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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 draft bill to reform Title 44 of the U.S. Code provides some much needed improvements over the current law. It explicitly requires GPO to follow existing privacy laws and would, for the first time, legally require GPO to preserve digital government information. It also removes the provision that allows GPO to charge for online access and requires GPO to offer “no-fee” access to its online repository.
Unfortunately, the bill leaves some big loopholes in these improvements. Some of these loopholes are explicit — such as allowing GPO to delete online information without providing any principles or guidelines or goals to achieve when it does so. Some others, especially in chapters 1 and 3, implicitly and negatively impact GPO’s continued functioning via the privatization of printing and other GPO functions which will slash GPO’s budget and cause it not to be able to do any of the FDLP improvements in chapter 5.
But the biggest flaw in the draft bill is that it puts the burden of digital preservation and access in the sole control of GPO. This “all eggs in one basket” approach to access and preservation is not just risky, it is dangerous — and we do not use that word lightly. The danger comes from failing to distribute the responsibility for preservation and control of the information to trusted partners outside the federal government.
There has been a vocal fear that the current Presidential administration might take important digital government information offline or even destroy it — see for example the recent report from the Environmental and Governance Initiative (EDGI). But the danger of that happening was made possible by the weakness in the model that puts all digital government information under the control of the government. With control centralized, access and preservation are vulnerable to policy changes, financial short-falls, and technical problems of that government. Central control of the information creates a single off-switch that can be tripped all too easily — intentionally or unintentionally. The bill does provide more obstacles to a nefarious or malicious government wishing to delete information, but it does not prevent it. In fact, the bill does not just maintain this single off-switch model that was developed more than 20 years ago. It takes it out of the temporary GPO policies where it resides today and writes it into the much-harder-to-change law of the land, the U.S. Code.
The bill has many good intentions. Virtually every section of Chapter 5 explicitly supports long-term free public access. It also expands the scope of the FDLP to include most of the information that the government distributes. We do not think the drafters of the bill intended to write a law that gives government an off-switch. Nor do we think they intended to draft a bill that endangers long-term preservation of government information. The problem is that the draft would clearly have these effects, regardless of the intentions of the drafters.
We know skeptics of our critique of the weaknesses of the bill will say This Can’t Happen Here. But it can. If Congress changes priorities or does not adequately fund GPO, we could lose access and even lose raw information. If you don’t believe that could happen, look at Title 2, Chapter 15, §472 of the U.S. Code. That is the law that established the Office of Technology Assessment. The law still exists, but the office has not existed since 1995 because Congress simply refuses to fund it. There is a long history of government information being privatized, withdrawn, and otherwise lost in the paper-and-ink world. And we have seen small examples such as our loss of access to GPO services for a week in 2009, and when NASA took its Technical Report Server offline for a week, or when Inspectors General disabled links that documented massive unauthorized spending, or when the Treasury Department scrubbed a techical paper from its website because it did not reflect department policy even though the site explicitly says that such papers are not intended to reflect department policy. As we write this today, GPO just announced that, if the government shuts down this weekend, it cannot ensure that all PURLs will work and that “Federal Register services on FDsys/govinfo will be limited to documents that protect life and property.” In the digital age, it is exponentially easier to lose government information when all it takes is the flick of a switch.
We live in uncertain times, particularly with regards to the role of government and the funding of government programs. Changing the law to require long-term free public access to government information is essential and this bill does that. But supporting a law that assumes that future Congresses and Presidents will fully fund long-term free public access to government information and will refrain from exercising the power to withdraw, redact, or hide information is not just short-sighted; it is being willfully blind to the present.
The solution to the weaknesses of the draft bill is actually simple. The solution is to truly modernize the FDLP to ensure that digital government information, just like paper government documents, are under the control of FDLP libraries in addition to GPO.
