Title 44 (Chpt 29) News: Electronic Message Preservation
As we have seen through the conflict and problems of preserving White House e-mail, the law has not kept up with preservation of electronic messages.
A bill (H.R.5811, "The Electronic Message Preservation Act") moving through Congress would address the problems by adding a new Section 2911 to Title 44, Chapter 29. It would require the electronic capture, management, and preservation of electronic records, require that they be readily accessible for retrieval through electronic searches, and would establish mandatory minimum functional requirements for electronic records management systems to ensure compliance with the requirements.
The Bush administration is threatening a veto:
White House Threatens To Veto House E-Mail Storage Bill, By Dan Friedman, CongressDaily, Jul 9, 2008 (subscription required, but freely available here).
The White House and officials at the National Archives and Records Administration (NARA) argue that the law gives NARA new responsibility and expands the agency's job from advice to oversight, but the sponsors of the bill say that it only affirms the National Archives' job of advising the White House on record-keeping.
The CongressDaily articles notes that:
A less-discussed but farther-reaching part of the bill updates the Federal Records Act to require federal agencies, also under standards set by the National Archives, to save all e-mail records electronically and create systems to allow electronic searches. According to GAO and a committee report, most agencies now use "print and file" records systems for keeping e-mail, many of them spotty.
(See National Archives and Selected Agencies Need to Strengthen E-Mail Management, United States Government Accountability Office, GAO-08-742 June 13, 2008.)
A comment in the Committee Report (House Report 110-709, "Electronic Message Preservation Act" 110th Congress 2d Session, June 11, 2008) says:
To make federal agencies comply, I believe this legislation should include enforceable repercussion language. Ms. Patricia McDermott of OpenTheGovernment.org suggests this is the only way to make federal agencies comply with the Federal Records Act. Ms. McDermott states that she does not "think anyone has ever been prosecuted for destroying, much less failing to preserve federal records." Just ask former Clinton EPA Director Carol Browner. She supposedly oversaw the destruction of her computer files in violation of a judge's order requiring the agency to preserve its records.Continue reading
Access to EU Documents – Some Good News….
[cross posted on LegalResearchPlus] On July 1st, the Court of Justice for the European Communities issued a judgement on access to legal opinions and it offers good news. (Judgment of the Court of Justice in two joined cases C-39/05 P & C-52/05 P, Sweden and Turco v Council and Others, July 1, 2008): The headline on the court's press release reads: THE COURT AUTHORISES, IN PRINCIPLE, ACCESS TO LEGAL ADVICE GIVEN TO THE COUNCIL ON LEGISLATIVE QUESTIONS [bold text appeared in release]. The press release of the Court also states:
The Court takes the view that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases transparency and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act.
The Court concludes that Regulation No 1049/2001 imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process. There are, however, exceptions to that principle as regards opinions given in the context of a legislative process, but being of a particularly sensitive nature or having a wide scope that goes beyond the context of the legislative process. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal.
For excellent analysis and updates on this topic, check out the Statewatch Observatory on Access to EU Documents.
Continue readingDigital Divide and E-Government
The Pew Internet and American Life Project has a new survey Home Broadband Adoption 2008 (PDF, 31 pages) that says "Adoption stalls for low-income Americans even as many broadband users opt for premium services that give them more speed." NextGov looks at the report in relation to e-government initiatives. (E-Government's Tough Nut, by Allan Holmes, Tech Insider NextGov, July 3, 2008.) Some of the problems for a government wanting to interact with citizens online is that many citizens cannot or will not be able to do so. The articles picks the relevant statistics from the Pew report: the percentage of low-income Americans who have a broadband Internet connection dropped from 28 percent to 25 percent; of those that use the slower dial-up connections, almost two-thirds said they had no desire to change to broadband; 27 percent of Americans have no Internet access, with most of those being either elderly or low-income; only 10 percent of the non-Internet users have any desire to become wired. As Holmes says:
These are the hard-core resisters - and there are millions of them. That means if government wants to move ahead with providing more electronic services - including services that may require faster and more robust connections that broadband provides - a large portion of Americans may just not care. And these resisters are exactly the demographics that government tends to serve.Continue reading
GPO’s draft regional libraries report and FGI comments
A few weeks ago, the Government Printing Office released their draft report entitled, Regional Depository Libraries in the 21st Century: A Time for Change? and asked for comments until June 30. I'm not sure how many comments they received, but wanted to publish comments we submitted. Lynne Bradley, Director American Library Association Washington Office, DID submit comments that were endorsed by the Association of College & Research Libraries (ACRL), the Association for Library Collections & Technical Services (ALCTS), and the Government Documents Roundtable (GODORT). GODORT republished Ms. Bradley's letter on their wiki. While we are in general agreement with ALA's letter calling for increased flexibility of Title 44 (*not* wholesale changes in the title) and increased appropriations for GPO initiatives and "regional depository libraries to help offset the costs of storing and preserving government property," our comments deal with the more philosophical issues embedded in the draft report. Please let us know what you think.
