Lawmakers release proposed draft to codify US CTO role, create U.S. Digital Government Office (DGO)

After months of discussion regarding how the government can avoid another healthcare.gov debacle, legislative proposals are starting to emerge in Washington. Last year, FITARA gathered steam before running into a legislative impasse. Today, a new draft bill introduced for discussion in the United House of Representatives proposes specific reforms that substantially parallel those made by the United Kingdom after a similar technology debacle in its National Health Service.

The draft bill is embedded below.

The subtext for the ‘Reforming Federal Procurement of Information Technology Act’ (RFP-IT), is the newfound awareness in Congress and the nation at large driven by the issues with Healthcare.gov that something is profoundly amiss in the way that the federal government buys, builds and maintains technology.

“Studies show that 94 percent of major government IT projects between 2003 and 2012 came in over budget, behind schedule, or failed completely, said Representative Anna G. Eshoo (D-CA), ranking member of the House Communications and Technology Subcommittee, and co-sponsor of RFP-IT, in a statement. “In an $80 billion sector of our federal government’s budget, this is an absolutely unacceptable waste of taxpayer dollars. Furthermore, thousands of pages of procurement regulations discourage small innovative businesses from even attempting to navigate the rules. Our draft bill puts proven best practices to work by instituting a White House office of IT procurement and gives all American innovators a fair shake at competing for valuable federal IT contracts by lowering the burden of entry.”

Specifically, RFP-IT would:

  • Make the position of the U.S. chief technology officer and Presidential Innovation Fellows program permanent
  • Create a U.S. Digital Government Office (DGO) that would not only govern the country’s mammoth federal information technology project portfolio more effectively but actively build and maintain aspects of it
  • Increase the size of a contract for IT services allowable under the Small Business Act from $100,000 to $500,000
  • Create a U.S. DGO fund supported by 5% of the fees collected by executive agencies for various types of contracts

“In the 21st century, effective governance is inextricably linked with how well government leverages technology to serve its citizens,” said Representative Gerry Connolly (D-VA), ranking member of the House Oversight and Government Reform Subcommittee, and co-sponsor of RFP-IT, in a statement. “Despite incremental improvements in federal IT management over the years, the bottom line is that large-scale federal IT program failures continue to waste taxpayers’ dollars, while jeopardizing our Nation’s ability to carry out fundamental constitutional responsibilities, from conducting a census to securing our borders. Our RFP-IT discussion draft recognizes that transforming how the federal government procures critical IT assets will likely require bolstering ongoing efforts to comprehensively strengthen general federal IT management practices with targeted enhancements that promote innovative and bold procurement strategies from the White House on down.”

The legislative proposal earned qualified praise from Clay Johnson, former Presidential Innovation Fellow and CEO of the Department for Better Technology, whose advocacy for reforming government IT procurement and fixing the issues behind Healthcare.gov seemed to be on every cable news channel and editorial page last fall and winter.

“This, I think, really works well alongside FITARA, which calls for increased agency CIO authority,” wrote Johnson. “What will hopefully end up happening if both bills pass, is that good talent can get inside of government, and agencies that perform well can operate independently, and agencies that don’t can be pulled back in and reformed, while still having operational continuity (meaning: while that reform is happening, IT projects can still be done well, and run by the DGO).”

In 2014, digital government supports open government. What’s unclear is whether this proposal from two Democratic lawmakers can gain a Republican co-sponsor in the GOP-controlled legislative body or if a federal IT reform-minded Senator like Mr. Carper or Mr. Booker will take it up in the Senate.

This is singular bill isn’t a panacea, however, Johnson emphasized, pointing to the need to fix SAM.gov, the error-prone website for contractors to register with the federal government, and reforms to registration for “set-aside” business.

“We’re not sure how Congress writes a ‘stop throwing errors when a user clicks submit on sam.gov’ law,” wrote Johnson. “That’s going to take hearings, and most likely, a digital government office to fix. And we think this is a bill that complements Issa’s FITARA. Since this bill is at the discussion draft stage, perhaps soon we’ll see some Republicans jump on board.

