TAP Responds to EFF Com-Priv Post

[David Farber <farber () central cis upenn edu>]

Personally my general comment is a plague on all our houses. I detect more
and more an interest in fighting among "ourselves" and less and less an
interest in actually seeing how we can get the NII rolling. Right now there
is smoke and no guns


Davee




Date:         Tue, 07 Sep 93 06:47:50 EDT
From: jamie love <LOVE () vm temple edu>
Subject:      TAP Responds to EFF Com-Priv Post
To: com-priv () psi com
Cc: EFF () eff org, Mitchell Kapor <MKAPOR () eff org>




September 7, 1993


> From:     Jamie Love


Re:       Shari Steele post about EFF, the Taxpayer Assets
          Project, and Cook Report and Jamie Love


On Friday, September 3, 1993, a message to the comp-priv Internet
discussion group, signed by Shari Steele of EFF, responding to an
article which I had written for the COOK Report, an industry
newsletter.  Shari's highly emotional and factually misleading
missive raised a number of issues about EFF, the Taxpayer Assets
Project (TAP), and the debate over the privatization of
government information, which require a lengthy response.




     WHAT WAS THE ORIGINAL ARTICLE ABOUT?


At the request of Gordon Cook, I provided his newsletter with a
1,700 word article about ongoing debates over federal policy on
access to government information.  This article did not discuss
problems of access to individual databases or information systems
(such as our Crown Jewels campaign), but rather the more dry
topic of the generic federal policies on topics such as the
pricing of information, the mandate to provide public access, and
the opportunities for citizen dialog on a wide range of
government information policy issues.


Part of the article discussed the different approaches for access
to government information that are represented by two bills
pending before Congress.  These are the reauthorization of the
Paperwork Reduction Act (PRA), which is an act that was
originally passed to reduce regulatory burdens on businesses, and
the Improvement of Information Access Act (HR 629, the IIA Act),
also known as the "Owens" bill (it is sponsored by Rep. Major
Owens).


Briefly, the PRA reauthorization legislation frames the issue of
access to government information in terms of *whether or not*
agencies should provide new information products or services,
based upon the existence of private sector alternatives.  The
"Owens" bill takes a different, and more pro-access approach, and
focuses on *how* agencies should disseminate information, and
also provides for a much greater dialog with citizens over
federal information policy.  Both bills, however, would limit
prices on federal information products and services to the costs
of the dissemination of the information.


The approach in the PRA legislation is strongly supported by
commercial data vendors, while the Taxpayer Assets Project (TAP)
and most groups interested in public access to government
information favor the "Owens" bill.  The last *two* paragraphs of
my article mentioned that two non-profit organizations, EFF and
OMB Watch, had aligned themselves with the vendors in favor of
the approach of the PRA bill.


     EFF's REACTION


1.   Shari says my article was not objective, but rather an
     *opinion* piece.


Well, fine, I guess it represented my opinion.




2.   Shari objected to my the implication that EFF was, in her
     words, "supportive of the `vendor' over the `user'
     position."


Well, I didn't make any sweeping statements of this kind, but I
did say, and Shari confirms, that EFF supports the same approach
as do the vendors, namely the PRA approach rather than the
"Owens" bill approach.


3.   Shari implied that we support monopoly control of government
     information, or I guess that was her point.  In her words:


          To set the record straight, EFF actively supports
          public access to and government dissemination of public
          information. Unlike Jamie Love, we believe that the
          free flow of information is best served through a
          diversity of both government and private information
          sources.  We do not encourage or support policies that
          would, or could, foster either government or private
          sector monopolization of public information
          dissemination sources.


Believe it or not, some vendors argue that the way to promote
diversity is to prevent the government from entering into
"unfair" competition with the data vendors, and driving them out
of the market.  Vendors say that if the government provides
"retail" products and services to the public at low prices, a
government "monopoly" will result.


All I can say about this is that we too are in favor of
motherhood and apple pie.  We don't like monopolies, and we think
diversity is a good thing.  The issue, of course, is what do you
do to promote diversity.


The vendor solution, thus, is for the government to limit the
dissemination of information to "wholesale" or "bulk" sales of
data, and let the private sector take it from there.  A prime
example of this approach is the SEC's EDGAR system.


4.   Regarding EFF's concern about "diversity" and the "free
     flow" of government  information, Shari says:


     We believe this policy is best articulated in the
     information dissemination amendments of the Paperwork
     Reduction Act (PRA) drafted by Senators Glenn and Bingaman
     and Representatives Conyers and Wise, which would have been
     enacted into law two years ago but for opposition to other
     provisions of the bill by supporters of business interests.
     EFF, along with OMB Watch and the ACLU, continues to support
     this version of the PRA over the Owens bill.


