Technology and the Value of “Accessible” and “Open” Laws – Part 1

(Ed. Note: This is Part 1 of a 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.[1][2] 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[3] 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”.

(Ed. Note: In Part 2, we’ll dive into, you guessed it, why the law isn’t truly “open” and why you can’t do “whatever you want” with it. In Part 3 we’ll discuss how technology can improve both the accessibility and openness of the law.)

[1] https://www.theguardian.com/us-news/2017/jan/23/two-journalists-trump-inauguration-protests-felony-riot-charges-evan-engel-alex-rubinstein

[2] https://www.theguardian.com/media/2017/jan/24/journalists-charged-felonies-trump-inauguration-unrest

[3] 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.