UPDATE:
On July 30, RFP-IT was officially introduced. (Full text of the bill, via Rep. Eshoo’s office): “The Reforming Federal Procurement of Information Technology (RFP-IT) Act, introduced by Rep. Anna G. Eshoo (D-Calif.), Ranking Member of the Communications and Technology Subcommittee, Rep. Gerry Connolly (D-Va.), Ranking Member of the Oversight and Government Reform Subcommittee, Rep. Richard Hanna (R-N.Y.), Chairman of the Small Business Subcommittee on Contracting and Workforce, and Rep. Eric Swalwell (D-Calif.), Ranking Member of the Committee on Science, Space and Technology’s Energy Subcommittee, and Rep. Suzan DelBene (D-Wash.)”

Here’s the quick summary of revised RFP-IT Act:

1) It would officially establish a Digital Government Office within the White House Office of Management and Budget (OMB), with the U.S. CIO at its head as a Senate-confirmed presidential appointee, reporting to the head of the OMB, shifting from “electronic government” to “digital government.”
2) It would codify the Presidential Innovation Fellows program.
3) It would expand competition for federal IT contracting under a simplified process that would ease the regulatory and compliance burden upon smaller companies bidding, bumping the threshold for information tech projects up to $500,000.
4) Establish a digital service pilot program
5) Direct the General Services Administrator to conduct an in-depth analysis of IT Schedule 70.
6) Direct the Comptroller General of the United States to produce three reports to Congress within 2 years of the law passing, on 1) the effectiveness of the 18F program of the General Services Administration, 2) IT Schedule 70, and 3) “challenges and barriers to entry for small business technology firms.”

U.K. National Archives makes ‘good law’ online, builds upon open data as a platform

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This September, I visited the United Kingdom’s Ministry of Justice and looked at the last remaining section of the Magna Carta that remains in effect. I was not, however, in a climate-controlled reading room, looking at a parchment or sheepskin.

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Rather, I was sitting in the Ministry’s sunny atrium, where John Sheridan was showing me the latest version of the seminal legal document, now living on online, on his laptop screen. The remaining section that is in force is rather important to Western civilization and the rule of law as many citizens in democracies now experience it:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [X1condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

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From due process to eminent domain to a right to a jury trial, many of the rights that American or British citizens take as a given today have their basis in the English common law that stems from this document.

I’d first met Sheridan virtually, back in August 2010, when I talked with the head of e-services and strategy at the United Kingdom’s National Archives about how linked data was opening up eight hundred years of legal history. That month, the National Archives launched legislation.gov.uk to provide public access to more than eight centuries of the legal history in England, Scotland, Wales and Northern Ireland. Just over three years later, I stepped off the Tube at the St. James Park Station and walked over to meet him in person and learn how his aspirations for legislation.gov.uk had met up with reality.

Over a cup of tea, Sheridan caught me up on the progress that his team has made in digitizing documents and improving the laws of the land. There are now 2 million monthly unique visitors to legislation.gov.uk every month, with 500+ million page views annually. People really are reading Parliament’s output, he observed, and increasingly doing so on tablets and mobile devices. The amount of content flowing into the site is considerable: according to Sheridan, the United Kingdom is passing laws at an estimated rate of 100,000 words every month, or twice as much as the complete works of Shakespeare.

Notable improvements over the years include the ability to compare the original text of legislation versus the latest version (as we did with the Magna Carta) and view a timeline of changes using a slider for navigation, exploring any given moment in time. Sheridan was particularly proud of the site’s rendering of legislation in HTML, include human-readable permanent uniform resource locators (URLS) and the capacity to produce on-demand PDFs of a given document. (This isn’t universally true: I found some orders appear still as PDFs).

More specifically, Sheridan highlighted a “good law” project, wherein the Office of the Parliamentary Counsel (OPC) of Britain is working to help develop plain language laws that are “necessary, clear, coherent, effective and accessible.” A notable component of this good law project is an effort to apply a tool used in online publishing, software development and advertising — A/B testing — to testing different versions of legislation for usability.

The video of a TedX talk embedded below by Richard Heaton, the permanent secretary of the United Kingdom’s Cabinet Office and first parliamentary counsel, explores the idea of “good law” at more length:

Sheridan went on to describe one of the more ambitious online collaborations between a government and its citizens I had heard of to date, a novel cross-Atlantic challenge co-sponsored by the UK and US governments, and a hairy legal technology challenge bearing down upon societies everywhere: what happens when software interprets the law?

For instance, he suggested, consider the increasing use of Oracle software around legislation. “As statutes are interpreted by software, what’s introduced by the code? What about quality testing?”