We have heard some argue that the bill does modernize the FDLP — by instructing GPO to provide for “digital deposit” as an “option.” It does indeed make digital deposit optional — optional and explicitly segregated from every aspect of the depository system defined everywhere else in the bill. Instead of integrating digital content into the depository system, the bill explicitly describes Selective and Regional FDLP libraries as receiving only “tangible” materials. Instead of describing a depository system in which digital and tangible content are treated equally, the bill goes to great lengths to repeatedly segregate responsibility for “tangible” items (FDLs) from the responsibility for digital content (GPO). If FDLs are to share responsibility for digital content with GPO, the law must integrate that role rather than segregate it as the draft bill does. Our suggestions for changes do just that by making all digital content just as selectable as all paper content.
The good news is we can do all this with small changes to the bill — changes that actually simplify the language of the bill. The small changes that we recommend can ensure that those apparent good intentions of the drafters of the bill will be fulfilled regardless of policy or economic or technical problems in the future.
In the attached document, we suggest specific changes to the draft bill (highlighted text) and provide comments (blue text) explaining them and how they will help. The changes we suggest focus only on Chapter 5, the FDLP chapter of the bill. (We have heard that, because the other chapters of the bill have garnered so much opposition, a bill with just Chapter 5 may be introduced.)
We know that many of our colleagues have hoped for changes that would make the FDLP more “flexible” and that would maintain or increase the number of participating libraries. We believe that such changes should be tactics, not goals, and should be used only if they actually help ensure preservation and long-term free public access. That is why we focus our recommendations around 4 principles: Privacy, Preservation, Free Access and Free Use, and Modernizing the scope of information covered by Title 44. The changes that we recommend do provide FDLs and GPO with more flexibility while focusing on the needs of users. The modernized FDLP we describe will, we think, provide more value to users and therefore more incentives for libraries to remain part of or join the FDLP community.
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
[Editor’s note: Bernadine Abbott Hoduski has generously contributed the following article about the proposal to abolish the Joint Committee on Printing in the draft bill to reform Title 44 of the U.S. Code. No one is better placed to help us understand the importance of the JCP. She is a (retired) Professional Staff Member of the Congressional Joint Committee on Printing (21 years), the author of “Lobbying for Libraries and the Public’s Access to Government Information”, Rowman Publishing, ISBN 0-8108-4585-7, a former depository librarian, a member of the Depository Library Council to the Public Printer from 1973 to 1974, and one of the founders of the ALA Government Documents Round Table.]
THE CONGRESSIONAL JOINT COMMITTEE ON PRINTING (JCP) SHOULD BE KEPT AS THE NATION’S GUARDIAN OF PUBLIC ACCESS TO FEDERAL GOVERNMENT PUBLICATIONS AND INFORMATION
by Bernadine Abbott Hoduski
It is time for the biennial survey of FDLP libraries and, therefore, a good time to review “digital deposit.”
Digital deposit is a very simple concept: It simply means that GPO should treat digital and non-digital government information the same way. In so doing, GPO would allow FDLP libraries to select digital government information and GPO would deposit that digital information with the library. Libraries could then build their own digital collections and provide their own digital services for those collections. This is completely different from GPO’s definition of “online depositories” that point to, but do not have, digital files. In the digital deposit scenario, libraries would continue to be depositories regardless of format. 
Over the last twelve years, GPO has asked questions on the the biennial surveys that reveal meaningful FDLP library interest in digital deposit. GPO did not ask the same question on every survey and this makes it difficult to compare results over time. In spite of this, the responses from the FDLP community were remarkably consistent.
For example, when asked (in various ways) if libraries were interested in receiving files via digital deposit, hundreds of FDLP libraries consistently said they were interested: 394 in 2005, 453 in 2007, 416 in 2009, and 300 in 2015. (See the Appendix, below, for the details of all the numbers quoted in this post.)
UPDATE 10/25/17: Our slides and notes are now up. You can view them in Google slides (go into the settings to view both the slides and speaker notes) or if you prefer, you can download the powerpoint slides + notes or as PDF+notes (smaller file) directly from us! And here’s the link to the audio recording.
Tune in tomorrow at 2pm EST for the FGI Webinar “Disappearing govt information” (our actual title will be “Government information: everywhere and nowhere”) to GPLNE – Government Publications of New England tomorrow 10/24 @ 2pm EST. You can log in to the public link hosted by GPO. We’ll be sure to post the slides, notes and audio here as soon as they’re available.