part of a legal research and training program for librarians and the users. The AALL strongly supports the GPO and the FDL program, and is willing to assist with developing a proposal to move forward. Once a proposal is developed, it will be submitted to the Judiciary's advisory groups and the Judicial Conference Committee on Court Administration and Case Management for consideration.

-- Pilot for PACER Access at Federal Depository Libraries, FDLP Desktop

My New Working Paper on PACER

Electronic Public Access Fees and the United States Federal Courts’ Budget: An Overview

Stephen Schultze, Fellow, Berkman Center for Internet & Society at Harvard

Abstract: This draft working paper examines the role of user fees for public access to records in the budgeting process of the federal courts. It sketches the policy principles that have traditionally motivated open access, describes the administrative process of court budgeting, and traces the path of user fees to their present-day instantiation. There has been considerable confusion about motivation and justification for the courts charge for access to PACER, the web-based system for “Public Access to Court Electronic Records.” Representatives from the Administrative Office of the Courts describe the policy as mandated by Congress and limited to reimbursing the expenses of operating the system. This paper identifies the sources of these claims and places them in the context of the increasing push to make government data freely accessible.

Download here.

RECAP the law

I'm proud to announce the launch of a new project that I've been working on with my colleagues at Princeton's Center for Information Technology Policy.

RECAP is an extension to the popular Firefox web browser that gives PACER users a hassle-free way to contribute to a free, open repository of federal court records. When a RECAP user purchases a document from PACER, the RECAP extension helps her automatically send a copy of that document to the RECAP archive. And RECAP saves its users money by notifying them when documents they’re searching for are already available for free from the public archive.

Check it out at http://www.recapthelaw.org

Can Parties Sue Counsel for Wrongful Publication of Personal Information?

Spam Notes has a good summary of a recent decision on the matter.

The Killians filed for bankruptcy in 2005 and Green Tree (on its own, not through a lawyer) filed a proof of claim which attached a document containing the Killians' "social security numbers, full account number, and legal names." In 2008, Green Tree (this time, through its lawyer) filed a Motion for Relief from Stay, and attached Green Tree's original filing, which contained the Killians' social security numbers and account numbers. The Killians brought an adversary proceeding asserting claims under state law, Gramm-Leach-Bliley, and other statutes.

Read the rest of the analysis here.

I've uploaded the text of the opinion. There will be a hearing on October 15th to further address the matter.

Update: They settled. I guess we won't get to find out how the court would deal with this.

Balancing Access and Privacy: Free PACER

The latest issue of AALL Spectrum has an essay on PACER. It's fairly conservative in its recommendations, but certainly captures the issues and suggests some positive steps.

Balancing Access and Privacy: Free PACER
By Susan Lyons

[...]

• Release all court decisions and briefs in motions and appeals without restriction on the open Internet and make the files available in bulk to anyone requesting them. These two categories of documents pose little risk to privacy and are among the most used and valuable of the materials in PACER. Exhibits and attachments with private information could be excluded from the release.
• Give attorneys and litigants free and unlimited access to their own dockets. Under the current system, when a new document is uploaded to the court’s electronic docket, parties receive an e-mail notice that allows them one opportunity to download the document to their own computer without charge. While large law firms may capture these documents in sophisticated case management systems, many smaller firms may need to log in to PACER and incur charges to view documents in their own cases. Free access is especially critical for pro se litigants, who may not have regular access to computers and need to access PACER repeatedly to view files in their own cases.
• Allow scholars doing empirical research on court records full access to bulk data. The Judicial Conference could establish reasonable limits on the terms of this access that would protect sensitive data.
• Reinstitute the PACER pilot program and expand the pilot to all federal courthouses. Full release of the database could be prevented by restricting the number of downloads permitted at any one site and instituting reasonable guidelines to prevent abuse. Access should be provided through IP authentication rather than passwords.

Read the full article.

Happy Broadband NOFA Day

NTIA and RUS issued the Notice of Funds Availability (NOFA) for stimulus-related broadband grants.

