As we wrote last week the Government Publishing Office (GPO) has asked the Depository Library Council (DLC) to recommend changes to Title 44 of the US Code. We believe this is a bad idea at this moment in history and worry that the unspecified changes GPO wants will result in damage to the FDLP and long-term free public access to government information. We recognize that GPO may pursue this avenue anyway. We have now heard that there is a draft bill being worked on as we speak, so even the extremely short time-frame for public input suggested by GPO (AUGUST 31!!) may be too late for libraries to have *any* say in a law which deeply effects how libraries and the depository program work. We therefore present our suggestions to DLC. We invite you to submit your own recommendations and use any of our suggestions that you like.
I. Do Not open Title 44 to changes at this time
We believe that the wisest course of action at this time is to refrain from suggesting that Title 44 be amended at all. We have seen no evidence of any “champions in Congress” for GPO, FDLP, or long-term free public access to government information. In addition, the current political divisiveness in Congress and the current lack of support for government services in general makes it unlikely that we could get positive changes to Title 44. In fact, it seems to us more likely that we would get changes that converted free access to fee-based cost recovery or privatization or both. In short, We suggest you send your comments to DLC before the Aug 31 deadline and:
Recommend to DLC that GPO refrain from asking for changes to Title 44 at this time.
II. Principles of Free Public Access in the Digital Age
If DLC, or GPO, or the Committee on House Administration (CHA) — GPO’s oversight committee — insist on trying to modify Title 44, we believe the government information community should insist that some principles be preserved and even strengthened. The last time GPO voiced principles was 1996 (it repeated those principles in 2016). Although those principles are good as far as they go, they are grossly outdated in the digital age and do not adequately address either the nature of digital information or the needs of users in a digital age. We suggest you write to DLC and:
Recommend to DLC that any changes to Title 44 reflect these four principles:
- Free Access and Free Use
- Modernized scope of information covered by Title 44
III. Recommendations that Reflect Principles
We suggest that you recommend to DLC five changes to Title 44 that reflect the Principles of Free Public Access in the Digital Age (we have written about these principles many times, e.g. in our post on suggested revisions to OMB Circular A-130 “Managing Information as a Strategic Resource”, and there are other ideals out there from which to draw like the eight principles of open government data put forth by open government advocates). We are suggesting that you recommend changes to Chapters 17 and 41 as well as Chapter 19. GPO has only asked DLC to recommend changes to Chapter 19, but Davita Vance-Cooks indicated at a hearing last week — and we have heard from other quarters — that all chapters are open for modification. Chapters 17 and 41 are as important to the future of FDLP libraries and to their communities as is Chapter 19.
- Modernize definition of “publications.”
- Retain and enhance Free use by the General Public.
- Prohibit fees for govinfo.gov.
- Require Preservation.
- Add a privacy provision for govinfo.gov.
- Make all digital government information free.
We suggest that you write to DLC and recommend these changes to Title 44:
Change the definition in § 1901 from “Government publication” to “public information” as defined in 44 U.S. Code § 3502 (12). Sample wording: “‘Government publication’ as used in this chapter, includes all ‘public information’ (44 USC 3502) which means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.” Include this same wording in § 4101. Sample wording: “provide a system of online access to digital ‘public information’ (44 USC 3502).”
Modernize § 1911 to retain free access and to reflect the broader scope of Public Information. Sample text: “Depository libraries shall make all Public Information obtained through the depository program available for the free use of the general public.”
Change wording of § 4102 to remove “fee” and replace with same “free” language as Chapter 19. Sample wording: “The directory and the system shall be made available to the general public without charge.
Make changes to § 1904 and 1905 to explicitly include “digital public information” that GPO will deposit by sending digital files (including metadata) to FDLP libraries. Define “digital depositories” as FDLP libraries that receive, store, preserve, and provide access to digital government information they acquire through the Depository Program. (GPO’s current use of terms such as “digital-only depositories” and “All or Mostly Online depositories” for libraries into which nothing is deposited are misleading to Congress and the public.) In addition, modify the text of § 1911 to define a class of FDLP digital preservation libraries. Those FDLP libraries will agree to retain all digital content sent through the depository program, will preserve that content, and will make it available for the free use of the general public. Add text to § 4101 requiring GPO to preserve and provide free public access to all the digital content that it adds to its “electronic storage facility for Federal electronic information.”*
Add a privacy provision to § 4101 (which defines the electronic directory and the system of online access — currently “govinfo.gov”). This provision would prohibit the use of technologies that track user individual-level activity. It would also prohibit GPO from cross-referencing any data gathered from web measurement and customization technologies against personally identifiable information to determine individual-level online activity, and from sharing any user data with other departments or agencies or non-government entities. It would also prohibit the use of third-party web measurement and customization technologies. Text for this section could be drawn from 5 USC 552a and from OMB memorandum M-10-22.
Modify § 1708 to: allow GPO to sell paper (including print-on-demand, and microformated) documents to retailers at a wholesale price; mandate that GPO offer to FDLP libraries as selectable items all print/POD documents that it offers for sale to retailers; prohibit GPO from selling ebooks, PDFs and other digital formats.
Write DLC Today!
This may be our last opportunity to persuade GPO to delay modification of Title 44 until it has a strong champion in Congress that will advocate changes that will enhance long-term free public access. If we must enter a discussion of modifying Title 44, it is essential that we do so with principles that will drive the changes. To enter discussions without such a clear vision would be unwise as it could easily lead to unwanted changes to the law which will erode the FDLP and GPO’s ability to support libraries and the public.
We should advocate changes that clearly support the principles of Free Public Access in the Digital Age.
We should oppose changes that only support specific tactics (such as redefining “deposit” as pointing to digital documents that are not deposited) or that support short-term goals (such as encouraging the discard of paper collections). Such changes do not support the principles of but actually reduce the flexibility of FDLP libraries in the digital age.
We invite you to send your recommendations to DLC before the Aug 31 deadline.
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University