Over the last year I’ve had the opportunity to work with the DC Council on improving public access to DC’s laws. Today I join DC officials and the OpenGov Foundation on the Kojo Nnamdi radio show here in DC to talk about it, and in preparation for that I wrote this up as some notes for myself.
Civic hacking is a term for creative, often technological approaches to solving problems in our civic lives. It’s often about improving our interaction with government, and so building an app to get more people to register to vote would be an example of civic hacking. You might be surprised that that’s what it means. “Hacking” is a homonym, it is a word that has multiple meanings. We’re all familiar with how it can mean cyber crime. But just like how words like mouse, gay, fluke each have totally unrelated meanings, hacking is like that. The two meanings of hacking each have their own distinct communities. In my hacking community, we have organizations like Code for America and Code for DC trying to solve problems.
Codification is the process of compiling many statutes into an orderly, compact rendition of the law as it is today. Codification of laws began in 6th Century BC Athens. It wasn’t civic hacking. It was elites trying to protect their property. The Visigothic Code, written in Western Europe around 650 AC, directed “bishops and priests” to give a copy of the Code to the Jews to educate them of their heresy. So it goes. Actually it wasn’t all bad. The Visigothic Code also set a maximum price that the Code itself could be sold for (four hundred solidi, maybe $100,000 or more today), which perhaps was a form of ensuring wider access to it. Modern open records laws began in 18th Century China, where public announcements of promotions and government spending were common. Sweden enacted the first law creating a right to government records in 1766. And lay citizens have indeed long been users of the law. According to Olson (1992), “Pennsylvanians annoyed with what they thought to be unfair practices on the part of flour inspectors in the 1760s confronted the inspectors with copies of the laws.” (more history in my book)
The most important reason governments make the law available to the public is that ignorance of the law is not an excuse, and without access to the law one cannot properly defend oneself in court. Governments have an ethical obligation to promulgate the law.
But that is by no means the only reason why promulgating the law is important and useful. As the Law.Gov authors wrote, there are these other reasons: Broader use of legal materials in education (e.g. to train better lawyers and better citizens with respect to how they interact with government) and in research (e.g. to better understand how government works so that we, as elected officials and advocates, can make our government operate better); “Innovation in the legal information market by reducing barriers to entry.”; “Savings in the government’s own cost of providing these materials”; Reducing the cost of legal compliance for small businesses; “Increased foreign trade by making it easier for our foreign partners to understand our laws.”
There are many dimensions to access. Access isn’t meaningful without understanding. There are a lot of reasons why one might not understand the law even if we have access to read the words. And that’s a hard problem. But it is not a reason to not provide access to it in the first place. Users of the law can’t learn how to understand it if they can’t see it, and it would be mighty paternalistic to write off any citizen as unable to learn how to understand it. We should promote understanding, but in the meanwhile we must still provide access.
An aspect of understanding is whether we are able to be taught by others, or, inversely, if we may only teach ourselves. Surprisingly, there are many reasons why it might be illegal to share the law with others to teach them about it. The two most common causes of this are website terms of service and copyright:
The only electronic source of the DC Code in early 2013 was a website run by the (foreign-owned) company Westlaw. Westlaw was under contract with DC to help with the actual codification process as well as providing electronic public access. But through its website’s terms of service agreement, anyone reading the law on the public website was granted access in exchange for giving up rights. The terms of service included: “[Y]ou will not reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, or otherwise exploit this website, or any portion hereof . . . [Y]ou will not use any robot, spider, other automatic software or device, or manual process to monitor or copy our website or the content, information, or services on this website.” (accessed Apr. 26, 2013
Reproducing the law, copying and pasting it into an email, is a crucial tool for being able to understand the law. Terms of service are contracts. Violating a contract could normally result in a law suit and a civil penalty, typically in proportion to the harm done. Violations of website terms of service agreements in particular though can be a felony and lead to jail time under the Computer Fraud and Abuse Act. Copying DC’s laws could lead to jail time. That’s not a good thing. And that problem exists in many other jurisdictions.
DC has solved this problem by making the Code available to the public without terms of service.
Copyright is also a problem. Some states assert that they have copyright over their laws. Georgia, Idaho, and Mississippi have demanded that the nonprofit Public.Resource.Org take down its electronic copies of the official laws of those states. (There is some disagreement over whether so-called annotations to the law are law or are copyrighted.) Public.Resource.Org is fighting a similar argument with nonprofit standards-writing bodies — i.e. the bodies that write public safety codes and building construction standards — because they claim copyright over standards that have been incorporated into law. Violations of copyright law come with stiff fines. There should be no copyright over law, and court cases have addressed this, but some states have taken a particularly narrow and short-sighted view on this.
DC has historically claimed copyright over the DC Code as well, but apparently in a defensive posture to prevent its contractors (West, Lexis) from claiming copyright over the law themselves. DC now solved this problem by making the Code available to the public with a copyright waiver called Creative Commons Zero (CC0). DC no longer claims copyright over the code. (I’ll note again that there are a number of court cases that say that edicts of government, i.e. the law, cannot be copyrighted. But no one wants to have to go to court to fight over this.)
Understanding of the law is magnified if we use tools. The Code of the District of Columbia has almost 20,000 sections. Search is crucial. So is good typography: think about access to the visually impaired, the older people among us, and anyone who doesn’t want to get a headache from the way the law is printed. For companies concerned about legal compliance, the ability to be alerted to how the law has changed — with “track changes”-style highlighting — is incredibly useful. So not only is access important, but electronic access is even more important so that we can use tools to help us understand it.
Lawyers, citizens, students, and other users of the law have different needs when it comes to reading it. Government bodies should create a website to provide public access to the law, but it is a shame if they provide the only access to the law. The law should be provided to the public in data formats that promote reuse so that the public — companies, citizen hackers, and so on — can build on it and create new public access websites that are tuned for a wider range of access. These websites might provide functionality that a government website could not, such as analysis (e.g. written by lawyers), inline definitions, links to related resources (for instance related laws in other jurisdictions), translations into other languages, email alerts to changes, and a place where citizens can propose changes to the law.
For background about how the DC Code got opened, see DC opens its “code”, embracing principles of open laws, my post from last April.