• Broadband Initiatives Program and Broadband Technology Opportunities Program
• State Broadband Data and Development Grant Program

Analysis:

• Ars
• Fierce Wireless
• Harold Feld
• Public Knowledge
• Broadband Census
• Network World
• GigaOm

Radio Moon Bounce

Everybody loves a good moon bounce. Today's moon bounce didn't involve taking your shoes off and jumping, but it was every bit as fun (if you are a geek). Every so often, when the moon is in the right spot, amateur radio operators ("hams") organize a competition to see who can communicate with the most people across the world by bouncing signals off of the moon. Today was the "Echoes of Apollo Moon Bounce" event -- a global ham celebration of the 40th anniversary of the Apollo 11 mission. The NY Times did a decent overview of the event.

I spent a good chunk of the day listening to these signals. Growing up, my dad was often in the basement with his radios or on the roof tweaking his antennas. I was always fascinated by his equipment and the people he talked to from all over the world, but by the time I got old enough to really get into it I had been bit by the computer bug. My dad sometimes compared what I was doing at age 12 with BBS'es and my 2400 baud modem with some of his ham radio passions. I still remember my first VoIP experience in the early 90's, talking to an Australian guy over dialup.

I never did get my ham radio license, in part because of the pull of computers and the burgeoning internet. Nevertheless, in the years since then I've gained a greater appreciation of the radio spectrum. Spectrum is a valuable shared resource that we have allocated to different users for communication. Sometimes we have tried to choose who is the most important, sometimes we have auctioned use of it off to the highest bidder, and other times we have allowed a "commons" oriented unlicensed use. New technologies shape the way we are able to use this common good, and we have plenty of active policy debate over these issues. Just yesterday I watched a New America Foundation event that was "optimistically" titled "The End of Spectrum ‘Scarcity': Opportunistic Access to the Airwaves."

Amateur radio operators have traditionally operated via analog means as they communicate by voice or morse code. Over time, they incorporated packet radio, allowing computers to transmit over certain frequencies using special analog-to-digital hardware. In the time since my dad's basement tinkering and my first modem, the worlds of radio and computer -- analog and digital -- have converged. The latest example of this was of course the analog-to-digital transition for broadcast television in the United States, and the extent to which this opens up unused "white spaces" for broadband. The most important innovation in wireless digital communications has been the emergence of Software Defined Radio ("SDR") technology that allows tuning, transmitting, and receiving to be done in software instead of special hardware. This means that computing devices can become general purpose radios, and whereas my dad used to have to buy new transistors and diodes at the hamfest, I can just download and install a new radio image for my Android phone.

Receiving the Earth-Moon-Earth ("EME") transmissions requires a decent parabolic antenna, but I don't have one. So how did I spend the day listening to radio signals bouncing off of the moon? I tuned in via a Dutch dish that was streaming online. Now, it would be pretty cool if the operators of this dish were simply tuning around for signals and sending a single audio stream out to anyone who wished to listen. However, what they did was even cooler. They captured all of the data for a frequency band (1.24-1.3 GHz, what the hams call "23 cm" because of the wavelength) and then they published a web-based application for SDR decoding on that raw stream so that each person could tune to any transmission within that band! The interface includes a draggable tuner and live spectrum analyzer output of signals. You can actually see what location on the dial every other person is tuning to. This combination of SDR and internet-enabled interactivity just blew my mind. I chatted briefly with the folks in the Netherlands:

me: geek question: does websdr send all of the receiver data to the end-user and then the java app tunes locally, or is the java app instructing the server how to process before sending the stream?
them: The latter. The raw data stream would be about 3 Mbit/s, that would be too much for many home connections.
me: sdr is on the main cpu or other boards?
them: On the main CPU. The only external hardware is an analogue downconverter.

It really was fun to listen to the moon bounce, and the web-based experience just reinforced how much is possible in the radio spectrum when it is combined with computing. The traditional model of frequency allocation for a specific purpose needs to give way to more efficient spectrum-sharing techniques. The amateur radio operators have developed sophisticated social norms for sharing their radio waves, but they are highly inefficient when compared to something like WiFi, which is in turn highly inefficient compared to more modern approaches. As an example of what a bridging experience the moon bounce was for me, the signal was arriving in the 1.2 GHz band in the Netherlands, which then was piped over the internet to my house and then re-transmitted to my laptop over WiFi at 2.4 Ghz.

As a policy matter, digitization of the airwaves means that we need to re-think how we use them. Today, computers can directly connect and transmit more in a millisecond than an entire ham radio back-and-forth ("CQ, CQ, CQ..."). We need a map of the vast swaths of unused spectrum, and an automated digital means for sharing them. That's part of the upcoming National Broadband Plan being created by the FCC.