As this becomes a data problem, “you need information to contextualize it,” said Sheridan. “If you’re thinking about legislation as code, and as data, it raises huge questions for the rule of law.”

Open data as a platform

In the video below, John Sheridan talks about the benefits of opening up government data using application programming interfaces:

Sheridan has been one of the world’s foremost proponents of publishing legislative data through APIs, an approach that has come under criticism by open government data advocates after the government shutdown in the United States. (In 2014, forward-thinking governments publishing open data might consider provide basic visualization tools to site visitors, API access for third-party developers and internal users, and bulk data downloads.) One key difference between the approach of his team and other government entities might be that the National Archives are “dogfooding,” or consuming the same data through the same interface that they expect third-parties to use, as Sheridan wrote last March:

“We developed the API and then built the legislation.gov.uk website on top of it. The API isn’t a bolt-on or additional feature, it is the beating heart of the service. Thanks to this approach it is very easy to access legislation data – just add /data.xml or /data.rdf to any web page containing legislation, or /data.feed, to any list or search results. One benefit of this approach is that the website, in a way, also documents the API for developers, helping them understand this complex data.”

Perhaps because of that perspective, Sheridan, was as supportive of an APIs when we talked this September as he had been in 2012:

The legislation.gov.uk API has changed everything for us. It powers our website. It has enabled us to move to an open data business model, securing the editorial effort we need from the private sector for this important source of public data. It allows us to deliver information and services across channels and platforms through third party applications. We are developing other tools that use the API, using Linked Data – from recording the provenance of new legislation as it is converted from one format to another, to a suite of web based editorial tools for legislation, including a natural language processing capability that automatically identifies the legislative effects. Everything we do is underpinned by the API and Linked Data. With the foundations in place, the possibilities of what can be done with legislation data are now almost limitless.

Sheridan noted to me that the United Kingdom’s legislative open government data efforts are now acting as a platform for large commercial legal publishers and new entrants, like mobile legislative app, iLegal.

ilegal-launch-website_05_indexThe iLegal app content is derived from the legislation.gov.uk API and offers handy features, like offline access to all items of legislation. iLegal currently costs £49.99/$74.99 annually or £149.99/$219.99 for a lifetime subscription, which might seem steep but is a fraction of the cost of of Halsbury’s Statutes, currently listed at £9,360.00 from Lexis-Nexis.

This approach to publishing the laws of the land online, in structured form under an open license, is an instantiation of the vision for Law.gov that citizen archivist Carl Malamud has been advocating for in the United States. 2013 saw some progress in that vein when the U.S. House of Representatives publishes U.S. Code as open government data.)

What’s notable about the United Kingdom’s example, however, is that less then a decade ago, none of this could have been possible. Why? As ScraperWiki founder Francis Irving explained, the UK’s database of laws was proprietary data until December 2006. Now, however, the law of the land is released back to the people as it is updated, a living code available in digital form to any member of the public that wishes to read or reuse it.

The United Kingdom, however, has moved beyond simply publishing legislation as open data: they’re actively soliciting civic participation in its maintenance and improvement. For the last year, the National Archives has been guiding the world’s leading commercial open data curation project.

“We are using open data as business model for fulfilling public services,” said Sheridan, in our interview. “We train people to do editorial work. They are paid to improve data. The outputs are public.”

In other words, the open government data always remains free to the people through legislation.gov.uk but any academic, nonprofit or commercial entity can act to add value to it and sell access to the resulting applications, analyses or interfaces.

As far as Sheridan could recall, this was the only such example in the government of the United Kingdom where such a feedback loop exist. The closest parallels in the United States is the U.S. Agency for International Development crowdsourcing geocoding 117,000 loan records with the help of online volunteers [Case Study] or the citizen archivist program of the U.S. National Archives.

Since the start of the UK project, they have doubled the number of people working on their open data, Sheridan told me. “The bottleneck is training,” he said. “We have almost unlimited editorial expertise available through our website. We define the process and rules, and then let anyone contribute. For example, we’re now working on revising legislation, identifying changes, researching it — when it comes in, what it affects — and then working with editor. Previous to this effort, government hasn’t been able to revise secondary legislation.”

Sheridan said that the next step is feedback for other editorial values.

“We’re looking for more experts,” he said. “They’re generally paid for by someone. It’s very close to open source software model. They must be able to demonstrate competence. There’s a 45-minute test, which we’re now given to thousands of people.”

