(Ed. Note: This is an all-in-one version of our three-part series on accessibility, openness, and how technology can improve both for the law.)
On January 20, 2017, thousands of protestors descended on Washington D.C. in response to the inauguration of Donald Trump. During these protests, six journalists were arrested and charged with felonies pursuant to Washington D.C.’s anti-rioting laws. According to the Guardian, they faced up to ten years in prison and fines up to $25,000. Stating these penalties as part of the story is par for the course. But the Guardian took it one step further. They made it easy for readers to see the law themselves instead of taking the reporters at face value. What did the reporters do? They added a link directly to the relevant portion of the D.C. Code.
This sounds pedestrian of course. In the internet age, why wouldn’t you link directly to the law? You should be able to link to anything. And while you’re at it, you should be able to scan it, print it, turn it into poetry, and send it to your Uncle Bob. But this assumes you can get access to an accurate version of the law to link to. And it also assumes that once you get access to it, you’re allowed to link to it. When it comes to the law, it turns out, it’s not safe to make either assumption.
This is just the tip of a very concerning iceberg. The law is often not accessible or open. Being able to get the law you need and then use it in the way you need is a presumption underlying our civil society and system of justice. For citizens, it is fundamental to public discourse and advancing equity. One cannot freely participate in democracy if one does not understand the laws governing it. When the justice system—public defenders, prosecutors, and legal aid organizations—do not have excellent access to the law, justice cannot be served. And when creators cannot leverage technology on the law, legal innovation stagnates.
Let’s take a slight detour. What does it mean for laws to be both accessible and open? And why the distinction; aren’t laws that are “accessible” also “open” by definition?
Let’s start with the second question. The answer is “No”. If we dig deep into our grammar knowledge, the difference between the two is the distinction between “can” and “may”. “Can I” is a question of physical or mental ability. Are you actually capable of getting what you need? This question maps to the concept of accessibility. “May I”, on the other hand, is a question of permission. Are you allowed to do something? This maps to openness. Sometimes you may do something that you can’t do, and sometimes you can do something that you may not do.
For accessible laws, the issue then is whether you can get an accurate version of the law you need in the format you need. And today there are many barriers to access.
The most straightforward barriers to imagine are physical ones. For many smaller cities, the cost of assembling and publishing their legal codes is too high to bear. So they might not even have a code at all. For other cities, a code is created but only in physical form. The only way for citizens to get the code is to visit city hall or go to the library. But even when the code is published online, there can still be physical limits. Many websites hosting the law are not ADA compliant, barring large swathes of people from accessing the laws that affect them.
There are plenty of non-physical barriers too. Some arise out of the esotera of the lawmaking process. Because of the complexity involved in incorporating new laws into legal codes, many of the legal codes today are perpetually out of date by three or four months. This means if you only rely on the code, you might not be getting the most recent, up-to-date version of the law that applies to your situation. Others non-physical barriers are more straightforward. Accessing the law often requires paying for it, whether to the government through systems like PACER or to private publishers like Westlaw or LexisNexis.
Other non-physical barriers are caused by the tech-backwards approach of publishing laws. It is often difficult to link directly to the text of a specific section of the code. Every user must traverse complex hierarchies and multiple menus before hopefully clicking through to what they are looking for. Search is the obvious answer, but commonly implemented search functionality is often laboriously slow and insufficiently granular.
Part of the reason why usability is so poor and search so unusable is because of other barriers to accessing the law, barriers that make innovation on the law impossible. Laws are not available in computer-readable formats or bulk download, and not to mention APIs. These barriers seem minor, but have large affects in the long run. The law is data, and that data is locked up in PDFs. It becomes exceedingly difficult to leverage many of the techniques used to transform many other industries and sectors.
But even if you could get an accurate version of the law you needed in the format you needed, a problem remains: what are you allowed to do with it? If the law were truly “open”, the answer would be “whatever you want”. But most law is not truly open, especially the law that is usually accessible. To put it another way, these laws are not “free” as in “freedom”. They might, in some cases, be “free” as in “free to obtain” (an accessibility issue), but they are not free in the sense that they can be used in all the ways that you might want. When people say the law is free, this distinction is very important.
Many websites offer the law for no-cost to access, but these laws are constrained by copyright claims or restrictive terms of service. The terms of service for about 1500 municipal and county legal codes states, for instance, that the law accessible on the website is for “personal use only” and cannot be used for “commercial, non-profit or public purposes”. In other cases, you can look at the law, but not print it. In these situations, the law might be free to access but not free to use.
Like accessibility, openness exists in degrees and kinds. Laws can be open in some ways, but not others. So long as the use you are hoping for is permitted, you are unlikely to notice all the other ways the law is closed.
For a law to be open, it must be usable for any purpose by the user. Whether, for instance, it is personal or commercial does not matter. When a city hosts its laws online, it should be usable by both an individual who wants to represent themselves in court or an attorney who has a paying client. The ability to read, download, print, link to, and share the laws should not be inhibited.
It must also be permissible to use the law as a foundation for creating other things. The text of the law is a form of data that can be ingested by software. The “open law” paradigm permits and supports the creation of things like more powerful legal search engines and legal research tools. The end user must also have the freedom to redistribute the law and the things built on top of it.
This is not to say that things built on top of the law necessarily must also themselves be open. Things like custom annotations and complex services that use the law as a source of data make sense as services to be paid for. Someone has put in the hard work to make them. And profitability supports a healthy market for these tools. But the underlying data, the law, should remain open as a public good. When one company or organization monopolizes the underlying law, innovation stagnates. When the law is open, innovation accelerates.
