Breaking the Law, by Reading It


The United States continues to keep some of its most important laws behind a paywall. Many of the US’ public safety standards must be paid for before you can even know what they are, after being developed in partnership with private standards developing organizations (SDOs). This is accomplished through “incorporation by reference”, where public law refers the reader to a private booklet and says you have to do whatever the booklet says.

For example, just following core occupational workplace safety regulations requires buying around 200 different standards documents. The law is kind enough to give you the addresses and telephone numbers to reach the people who will sell you the rest of it.

These standards are critical, and everywhere. Making oil drilling safety standards public was a part of how the United States responded to the BP oil spill of 2010. The Pipeline Safety Act mandates the Pipeline and Hazardous Materials Safety Administration (PHSMA) make any rules incorporated by reference publicly available for free. PHSMA is extremely unhappy with this new rule.

The SDOs’ justification for the practice of selling their standards is that developing these rules costs substantial money and resources, and the only way to make this work sustainable is to copyright and sell the results.

Carl Malamud has been this line of argument’s most visible opponent. In early 2012, he bought over $7,000 worth of incorporated standards, copied them, and mailed them back to the standards bodies with a request for comments and a notice that he’d be publishing them online. In his words:

All nonprofits need money and SDOs are no exception. But, no matter how you slice the cheese, you can’t do this on the backs of the informed citizenry. Access to the law is a fundamental legal right.

At the same time, the Office of the Federal Register issued their own request for comments on whether all private rules should be free to the public. The RFC was in direct response to a petition for such public access, submitted by Peter Strauss and signed by Carl Malamud as well as a number of law professors and lawyers.

This notice drew out well over 100 replies over an extended 100-day docket, including many from private industry organizations defending their revenue model and right to copyright over the rules. Even the national Chamber of Commerce rang in to oppose the proposed changes. On the other side, various citizens rang in to support access – from architect to web developer to local library board chairman to medical practices scholar.

Peter Strauss, the petition’s coordinator, argues in his first comment that the Office of the Federal Register itself is hostile to the petition. He says OFR distorts the letter and intention of their petition by excluding the petition’s proposed regulatory text, and by slanting its own questions in its Request. The OFR opens by asking whether providing additional regulations online creates “a digital divide by excluding people without Internet access”. Strauss points out that this question is so absurd as to be astonishing, especially given and the many other government programs dedicated to online public access.

Whether the Office of the Federal Register hates the idea or not, there’s been no followup since the comment period closed. And in the meantime, Carl Malamud, after posting nearly 1,000 US federal standards online, has been threatened with legal action over one of them. It’s not the first takedown notice he’s received, but it’s the first one where the standards body responded with a confident, detailed legal rebuttal to Malamud’s arguments. So now it’s going to court.

Whatever happens in court, the moral lines are clear: if we’re obliged to follow a law, we have to be able to read the law. And today, for something to be publicly available means it has to be online. Business models that depend on controlling access to the law must adapt — to not do so is a failure of imagination, and an injustice to the public.