If this continues to work, distributed online collaboration is a “brilliant way to help improve the quality of law,” said Sheridan.

“It’s a way to get the work done — and the work is really hard. You have to invest time and energy, and you must protect the reputation of the Archive. This is somewhat radical for the nation’s statute book. We have redesigned the process so people can work with us. It’s not a wiki, but participation is open. It’s peer production.”

A trans-Atlantic challenge to map legislative data

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In September, Sheridan also told me about an unusual challenge that has just gone live at Challenge.gov, the United States’ flagship prizes and competitions platform: a contest to assess the compatibility of Akoma Ntoso with U.S. Congress and U.K. Parliament markup languages.

The U.K. National Archives and U.S. Library of Congress have asked for help mapping elements from bills to the most recent Akoma Ntoso schema. (Akoma Ntoso is an emerging global standard for machine-readable data describing parliamentary, legislative and judiciary documents.) The best algorithm that maps U.S. bill XML or UK bill XML to Akoma Ntoso XML, including necessary data files and supporting documentation, will win $10,000.

If you have both skills and interest, get cracking: the challenge closes on December 31, 2013.

Why HealthSherpa.com is not a replacement for Healthcare.gov [UPDATED]

UPDATE: In June 2014, Ning Liang, one of the founders of HealthSherpa, wrote in about updates to the site. Ling said that they can now enroll people in ACA marketplace plans, including subsidies. According to Liang, “we are the only place besides Healthcare.gov where this is possible. We have signed an agreement with CMS as a web based entity to do this. We are directly integrated with the federal data hub, so going through us is identical to going through Healthcare.gov.”

Earlier tonight, Levick director of digital content Simon Owens discovered HealthSherpa.com, thought it was cool, and read a Daily Dot post about it that framed it as 3 20-something San Francisco Bay-area resident coding up an alternative to Healthcare.gov.

Could it be that easy, wondered Owens? Could these young coders have created a simpler, better way to shop for health insurance than the troubled Healthcare.gov?

healthsherpa

Well, yes and no. As is so often the case, it’s not quite that simple, for several reasons.

1) As always, note the disclaimer at the bottom of HealthSherpa.com: “The information provided here is for research purposes. Make sure to verify premiums and subsidies on your state exchange or healthcare.gov, or directly with the insurance company or an agent.”

Why? The site is based upon the publicly available data published by the Department for Health and Human Services, individual state exchanges and Healthcare.gov for premium costs, like this dataset of premiums by county at data.healthcare.gov.

Unfortunately, there appear to be data quality issues, as CBS News reported, that may be an issue on both sites.

When I compared searches for the same zipcode in Florida for a 35 year old, single non-smoking male, I found the same 106 plans but was quoted different premiums: $128.85 on HC.gov vs $150.24 on HealthSherpa. Hmm.

That could be user error, but… it looks like Healthcare.gov continues to underestimate costs.

Healthsherpa may actually be doing better, here. Good job, guys.

2) Regardless, this is not a replacement for everything Healthcare.gov is supposed to do.

The federal and state exchanges aren’t just about browsing plans and comparing premiums for options in a given zipcode in the “marketplace.” After a user knows decides which plan he or she want, the software is supposed to:

1) Register them as a user (registration was up front initially, which was a controversial, important choice, relevant to the site crashing at launch)
2) Authenticate them against government data bases
3) Verify income against government data bases
4) Calculate relevant subsidies, based upon income
5) Guide them through the application process
6) Send that form data on to insurance companies for enrollment.

The tech that underpins the test and graphics website on the front end of those process continues to hold up well.

The rest of the software that is supposed to enable visitors to go through steps 1-6 software, not so much. 16 state exchanges and DC are having varying degrees of success, with HHS Secretary Kathleen Sebelius acknowledging issues with data quality in Step 6 in her testimony to Congress.

3) While it has a subsidy calculator, otherwise Healthsherpa doesn’t replace Healthcare.gov.

Healthsherpa enables you to find a relevant plan and then gives you contact info for the relevant insurer.

For instance:

“Call Humana Medical Plan, Inc. at (800) 448-6262.
Use their menu or ask the operator to speak to someone about purchasing coverage.
Tell them you would like to purchase health exchange coverage, specifically the Humana Connect Basic 6350/6350 Plan for Hillsborough County, FL.
Follow their instructions to complete the application process.”

It does not place calls to the data hub to calculate steps 1-6.