That's not to say that ham radio should go away. The thrill of finding a remote station in Russia, the Netherlands, London or Mexico and tuning it in for that brief moment is quite an experience. Everybody loves a moon bounce.

Here are a few excerpts I captured while I was listening (sorry about the lousy tuning in a couple places, it just makes it sound more like the Death Star attack from Star Wars):

Listen to the MP3

Petition: Improve PACER

We ask the Administrative Office of the U.S. Courts to improve PACER by enhancing the authenticity, usability and availability of the system.

We the undersigned, urge the Administrative Office of the US Courts (AO) to make the following changes to the PACER system:

• For verification and reliability, the AO should digitally sign every document put into PACER using readily available technology.
• PACER needs to be much more readily accessible if it is to be usable for research, education, and the practice of law. Improved accessibility includes both lowering the costs for using PACER and enhancing the web interfaces.
• Depository libraries should also have free access to PACER.

Sign now.

Sunlight on the Supreme Court

Wow, I'm not sure how I missed this earlier. The Supreme Court is looking to revamp its web site, and the Sunlight Foundation did an extensive proposal. It's got a lot of great suggestions, complete with mockups. Recently I've been using the existing SCOTUS site to pull docket information (which works reasonably well), but there is certainly room for improvement. In particular, it would be great if the Court implemented an e-filing system and then made those filings publicly accessible. You can see the possibilities in the difference between the current docket pages and the proposed format.

The NYT article mentions PACER, but if the Court went that route I hope they'd have the sense not to lock the documents behind a pay wall. This effort by Sunlight is a case study in why the government should open data up so that third parties can help make it useful -- whether that's by building their own sites on the data or helping the government improve its own web presence. I'm happy to see Sunlight engaging the Judicial Branch.

1st Circuit Rules Against Courtroom Webcasts in a Specific Case, but Throws Open Access Proponents a Bone

Lately I have been posting mostly about PACER, but today we had an interesting decision from the 1st Circuit that also addresses fundamental issues of public access to the courts. The back-story is complicated and interesting in its own right, but the relevant facts are:

• Generally, federal district courts do not allow proceedings to be video or audio recorded or broadcast
  
• Joel Tenenbaum, a defendant in the District Court of Massachusetts, requested that a hearing in his trial be webcast
  
• The judge, Nancy Gertner, granted his request
• The plaintiffs appealed (petitioned) the 1st Circuit, claiming that she did not have that authority under local rules (specifically 83.3). Plaintiffs also made some silly arguments about how people on the internet would make fun of them, which nobody took seriously.
• There are some additional complications due to non-binding policies of the Judicial Conference, and a previously obscure statement from the 1st Circuit Judicial Council. Ultimately these are not dispositive but (according to the 1st Circuit) lend credence to plaintiff/petitioners' claim

At oral argument, the debate focused on very specific details about how to read those local District of Massachusetts rules. Tenenbaum's lawyer, Charlie Nesson (who I know, and who is also at the Berkman Center), also made a high-level argument for why the ban on recording and broadcasting was bad policy (for more detail on the history of these policy issues, see this excellent CMLP blog post).

The court sided with petitioners, explaining that the Judge Gertner's decision "was based on a palpably incorrect interpretation" of the rule. In doing so, the court explicitly side-stepped the question of whether or not this was good policy -- its task was to decide whether the rule as written had been followed. The decision was a blow to the specific goal of webcasting the upcoming district court hearing, and unless the rules are changed it will be binding in other cases. This is where Judge Lipez, in his concurrence, throws open access proponents a bone or two:

Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.

In short, the rules are dumb. Indeed, he noted the same irony that I had been pointing out to my colleagues in the weeks leading up to oral argument: the circuit courts themselves have implemented a program in which they record oral arguments and make them immediately available as MP3 podcasts on the internet. Lipez continues:

When the motions hearing at issue occurs, only those physically present in the courtroom will hear the parties debate the merits of the motions before the district court. Ironically, however, almost immediately after the oral argument in this First Circuit mandamus proceeding ended, anyone with an internet connection could access a recording of that argument from our website. There is no meaningful difference between the type of oral argument that we make available to the public as a matter of course and the type of argument that would have been broadly accessible under the district court's Order.

