Reveal Center For Investigative Reporting How private contractors are taking over data in the public domain by Miranda S. Spivack

Reveal Center For Investigative Reporting
Reveal Center For Investigative Reporting
How private contractors are taking over data in the public domain
Miranda S. Spivack
01/23/2017

How private contractors are taking over data in the public domain

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By  / January 23, 2017

Tom MacWright, a software engineer who cycles to work in Washington, D.C., would be breezing along 14th Street NW when he suddenly would find himself boxed out of the city’s bike lanes.

Businesses were running valet parking stations in the middle of the lanes, forcing cyclists to swerve into the road or stop to avoid a collision. MacWright, who blogs about cycling, privacy and technology, thought this was probably illegal. He wanted to be able to cite the law on his blog and a website he was developing for cyclists in the area.

In Washington, D.C., some businesses run valet parking stations in the middle of bike lanes, causing hazards for cyclists. When software engineer and cyclist Tom MacWright decided to blog about the issue, he found he couldn’t link to the city’s laws because a private contractor owned the publication rights.

In Washington, D.C., some businesses run valet parking stations in the middle of bike lanes, causing hazards for cyclists. When software engineer and cyclist Tom MacWright decided to blog about the issue, he found he couldn’t link to the city’s laws because a private contractor owned the publication rights.Credit: Courtesy of Tom MacWright

“I wanted to create a reference to show what the current laws were and link to them,” he said. “And I wanted to link to primary sources.”

In theory, that sounds relatively easy. State and local laws usually can be found online. But in the District and dozens of other cities and states, the rights to publish those laws don’t belong to the people or the governments. They belong to private contractors.

The fight to unravel that legal maze put MacWright in the epicenter of a long-standing debate over private companies that are controlling access to government data, documents and laws. He and others are trying keep in the public domain all sorts of data, documents, regulations and laws that taxpayers pay the government to develop but then often cannot obtain without putting up a fight or a paying hundreds or thousands of dollars in fees.

Government agencies, in many instances, have given contractors exclusive rights to the data. The government then removes it from public view online or never posts the data, laws and documents that are considered public information.

Public datasets that state and local governments are handing off to private contractors include court records and judicial opinions; detailed versions of state and local laws and, in some cases, the laws themselves; building codes and standards; and public university graduation records.

Much of the information collected and stored by private data companies such as LexisNexis, Westlaw or CrimeMapping.com is not available to the public without a price. The information that is available often is not searchable, cannot be compared with data from other jurisdictions and cannot be copied unless members of the public pay hundreds or thousands of dollars in subscription fees.

Sometimes, governments pay the companies to put the data into a useful format; other times, they turn over the data, get it back from the company in a useful format and give republishing rights to the company, which can then sell the data, laws and documents to the public.

The bottom line is good for the vendors, which can make millions of dollars from the sale of public information. But the public, who paid for the information to be developed in the first place, often is left on the outside, unable to get to the information as quickly as the private vendor, if they can get it at all, without paying for it.

Restricting the flow of information

Colin Drane, a Baltimore entrepreneur, is the founder of SpotCrime, a 10-year-old free website that maps local crimes for public use and also sells data analyses to business clients.

Like MacWright, he has found himself embroiled in an ongoing fight with state and local governments, in his case over making crime data available to the public. Drane is an outspoken advocate for greater state and local transparency. This imbroglio is a tale of technological advances, tight government budgets and growing pressure for transparency.

Drane’s website, which makes money by selling advertising and sending out thousands of daily emails, relies on being able to scoop up online crime data posted by state and local governments and their law enforcement agencies. Except when they don’t post it. Which, he says, happens often.

Drane and his staff keep running into electronic walls that state and local governments allow private companies to erect to hide or delay publication of the crime data.

These governments, lacking sophisticated coders and software experts, have contracted with private companies that translate the raw data into maps and conduct other analyses.

But in a vast number of these deals, the contractor gets to control the flow of information, restrict its duplication and downloading, and repackage and sell it to other clients, such as businesses, that want quick information about crime near their facilities. Or they publish state laws, regulations and building codes – sometimes with commentary – and then sell the records, often becoming the only “public” source of the information.

State and local governments often still are stuck in the digital past. Some departments lack the funding or internal expertise to build an open-source website and look for outside vendors, which then demand some type of exclusive control. Others continue to rely on paper reports that haven’t been digitized and need vendors to put them online and crunch the data.

Still others, eager to make use of sophisticated mapping tools and the reports they can produce, have gone to outside vendors to build data portals and mapping and alert systems. But these deals usually include limits on use by others – imposed by the contractor and agreed to by the government – that restrict the public’s access and right to republish without permission from the vendor.

On the LexisNexis crime-mapping site, formerly known as RAIDS Online but rebranded as Community Crime Map, the user needs to agree to lengthy terms of use that, among other requirements, say the user may gain access to the site for “personal, non-commercial use only” and may not “duplicate, publish, modify, or otherwise distribute the material on the Site unless specifically authorized in writing by (LexisNexis) to do so.” CrimeView – a crime analysis tool from The Omega Group, which works with law enforcement agencies – imposes similar restrictions.

