Imagine this metaphorical scenario. You are cruising along a highway and you are pulled over by a police officer. You're not sure why you were stopped. The patrol officer approaches and gives the signal to roll down the window. You oblige. "How fast were you going?" the officer might ask after examining your license and registration. You answer honestly. "Do you know the speed limit on this highway?" might be the next question. Thinking it over, you realize that you do not know. For as long as you can recall driving along that stretch of highway, there were no signs anywhere indicating the speed limit. You don't know if you were speeding or not! You explain this to the officer, and he confirms your suspicion -- there are no speed limit signs on the road. In order to know the speed limit, he explains, you must purchase a highway law codebook. It costs $1000.
The officer proceeds to write you a speeding ticket.
Obviously, this scenario doesn't make much sense. If the law is to be understood and obeyed, it must be public information. How can we follow the law if we don't know what it is?
This is the astonishingly unfortunate reality for a large number of our nation's laws -- fire codes, building codes, electrical codes, food safety regulations, state and municipal codes and more. Obviously, there is a significant difference between highway laws and technical safety codes, but the root of the issue is the same -- the public must have ready access to the law. The "signs" must be in plain sight for all to see.
Many of these technical codes are drafted by nonprofit corporations, associated with industries, but are incorporated into law by local, state and federal governments -- they are, in effect, corporate laws enforced by the state. If you want to read these legally binding rules of law you must purchase them yearly for $1000 or more per copy. (In other cases, the laws are simply so dated or difficult to locate that the simple act of acquiring them creates significant obstacles to knowing your rights and obligations.)
The inability of citizens to know the law poses a very large problem in our democracy. To be informed of the law one needs free and easy access to it. What if dedicated citizens want to educate themselves and others on the many technical standards that govern the infrastructure we all regularly use? What if citizen watchdogs want to engage in debate on policy and regulation?
Fortunately, the Supreme Court has several times affirmed the obvious notion that the public law should be free and available to all. Relying on those decisions, the U.S. Court of Appeals in Veeck v. Southern Building Code Congress decided in 2002 that a building code incorporated into law belongs in the public domain. Supreme Court Justice Stephen Breyer even once said, "if a law isn't public, it isn't a law." Unfortunately, legal precedent has not stopped certain private organizations from fighting to keep their codes off the Internet, entangled by copyright law and out of the public's hands.
Public.Resource.Org is a nonprofit organization founded by the energetic Carl Malamud whose mission is, simply, to put the law online. Malamud's organization has had great success in locating and uploading many state, municipal and public safety codes to fulfill this purpose. Unfortunately, they have also had to endure threats of prosecution from certain state officials or Standards Development Organizations (SDOs) that still claim copyrights on the written law.
In testimony before the House Judiciary Committee last month, Carl Malamud said:
The ability to know the law -- to read the law -- is essential to the functioning of our democracy. But the principle goes even further. Citizens must have the right to speak the law. The First Amendment right to freedom of speech is imperiled if citizens are barred from freely communicating the provisions of the law. By the same token, equal protection of the laws and due process are jeopardized if some citizens can afford to purchase access to the laws that all of us are bound to obey -- with potential criminal penalties for non-compliance -- but others cannot. Access to justice should not require a Gold Card.
It is argued by certain SDOs -- the organizations that create and update regulatory codes -- that only "professionals" such as engineers, electricians, architects and plumbers possess the know-how to make use of these complicated technical standards. These professionals can afford to pay the high annual fees to stay up-to-date on codes. SDOs claim they need the revenue generated by selling their codes to continue doing their work.
Malamud points out in his testimony, however, that the CEOs of 10 leading SDOs make more each year than the President of the United States.
The NFPA [National Fire Protection Association], for example reported 2011 revenue of $80.7 million in 2011 and paid its non-profit CEO $1,044,035. ANSI [The American National Standards Institute] reported 2012 revenue of $36.5 million and paid its non-profit CEO $1,036,926 for 35 hours of work a week.
Clearly, SDOs are not struggling. They have many other ways to make money, such as membership dues, sales of manuals and training materials, and sale of standards that are not incorporated into law. In fact, the few SDOs that have made available on the internet their standards that have become law find that customers still want to buy hard copies from them. Many other organizations have had to update their business models to keep up with the advance of technology and mass access to information. It is likely that other SDO business models exist that would modernize the creation and upkeep of these technical standards in the digital age.
Malamud believes that Congressional action is needed to ensure the law is free and accessible to all citizens. He suggests an amendment to the Copyright Act of the United States, which would read as follows:
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
More than 100 law professors have endorsed this proposal.
In this era of overwhelming government secrecy, Congress should ensure, at the very least, that citizens have access to read, speak to and learn the many laws that govern their lives. It is a telling commentary that we even have to ask for such an obvious service.
(Autographed copies of my book Told You So: The Big Book of Weekly Columns are available from Politics and Prose, an independent book store in Washington D.C.)