Judge Lipez thinks that the rules simply don't take into account the internet:

The Local Rule at the center of this controversy was adopted in 1990. Since its adoption, dramatic advances in communications technology have had a profound effect on our society. These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities. With its sweeping prohibition on the broadcasting or recording of district court proceedings, Local Rule 83.3 prevents such responses in civil cases. So too do the Policy of the Judicial Conference and the Resolution of the Judicial Council of the First Circuit that underlie the Local Rule. As the outcome of this proceeding demonstrates, the Rule, the Policy, and the Resolution should all be reexamined promptly.

It seems like it's time to change the rules.


More coverage:

• Ars Technica
• Computerworld
  
• Boston Globe
• MediaPost
• Wired
• Recording Industry vs. the People
• AmLaw Litigation Daily
  

Ars: The case against PACER: tearing down the courts' paywall

I'm quoted in this new Ars Technica article by Tim Lee
The case against PACER: tearing down the courts' paywall

In this feature, Ars takes stock of online access to federal court records in the United States. We'll discuss how the system got where it is today, look at where there's room for improvement, and talk to two experts on open government about the prospects for reform. The bottom line is that the courts deserve credit for the progress they made in the 1990s, but a lot more work is needed to bring PACER into the 21st century.
[...]
Schultze and Grimmelmann agree that the solution to PACER's problems is for the courts to make court records available for free download. Schultze points to a recent paper from Princeton's Center for Information Technology Policy arguing that governments should stick to releasing raw information and allow private parties to build organization and search tools. Schultze predicts that if private parties were given free access to the raw PACER documents, they would quickly build websites that surpass PACER in functionality and ease-of-use.

In the time since I was interviewed for this article, I had a conversation with one of the attorneys for the Administrative Office of the Courts. He was very friendly and candid, answering my questions to the best of his ability. I got the impression that the AO is passionate about access to court records, but struggles with the practicalities of no-fee access. This makes me hopeful that we can constructively work toward a solution.

Techliberation Podcast on PACER

In the latest episode of the Tech Policy Weekly from the Technology Liberation Front, I discuss the nature of public access to court records along with:

• Tim Lee, who’s written about the problems with PACER.
• James Grimmelmann of New York Law School, who has written a great essay on Copyright, Technology, and Access to the Law.
• Berin Szoka, our gracious host.

Listen here.

Lieberman Letter on CRS Reports

NOTE: Lieberman's letter on PACER his here.

Press release here.

LIEBERMAN URGES BETTER PUBLIC ACCESS TO CRS REPORTS

WASHINGTON - Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., urged the new Chairman of the Senate Rules Committee Wednesday to help foster greater public access to the expert reports produced by the Congressional Research Service. In a letter to Rules Committee Chairman Chuck Schumer, D-N.Y., Lieberman asked for Schumer to improve upon the current limited system through which the public can access the reports. The letter follows: March 4, 2009 The Honorable Charles E. Schumer Chairman - Committee on Rules and Administration 305 Russell Senate Office Building United States Senate Washington, DC 20510 Dear Senator Schumer: Congratulations on becoming Chairman of the Committee on Rules and Administration. I look forward to working with you in this capacity, particularly given the leading role the Committee takes on many issues that we both care deeply about. One of those issues is the public availability of Congressional Research Service (CRS) reports. As you know, CRS produces reports that inform Members of Congress and their staffs on key issues of the day. Members have long shared these reports with their constituents, providing them expert analysis on the complex issues this nation faces. Given their value to constituents, I strongly believe that we need a system that ensures widespread public access to CRS reports. Last Congress, I introduced S. Res. 401 along with Senators McCain, Collins, Cornyn, Feingold, Harkin, Leahy, Lugar, and McCaskill, to create such as system. A few months after the introduction of our bill, the Rules Committee authorized the Director of CRS to develop a system that would allow Senators to place individual CRS reports on their official website and would have them automatically updated. I was pleased by this development, but it does not go far enough. I believe a more effective system would provide constituents with tools similar to those used by Congressional staff, with material presented by topic and the capability to search across all reports and issue briefs. Unfortunately, the present system does not allow this basic level of functionality. A robust system would also help restore the equity of access that is sorely needed. For years, CRS reports have been sold by companies to those who can afford to pay. Non-profit groups have also begun posting these reports for free on their websites. Earlier this month, thousands of reports – representing several years’ worth of work by CRS analysts – were placed on the wikileaks.org site. These ad hoc efforts allow more reports to enter the public domain, but they do not ensure the dissemination of the most accurate and up-to-date information. Nor are they likely to be discovered by all those who might desire the reports. These developments only highlight the need for an officially-sanctioned system such as the one I have proposed. By establishing a clearinghouse that would offer all reports and would be automatically updated, we could ensure that those with power and those without have equal access to this important resource. I hope that in your new role as Chairman of the Rules Committee you carefully review this issue and consider recommending the creation of a more comprehensive system so that CRS reports can be easily accessed by the taxpayers who pay for them. Thank you for your consideration and I look forward to working with you on this issue. Sincerely, Joseph I. Lieberman Chairman

