Harvard Law study finds Supreme Court editing its decisions without notice

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This morning, Adam Liptak reported at the New York Times that the Supreme Court has been quietly editing its legal decisions without notice or indication. According to Richard J. Lazarus, a law professor at Harvard Liptak interviewed about a new study examining the issue, these revisions include “truly substantive changes in factual statements and legal reasoning.”

The court does warn readers that early versions of its decisions, available at the courthouse and on the court’s website, are works in progress. A small-print notice says that “this opinion is subject to formal revision before publication,” and it asks readers to notify the court of “any typographical or other formal errors.”

But aside from announcing the abstract proposition that revisions are possible, the court almost never notes when a change has been made, much less specifies what it was. And many changes do not seem merely typographical or formal.

Four legal publishers are granted access to “change pages” that show all revisions. Those documents are not made public, and the court refused to provide copies to The New York Times.

The Supreme Court secretly editing the legal record seems like a big deal to me. (Lawyers, professors, court reporters, tell me I’m wrong!)
To me, this story highlights the need for and, eventually the use of data and software to track the changes in a public, online record of Supreme Court decisions.

Static PDFs that are edited without notice, data or indication of changes doesn’t seem good enough for the legal branch of a constitutional republic in the 21st century.

Just as the U.S. Code, state and local codes, are being constantly being updated and consulted by lawyers, courts and the people, the Supreme Court’s decisions could be published and maintained online as a body of living legislation at SupremeCourt.gov so that they may be read and consulted by all.

Embedded and integrated into those decisions and codes would be a record of the changes to them, the “meta data” of the actions of the legislative organ of the republic.

What you’ll find now at SupremeCourt.gov is a significant improvement over past years. Future versions, however, might be even better.

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Coalition presses White House to make secret surveillance laws open to the public

A coalition of organizations that support open government, press freedom and civil liberties have sent a letter to President Barack Obama urging him to make the laws that govern surveillance by the National Security Agency public. The letter, which I’ve published in full below, asks the constitutional law professor living at 1600 Pennsylvania Avenue to support a core principle of democratic governance that hails back (at least as far as) the 12 Tables posted in the Roman Forum: the people should be able to read the laws under which they are governed. The letter was sent to the White House on the eve of the second annual conference of the Open Government Partnership.

October 21, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W. Washington, DC 20500
Dear President Obama:
On behalf of citizens who support an open and accountable government, we are writing to urge you to pledge as part of the US’s new round of Open Government Partnership commitments to curb the secret law that enabled the National Security Agency’s surveillance programs to become much broader and more invasive than it was believed the law allowed.
Secret legal interpretations by the Justice Department’s Office of Legal Counsel (OLC) and the Foreign Intelligence Surveillance Court allowed the NSA’s surveillance programs to grow in ways that raise serious concerns about what the government is doing in our name and the extent of violations of American’s privacy and civil liberties. Documents released to the media about the NSA’s programs further raise critical questions about the scope of the US’s activities abroad, leading the President of Brazil and others to question whether the US’s programs breach international law.
This is not the first time that abuses of power have occurred when a government program operates in a bubble of secrecy with only limited oversight: similarly, Americans were outraged to learn that memos authored by the OLC during the Bush Administration approved interrogation methods that many equate to torture. Your release of these memos demonstrated a respect for the public’s right to know how the government interprets the law. Making a concrete commitment to the public’s right to legal interpretations on issues including the intelligence community’s surveillance programs and other controversial policies like targeted killing through the use of drones or other means would make this respect part of the administration’s legacy. While the government has an obligation to protect properly and appropriately classified information, democracy does not thrive when our national security programs and the intelligence community’s actions are shrouded in secrecy. The public must, at the very least, have a shared understanding of the bounds and limits of the laws of our land and be able to have an informed debate about our policies.
During the meeting of the Open Government Partnership in London, you have a unique opportunity to address this issue head-on on an international stage. By committing to give the public access to documents that significantly interpret laws, including – but not limited to—the Department of Justice’s legal interpretations and opinions by the Foreign Intelligence Surveillance Court (FISC), you can both address domestic concerns about our surveillance programs, and begin to rebuild trust with our international partners.
Thank you in advance for your attention to this issue of critical importance to transparent and accountable government. To discuss these issues in greater detail, please contact Patrice McDermott, Executive Director of OpenTheGovernment.org, at pmcdermott@openthegovernment.org or 202-332- 6736.
Sincerely,
American Booksellers Foundation for Free Expression American Civil Liberties Union
American Library Association
American Society of News Editors
Arab American Institute
ARTICLE 19
Bill of Rights Defense Committee
Brechner Center for Freedom of Information
Californians Aware
Center for Democracy and Technology
Center for Effective Government
Center for Media and Democracy
Citizens for Responsibility and Ethics in Washington – CREW The Constitution Project
Council on American-Islamic Relations – CAIR
Electronic Frontier Foundation
Electronic Privacy Information Center – EPIC
Essential Information
Federation of American Scientists
First Amendment Foundation
Government Accountability Project – GAP
Human Right Watch