That limited functionality, however, has been good enough for U.S. Senator Angus King to recommend HealthSherpa as a temporary alternative to Healthcare.gov.

“HealthSherpa offers a user-friendly platform to quickly browse through available health insurance plan options, including monthly premium costs, coverage plans, and possible premium subsidies,” Senator King said. “I recommend that Mainers who are having trouble with Healthcare.gov use HealthSherpa as a temporary alternative until the federal website functions properly.”

4) There are OTHER private healthcare insurance brokers that could be doing this.

Back in May 2013, the Center for Medicare and Medicaid Services issued official guidance for private sector brokers in online health insurance marketplaces. (PDF)

Former U.S. chief technology officer Aneesh Chopra said that these “Web-based entities” will be online this fall, operated by entities like eHealthInsurance.com and GetInsured.

For some reason, however, private sector insurance brokers have been stymied by the federal government from selling ACA insurance policies.

That’s unfortunate, given that the Obama administration could use a Plan B, just in case the progress on Healthcare.gov doesn’t lead to a functional federal health insurance exchange twenty days from now.

Update: Jonathan Cohn, writing for the New Republic, looked into Healthcare.gov’s backup plan and comes up with an interesting detail: issues with the so-called data hub could be holding back deployment of private online health insurance brokers.

…administration officials have been huddling with insurers about how to make more use of direct enrollment. Step one is to make sure that “side door” enrollment works smoothly. It doesn’t function well right now, because—you guessed it—it relies on the same information technology system that powers healthcare.gov. Fixing that portal, which techies tell me is called an “application programming interface,” is high on the administration’s to-do list. But it’s not clear (to me) whether improving the portal might require design modifications—or to what extent its success depends upon other, ongoing repairs to the federal website.

So, here’s some speculation: While it’s hard to know for sure, but it’s quite likely that that “portal” is the data hub that’s behind Healthcare.gov, and that it may not be up to additional volume from private sector demand.

The federal exchange and state exchanges both rely upon it, and, while federal officials have said that it’s working, a report by the New York Times yesterday that some state health insurance exchange are continuing to battle tech problems indicated that it’s not holding up under demand:

Even states whose websites are working well say they are hampered by a common problem: the federal website, particularly the data hub that checks every applicant’s identity and eligibility. That hub has stopped working on several occasions, preventing applications in the states from being completed.

If that’s happening now, concerns about the ability of the hub to hold up under the pressure of private sector online insurance brokers could well be justified. If I learn anything more definitive, I’ll share it.

As the DATA Act goes up for markup in Senate, will its Recovery.gov model survive?

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There will be a markup for the DATA Act (S.994) in U.S. Senate today. The bill, which passed the House, would standardize federal spending and publish it in a similar way as the Recovery Act, which proved to be a successful test case for open data. A proposed amendment to the DATA Act, however, is facing opposition from the same good government groups that supported its passage in the House of Representatives.

Update: The DATA Act passed markup with the amendment.

The amendment, which removes the “accountability platform” from the legislation, faced criticism from the author of the original bill, Hudson Hollister. Hollister emailed the following comment to Federal News Radio:

“Without the accountability platform, there will be no mechanism for inspectors general to use the newly-standardized federal spending data, combined with public and private data sources, to suss out waste and fraud. If the final version of the bill fails to expand the Recovery Operations Center to cover all federal spending, taxpayers’ interests will be hurt in two ways. First, waste and fraud that could have been illuminated and eliminated will go undetected. Second — and perhaps more important — without any internal government effort to use the newly-standardized spending data for any purpose, there will be no internal pressure to improve the quality of data published on USASpending.gov. We recognize that the accountability platform was removed in order to reduce the bill’s Congressional Budget Office score. We hope that an offset large enough to restore those provisions can be included in the bill at a later stage.”

A coalition of good government groups are calling for the the DATA Act to be passed as introduced, not “as amended,” submitting a letter to the Senate Homeland Security and Government Affairs Committee to that effect. (Below.)

DATA Act – Letter of Support to Homeland Security and Government Affairs Committee – 11-05-2013

Prospects for the DATA Act’s passage in the Senate do appear improved over last year, where it foundered in committee, but the form it will emerge from today’s markup in is unclear.

Hollister is warning that the removal of the requirement for a data analytics platform from the bill, modeled on Recovery.gov, would be a mistake and lead to same kinds of data quality issues that exist at the SEC.