Coverage:

• Free Congress's Secret Research Reports, Lieberman Asks - Wired
• Lieberman Renews Push For CRS Reports - National Journal
• Lieberman renews push for easier access to CRS reports - GovExec
  
• Bulk Data Downloads: A Breakthrough in Government Transparency - Tim O'Reilly
  
• Lieberman asks for all CRS reports to be made public - Federal News Radio
• Sen. Lieberman to Congress: Free the CRS Reports - Center for Democracy and Technology
• Lieberman: CRS reports should be freely accessible - Federal Computer Week
• Is This the Year Congress Improves Public Access to CRS Reports? - Project on Government Oversight
• Sen. Lieberman Calls for Release of CRS Library - TPMCafe
  
• Discussion on the "Open House Project" list
• ...and tweets

The language mentioned by O'Reilly in the House Appropriations bill:

• The bill text
• The explanatory statement that includes the CRS-related language
  

Lieberman Letter on PACER

Press Release here.

LIEBERMAN SEEKS INFORMATION ON FEDERAL COURT COMPLIANCE WITH TRANSPARENCY, PRIVACY REQUIREMENTS

WASHINGTON – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., Friday sent the following letter to the policy-making body of the Federal Court system requesting proper compliance with the E-Government Act of 2002 on transparency and privacy issues as they relate to court documents: February 27, 2009 The Honorable Lee H. Rosenthal Chair, Committee on Rules of Practice and Procedure Judicial Conference of the United States Washington, D.C. 20544 Dear Judge Rosenthal: I am writing to inquire if the Court is complying with two key provisions of the E-Government Act of 2002 (P.L. 107-347) which were designed to increase public access to court records and protect the privacy of individuals’ personal information contained in those records. As you know, court documents are electronically released through the Public Access to Court Electronic Records (PACER) system, which currently charges $.08 a page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts “may, to the extent necessary” instead of “shall” charge fees “for access to information available through automatic data processing equipment.” The goal of this provision, as was clearly stated in the Committee report that accompanied the Senate version of the E-Government Act, was to increase free public access to these records. As the report stated: “[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. ... Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.” Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system. In addition I have concerns that not enough has been done to protect personal information contained in publicly available court filings, potentially violating another provision of the E-Government Act. A recent investigation by Carl Malamud of the non-profit Public.Resource.org found numerous examples of personal data not being redacted in these records. Given the sensitivity of this information and the potential for indentify theft or worse, I would like the court to review the steps they take to ensure this information is protected and report to the Committee on how this provision has been implemented as we work to increase public access to court records. I thank you in advance for your time and I look forward to your response. Sincerely, Joseph I. Lieberman Chairman

Coverage:

• Lieberman: What Is Up with PACER? - Congressional Quarterly
  
• Lieberman questions accessibility, privacy of court docs - CNet
• Lieberman Questions PACER Fees - WSJ Blogs
• Lieberman to Courts: What’s the Deal with PACER? - WSJ Blogs
  
• Sen. Lieberman Requests Answers from the Judicial Conference on Compliance with Court Provisions of the E-Government Act of 2002 - American Association of Law Libraries
• Federal Judiciary Grilled for Charging for Access to E-Filed Documents - The National Law Journal
  
• Lieberman: Why Do We Have to Pay for PACER? - PC Magazine
• Lieberman Asks Why US Court Documents Aren't Free To The Public - TechDirt
  
• Senator Wants to Scratch a Seven-Year Itch - Center for Democracy and Technology
• Lieberman Questions Courts on Information-Sharing Law - FederalComputerWeek
  
