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Free Government Information (FGI) is a place for initiating dialogue and building consensus among the various players (libraries, government agencies, non-profit organizations, researchers, journalists, etc.) who have a stake in the preservation of and perpetual free access to government information. FGI promotes free government information through collaboration, education, advocacy and research.

Sign the petition “Protect the public right to govt information: help preserve and expand Title 44”

As many of our readers know, there has recently been a lot of activity surrounding efforts to modify title 44 of the US Code. YOU can make your voice heard by signing the petition “Protect the public right to govt information: help preserve and expand Title 44”.

Signatures will go directly to staffers on the House Committee on Administration and Joint Committee on Printing, as well as to GPO and ALA Washington Office. Please share widely on your social media.

We need lots of support in order to assure that any changes to Title 44 support and expand preservation of and access to government information. For more background on what’s at stake, please see our post Strengthening the Discussions about Title 44.

The public’s right to information by and about its government is critical to the workings of a democracy. Title 44 of the US Code, which codifies the Federal Depository Library Program (FDLP) into law, is the *only* legal guarantee that the US government will provide its information for free to the General Public, the citizens of the USA. It also directly affects thousands of non-Federal Depository Library Program libraries by defining free public access to the essential information and records of our democracy.

A push to revise Title 44 is in the works led by the Government Publishing Office and the Committee on House Administration. Government Publishing Office Director Davita Vance-Cooks has asked the Depository Library Council (DLC) to gather recommendations from the depository community for changes to Chapter 19 of Title 44 of the U.S. Code.

We the undersigned write today to assure that any changes to the law strengthen the FDLP and free public access to and preservation of government information regardless of physical or digital format.

Strengthening the Discussions about Title 44

Since last week, when we posted Stanford Library Director Michael Keller’s letter to the Committee on House Administration (CHA) and the Joint Committee on Printing (JCP), there has been more activity around the efforts to modify Title 44 of the US Code. We understand that the ALA and its Committee on Legislation (COL), the Government Documents Round Table (GODORT), other ALA divisions and round tables, and The American Association of Law Libraries (AALL) are all actively investigating the issues.

When we look at the last ten years of discussions of the FDLP, we can anticipate what some of the proposals will be. We anticipate proposals with high-sounding promises about access and preservation with details that propose changes to Title 44 that will weaken and diminish the role of libraries, promote the fragile model of centralizing control of government information with GPO, entrench GPO’s long-term efforts to replace FDLP with short-term "partners," and make it easier to discard and destroy the FDLP Historic Collections. We also anticipate proposals to promote digitizing the Historic Collections — which can already be done without changes to the law. We imagine that there will be proposals that will not enhance access or preservation or strengthen the role of libraries, but will be pitched as "saving" or "expanding" the FDLP.

This will be confusing! We hope that discussions will focus on changes that will actually strengthen long-term free public access.

With this in mind, we have written four new posts on FGI that explain in clear language the reasons behind and the effects of the six recommendations we have made in our earlier post “This is not a drill. The future of Title 44 and the depository library program hang in the balance.” Our specific proposals are based on 4 principles. We invite you to hold other proposals to the same standards.

Read and discuss!

Strengthening Title 44:

  1. Modernize the definition of "publications"
  2. Ensure Free Access
  3. Ensure Privacy
  4. Ensure Preservation

James and Jim

Strengthening Title 44, part 4: Preservation

Preservation

This is the fourth in a series of four posts in which we elaborate on the reasons behind our recent recommendations for strengthening Title 44 of the U.S. Code.

We recommend changes to chapters 19 and 41 of Title 44 that will require the preservation of digital government information.

Recommendation

Require Preservation

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.”

Current Law

Neither Chapter 19 (FDLP) nor Chapter 41 (govinfo.gov) use the word “preservation” or contain any requirements for the long term preservation of digital government information.

There are retention requirements for selective depositories in §1911 and for regional depositories in §1912, but, by GPO policy, these requirements currently only apply to so-called “tangible” items and exclude so-called “online” items. GPO’s persistent attempts over the last decade to weaken the current retention requirements suggest that it may want to change the law to further weaken or even scrap the existing retention requirements (Jacobs and Jacobs 2017b).

Chapter 41 can be read as implying that digital information will be preserved, but even that is limited in scope. Section 4101 requires GPO to provide access to and store only two digital titles, the Congressional Record and the Federal Register. It leaves it up to the Superintendent of Documents to determine what content is added to — or withdrawn from — govinfo.gov.

