The TARP Transaction Reports, which contain detailed information on the government’s Wall Street bailout, are available in PDF format going back to November 2008. Only now are they being published online in a much more useful spreadsheet format, known as XLSX, thanks to President Obama’s Open Government Directive. The Report accompanying the Directive lauds the release of these weekly transaction reports as “improving transparency of federal bank supervisory activities as well as the investment activities of financial institutions.”
- Clearly cite Financialstability.gov on all reuses of data accessed or retrieved from Financialstability.gov,
- Clearly state that neither Financialstability.gov nor the U.S. Government vouches for the data or analyses derived from the data after it has been retrieved from the website.
Users who refuse to click “accept” are not permitted to download the data.
Rationale for releasing the data
The rationale for releasing the data, according to the Open Government Directive, is to “break down barriers to transparency, participation, and collaboration between the federal government and the people it is to serve.” The availability of the data thus far — in PDF format only — has facilitated clever efforts, like those undertaken by SubsidyScope*, to investigate and analyze how TARP money is being used.
Federal law and government data
Nevertheless, the government asserts that it has the right to control how the data is used, with terms changeable at its whim. It does so by creating a contract of adhesion: the user has no opportunity to negotiate over the terms of the contract. Essentially, the government has created an “end user license agreement” more typically used by software companies.
I do not know if this is legally permissible. The data is in the public domain; can the government retain control? This raises serious questions, and goes against the spirit behind both the Open Government Directive and copyright law’s government information exception.
Also, there are questions of enforceability. For example, suppose user Adam downloads the file and posts it to his website. User Bob then copies the file off of Adam’s website and transforms it. Is Bob bound by the government’s restrictions on Adam? Under the current terms, Adam should require Bob to cite Financialstability.gov, but that’s about it. This is silly, and creates unnecessary confusion.
This restriction on data use is foolish
My best guess is that the government may be authenticating the PDF files, but not the spreadsheets. The authentication would allow users to know the “provenance” of the information, in a similar fashion to how art dealers verify the authenticity of paintings.
If this is the reason behind the restrictions, it is unnecessary. The government could authenticate the spreadsheet data, just like the PDFs, obviating the need for the terms of service. Or, if it chooses not to authenticate the data in spreadsheet format, a simple warning or note to the user would be sufficient. The restrictions on the use of the data go far beyond that necessary for authentication.
Setting a precedent
In the coming weeks and months, the government will likely make available a tremendous amount of data to the public in formats that encourage the use, analysis, and transformation of the underlying data. This term of use agreement is unwise from a policy perspective, but hundreds of term of use agreements would be a disaster for open government. The administration should set consistent policies that address the questions of authentication, the needs of the agencies to avoid liability for disclosures (if any liability exists), and most importantly ensures the broadest possible public access to the information. And it should do so in consultation with the public.
December 9, 2009
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* SubsidyScope is an initiative of The Pew Charitable Trusts’ Economic Policy Group, in conjunction with the Sunlight Foundation, its research and technology partner.