iSolon.org
James Madison Project
Just Foreign Policy
Liberty Coalition
National Coalition Against Censorship
National Freedom of Information Coalition National Security Archive
No More Guantanamos
OpenTheGovernment.org
PolitiHacks
Project On Government Oversight – POGO
Public Citizen
Public Knowledge
Reporters Committee for Freedom of the Press Reporters Without Borders
Society of Professional Journalists
Sunlight Foundation
Tully Center for Free Speech at Syracuse University Understanding Government
Vermont Coalition for Open Government
Vermont Press Association
Washington Civil Rights Council
Win Without War

Visualizing the size of the United States Code

The Office of the Law Revision Counsel in the United States of House of Representatives has launched a new beta site for the U.S. Code.

Sunstein: Plain writing should be seen as an essential part of open government

For government to be more open, the language it uses must be understandable to all citizens. For those who cover government technology, or the many who tried to interpret the healthcare or financial regulatory reform legislation posted online over the past year, the issue is familiar. Government documents, written by lawyers or functionaries, is all too often dense and extremely difficult to understand for regular citizens.

With the passage of the Plain Writing Act of 2010 and a stroke of President Obama’s pen on October 13, 2010, there’s a new reason to hope that the business of government will be more understandable to all.

As a report on the Plain Language Act by Joel Siegel at ABC News reminded citizens, however, this law follows decades of similar efforts that haven’t achieved that desired outcome.

The movement to bring clarity to complex government documents began decades ago, when a Bureau of Land Management employee named John O’Hayre wrote a book after World War II called “Gobbledygook Has Gotta Go.”

In the 1970s, President Richard Nixon ordered that the “Federal Register” be written in “layman’s terms.”

The Clinton administration even issued monthly “No Gobbledygook Awards” to agencies that ditched the bureaucratese. Vice President Al Gore, who oversaw the effort, called plain language a civil right, and said it promoted trust in government. The effort gave birth to a government Web site that still operates, www.plainlanguage.gov.

There are reasons to be hopeful. For one, the Federal Register was relaunched this year, in a “historic milestone in making government more open.” “Federal Register 2.0” itself only came about after an effort that deputy White House CTO Beth Noveck observed is “collaborative government at its best. The new beta of the FederalRegister.gov continues to evolve.

This week, Cass Sunstein, administrator of the Office of Information and Regulatory Affairs, issued a memorandum that provided further guidance.

Plain writing is concise, simple, meaningful, and well-organized. It avoids jargon, redundancy, ambiguity, and obscurity. It does not contain unnecessary complexity.

Plain writing should be seen as an essential part of open government. In his January 21, 2009 Memorandum on Transparency and Open Government, President Obama made a commitment to establish “a system of transparency, public participation, and collaboration.” Transparency, public participation, and collaboration cannot easily occur without plain writing. Clear and simple communication can eliminate significant barriers to public participation in important programs for benefits and services. Avoiding ambiguity and unnecessary complexity can increase compliance simply because people understand better what they are supposed to do. Plain writing is no mere formal requirement; it can be essential to the successful achievement of legislative or administrative goals, and it promotes the rule of law.

