[moment of silence]

David Halperin: [0:07] Good morning everybody. I want to thank PHSMA, the staff, for putting on this workshop. My name's David Halperin and I am an attorney and policy advocate. I'm proud to say that one of my clients is Public.Resource.Org. A nonprofit organization whose goal is to put the law online so that people who are governed by the law will be able to read it. I want to say hello to my colleague and client Carl Malamud who, along with a lot of other people on the West Coast, got up at 4: [0:13] 30 this morning to be a part of this webcast.

[0:43] I want to make four points. The first point is that we believe section 24 is an important and a positive step. We don't believe it's a radical step. It codifies what we believe the law already requires for federal regulations, generally. I want to start with a case from 180 years ago. A Supreme Court case called Wheaton versus Peters. One of the Supreme Court's official reporters, Mr. Wheaton, was publishing annotated volumes of the courts opinions in order to supplement his income.

[1:16] His successor, Mr. Peters, said he decided he would do the same thing, but he used cheaper paper and he compressed and he took out the commentary, and he was undercutting the price and it was hurting Mr. Wheaton's livelihood. He went to complain. He complained by filing a lawsuit. It went to the Supreme Court and he claimed copyright infringement. The court said in Wheaton versus Peters, that the law belongs to the people, not to one private interest.

[1:43] Then, Emily Bremer mentioned the Veeck case. That was ten years ago, decided by the U.S. Court of Appeals in Texas. Mr. Veeck thought it would be useful and sensible if the building code of his town was available for his fellow citizens of his town to read. He put it on a website, his own website. But the town's building code was a model code incorporated by reference into local law, so the model codes creator sued. Again, copyright case.

[2:15] The appeals court relied on "Wheaton versus Peters." Judge Edith Jones wrote that when it was incorporated into law, the model code entered the public domain. When the code creator went to the Supreme Court, the justice department of President George W. Bush said "We think that case was correctly decided." The Supreme Court denied review.

[2:36] We don't see a significant difference between that model code in Veeck and standards incorporated by reference that are made mandatory under federal regulations. We believe these standards are the law and belong to the people. We also believe that in the Internet age, the requirement in the Freedom of Information Act that material incorporated by reference be reasonably available to people, means available for free online.

[3:02] Now, we're not the only ones that think this. Organizations ranging from the AFL-CIO to the Association of Research Libraries to the Sierra Club submitted a comment to OMB and OFR last month that said, "Standards incorporated by reference should be deemed in the public domain and made available for free." Numerous small businesses also filed and said that unfettered access to these standards is the appropriate thing to do under the law.

[3:27] Second point I want to make, making standards incorporated by reference available on a public website, as section 24 requires is good for government efficiency, for public safety, for our economy and for our democracy. It's not a solution that's easy to implement, but we think it's the right solution.

[3:45] The federal register and the code of federal regulations were created in the wake of a law review article, written in 1934 by a law professor named Erwin Griswold. He reported that the law was all over the place in Washington. It was tucked into file drawers and file cabinets all over the place and nobody could get a handle on the whole picture. The federal register and the CFR helped fix that problem, but to paraphrase President Ford, "If Professor Griswold were alive today, he would be turning over in his grave," because the law is all over the place again.

[4:21] That's because of standards incorporated by reference and the high prices that some SDO's charge for access. It's again driven the law out of the reach of the public and you have to search for it. Now, in many cases, you also have to pay for it. The standards that are supposed to govern us are so obscured now, that Public Resources found a significant number that are still the law, even though they have been superseded by the standards organization themselves.

[4:50] They are no longer available for purchase anyplace, can't be found in libraries and/or are outdated in the real world and really don't have relevance anymore. The lack of public access to these standards incorporated by reference is bad for citizens and groups who want to participate effectively in debates on policy and on regulation. It's bad for small business who are forced to comply but find it prohibitively expensive to read these laws and they're often asked to pay $1,000 or more for standards, depending on the industry they're in.

[5:21] It's bad for first responders and public safety. As we saw in the gulf oil spill and the pipeline explosion in San Bruno, California. When matters get serious, people need this information right away. They don't want to have to get on the phone and give their credit card number and expiration date or look in drawers all over the place to find the law. They need this law.

[5:42] It's also bad for government officials themselves, who have to read the laws they are charged with upholding and reviewing and strengthening. Now, in this area, as a result, when Congress was faced with this, they did something about it. Standards organizations perform essential work that benefits everyone here and everyone across the world and this shift would undercut one significant revenue source, but only for those standards that have been incorporated by reference.

[6:09] We believe SDO's will retain strong incentives to keep developing standards, because of the legal imperative that I've talked about and because of all the benefits of putting the law online, we should ask them what has been expected of many other businesses in the last 20 years, which is to adapt their business model to the Internet. We don't think the sky would fall. We don't think volunteers would stop volunteering.

[6:32] We don't think that enterprises would say, "We don't want to be at the table anymore when standards are set." We don't even think that SDO's will say, "Don't adopt our standards by reference," because they benefit from the government standards being their standards. When standards are available on public websites, then standards organizations, as well as other enterprises, may be able to build new sources of revenue based on organizing, analyzing and interpreting the standards that are part of the law.

[6:58] Ready access to the standards will give small businesses more opportunities to thrive while improving their compliance with the law. Citizens would be better informed, and government and first responders will more of the information that they need to protect the public.

[7:12] Third point, Public Resource is confident the law is on our side. This year, Public Resource started posting many standards incorporated by reference on the Internet. We asked many of the major standards organizations to comment before posting. We received no comment and no complaint. Public Resource, in fact, has been posting building codes of the 50 states online since 2007, again without any complaint.

[7:37] Like Griswold, like Mr. Veeck, like others before who believed the law ought to be available to people, Public Resource is working to post the law in ways that are useful to people. That leads to my final point.

[7:55] We don't believe the right way to implement section 24 is to back off, and we don't think in particular that a read-only posting on a standards organization website would fulfill the requirement of this law or should.

[8:07] Because the standards are the law, they should be available as the court ruled in Veeck for whatever use citizens choose to make of them. Read-only access would not meet that requirement. A world where citizens must hunt down standards on multiple websites with warning not to do more than look at them, and without search capacity or opportunity to present them in new ways undermines the promise that technology presents for our economy and it undermines the promise that technology presents for enriching our democracy.

[8:37] The Supreme Court didn't say in the Wheaton case that people who didn't want to buy Mr. Wheaton's books had to stop by his house to read the court opinions. They didn't say that Mr. Veeck had to take down his web page and you could only read the building code of your town on an SDO website read only.

[8:55] The department of transportation wouldn't draft its own regulation and issue it and then tell people they could either buy the full version or view a non-printable, non-searchable, Windows-only, pop-up light version of the regulation on some website. We can't demand that citizens obey laws they can only access in limited ways. We shouldn't ration or restrict information that is critical to public safety.

[9:21] We think that if PHSMA or the department continue to incorporate by reference standards, it should make those standards available to people without restrictions. It should recognize that those standards are the law.