Title 44 does have provisions for the preservation of some government information, but these are limited. Chapter 21 establishes the National Archives And Records Administration (NARA) in Chapters 29, 31 and 33 defines the scope of preservation. Chapter 36 gives the Office of Electronic Government some responsibility for overseeing preservation of government information.

Analysis

Chapter 41 of Title 44 does not require GPO to preserve anything. The law can and should be strengthened to make preservation an explicit requirement, not a policy option that could change with the political exigencies of the moment. The law should also be modernized to reflect the reality of born-digital publishing by expanding the scope of what is preserved.

The task of preserving enormous amounts of digital government information is daunting and probably beyond the ability of any single government agency. GPO has recognized and admitted in its National Plan that it needs partners. But GPO’s current policies have effectively blocked FDLP libraries from participating as digital preservation partners — and there is barely a trickle of FIPnet partner libraries agreeing to be “preservation stewards” preserve minuscule numbers of physical documents. GPO has, through policy, even attempted to redefine “depository” libraries as libraries into which nothing is deposited.

The existing laws that define preservation outside of FDLP are limited in scope and effect. The Chapters of Title 44 cited above and the Federal Records Act and similar laws and regulations cover only a portion of the huge amount of information gathered and created by the government. Most government agencies do not have a mission that includes either the long-term preservation of their information or free public access to it. The preservation plans that do exist are subject to interpretation by political appointees who may not always have preservation as their highest priority.

Our recommendations (including broadening the scope of FDLP) would give GPO, along with its FDLP library partners, a clear responsibility for the long-term preservation of and free public access to public government information.

Specifically, our recommendation would prevent GPO from removing content from govinfo.gov once it has been added. It would give FDLP libraries the flexibility to select digital government information and build their own digital collections and services. It would set up a new category of digital-depository preservation-partner that would strengthen long-term digital preservation without weakening GPO or govinfo.gov. These changes would complement, not replace govinfo.gov.

Effects

The recommended changes to Title 44 would have several positive effects.

  • The recommendation would modernize the law to recognize born-digital information by redefining the scope of Chapter 41 to include all federal digital “public information.”
  • By including digital public information in the depository program, GPO would immediately gain dedicated, legally-mandated partners for digital preservation and online access.
  • The changes would enhance access by promoting digital collections in FDLP libraries. When libraries have curated collections that they control, they can develop robust discovery and access services tailored to the needs of the communities they serve. (Jacobs and Jacobs 2016, Jacobs 2009)
  • By explicitly specifying retention requirements for deposited digital government information, the law would enhance digital preservation by putting many digital copies under different technical, administrative, and financial control.
  • The recommendation would modernize the law for the digital age by establishing a new class of FDLP digital preservation libraries.
  • The recommendation would close the loophole in the current law that allows GPO to withdraw content from its digital storage and access facility.
  • By focusing on digital preservation rather than on weakening the existing retention requirements for paper publications, these changes would enhance rather than weaken preservation of all government information.

Endnotes

Authors:
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University

Strengthening Title 44 part 3: Privacy

Privacy

This is the third in a series of posts in which we elaborate on the reasons behind our recent recommendations for strengthening Title 44 of the U.S. Code.

We recommend strengthening the language of Title 44 to ensure the protection of the privacy of users of online government information.

Recommendation

Add a privacy provision for govinfo.gov

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.

Current Law

Neither Chapter 19 nor Chapter 41 of Title 44 have any privacy provisions.

Some chapters of Title 44 explicitly refer to privacy protections provided in 5 USC 552a “Records maintained on individuals.”

Chapter 35 of Title 44 (“Coordination Of Federal Information Policy”) has a large section of privacy provisions — including agency websites (§3501 “Federal Management and Promotion of Electronic Government Services” popularly known as the “Paperwork Reduction Act”).

Analysis

Our recommendation fills a gap in the current law by adding privacy protections to Chapter 41.

It has become commonplace for websites to track user behavior and for companies to build user profiles based on user browsing across different websites. It is essential to assure the general public that it can search, browse, acquire and use government information without being tracked or profiled. Existing law is designed to allow government agencies to use modern web technologies to customize the behavior of websites while preventing those agencies from tracking indvidual-level activities. Chapter 41, which enables govinfo.gov, does not explicitly cite those privacy protections.

Our recommendation would make it clear that GPO’s online services are covered by existing legislation by incorporating some of the language from 5 USC 552a and OMB’s website privacy guidance memorandum directly into Chapter 41.

