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Is ignorance of the law a design goal?

By: Scott Bradner

Carl Malamud is in the Times again. (http://www.nytimes.com/2008/09/29/business/media/29link.html?_r=1&scp=2&sq=Malamud&st=cse) Carl has been trying for many years to let you have Internet access to government documents that you supposedly are supposed to have access to. You now have Internet access to Federal court decisions, Securities and Exchange Commission documents, patent documents, congressional bills and copyright registrations. This was not the case all that long ago and you can thank Malamud for a lot of this access. But, far too many state and local governments seem not to get the concept that the public should have free access to the documents they need to go about their lives Malamud keeps working and getting into the press.

The article in the New York Times focuses on Malamud's current efforts to get all US laws as well as standards required by US law freely downloadable over the Internet. It seems Kafkaesque, but you do not have open access to some of the laws you are supposed to obey. Around half of US states claim copyright on the laws their legislatures are working on and pass. Too many use this claim to restrict public access to the laws - generally because they have worked out a deal with a private company to package up the laws with ostensibly useful additions then sell the result. So you can't find out what you must or must not do without paying for the privilege. The result is the same as it would be if those states wanted people to not know the law so that the state could always have someway to arrest its citizens with something. Progress is being made, even if slowly. (See http://public.resource.org/oregon.gov/)

Too many courts do the same with their decisions even though there have been court rulings going back to Banks v. Manchester (http://bulk.resource.org/courts.gov/c/US/128/128.US.244.html) in 1888 that say court decisions should be public. I've run into dead ends far too often when trying to track down a decision while researching for these columns.

Malamud is now worrying about another aspect of the same problem. Almost all of the time the codes that you are required by law to follow for safety, when building a house or designing produces are sold by the groups that create the codes. This is also a case of being told by the law that you must do, or not do, something but you can not find out what without paying for the information.

A few years ago this was the subject of a legal case in Texas (the Veeck case) which said that it was OK to post any codes that are mandated by law for free access. (http://bulk.resource.org/courts.gov/c/F3/293/293.F3d.791.99-40632.html) Malamud's organization (http://public.resource.org/) is busy posting codes from all over the country, much to the annoyance of the groups that develop and publish these codes. (See, for example, http://resource.org/bsc.ca.gov/index.html)

It is not just codes, like building or electrical codes, that get mandated by laws. Some laws mandate specific technical standards. The logic in the Veeck case would also apply in these cases. This is not a problem for the standards development organizations (SDOs) such as the IETF (http://www.ietf.org) and W3C (http// www.w3.org/), and now the ITU-T (http://www.itu.int/ITU-T/index.html) that make their technical standards available on the Internet for free but is a very big concern to the many SDOs that help pay for the operation of the organization with the money they get from selling their standards.

It will take time, but my money (or actually non-money, but he needs quite a bit more) is on Malamud - it's going to get progressively harder for public servants to keep the public from what they pay for and need to know.

disclaimer: Education at Harvard can be free (other than your time) for households with incomes up to $60K/year, and not all that expensive for households with incomes up to $120K/year but that does not mean it's cheap. But the university has not expressed an opinion on the need for free codes and standards so the above is my opinion.