February 23, 2017

Archives for April 2012

Opening Government: On the Limits of FOIA and the Metaphor of Transparency

At a recent symposium (“Piracy and the Politics of Policing: Legislating and Enforcing Copyright Law”) sponsored by the Cardozo Arts and Entertainment Law Journal, I was invited to respond to an excellent paper by David Levine on secrecy, national security, and the denial of public access to documents from the Anti-Counterfeiting Trade Agreement (ACTA) negotiation process. Dave argues in his paper for an amendment to the federal Freedom of Information Act (FOIA) that would create a qualified public right to “foreign relations” national security information. Had such an amendment been in place at the time of the ACTA negotiations, the Office of the United States Trade Representative would not have been able to invoke FOIA’s national security exemption—a dubious invocation, at best—to deny public requests for documents that were made under FOIA by public interest groups like Public Knowledge.

Responding to Dave’s article got me thinking about the use of “transparency” as a metaphor for openness in government, the use of FOIA as a mechanism for ensuring such openness, and the ways in which proponents of greater public involvement in policy-making (among whom I count myself) may disserve the cause by focusing too single-mindedly on access to information and the right to know, both of which are operationalized through FOIA. In my response to Dave’s article, a relatively short piece that I’ve posted to SSRN, I try to articulate the limits of FOIA as a mechanism for open government:
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Broken Ballots

Broken Ballots book cover A important new book has just been published on the technology and policy of elections. Broken Ballots: Will Your Vote Count by Douglas W. Jones and Barbara Simons, covers voting systems from the 19th century to the present, with particular focus on the last two decades. The authors describe the strengths and weaknesses of the machinery itself–lever machines, optical-scan vote counters, touchscreen voting computers–with technical sophistication, yet in a way that will be accessible to a wide audience. Then they describe the strengths and weaknesses of the policy processes–at the level of election administration, congressional legislation, and Federal administrative-branch agencies–with particular emphasis on the last 10 years. The authors are experts in the field of voting technology and policy, and it shows. The book is well researched with extensive citations, but it’s also a good read (with photos and illustrations) that has an interesting story to tell.

Contract hacking and community organizing

I discussed community discontent with copyright terms of some scholarly publishers, and I proposed an economic analysis. Now let’s consider two other approaches.

Contract hacking

I have published quite a few scholarly papers, and with each one I am invited to sign a copyright form. This is a contract between author and publisher, which which I hand over certain rights and the give me $0 (plus they publish my paper). These contracts (and my signature) is in dead-tree form, on real paper (though in recent years it follows the print/sign/fax or print/sign/scan/e-mail model).

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