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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.

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

Strengthening Title 44 part 1: Modernize definition of “publications.”

Modernizing the FDLP

We recently made several recommendations for strengthening Title 44 of the U.S. Code. In a new series of posts, we will explain the reasoning behind each of those recommendations.

Our first recommendation suggests how a very simple change to Title 44 would modernize the FDLP for the digital age and explicitly broaden its scope beyond paper "publications."

Recommendation

Modernize definition of “publications.”

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).”

Current Law

Title 44 §1901 currently defines the term "government publication”"

“Government publication” as used in this chapter, means informational matter which is published as an individual document at Government expense, or as required by law.”

This definition was useful in defining the scope of the FDLP in the print age and useful when Congress wanted to require "publication" of government information. But, in the digital age, both uses are out of date.

Analysis

The U.S.Code and the Office of Management and Budget define different categories of government information. Perhaps most familiar to government information specialists are the categories of "records" and "publications." But these are just two of six categories — each one narrower than the one above it. The six categories are defined in OMB Circular A-130 (pp. 26‑37).

  • Information
    • Federal Information
      • Records
        • Public Information
          • Information dissemination product
            • Government Publication

We suggest that the most appropriate definition to use in §1901 is "Public Information," which is defined in Chapter 35 of Title 44:

The term "public information" means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.

This definition (which includes information that is disclosed, disseminated or made available to the public) is broader than “information dissemination product” (which only includes information that is “disseminated”) and broader than “government publication” (which only includes information that is “published as an individual document”). It is narrower than "records."

Using "Public Information" instead of "government publication" in §1901, would broaden the scope of FDLP. Once an agency has disclosed, disseminated, or made information available to the public, it would be in the purview of FDLP.

This definition is appropriate in the digital age for two reasons. First, it updates the outdated limitation of "published as an individual document," which was precise for the print age, but is imprecise and limiting in the digital age of dynamic web pages, e-government services, multi-part PDFs, audio-video presentations, databases, etc. Second, it encompasses all "Federal Information" that an agency has made public — regardless of the form, format, circumstances, or methods of disclosure or dissemination.

Effects

Changing §1901 to cover all "public information" instead of just "government publications" would have several positive effects:

  • It would make "Records" released under FOIA disclosures subject to permanent preservation and access in the FDLP.
  • It would give GPO (or even individual FDLP libraries) a legal mandate to gather, harvest, receive, or otherwise ingest any federal government information that agencies put on the web.
  • It would oblige OMB to update Circular A-130 “Management of Federal Information Resources” to match this definition. Circular A-130 already says that agencies have a responsibility to provide information to the public and that they can do so by making “government publications” available to depository libraries through GPO regardless of format pursuant to 44 U.S.C. Chapter 19. The new definition would provide OMB an opportunity to create a requirement for agencies to have Information Management Plans and to suggest they can fulfill their responsibility for preservation by deposit of their public information with GPO and FDLP libraries.
  • Perhaps most importantly, it would broaden the definition sufficiently to include data and databases that contain public information but are only "disseminated" through e-government services (such as dynamic web pages). This would solve the problem of hard-to harvest websites by getting raw data suitable for preservation, reuse, and repurposing into FDLP.
  • It would broaden the responsibility of the FDLP and make it easier for GPO and FDLP libraries to meet those responsibilities jointly through the existing, long-established, legally-mandated partnerships of Chapter 19.

Endnotes

Reading between the tea leaves: more about revising Title 44

More about revising Title 44

We learned a bit more about GPO’s intentions with regard to revising Title 44 when GPO Director Davita Vance-Cooks testified at a Hearing of the Committee on House Administration on July 18, 2017.


Hearing, July 18, 2017

In June, Vance-Cooks asked the Depository Library Council (DLC) to make recommendations for changes to Chapter 19 of Title 44 of the U.S. Code. As we wrote earlier, GPO’s announcement was troubling because it was so vague and because it opens up the law to changes that could erode FDLP and free public access to government information.

Because it appears that either GPO or the Committee on House Administration or both are committed to changing Title 44, we have already suggested changes that would conform to Principles of Free Public Access in the Digital Age.

Today we report on the July 18 hearing and present our analysis of it.

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