Citing a study from Columbia Business School which evaluates the state and future of interactive data at the SEC, Hollister says the platform is a key tool for government inspectors general to examine spending data, which then creates an internal incentive to correct errors. Given the reality that “armchair auditors” have yet to emerge in the United Kingdom to look at similar data, improving the capacity of the IGs to find fraud, waste and abuse is critical.

In advocating for retention of the platform (the “accountability hub”), Hollister suggested that its estimated $20 million dollar cost will be more than balanced by the amount of fraud detected.

“Open data is no good unless it’s accurate,” writes Hollister. “The SEC’s experience shows that the only way to generate internal pressure for accurate spending data will be if the federal government is actively using that data.”

Congressional bills could cripple FOIA requests for feedlot data from the EPA

UPDATE: The final version of the Farm Bill that passed both houses of Congress did not contain this amendment.

On the one hand, the White House is committing (again) to modernizing the administration of the Freedom of Information Act  and touting a new effort to open up agricultural data:

On the other, there are now multiple efforts to bar access to agricultural information sprouting on Capitol Hill. Open government advocates successfully stalled an amendment on farm bill secrecy this spring. The amendment is back, in multiple places.

The Farm Bill poses a great threat to the public’s right to know about agricultural and livestock operations.

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OpentheGovernment.org is warning that multiple bills could limit the EPA from releasing data relevant to the public interest:

The Senators who proposed the Farm Bill amendment, Senators Grassley and Donnelly, recently introduced an identical bill, and similar language appears in the House-passed version of the Farm Bill (Sec. 450) and the House Appropriations Committee’s version of the 2014 Interior spending bill (Sec. 11325). The sponsors say the language is intended to address the EPA’s release of information related to Concentrated Animal Feeding Operations (CAFOs) to environmental groups earlier this year. After hearing concerns about the amount of private information included in the release, EPA requested the groups return the original information (which the groups did) and committed to redacting all private information from similar releases in the future.

The language some Members of Congress are trying to make a part of the law goes well beyond the stated objectives. Rather than appropriately protecting private information, the language cuts off all public access to any information the EPA has collected on any owner, operator, or employee of a livestock operation (the language in the House-passed farm bill is even broader — barring the release of information on agricultural operations as well as livestock operations). In other words, the language would not just prevent the EPA from releasing private information about a local farmer with a few pigs or heads of cattle, it would broadly shield the information of corporate operations. The language also ignores the possible public interest in release of the information. If passed, the language would completely cut off access to information that is especially critical for people who live near or share waterways with CAFOs.

To be clear, these are not minor exceptions.

The authors of the Senate bill are “trying to create a huge hole in the FOIA by blocking the EPA from releasing any information it has collected on any owner, operator, or employee of a livestock operation,” writes Scott A. Hodes at the FOIA Blog.

“The language in the House-passed farm bill is even broader, barring the release of information on agricultural operations as well as livestock operations. …There may be a valid reason to not release information about small family farms, but the language in some of these proposals go way past that point and would create a huge Exemption 3 statute that blocks information that the public deserves to be known from being released via the FOIA.

According to OpenSecrets.org, the campaign committees and leadership PACs of the sponsors of the bill, Senator Charles Grassley and Senator Joe Donnelly, have received $458,750 and $104, 891 from agribusiness, respectively.

To date, S.1343 hasn’t garnered much attention in the press or online at POPVOX and OpenCongress. That’s unfortunate. While the repeated release of personally identifiable information in FOIA documents by the Environmental Protection Agency clearly merits Congressional attention and oversight, these amendments are a gross overreaction to the disclosures and stand to damage the public interest.

Given the importance of public access to information about agriculture, particularly the large feedlots that provide the majority of the beef Americans consume and attendant food safety issues, limiting broad disclosure from the EPA would be a huge step backwards for open government in the United States.

Update: More than 40 organizations have joined OpenTheGovernment.org to urge Congress not to include language that cuts off public access to this information, sending a letter (embedded below) to the committee.

As the letter points out, people who live near agricultural and livestock operations – particularly people who live near concentrated animal feeding operations (CAFOs) – need access to information about these operations in order to ensure their health and safety. The law already requires federal agencies, when responding to a Freedom of Information Act (FOIA) request for information about these operations, to protect personal privacy, including email addresses, phone numbers, and other similar information of non-government individuals. Indeed, after determining that it improperly released personal information related to CAFOs earlier this year, the Environmental Protection Agency (EPA) asked requesters who had received the information to return it to the agency. The requesters complied.

