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Won’t Get Fooled Again: Day 23

Tapping back into the “raw power” theme, I just read the New York Times article on Carl Malamud mentioned here by Jim Jacobs. I found the article curious for the simple reason that it equates “free” access to massive amounts of court records with power, and a good form of power, or what he calls the “operating system for democracy.” Though this kind of rhetoric sparks the necessary energy to get people to leave their couches and join the open government brigade at the barricade, I think it also paints a too simplistic picture of the complex arrangement of constitutional and legal traditions that favor a highly evolved civic engagement.

Missing from the newspaper article’s description of what happened to the PACER pilot project and its sudden suspension is the more messy aspects of democracy that try to balance privacy with open access, free access with the necessary infrastructure (that requires money and personnel to function) to sustain long-term availability of “raw data.” This balancing act depends on a series of relationships between the courts, users, the GPO and its depository libraries. Simply downloading millions of pages, as one person did in California is not a relationship, it is simply a power surge that may or may not be made useful by people on the information grid.

However, as the article points out, Malamud does demand some level of privacy protection in these court documents, he puts that responsibility squarely back on the shoulders of the courts by pointing out that is the court’s duty, and heavy lifting, to make sure this private information is not made publicly available.

What I would expect to see, if indeed Malamud is interested in becoming a future Public Printer is less focus on the power aspects of the information grid, and more focus on the redistribution stations necessary to make government information understandable, accessible, and sustainable over long periods of time. Libraries have done this for several millennium, and they will continue to do so with the different technologies now being deployed. It isn’t a race to see who can make the most government information available. It should be a long engaged relationship between those in power and those the power serves to assure that the knowledge, information and necessary data are understood and usable by the citizen. Power without breakers or distribution centers only overwhelms, it does not inform.

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5 Comments

  1. jashuler says:

    Jim: my admiration for folks like Aaron S. is deep and abiding. Without their innovations our web experience would be much more limited (and less interesting.) My point was simply to push against the simplification fostered by the mass media and some techno-centric policy advocates that equate unmediated mass distribution of government data with “informing the people.”

    Commercial, government, or even non-profit control of public information is undesirable under all circumstances and technological regimes. I would rather see the discussion remember and apply what we know about knowledge building and the ways humans govern themselves — all hard won expertise after nearly 500 years under the regime of the Gutenberg technologies. I do not think this civic collaboration and social interdependence are necessarily overturned, or made moot, if the distribution technology changes. The civic beauty of our constitutional government is that it binds political authorities together into a shared governance scheme and demands the collective involvement of the governed to make sure things work.

    This is the primary role libraries and newspapers share — as forums, context builders, story tellers, truth finders — they sustain an alternative to the official version of the story. It is too easy to paint organizations such as GPO with this broad brush of entities that want to control information … and too easy not to recognize its century long service to the civic conversation through depository libraries …

  2. jajacobs says:

    John,

    I think the lesson we can learn from the PACER saga is similar to the lessons we have (I hope) learned from SEC/EDGAR and similar situations. Specifically, we need to free the information from those who wish to control it (SEC, courts, etc.). The information needs to be widely distributed before it can be interpreted, re-interpreted, or re-distributed.

    As long as data are locked into systems that do not allow use or re-use (whether the limitations are technical, contractual, legal, or economic), we don’t have the open data democracy demands.

    This was made very clear when Aaron Swartz (no slacker, but co-author of RSS, heavily involved in RDF, and an amazingly smart, productive guy) downloaded data and the courts responded by shutting down access to all 17 PACER project libraries. That is control of power!

    It reminds me of almost exactly the same situation in 1995 when Carl Malamud started downloading data from GPO Access and Judy Russell wrote that he had violated his subscription agreement, suspended his access, and referred the matter to the Inspector General for “investigation”! In the long run, we all, collectively, were able to free GPO Access from those who wanted to charge for it and control it. The same situation is happening today with PACER.

    You are right to be concerned about commercial control of the information, but the point of freeing the information is freeing it from all control. (“Free” in FreeGovInfo is a verb!) When that happens, commercial folks can use it and add value and charge for that. But they can’t stop non-commercial folks from using, adding value and not-charging. This is competition at its finest. :-)

  3. jajacobs says:

    John,

    I am with you on complaining about those who over-simplify complex issues! It is forums like this that allow us to expand and amplify and keep the simplifiers honest. Right?

    But I have to call you on your GPO comment. Yes, I’m with you that GPO, for decades, was a major component in the distribution of government information and it even continues, valiantly, in the face of overwhelming odds, to fight the good fight, mostly. But it has also explicitly changed its role and insists now on controlling information through GPO Access and its non-distribution policies. It was as recently as last year that Ric Davis said, “In the online information environment, GPO has assumed primary responsibility for ensuring content availability and permanent public access…” (Administrative Notes Vol. 29, no. 07-08 July 15/Aug. 15, 2008). GPO has been making this claim since at least 1993, but without the mandate or funding or legislation to authorize it. You can look on that as a noble effort if you wish, but the result is that GPO controls the information and it is up to us to wrest control from them by insisting on digital deposit.

  4. John, your point is well taken. What I think you overlook is the fact that redistribution stations are worthless without power. Nobody, including Malumud, claims that unlocking vast swaths of the public record will in and of itself create a panacea of democratic civic engagement. The next step has to make those documents accessible in a user-friendly way. Libraries have traditionally had a strong role here, but we are increasingly seeing a diversity of other commercial and non-commercial entities pitching in as well. One notable example is search engines.

    Systematic limits on access, of the sort that the Judiciary has imposed via PACER, can prevent all of these “redistributors” from doing their good work. This dynamic is what is at the heart of the Government Data and the Invisible Hand paper by the Princeton CITP folks. Sites like Fedspending.org are great examples of what happens when core data sets are made available, and sites like Justia are examples of user friendly interfaces that are nevertheless hampered by government-imposed transaction costs.

    With respect to privacy, I think that Carl’s privacy correspondence with the courts shows that he might well have a more nuanced understanding of these risks than you think. Likewise, Peter Winn (also cited in the article), has a well-refined notion of how privacy and public access face a new period of controversy in the digital age. His core argument, by the way, is that privacy and public access are not at odds — rather both are victims of poor information management. I agree.

    We absolutely need redistribution centers, but we also need power.

  5. shuler says:

    Stephen: you are right, I do not think we disagree on the broad principles that the more government information the better. What I find interesting about Princeton paper is its subtle repackaging of the suite of pro-business arguments waged by the Information Industry Association back in the 1980s. By IIA lights, they were less charitable to government interference in what they characterized as an unfettered information marketplace. They wanted no raw data from the government freely available, rather the raw material would be retooled by the private sector and sold back to the government and public alike. At least in the Princeton version, there is a recognized place for non-profits and other repackaging entities.

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