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Back in May, we posted about the Obama Administration’s executive order on open government data and cited Govtrack.us‘s Josh Tauberer’s analysis of the Executive Order as missing the mark and being confused — if not downright misleading — about “open licensing.”
Now Tauberer, along with Eric Mill, Jonathan Gray, Ellen Miller, and Joseph Lorenzo Hall — in discussion with others like Gavin Baker, Timothy Vollmer and Puneet Kishor and with endorsements from the Sunlight Foundation and the Center for Democracy & Technology — have written their guidance on how Federal agencies can make their data “license-free.” Their guidance includes language for Federal agencies to affix to their data publications so that they meet the criteria of a “license-free” principle.
The wording of Tauberer et al’s guidance clearly states that government information, including government-published data, clearly falls within the public domain. But what’s even better is that their guidance includes suggested wording a) putting government data in the public domain internationally; and b) having contractors waive copyright and related rights in the work worldwide through the CC0 1.0 Universal public domain dedication.
As I wrote previously, the memorandum was confusing, if not misleading, by asking agencies to implement the “no restrictions” policy using “open licensing.” The term “open licensing” was improper for two reasons:
First, you can’t license what you don’t own. Most federal government data is in the public domain, and this data is born “license-free.” The memorandum should have been clearer by explicitly directing the policy toward data created in the performance of a contract, which is often subject to copyright protection. (h/t Gavin Baker for the concise way to word that.)
Second, “open licensing” does not mean the same thing as “no restrictions.” Almost every standard open license is “some rights reserved,” meaning some privileges are granted but other rights in the work are retained. Copyright protection is precisely how the terms of these licenses are enforced. The GPL’s so-called virality clause and Creative Commons’s attribution licenses rely on the threat of a copyright infringement lawsuit to enforce their requirements for reuse.
If the memorandum really meant “no restrictions” the best way to accomplish that is not through an open license but rather the CC0 public domain dedication, as we’ve used in our guidance.
What’s the bottom line? Our guidance does not say that all government data must be open and license-free, nor do we attempt to say which government data should be open and license-free. We recognize the practicalities of contract work. However we strongly suggest that license-free become the norm, and we are providing tools for agencies to achieve that.
Yesterday, President Obama issued an executive order on classified national security information that declared that “No information may remain classified indefinitely.” The order is “part of a sweeping overhaul of the executive branch’s system for protecting classified national security information,” which includes overturning Executive Order 13292 of March 25, 2003. That order, put in place by President George W. Bush, allowed the leader of the intelligence community to veto decisions by an interagency panel to declassify information. This order also establishes a new National Declassification Center at the National Archives (sec3.7) which, according to the AP is expected to speed the declassification of “more than 400 million pages of Cold War-era documents” that are currently backlogged.
[Thanks Think Progress!]
A new CRS report analyzes President Obama’s Executive Order 13489, which rescinds President G.W. Bush’s E.O. 13233.
- Presidential Records: Issues for the 111th Congress, by Wendy R. Ginsberg, Congressional Research Service, R40238, February 17, 2009.
On his first full day in office, President Barack Obama issued an executive order (E.O. 13489), rescinding E.O. 13233, changing substantially the presidential record preservation policies promulgated by the George W. Bush Administration. E.O. 13489 grants the incumbent President and the relevant former Presidents 30 days to review records prior to their being released to the public. Under the policies of the Bush Administration, the incumbent President, former Presidents, former Vice Presidents, and their designees were granted broad authority to deny access to presidential documents or to delay their release indefinitely. Moreover, former Presidents had 90 days to review whether requested documents should be released.
Prior to President Obama’s issuance of E.O. 13489, legislation was introduced in the 111th Congress (H.R. 35) that would statutorily rescind the executive order (E.O. 13233) issued by former President George W. Bush. E.O. 13233 allowed the incumbent President—as well as former Presidents whose records were affected—to withhold from public disclosure the records of former Presidents and Vice Presidents or to delay their release indefinitely under claims of executive privilege. In addition to statutorily overturning E.O. 13233, H.R. 35 would reduce the time a President would have review his records prior to their public release.
This report will analyze President Barack Obama’s E.O. 13489, and discuss its departure from the policies of the previous administration. Additionally, this report will examine H.R. 35 and its possible legislative effects on the presidential records policies of the Obama Administration.
According to the National Coalition for History, President Obama Revokes Bush Presidential Records Executive Order.
The press release from the White House says the following:
“The Executive Order on Presidential Records brings those principles to presidential records by giving the American people greater access to these historic documents. This order ends the practice of having others besides the President assert executive privilege for records after an administration ends. Now, only the President will have that power, limiting its potential for abuse. And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.”
UPDATE: Here is more: On Day One, Obama Overturns Era of White House Secrecy, By Mark Fitzgerald, Editor and Publisher, January 21, 2009.
In his first full day in office, President Barack Obama issued a memorandum ordering government agencies to examine Freedom of Information Act (FOIA) requests with a bias toward release of the documents — overturning eight years of a Bush administration directives to find ways not to disclose information.
“For a long time now there’s been too much secrecy in this city,” Obama said. “The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.”
The Dallas Morning News recently published quite a thorough article about the controversy surrounding Southern Methodist University (SMU) and their proposal to build/host the George W. Bush Presidential Library and policy institute. In a growing storm, the Society of American Archivists (SAA) has called on the University to reject the Bush library “unless the administration reverses an executive order that gives former presidents and their heirs the right to keep White House papers secret in perpetuity.” Especially worrisome for SAA and other library and academic groups is a provision allowing a president’s heirs to assert claims of executive privilege after his death, with no time limit.
SMU finds itself in the middle of a high-stakes battle for access to presidential records. After Bush signed Executive Order 13233, a still-pending lawsuit was brought by a group including the Society of American Archivists, watchdog group Public Citizen, the American Historical Association, the Organization of American Historians, the Reporters Committee for Freedom of the Press and the American Political Science Association.
Please read to the end of the article, as it includes a concise description of the Presidential Records Act and how it was changed by the Bush EO.
“SMU pressed to fight Bush’s secrecy.” The Dallas Morning News. Monday, February 5, 2007. Todd J. Gillman.