This is also not to say that there cannot be limitations on representations made about the law or derivatives. Governments and the public have an interest in controlling the integrity of their laws and ensuring there is no confusion between what is “official” government law and what is redistributed or remixed law.
With this framework of accessibility and openness, the world of laws begins to look very different. An interesting point of comparison is the National Oceanic and Atmospheric Administration (NOAA), which operates the National Weather Service (NWS). More than 15 million weather products are built on top of weather data provided by the NOAA. And the value of weather forecasts alone amounts to more than $31 billion per year. The private sector also builds on top of NOAA data to the tune of over $700 million per year in value. Not to mention the Weather Derivatives financial industry which is also valued in the billions each year.
If only the law were as accessible and open as weather data. The benefits would be dramatic for policy makers and citizens alike. Imagine for the moment that policy makers could perform multi-jurisdictional analyses of local budgets in connection with the laws that are in effect in each jurisdiction. The permitting process would be far easier for both city and citizen if the process utilized software that could change as the underlying law changed. The market for low-cost legal services could grow dramatically. Increased innovation in this sector means increasing the likelihood of creating new systems and processes that could improve legal access for self-represented litigants or the delivery of legal services to indigent clients. So what can technology do to realize the promise of accessible and open laws?
In some cases, not that much. Some barriers to access and openness are issues solvable only through the political process. Whether and how copyright should apply to laws and codes, for instance, is a question technology can’t answer.
But in other cases, technology can do a lot. Many of the barriers to access and openness are symptoms of an underlying problem: cost. The cost of applying human labor to a complex, repetitive, text-heavy process known as legal publishing.
Laws, in the sense of legislative actions, are not consumed in the form they are passed. In order for each law to make sense, it has to be considered in context of all other laws. This means compiling the laws into a topical collection called the “code”. Imagine, for example, the difference between scientific journals and encyclopedias. The former is a constant stream of new information on a variety of topics that builds on, amends, and sometimes obviates old information. The latter is a topical collection of ideas and, in a perfect world, always up to date with the newest information.
Like the encyclopedia, someone must take the laws and assemble the code. And here lies the complex, repetitive, text-heavy problem. Some laws are two pages. Others are two hundred. Either way, there is a lot of copying, pasting, deleting, and typing. And not only is it time consuming, it is also error prone.
Whether it is going through the codification process or checking the results, it is ultimately a lot of work that takes a lot of time. Many cities outsource this work to third party vendors. These vendors charge the cities a small upfront fee and make their profit by charging governments and the public for access to the law. The vendors also protect their output by applying restrictive copyrights and terms of service. The exact opposite of accessible and open.
If history can teach us any lessons, it is that a text-heavy, manual process can be automated. Instead of having humans implement changes to the code after a law is passed, each law can be annotated with information detailing the ways it should transform the code. A codification engine can take these annotated laws and automatically generate a new revision of the code. And because the output is controlled through software, computer-readable formats can be generated alongside human-friendly ones.
The underlying technology is complex, but the end effects are not. By automating the process, the labor costs are dramatically reduced. This removes many of the incentives that for-profit publishers have to keep the law under lock and key, paving a way for governments to publish accessible and open laws.
And this takes us all the way back to the beginning.
Whether it is the inability to get the law we need or the inability to share the law with those around us, the way we currently interact with the law runs counter to how fundamental the law is to our society.
It is often very difficult to access the law. “Official” versions of the code are still printed on paper and stored away in city hall. The code found online is trapped in terrible websites that load slowly and have poor search functionality. Getting a more functional version of the website, if that’s even available, requires paying money. Computer-readable versions of the law aren’t even on the radar.
Even if we can find the law, we often can’t use it the way we want to. Sharing the law is often difficult because the laws aren’t published with sharing as a priority. Sharing is sometimes entirely prevented because the publisher pushes its weight around with copyrights and terms of service. Sharing isn’t the only victim. Limitations on using the law are abundant, and freedoms like reading, downloading, or printing the law are impinged.
But all of this can change if we work to fix the structure that causes these poor outcomes. Technology is certainly no panacea. There are problems in this space that depend on the legal system and political will. But for the problems that technology can fix, the labor-intensive publishing process for instance, leveraging technology can change the economics of the situation and empower governments to publish laws as a public good. The path to innovation can have one fewer roadblock. https://www.theguardian.com/us-news/2017/jan/23/two-journalists-trump-inauguration-protests-felony-riot-charges-evan-engel-alex-rubinstein  https://www.theguardian.com/media/2017/jan/24/journalists-charged-felonies-trump-inauguration-unrest  What’s the difference between the “law” and the “code”? Once a bill is passed by the legislature, the bill is “law”, but it can be understood only within the context of every other law passed. Thus, governments compile (“codify”) their laws into a legal code organized by subject. That’s why when you look up something in the U.S. Code, you will see annotations at the end that look like this: “(Pub. L. 91–375, Aug. 12, 1970, 84 Stat. 742.)”. That annotation tells you what law or laws this part of the code is assembled from. When people try and figure out what “law” applies to any given situation, they go to the “code”. The word “law” is also commonly used in reference to judicial opinions. Judicial opinions are the result of judges figuring out whether and how a law applies to a given situation, or sometimes, whether the law is even allowed to exist. There’s a lot of nuance on this topic that will be covered in future posts.  The inability to print out the law is also arguably an accessibility issue.  http://www.esa.doc.gov/economic-briefings/value-government-weather-and-climate-data  https://www.oecd.org/sti/ieconomy/40066192.pdf  Although it must be said that technology can often change the assumptions underlying any legal framework. Consider for example the tension that has arisen because the cost of duplicating and distributing creative works has trended to zero.
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