• Lieberman Pushes for Free Online Access to Court Docs - Appscout
• Lieberman Launches PACER Inquiry - ZiefBrief
• Senator Questions Pacer Practices - Peter Suber
• Senator Lieberman to Federal Courts and PACER: "Let us keep the change!" - The Freedom of Information Law Blog
  
• ...and tons of tweets
  

Carl for Public Printer

With characteristic confidence, Carl Malamud has suggested himself for Public Printer at the GPO. I am delighted to endorse him. He brings decades of dogged advocacy and a deep understanding of how digital technology transforms the duty of publishing government information. If he were to stretch dollars at the GPO as well as he has done at his own non-profit, the agency's output would multiply many-fold. Also, his shiny head is in keeping with his bald-pated predecessors.

"Open Our Government List"

Sunlight just launched a site asking for recommendations on what should be in the Open Government Directive. It looks like Sunlight has spun this out using the same software they used for "Show Us The Data".

My personal favorite so far is the wonky "Digital deposit of govt information to libraries." It's obscure but important. As libraries increasingly rely on digital collections, it's critical that they obtain the actual content of these materials rather than simply remote access to a government database (which could go away at some point).

Oh, and don't for get to vote for no-fee PACER access on the Show us the Data site.

Video from "Selling the Law: The Business of Public Access to Court Records"

CITP has posted the video of the talk that Shubham and I gave a couple of weeks ago. You can also download the slides.

Time for a Name Change

I've realized that my blog has outgrown its own name. My court access work fits only the broadest definition of "media," and I'm not sure how I'm going to make it fit into a post I've been meaning to write about why Flast/Hein Equal Protection taxpayer standing issues are related to internet policy. So, without further ado:

Managing Miracles: Media Policy for the Network Society

Chris Riley on Comcast, BitTorrent, and Network Neutrality

Yesterday, the Berkman Center and Harvard Journal of Law and Technology co-hosted a talk by Chris Riley, Policy Counsel for Free Press. Chris gave:

a brief history of the Comcast proceeding and other net neutrality legal efforts, and then dives into a substantive policy discussion of present and future Congressional and Commission net neutrality proceedings.

You can watch the video here.

NYTimes: "An Effort to Upgrade a Court Archive System to Free and Easy"

Earlier today I urged folks to vote for PACER on the new Show Us the Data site. Tonight, the NY Times posted a well-researched article entitled "An Effort to Upgrade a Court Archive System to Free and Easy" on the latest efforts to "liberate" the court documents.

...a small group of dedicated open-government activists teamed up to push the court records system into the 21st century — by simply grabbing enormous chunks of the database and giving the documents away, to the great annoyance of the government.

[...]

To Mr. Malamud, putting the nation’s legal system behind a wall of cash and kludge separates the people from what he calls the “operating system for democracy.” So, using $600,000 in contributions in 2008, he bought a 50-year archive of papers from the federal appellate courts and placed them online. By this year, he was ready to take on the larger database of district courts.

Those courts, with the help of the Government Printing Office, had opened a free trial of Pacer at 17 libraries around the country. Mr. Malamud urged fellow activists to go to those libraries, download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them.

Aaron Swartz, a 22-year-old Stanford dropout and entrepreneur who read Mr. Malamud’s appeal, managed to download an estimated 20 percent of the entire database: 19,856,160 pages of text.

Then on Sept. 29, all of the free servers stopped serving. The government, it turns out, was not pleased.

Carl has posted his correspondence with various courts related to their redaction errors and privacy issues.

What can you do? Vote for PACER on Show Us the Data!

"Show Us the Data": Vote for Access to PACER

A great new project on access to government documents was just announced:

The Center for Democracy & Technology and OpenTheGovernment.org today announced the launch of Show Us The Data: The Most Wanted Federal Government Documents, a project aimed at identifying vital government information and encouraging the federal government to put it within easy reach of the public. This project will lead to a report, recommending documents and data that the federal government should make easier to find and use. The project's launch follows up on a directive from President Obama to federal agencies to proactively make information available to the public. The goal is to identify the documents and databases the public most wants to be made publicly available in usable formats. The items can be information known or thought to be in the federal government’s possession, or information that the federal government should be collecting or generating. (more...)

The project comes out of Sunlight Labs, and the top 10 documents will be announced during Sunshine Week. You can also see past years' results.

I just added a comment to the PACER entry. Vote for free, open access to federal court documents!

