May 16, 2012

Today, private organizations charge U.S. citizens hundreds of dollars simply to read a copy of standards they issue, standards that regulate things like gas pipeline safety, crane usage, and toy manufacturing — even though citizens are required to obey those standards, because the federal government has incorporated them into regulations. This adds up to tens of millions of dollars annually that businesses, consumers, even government officials must pay to receive copies of our own laws. It’s a ridiculous situation, and at last there’s a public fight over it. Tuesday that fight heated up.

At the suburban Maryland campus of the National Institute of Standards and Technology (NIST), government bureaucrats and well-paid executives from the private Standards Developing Organizations (SDOs) held a largely one-sided discussion. Some of the bureaucrats acknowledged the problems for our economy and our democracy of hiding many key provisions of our law behind expensive pay walls, when the Internet revolution gives us the power to make these laws immediately accessible and searchable online. (One official mentioned an aviation standard that sells for $40,000.) But these officials stressed that the solutions were complicated. The executives thundered back that no one should be threatening any aspect of a business model that has served them so well.

Meanwhile, on the other side of the country, Public.Resource.Org took action. Carl Malamud, founder of this non-profit group, which is one of my law clients, announced on Boing Boing that the group had posted 317 of these standards, most of them previously unavailable on the Net. Legal precedent supports our position — a line of judicial decisions hold that the law, including private standards incorporated into law, belong in the public domain and cannot be hidden behind copyright claims. To document the release of these standards, Malamud held an Internet town hall, joined by publisher Tim O’Reilly, Code for America head Jennifer Pahlka, and the 2012 Code for America fellows. You can watch the town hall here — it’s filled with enthusiasm for the vibrancy of our democracy and for a private sector that thrives on technological change and possibility.

Carl had asked that Public.Resource.Org be included on one of the panels at the NIST conference, but we weren’t. The five CEOs who spoke at the NIST meeting and complained that putting the law online would destroy their non-profit enterprises receive an average salary of $633,061. They were quite aggressive in their advocacy, yet their position indicates that they lack the confidence that they can adapt their businesses to the Internet, which, of course, is what thousands of other businesses have done. Republic Report filmed the NIST panel addressing this issue and, exclusively, you can watch it here — part 1 and part 2. It’s filled with gloom and doom, resignation, and semi-veiled threats.

The standards organizations do feel threatened, because reality is catching up with them. Recently, when real-world crises arose — the Gull oil spill, a California pipeline leak — government agencies, first responders, and advocacy groups were shocked to find that they couldn’t access the relevant governing standards without ordering them and writing a big check — an inefficient and dangerous state of affairs. Then Congress got in the act: A congressional committee wanted to read standards that are part of federal pipeline safety rules, and an SDO, the American Petroleum Institute, demanded $1,195 to read one document. In response, Congress passed a law prohibiting the government from issuing pipeline safety regulations that incorporate private standards, unless those standards are available for free on the Internet. While industry lobbyists immediately set to work to overturn this provision, some in Congress have discussed instead broadening it to cover other categories of standards.

The SDOs may lack the confidence that they can make a living in the Internet age, even though most of them already have multiple revenue streams and hefty incomes that permit hefty CEO salaries (as much as $2 million per year). They may not believe that they can keep motivating their member engineers and companies to keep developing valuable standards if those standards are not concealed behind paywalls, even though logic and business realities indicate otherwise. But I believe in these standards bodies, even if their CEOs don’t. Once they accept reality and come out of the dark ages, they, too, can thrive in the Internet era. And our country will be stronger once all of us can read the law without having to pay cash for it.

To learn more about these issues, read Public.Resource.Org’s letter to the White House’s Office of Management and Budget or this Business Week article.