Beyond being unnecessary to protect personal privacy, language included in the House-passed version of the Farm Bill is exceedingly broad and vague. Because it does not define the terms “owners” or “operators,” it would extend FOIA’s personal privacy protections to corporate farms. In FEC vs. ATT, the Supreme Court found that Congress never intended to extend the FOIA’s personal privacy protections to corporations, and Congress must not do so now.

[Image Credit: POGO]

Does privatizing government services require FOIA reform to sustain open government?

I read an editorial on “open government” in the United Kingdom by Nick Cohen today, in which he argues that Prime Minister David Cameron is taking “Britain from daylight into darkness. Cohen connects privatization to the rise of corporate secrecy … Continue reading

Should Congress criminalize online “revenge pornography”?

1-Blind-JusticeAShould “revenge porn” be made a crime? In California, revenge porn could soon be illegal.

This weekend, in an op-ed for CNN.com, University of Maryland law professor Danielle Citron argues that Congress and other states in the union also should move to criminalize sharing nude pictures of a person without that person’s consent.

“New Jersey is the only state to make it a felony to disclose a person’s nude or partially nude images without that person’s consent,” she writes. “The New Jersey statute is a helpful model for states like California that are considering proposals to criminalize revenge porn. Congress should amend the federal cyberstalking law, 18 U.S.C. § 2261A, to cover the use of any interactive computer service to produce or disclose a sexually graphic visual depiction of an individual without that individual’s consent.”

Citron argues that that, given the profound effects upon someone’s personal and professional life in the schools, workplaces and communities they inhabit “offline,” criminalizing this online action is a necessary curb on the damage it can do. She makes a strong case that the U.S. Code should catch up to the pace of technological change.

We’re several years past the time the world crossed a Rubicon, with respect to the ability to share embarrassing images of one another. The global adoption of cheap camera phones, smartphones, social networks, search engines and wireless Internet access has created a tidal wave of disruptions across industries, governments and nations. Taking pictures with the world has been made trivially easy by those technologies, a capability that can capture both our best and worst moments.

When combined with the capacity to share those images with the rest of humanity in an instant, billions of people now wield great power in their back pockets. Whether they uphold the responsibility that comes with it is in question, given what history shows us of humans acting badly to those who have less power in society. The power to publicize and shame others is not equally distributed, given the expense of devices, data, and unequal access between the sexes.

In her op-ed, Citron anticipates the First Amendment concerns of organizations like the ACLU, arguing that it’s possible to craft sufficient limits into legislation — again, using New Jersey’s law as a model — that will enable the United States to preserve constitutional protections for free speech online.

“First Amendment protections are less rigorous for purely private matters because the threat of liability would not risk chilling the meaningful exchange of ideas,” writes Citron.

“Listeners and speakers have no legitimate interest in nude photos or sex tapes published without the subjects’ permission. That online users can claim a prurient interest in viewing sexual images does not transform them into a matter of legitimate public concern. Nonconsensual pornography lacks First Amendment value as a historical matter, and could be understood as categorically unprotected as obscenity. Although the Court’s obscenity doctrine has developed along different lines with distinct justifications, nonconsensual pornography can be seen as part of obscenity’s long tradition of proscription.”

The American Civil Liberties Union opposes the California legislation and the Electronic Frontier Foundation has expressed concerns with how broadly it has been drafted.

Legal precision in how legislatures make revenge porn a criminal offense really will matter here, given both existing statutes and the number of entities that are involved in the act, from the person who took the image to the site that hosts it to the people who spread it.

Making anyone but the original person who broke the trust of another by uploading the picture culpable would run up against Section 230 of the United States Communications Decency Act, which provides “intermediary liability,” protecting online platforms from being held liable for user-generated content shared on them.

As more people gain the ability to take, store and share digital images, however, improving systems that govern non-consensual surveillance and distribution looks precisely like the kind of thorny problem that our elected representatives should grapple with in the 21st century.

Societies around the world will need to find answers that reconcile online civil rights with longstanding constitutional protections. The way the United States handles the issue could be a model for other states to consider — or not, if a dysfunctional Congress proves unable to enact effective legislation, a scenario that unfortunately seems all too likely over the next year.