Crazy Copyright Provisions Proposed in Stimulus

I won't add any commentary on this other than what Public Knowledge has already stated very well.

Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package. The amendment allow ISPs to “deter” child pornography and copyright infringement through network management techniques. The amendment is very, very controversial for a couple of reasons:

1. First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.

2. Second, it would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online.

They are calling for people to immediately contact the relevant members.

Wikileaks Posts CRS Reports

Wikileaks has just posted the CRS reports I had mentioned a couple of weeks ago. Go Wikileaks!

Wikileaks has released nearly a billion dollars worth of quasi-secret reports commissioned by the United States Congress.

The 6,780 reports, current as of this month, comprise over 127,000 pages of material on some of the most contentious issues in the nation, from the U.S. relationship with Israel to abortion legislation. Nearly 2,300 of the reports were updated in the last 12 months, while the oldest report goes back to 1996. The release represents the total output of the Congressional Research Service (CRS) electronically available to Congressional offices. The CRS is Congress's analytical agency and has a budget in excess of $100M per year.

Their editorial continues here, with links to the actual documents.

Update: The Center for Democracy and Technology, which has for years maintained the Open CRS site, comments on the development:

Perhaps now Members will move quickly to pass legislation to provide quick and easy access to these reports and bring a halt the ridiculous cloak-and-dagger atmosphere that to-date has surrounded their release.

More coverage from:

• Network World
• IDG
• The Industry Standard
• TechDirt

ACM Releases Recommendations on Open Government

I'm at Princeton's Center for Information Technology Policy today presenting on open access to court documents. Coincidentally, the ACM U.S. Public Policy Committee today released a statement on the broader theme of government transparency. (For you non-Computer-Science geeks, the ACM is the "Association for Computing Machinery -- the anachronistically named membership organization of which I used to be a card-carrying member). In their "Recommendations on Open Government" they lay out a set of guidelines for government entities who publish data online. The recommendations echo the suggestions in the excellent new paper, "Government Data and the Invisible Hand", published by several folks here at CITP. On the Freedom to Tinker blog, David Robinson commented on the announcement and the role that he and Ed Felten played in shaping the recommendations. In short, the committee recommends that the government focus on making machine-readable versions of their data easily available so that others can find innovative ways to present it. The recommendations include:

• Data published by the government should be in formats and approaches that promote analysis and reuse of that data.
• Data republished by the government that has been received or stored in a machine-readable format (such as as online regulatory filings) should preserve the machine-readability of that data.
• Information should be posted so as to also be accessible to citizens with limitations and disabilities.
• Citizens should be able to download complete datasets of regulatory, legislative or other information, or appropriately chosen subsets of that information, when it is published by government.
• Citizens should be able to directly access government-published datasets using standard methods such as queries via an API (Application Programming Interface).
• Government bodies publishing data online should always seek to publish using data formats that do not include executable content.
• Published content should be digitally signed or include attestation of publication/creation date, authenticity, and integrity.

More coverage:

• Computing Group Offers E-Gov Ideas - National Journal
• The Noisy Channel

CRS Reports To Be Leaked on Wikileaks

This is great news. Wikileaks is about to release a ton of CRS reports. I briefly mentioned this issue in my Berkman presentation on open access to government documents. The basic issue is that the Congressional Research Service, the taxpayer-funded think-tank for Congress, does not give citizens access to its reports. This is despite the fact that they cannot be copyrighted, and can have a real effect on legislative decisions. There has been a bill introduced in every session of Congress for quite some time now, which would release all of the reports to the public, but it has always stalled.

From the wl-press mailing list:

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3. Wikileaks to release nearly 10,000 Congressional Research Service
reports
-----------------------------------------------------------------------------

Wikileaks has obtained nearly 10,000 US Congressional Research
Service (CRS) reports which it is preparing for publication. The
CRS spends around $100M a year preparing high quality reports for
members of Congress and Congressional committees. When members feel
publication of a report is in their political interest, they are
released. Alternatively reports that are not viewed as politically
favorable are kept from the public eye.

I originally noticed the news in this Open House Project post, which has more commentary. For more background on efforts to liberate CRS reports, check out this FGI post. Peter Suber has also commented on this development.