Our recommendation would also go further than existing legislation and guidance by prohibiting GPO from using third-party web measurement and customization technologies on govinfo.gov. Such technologies (e.g., Google Analytics) allow third-parties (e.g., Google) to collect information as users browse, search and access information from a website such as govinfo.gov. As far as we can tell, the only third-party customization that GPO currently uses on govinfo.gov is an html5 javascript library from Google. But GPO does still use Google Analytics on the Catalog of Government Publications and on its FDLP website. By adding to Chapter 41 an explicit prohibition of the use of third-party measurement and customization technologies, govinfo.gov would have the strongest privacy protection of any government agency.

Effects

Our recommendation would have several positive effects.

  • It would make user-privacy an integral part of GPO’s online services.
  • Instead of relying on existing laws and guidance, it would explicitly include privacy protections in Chapter 41 so that GPO’s online service would have privacy protections even if other privacy protections in the U.S. Code are weakened.
  • It would go further than existing law by protecting users of GPO services from being tracked by third-party services.

Endnotes

Authors:
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University

Strengthening Title 44 part 2: Free Access

Free access

This is the second in a series of posts in which we explain the the reasons behind our recent recommendations for strengthening Title 44 of the U.S. Code.

Three of our recommendations suggest strengthening the language of Title 44 in order to ensure free public access to government information.

Recommendations

Retain and enhance Free use by the General Public.

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."

Prohibit fees for govinfo.gov.

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 all digital government information free.

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.

Current Law

The current law addresses fees and free access in three different sections of Title 44.

Section 1911 requires FDLP libraries to make government publications available for the free use of the general public.

Section 4102 allows GPO to recover its costs by charging the public fees for using what is currently called govinfo.gov.

Section 1708 allows GPO to sell government publications either directly or through "book dealers." In the past, GPO maintained its own brick-and-mortar bookstores, and still maintains the GPO bookstore Website.

Analysis

Our recommendation to change §1911 would simply modernize the text of the law to include digital information deposited in FDLP libraries. It makes it clear that FDLP libraries are required to make all government information that they receive through the depository system — including digital information — available for free to the general public. It retains the essential phrase “general public” thus ensuring that the FDLP is for everyone, not just the constituents of individual libraries.

Our recommendation for §4102; would ensure that govinfo.gov and its successors are always made available for free to the public. Currently, §4102 explicitly allows GPO to charge for access to the contents of govinfo.gov and even to the metadata that describes those documents (the “directory”). Our recommendation would remove the wording that allows charging for this service, would require GPO to offer this service for free, and would add the phrase “general public” to make Chapter 41 and GPO conform to the same requirement that FDLP libraries have in Chapter 19. This would give GPO’s current policy of free access the force of law. It would correct the uncertainty in the current law that allows GPO to decide to charge for online access. It provides additional protection for free access because even Congress could not make GPO charge for access without changing Title 44 again. This also fixes a problem in the current wording of the law that allows GPO to charge for access while also requiring it to provide free access to FDLP libraries. (This fee/free bifurcation was ultimately shown to be untenable when in the early to mid-1990s GPO charged fees for access but later dropped their subscription fees.1 )

Our recommendation to change §1708 would allow GPO to continue to sell paper and ink and other so-called “tangible” publications wholesale to retailers so that the retailers could sell them directly to the public. It would, however, prohibit GPO from commercializing any digital government information. Today, GPO sells ebooks (many of which are available without charge on the web2) through resellers such as Amazon and Barnes & Noble (Vance-Cooks). While it makes some sense for GPO to sell paper-and-ink books, it makes neither commercial nor policy sense to offer free digital documents for sale. Our recommended change would allow GPO to distribute digital documents for free through commercial vendors.

Effects of these changes

Making these changes would have several positive effects.

  • It ensures that all US government digital public information will be available for free to the general public by getting rid of conflicting, out-of-date wording that allows GPO to sell this information.
  • It makes free-access to digital government information the law, thus making it impossible for GPO to impose fees with a policy change.
  • It modernizes the law so that government information deposited in FDLP libraries through Chapter 19 and government information provided online by GPO through Chapter 41 are treated the same way: both are provided free to the general public.
  • It modernizes the language of Chapter 19 to ensure that FDLP libraries that build collections of digital FDLP information will offer those collections for free to the general public.

Footnotes

  1. When GPO launched the first incarnation of govinfo.gov, “GPO Access,” it charged the public for access while providing free access (as required by §4102) to FDLP libraries. This model failed and was abandoned after less than two years (GPO Press Release: “GPO Access Services Free as of December 1, 1995” and Relyea),
  2. See, for example, Public Papers of the Presidents of the United States, Barack Obama, 2009, Book 1 for sale at Barnes & Nobel and free at GPO.gov.

Endnotes

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