I. Delete from the report all uses of the adjective "legacy" when referring to collections. The use of the word "legacy" as an adjective comes from computer science and is used to indicate things that are "outdated" and "undesirable." When the report uses the phrase "legacy collections" it implies that it is referring to unwanted and outdated collections. (The report uses "legacy" as an adjective in only one other context: in its reference to sections 1911 and 1912 of Title 44 USC as "Legacy Sections" -- apparently in order to define these section as out of date and undesirable.) Thus, the use of the phrase "legacy collections" is either inaccurate and misleading, or imprecise. In its place GPO should use phrases that accurately describe the collections it wishes to discuss. For example, in place of "legacy collections" the report could uses phrases such as "collections without adequate bibliographic records" or "collections of print materials" or "collections without digital equivalents" or other phrases that accurately describe the collections GPO is referring to. If GPO does wish to refer to unwanted out of date materials it should describe them that way explicitly rather than use the term "legacy." II. The report should more explicitly and accurately address the difference between roles and responsibilities that are legally mandated and those that have been assumed without a legal mandate. Specifically, we object to the following sentences of the report (Section V.B. pages 16-17) that gloss over these differences. (These sentences refer to Public Law 103-40, The Government Printing Office Electronic Information Access Enhancement Act of 1993.)Continue readingThe implementation of the GPO Access Act ushered GPO into the online age and accelerated the paradigm shift in the FDLP that changed GPO’s relationship with depository libraries. Regional depositories have the responsibility for permanent public access in the tangible publication environment. In the online information environment GPO has assumed primary responsibility for ensuring content and permanent public access. [emphasis added]We suggest the following wording instead:While the GPO Access Act specifically required GPO to "provide a system of online access" and to "operate an electronic storage facility for Federal electronic information," it did not specify any change in the roles of the depository libraries. It added new roles for GPO, but did not reduce, alter, or delete the roles of depository libraries. Since 1993, Congress has consistently provided funds to GPO for the "distribution" of government publications to designated depository libraries. This wording was carefully chosen. In 2000 the House attempted to substitute the wording "on-line access" for "distribution," but that language was rejected. Nevertheless, GPO has chosen to implement this law in a way that is shifting the relationship between GPO and depository libraries. GPO has chosen to assume responsibility for permanent public access to digital materials and has chosen not to offer digital deposit as an option to FDLP libraries. This has resulted in a paradigm shift in access, preservation, and service within the FDLP. Instead of relying on FDLP libraries and their different locations, funding, and technological infrastructures, GPO has chosen to implement policies a) that do not "distribute" digital objects to FDLP libraries, b) that make it difficult for FDLP libraries to build local digital collections, and c) that create a preservation system that depends on a single centralized collection with a single funding source. While these choices seemed appropriate 15 years ago, much has changed over the years. Many libraries are developing institutional repositories and other digital collections. In a survey in August of 2005, 85% of responding FDLP libraries expressed "high" or "very high" interest in being able to "pull" content from GPO and 65% were equally interested in GPO "pushing" digital content to FDLP libraries. In the current survey of Regionals, 52% expressed a willingness to receive digital files on deposit. Commercial and open source software for managing digital collections is now widely available. As we look at new models and roles for FDLP libraries, we need to consider true digital deposit as a viable and important option. We need to look beyond the now-old model of relying solely on GPO having primary responsibility for ensuring content and permanent public access.
FISA amendments vote on July 8: dump telecom retroactive immunity!!
As you know, we've been following the FISA and telecom immunity debate for some time. It's a particularly hot topic in this political season and the House just passed a compromise (compromised?) version of the FISA reform bill that would give telecom companies immunity from prosecution for their complicity and cooperation with the Bush Administration with its efforts to bolster intelligence gathering and surveillance without going through the FISA courts as the law states that they should. Senator Barack Obama has gotten in a lot of hot water recently from his own supporters when he decided to support the current version of the bill which includes telecom immunity -- after he had said he would not support telecom immunity and *would* support a filibuster if immunity was included. And today, Nancy Soderberg, former deputy national security advisor and an ambassador to the United Nations in the Clinton administration, wrote an Op-Ed in the Los Angeles Times defending the FISA bill and telecom amnesty -- calling it a "good-enough spy law." The odd thing about Soderberg's piece is that she admits that the administration's end-run around FISA WAS NOT LAWFUL. But she still thinks the telecom companies should be protected from law suits because they "are not the ones to blame for that abuse of presidential power." Huh? I just don't get this line of reasoning at all. Protecting these companies from litigation falls under one of the 14 points of fascism defined by Laurence Britt ("Corporate Power is Protected"). Is this what this country has become? Glenn Greenwald, one of the best and most thorough journalists working today, has nailed this one in his Salon.com piece, "The political establishment and telecom immunity -- why it matters":
Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren't only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That's why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here.I urge everyone to contact your Senators and tell them to reject telecom immunity in HR6304 FISA Amendments Act of 2008 and to support the Dodd-Feingold-Leahy amendment (S.A.5064) to be voted on on Tuesday, July 8th that will strip out telecom immunity.