The so-called FDLP Modernization Act of 2018 (H.R.5305) corrects many of the flaws of the 1993 law. It catches the law up to what it should have been in 1993 and conforms to current GPO practice. Specifically, it requires GPO to provide free access to digital content; it requires GPO to have a program of digital preservation; it changes the scope of GPO and FDLP with new definitions of “Information Dissemination Products” (IDPs) — a term used by OMB since 1996; and it requires GPO to abide by existing privacy laws (going back to 1974 and 2002).
These are welcome improvements, but they fall short of “modernizing” the law to the conditions of 2018 and beyond. A few small changes can go a long way to truly modernizing the law. These changes will create a collaborative, digital FDLP; guarantee long-term, no-fee access to government information insulated from federal political and economic pressures; and enhance services to users.
The attached document (HR5305-suggested-changes.rtf) shows our suggestions. [Just load the .rtf formatted document into your favorite word processor and use its track-changes feature to see additions and deletions we suggest.] Below, we describe and explain the changes we suggest.
Explanations of Suggested Changes
Ensuring preservation and access of the National Collection
As the bill is written, IDPs can be part of the National Collection (NC) but not be in the physical control of GPO or FDLP for preservation and access. This is a mistake because such IDPs would lack the legal mandate for preservation and no-fee access that the revised Title 44 would provide.
We suggest changes that correct this. Here are some specific examples of some of the changes we suggest and why we suggest them:
- As written, the bill includes in the NC digital content that is on agency websites and otherwise not in the possession or control of GPO/FDLP. The changes we suggest narrow the definition of the NC to those IDPs in the possession and control of GPO/FDLP. This will make it clear what is being preserved and what is not.
- We suggest wording to make it clear that The Catalog will contain references to “fugitives” – which are defined as content not yet brought into the possession and control of the NC. This will help users and librarians identify those items that need to be brought under control.
- Section 1746 on Preservation Depository Libraries (PDLs) makes no reference to access. We change that so that the guarantees of permanent no-fee access provided by GPO/FDLP (in subchapters C and D) include those IDPs in the PDLs and “other entities” described in section 1746.
- We suggest changing the definition of “trustworthy information system” to simply conform to the OAIS standard. We also suggest a change to the section that describes what to do if GPO’s online repository becomes unavailable (1724(c)); we suggest simply requiring the Director to have a current OAIS-compatible “succession plan” in place.
- Since the bill writes into law GPO’s digitize and discard policy (SOD 2016-3) and weakens it by removing any requirement for minimum number of copies and libraries, we suggest adding a simple one-time research report requirement before initiating discard policies. (Other report requirements are in section 1766, but we suggest this report in a new section: 1745(c)).
We suggest strengthening the privacy clause to prohibit the use of third-party technologies. Existing law does a pretty good job of prohibiting the government from tracking user-behavior, but it does not prohibit the use of third-party technologies which are common in most web sites today. Such technologies are used for measuring activities and “personalization” but they have the side-effect of allowing those third parties (commercial companies such as Facebook and Google) to have access to information about what government information individuals are using. Currently, GPO is not using such technologies, so this would not impose any burden.
We suggest language that would permit GPO to sell “tangible” IDPs, but would not allow it to sell any digital IDPs that it provides for free through its online repository or FDLP. Since such documents are already freely available, this would benefit users rather than penalize them.
We suggest adding a section (1722(g)) that directs OMB to promulgate rules for agency compliance with Title 44 (e.g., by updating Circular A-130 with input from SuDoc). We realize that adding an OMB requirement to the bill will most likely necessitate its being referred to another committee and lessening its chance of passage. But raising the issue of stronger compliance by executive agencies in this mark-up phase will be useful in other ways. For example, agency compliance may be noted in the committee report and will kickstart the GPO regulatory process post-passage of the bill.
We suggest language that simply treats all content, regardless of form or format or media, equally in terms of deposit. This corrects the bill’s incorporation of GPO’s out-of-date, restrictive, paper-based definition of depositories (SOD 301).
We suggest language that makes it clear that “depository” libraries are those that receive content by deposit.
The bill contains a “special rule for incompatible formats” (1722(b)) that permits GPO to exclude content by limiting the formats of what it can ingest. The bill does not require GPO to keep track of or adapt to changes in born-digital formats. We suggest adding language in 1722(a) and 1731(a) that directs GPO to actively address changing technologies (e.g., databases) used by agencies to create born-digital IDPs.
We suggest adding language that directs GPO to take into account the views and needs of users as well as libraries when crafting policies.
James A. Jacobs
James R. Jacobs
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