Preliminary Guidance for the Plain Writing Act of 2010 http://d1.scribdassets.com/ScribdViewer.swf?document_id=43925019&access_key=key-qoahr7f12t2p29pj3uk&page=1&viewMode=list

Among other things, the memorandum provides initial guidance to federal agencies on where to start with plain language, including making government officials accountable for implementing plain language and resources for advice. Key documents are also designated as necessary, each of which includes processes citizens need to understand:

“those that are necessary for obtaining any Federal Government benefit or service, or filing taxes; those that provide information about any Federal Government benefit or service; or those that explain to the public how to comply with a requirement that the Federal Government administers or enforces.”

If you can’t understand how to do something, good luck accomplishing the task. The same is true of benefits or legal requirements. To date, there are few aspects of regulations as clear as a red light or Stop sign. If the requirements of this law are carried out in good faith, perhaps more Americans will see more of them.

Understanding time and place is crucial for government use of social media

Does government “get social media?” As always, it depends which government you are talking about. This morning, Gartner analyst Andrea DiMaio posted about when government doesn’t get social media, in the context of new guidance on the use of social media in federal workplaces. Specifically:

On July 27, the US Office of Special Counsel published a document with Frequently Asked Questions Regarding Social Media and the Hatch Act. The Hatch Act of 1939 is a US federal law preventing federal employees from engaging in partisan political activities.

The FAQ looks at how to comply with the act when engaging on social media, with particular reference, but not limited, to Facebook and Twitter.

The basic advice is that if a federal employee accesses social media from a federal workplace and during working hours, while on duty, then the provisions of the act would apply.

The OSC memo doesn’t mean that government as a whole “doesn’t get social media,” of course. Have you followed @NASA recently? It does show that the lawyers there haven’t quite caught up to the always-on, mobile workforce. After my discussions with people in government, I’ve taken away a sense that many of the government employees themselves are quite aware of those risks and are being careful. Some will make mistakes. Some already have.

Other people have expressed frustration with this update of an old law (1935) for the social networking age. As I’ve read through the coverage, the extension on restrictions for government employees on the job didn’t strike me as unreasonable, at least with respect to previous technology. Would a government employee use a work email account to send out political messages? Or would she make calls in support of a party? Or post banners for a political party or rally on the office bulletin board? Would he loudly exclaim in a meeting in excitement that a favored candidate won a primary?

Likely not.

DiMaio’s analysis is sound, where he recognizes the permanent blurring of the boundaries between work and play, particularly for elected officials, high profile private sector officials and (of course) entertainment figures stalked by the tabloids.

On the latter count, however, the recent Supreme Court decision regarding electronic privacy over government-issued communications gear (the infamous ‘sexting’ case) re-affirmed that it does indeed matter where an update, txt or email is sent from. Any major enterprise can and does place expectations for behavior for the use of its IT equipment in the workplace, or off, particularly with respect to pornography, streaming video, P2P applications or social media. Many CIOs still choose to block public access to such platforms, for a variety of reasons. That’s changing slowly, not least because of smartphone access, but also because many organizations are shifting to risk management as opposed to risk avoidance to address social media and compliance.

I must, however, be blunt in my disagreement with his statement that “time and place are irrelevant on social media.” The growth of geolocation and location-based social networking, like Foursquare, Gowalla and now Facebook Places imply otherwise. Those services are ALL about time and place. Twitter too, in large part, in terms of its real-time ebb and flow around events, particularly disasters or breaking news. The utility of geolocation in social media was especially evident in discussions earlier this month in Washington, where the Emergency Social Data Summit highlighted the role of social media during crises.

Even a layman, without the toolset of a digital forensics team to track down IP addresses, could see where a federal employee might be if geolocation is turned on.

DiMaio is right that a tweet, update, like or link shared on a government employee’ social media about a partisan topic would be an issue, regardless of where ever and whenever it was made. As we feel our way through the meaning of the hyper-charged media environment of the moment, that’s a good lesson to take away. Be careful mixing politics and Facebook.