I Try to Explain the History and Structure of Communications Law

My latest conversation with David Weinberger is posted on Media Berkman. David asked me how and why the internet is regulated (or deregulated). The launched me into a somewhat long description of the history of Communications Law in the US. If you're one of those odd people that enjoys this topic as much as I do (or if you're a lawyer and want to correct my explanation), you can listen here.

And no, it wasn't my idea to use the goofy Western language in the description. Rawhide!

Inauguration Through the Eyes of America

While trying to get one of the many web video streams of the inauguration working -- and ultimately falling back on an NPR audio stream -- I decided to try the Flickr feed for recent photos tagged "inauguration." I expected photos by people in DC, but what I didn't expect was so many photos of people across the country and around the globe watching the event. These snapshots of individual yet collective experience speak as strongly as a crystal clear high-definition video stream of the proceedings.

Kevin Martin Resigns

He's leaving as of January 20 and headed to the Aspen Institute. I'll update with more. It's interesting to read his list of accomplishments in the press release.

The Next FCC: No More Monkey Business?

Today's big news for communications policy wonks is that apparently Julius Genachowski will be tapped for FCC Chairman. The pick is Obama's first big imprint on the Commission. Although it is not a surprise, it is probably a smart move. Genachowski is an FCC veteran with deep knowledge of the technology industry (as General Counsel for IAC and as a tech venture capitalist).

The news comes in the midst of growing calls for FCC reform from folks like Silicon Flatirons and Public Knowledge. The theme is that the FCC needs to re-orient its rules and processes to make more sense in a converging, Internet-oriented communications landscape. I heartily agree.

Of course, this is not the first wave of calls for reform. Back in 2005 the DC think-tank Progress and Freedom Foundation spearheaded the "Digital Age Communications Act," which argued that the powers of the Commission should be radically curtailed and that the Communications Act should be rewritten as antitrust policy. This amounted to abolishing most of the Commission's traditional powers. The bill never went anywhere.

Recently, Larry Lessig has argued that we should do away with the FCC and replace it with a new entity. Lessig thinks that the Commission is rooted in outdated notions of monopoly rights and incumbent protection. He says, "You can't fix DNA. You have to bury it." His dream agency has two mandates: 1) agressively police monopoly and 2) ensure openness. Of course these two ideals are both hard to define and sometimes at odds. Nothing about creating a new agency will fundamentally change this reality. What's more, focusing heavily on market forces can often provide an excuse for ignoring the more socially motivated or mundane-but-essential roles of communications policymakers. Market considerations are undeniably important, but proposals to reduce everything to antitrust lose sight of what is unique about communications.

The key to Lessig's approach appears to be "a strong agency head, and a staff absolutely barred from industry ties." I agree with his first prescription, and it's possible that Genachowski could be a step in the right direction. If recent reports are to be believed, he'll likely be an improvement over the outgoing Chairman. To begin with, the House released a blistering critique last month, titled "Deception and Distrust: The Federal Communications Commission Under Chairman Kevin J. Martin." It cites FCC employee's references to being "Martinized" or "blue-boxed" -- their euphemisms for the Chairman's alleged habit of killing fact-based reports that didn't support his policy agenda. Then there was the recently released Federal Human Capital Survey, which showed that an embarrasingly low number of FCC employees -- 38 percent -- felt that "My organization's leaders maintain high standards of honesty and integrity." I am less persuaded that the FCC staff should be "absolutely barred from industry ties." I'm not even sure what that means. Does it mean that they never can have worked in industry? Does it mean that after serving they never can move to industry? It seems like a recipe for inexperienced, disconnected bureaucrats.

One man with a passion for banishing uninformed bureaucrats was the late, great, and entirely deranged televangelist Dr. Gene Scott. During his prolonged battle with the FCC, he would taunt the agency on-screen by representing it with a band of wind-up monkeys. He would often pick up his favorite, banging it on the head and exclaiming, "That's the only way to treat a bureaucrat!" I don't think that the appropriate solution to the shortcomings of the FCC is to beat the commissioners over the head with a stick, and I also don't think the solution is to abolish the agency altogether.

We don't have to "blow up" the FCC or reduce it to doing antitrust (we already have two agencies that are experts in that area). We could certainly use a re-write of the Communications Act that does away with the outdated and technologically siloed model of regulation in favor of an approach more closely matched to reality. We could also use good leaders. I am hopeful that today's announcement sets the course of the agency in the right direction.

Gene Scott and the FCC Monkey Band:

(sorry about the low audio)