So if you want to know how many break-ins occurred in your neighborhood, you might not be able to find out for days, except through the neighborhood rumor mill.

“This is public data. I should be able to print it on my underwear if I wanted to,” Drane said.

The restrictions, the vendors say, must be imposed because they have turned the data into a new format – such as a map – and created tools that are copyrighted. Although the data are public, the company can insist that the material can be viewed but not copied, downloaded or in some other way appropriated without the company’s permission or a payment plan. That puts companies such as Drane’s SpotCrime on the outside, waiting for the government’s public data feed. Many of those are delayed, giving vendors the first crack at the data, or don’t exist in the public domain.

“The problem is citizens should have the same access to data that Wal-Mart has,” Drane said.

Some communities in Maryland, such as Montgomery County and Baltimore, are posting their crime data promptly, said Brittany Suszan, SpotCrime’s marketing director. But she is waiting for Annapolis to restart its open data portal for crime stats.

Other jurisdictions’ open data crime sites – including those in Durham, North Carolina; Hampton, VirginiaHonolulu; Minneapolis; St. Louis; and San Francisco – are weeks or months behind vendors’ sites, she said. And some jurisdictions, such as Denton, Texas, point users to vendors’ sites, which come with restrictions on use and duplication of the data.

Mary Alice Johnson, a spokeswoman for LexisNexis, said in an email that information in the crime-mapping systems is “available for collection and use from the public domain in any lawful manner.” But she also noted that the data is copyrighted “due to the compilation in a format that is easy for the public to access and the enhancements we do to the data.”

Taking public access to court

Delays in releasing public information also can be a problem for anyone interested in court cases. Bill Girdner, founder and editor of Courthouse News Service, which publishes several law-related websites and sends reports for a fee to subscribers, has waged a lengthy battle to keep court documents in the public domain on the same day they are filed. Timing, he says, is crucial for his business plan and news operations’ success – and for the public to stay informed, because many courthouses do not put filings online.

The Ventura County, California, court clerk’s office, Girdner said in a lawsuit filed in 2011, would delay any new filings until they were “processed,” sometimes for weeks. Court Executive Officer and Clerk Michael Planet said in court filings that he was concerned about protecting privacy. But California court rules say protecting privacy is the responsibility of the filer, not the clerk’s office.

In an amicus brief filed by several news organizations, Girdner’s allies asserted that delay was tantamount to interfering with the First Amendment: “Denying reporters access to civil complaints on the day they are filed threatens to stifle free speech and public debate at the moment complaints are most newsworthy.”

A federal judge decided last year that, while the public and press did not have an unfettered right to “same-day access” to court documents, they do have a right to “timely access.” Courthouse News recently filed a similar lawsuit in New York.

The privatization of public information also troubles Carl Malamud, president and founder of Public.Resource.Org, who 25 years ago began what remains an ongoing battle with federal, state and local governments. Progress has been slow. And practices vary from state to state, city to city.

When he looks for local laws, he said, “there is usually some type of free version, but this is a dumbed-down version. There are no permanent URLs, and you can’t search it. It’s not accessible. And if you are blind, forget about it. There is no way to get access.”

Sometimes, Malamud takes matters into his own hands.

He published a scanned version of Georgia laws online, and in 2015, the state sued Public.Resource.Org for copyright infringement. The version the organization posted was copyrighted by the state and includes annotations and references to relevant court cases. At the time of the lawsuit, it was available in print from LexisNexis for $378 for Georgia residents, but out-of-staters had to pay $1,000, Malamud said. The state’s lawsuit, which is awaiting court action, contends that the compendium of laws and case law is protected by copyright and owned by the state, though it is considered the “Official Code of Georgia Annotated.”

In court filings, lawyers for Georgia said the state General Assembly contracts with Matthew Bender and Co. Inc., a LexisNexis company, to produce annotated volumes of state laws, with relevant case law, an indexing system and other additions. In exchange, “to allow LexisNexis to recoup its publishing costs,” the publisher can sell the volumes, along with its copyrighted annotations. State laws, without the helpful copyrighted annotations, are published online by Georgia but carry restrictions in the terms of use: “You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from this Web Site or the Content.”

This is similar to the practice of many states.

In Maryland, Warren Deschenaux, executive director of the Department of Legislative Services, said outside vendors that publish state laws bring certain value, such as the case law summaries.

“Headings and indexes also add value,” he said in an email. The state’s own version, which lists laws but lacks the details the vendor versions provide, “has the advantage of being searchable. And free,” he said.

Some choose to share

The police department in Lincoln, Nebraska, developed its own crime-mapping system in 2000, said Public Safety Director Tom Casady, the city’s former police chief. But the department soon switched to the CrimeView system from The Omega Group, which gave it a broader set of internal tools for analyzing and tracking crime.

