OpenTheGov and ARL Join EFF in Urging Government to Make all Parts of the Law Easily Available to Everyone

Fundamental principles of American democracy dictate that “citizens must have free access to the laws which govern them.” When an agency incorporates copyrighted material into its regulations (by referring to but not linking to them, i.e. "Incorporation by Reference"), public access to that material may be significantly compromised. Without agency policies that foster broad availability, incorporation of copyrighted materials permits copyright holders to serve as gatekeepers of public access to federal law. While the recommendations of the ACUS draft Report on “Incorporation by Reference in Federal Regulations” attempt to balance the scales of access to the law and encouragement of private standards development, the recommendations tip the balance too far in the wrong direction.

Our comments on the report – submitted with the Association of Research Libraries (ARL) the Electronic Frontier Foundation (EFF)- argue that "copyrighted materials, once incorporated into law, should be available for free." The principles of transparency and accessibility to the law should animate agency decisions in this arena and materials incorporated by reference should be made freely available, online and off, at all times – regardless of the stage of the regulatory proceedings, the subject of the regulation, or the identity of the regulated entity. As we note, "New technologies improve government’s ability to realize that commitment; once material is available online, it can be accessed from any location, at any time, by many people at once. Agencies should take advantage of these technologies to make materials incorporated by reference available via the Internet (or require standards organizations to do so)," and ACUS should promote and endorse access to, and innovative uses of, regulatory standards.