However, unlike some jurisdictions, Casady said, Lincoln does not delay the public release of the data. And while there are standard terms of use that forbid commercial reuse, he said many people have used the data to build community information systems, such as one that tracks bike accidents.

“I am a big believer and evangelist for both police open data and crime mapping,” Casady said. “It is beneficial for us to know what is going on in our neck of the woods, and it is also good for the public to know about the sheer volume of police work.”

Casady said he consulted the publicly available mapping and alert system and was surprised to see there was a spate of break-ins in his own neighborhood, prompting him to lock his garage door at all times.

Building codes also are hard for the public to obtain, Public.Resource.Org’s Malamud said. They are developed locally but put into a researchable format by various trade organizations and then sold to anyone seeking to consult them.

“You can’t search them, you can’t print them, you can’t bookmark them, you can’t copy them,” he said. Which means that someone who is trying to consult or comply with the law needs to buy it first, he said.

“Even if a lawyer is using LexisNexis, it says that if you are trying to publish the law, like in a newsletter, you need permission.”

For Seamus Kraft, a former press secretary for the House Oversight and Government Reform Committee who co-founded the OpenGov Foundation in 2013, finding ways around these types of restrictions has become his mission in life. Working with grant money from foundations, he and a group of colleagues have been building software to give to state and local governments for free to build systems that make data, documents, codes and laws available to the public.

Seamus Kraft, shown at a workshop at Harvard’s Kennedy School of Government, is the co-founder of the OpenGov Foundation. The foundation has been building software to give to state and local governments for free to build systems that make data, documents, codes and laws available to the public.

Seamus Kraft, shown at a workshop at Harvard’s Kennedy School of Government, is the co-founder of the OpenGov Foundation. The foundation has been building software to give to state and local governments for free to build systems that make data, documents, codes and laws available to the public.

“There is increasing pressure and demand on government entities to publish more information digitally,” he said. “What is the fastest and easiest way to bring additional effort? A contractor, outside help.”

The result of this effort to become more transparent, Kraft said, often can be less transparency because governments give up control of the information to private companies.

“That is the perverse result of the push for open government and more digital information that is more accessible,” he said. But critics should offer solutions, not just protest, he said. “It is unfair to pound your fist when you don’t have an easy, cost-effective means of delivery that leads to greater openness.”

In 2013, Malamud asked David Zvenyach, then-general counsel to the Council of the District of Columbia, for a complete copy of the District’s laws.

“I said, ‘You can go the library,’ and he said, ‘ I want the actual data.’ I did not understand what he meant,” Zvenyach recalled.

Then along came MacWright, the software engineer who was concerned about bike lanes blocked by restaurant valet parking operations, who contacted Zvenyach when he could not link his blog to the D.C. Code, which at the time was hosted by Westlaw. Zvenyach went to both Westlaw and LexisNexis, which is now the city’s vendor. Both said they would not make an online version of the city’s laws available to the public.

“I threw up my hands in disgust,” Zvenyach said.

But he had a secret weapon: Under the contract with Westlaw, he was able to obtain a CD-ROM with the entire dataset of the District’s laws. Working with volunteer software engineers, including MacWright, the team stripped out copyrightable material, such as headers and embedded citations, and put the D.C. Code online for free in a few days.

If a state – or, in this case, the District – publishes legal materials as “an official source,” Zvenyach said, it is supposed to provide “equal access.” And that, he says, is what the District is doing with its site.

Other cities also are turning to open-source publishing of their own laws.

Stephen Wolf, president of the American Legal Publishing Corp. in Cincinnati, is an outlier in the legal publishing business because he believes that the cities, not his company, own the compendiums of laws.

His company publishes city ordinances for Boston, Chicago, Los Angeles, New York, Philadelphia and San Francisco. For decades, it has handed over its work product – first in print, then in disk form and now on the Internet – to the cities, which then publish it for all to see, copy and search. That is helpful to anyone trying to compare laws and codes in different municipalities, something that is impossible to do in the Westlaw and LexisNexis sites on which most states publish their laws.

“We are the only one where you can search multiple codes for free. Otherwise, you have to pay a fee” to other publishers, Wolf said. “Others say, ‘We will waive the fee if it is a city wanting to search.’ Yes, but for Joe Schmo sitting in his living room, that is still not for the public at large.”

The business model has worked well for the company, which was founded in the paper era in 1934, and has helped countless residents who want to find information about their community’s laws and see how they compare with others.

“We don’t believe we own these codes,” Wolf said. “We believe we are a service provider. We take the raw ordinances and put the codes online.”

The information, he says, doesn’t belong to his company. “It is not our information; it is the public’s information.”

New York City recently became a client of American Legal Publishing.

Ben Kallos, a city council member who helped nudge the city toward embracing a new system for publishing its laws, said making laws easily available to the public should be a no-brainer.

“If it is just out there and publicly available, residents can actually read laws, interact with them and use them and be empowered.”