The PRA reauthorization did nearly passed Congress in 1990, and
at that time, it was strongly supported by OMB Watch and the
ACLU, as well as the vendor trade group, the Information Industry
Association (IIA).  In 1990, the ACLU was represented by Jerry
Berman, as Director of the ACLU Technology Project.  (Frankly, I
haven't seen anything with the ACLU's signature on it regarding
the PRA since Jerry left the ACLU to work for EFF, but who knows,
maybe they still have a position on this.)  At the time, however,
there was no "Owens" bill.  The "Owens" bill was introduced for
the first time in October 1991, as an alternative to the PRA.  It
was developed by a working group of citizen groups and
librarians, and it was designed to be a "pro-active" initiative
on information policy which promoted much broader access to
government information.


As mentioned in Shari's note, there was and is considerable
controversy over the PRA on matters which are wholly apart from
government information.  They primarily relate to OMB's right to
screen agency regulations before publication (the types of things
the Quayle Council was involved in), as well other regulatory
issues.


There was also considerable opposition to the PRA on the grounds
that it was too restrictive concerning public access to
government information.  TAP and Ralph Nader publicly opposed the
PRA reauthorization in 1990, while most national library groups
sought to modify the information dissemination sections of the
bill.


A good background to this early debate is found in the TAP
Working Paper Number 3, titled Correspondence on the Paperwork
Reduction Act, 1990.  Among other items, the TAP working paper
reprints Jerry Berman's October 22, 1990 letter to Representative
Conyers, attacking the substance of an October 18, 1990 letter
written by Ralph Nader and myself opposing the information
dissemination sections of the PRA legislation.




5.   Shari misleadingly asserts that the PRA has broader support
     among user groups.  In her words:


     The PRA bill has also been supported by Public Citizen,
     another Nader organization (like Jamie Love's Taxpayers
     Assets Project), and has not been opposed by several library
     associations.


Shari's statement is true, literally, but also very misleading.
The Public Citizen reference concerns that organization's
decision in 1990 to support the final PRA bill, based not upon
the information policy sections of the bill, but rather the
sections of the bill dealing with OMB's role in regulatory
oversight.  And, of course, as mentioned above, the "Owens bill"
was not introduced until October 1991.


In January 1992 Joan Claybrook, the President of Public Citizen,
Marc Rotenberg of CPSR, and myself wrote to Representative
Conyers, expressing our support for the Owens bill.  This was a
delicate matter, since Conyers had been the prime sponsor of the
1990 PRA reauthorization bill.  Since there were aspects of the
PRA which we agreed with, we stated that:


     As you know, the IIA Act addresses some of the issues which
     were raised in the legislation you sponsored in 1990 (H.R.
     3695) that would have reauthorized the Paperwork Reduction
     Act (PRA).  The IIA is an attempt to build upon many of the
     good features of that legislation, while avoiding some areas
     that have been of concern to library and data user groups.


Shari's statement that the library groups did not oppose the PRA
reauthorization was very misleading.  The role of the library
community in fighting the vendor supported provisions of the PRA
in 1989-1990 are well documented.  [Toby McIntosh's book, Federal
Information in the Electronic Age:  Policy Issues for the 1990s,
(Washington, BNA: 1990) devoted several chapters to this.]  The
PRA was a complicated bill that dealt with many issues.  In 1990
the library community tried to negotiate several changes in the
bill was it had been written, and the "Owens" bill, which was
introduced in 1991, was an attempt to provide a more pro-active
alternative.  Every major library group has since endorsed the
"Owens" bill, while none have endorsed the PRA.


The Owens bill support has continued to grow.  On June 12 , 1993,
for example, the following groups asked Congress to hold hearing
on the Owens bill:  Public Citizen, Taxpayer Assets Project,
Computer Professionals for Social Responsibility, Center for
Media Education, Association of Research Libraries, Center for
Civic Networking, the Information Trust, Consumer Federation of
America, FAIR, Government Accountability Project, National
Writers Union, Environmental Research Foundation, Federation of
American Scientists, Essential Information, and the National
Coordinating Committee for the Promotion of History.  The
American Association of Law Librarians (AALL) and the American
Library Association (ALA) have also expressed their support of
the Owens bill this year.




6.  According to Shari,


     Jamie Love is a strong advocate of government being the
     principal, if not sole, disseminator of government
     information and is hardly in a position to write an
     objective news article.


For the record, we are not in favor on anyone being a sole
disseminator of information.  Broaden access, and let a thousand
flowers bloom.


We think the federal government should use modern information
technologies to expand public access to government
information.  We reject the arguments that have been made by
commercial data vendors that the government should not provide
online access to federal databases and information systems simply
because the data is available from a commercial vendor.  This is
what the debate is really about.


Jerry Berman, first for the ACLU, and more recently, for EFF, has
given the vendors an important "public interest" ally in support
of their position.


When I first became interested in this issue in 1990, Ron
Plesser, a lobbyist for several data vendors, told me there were
important First Amendment and right-to-know issues involved, and
that Jerry Berman of the ACLU would explain them to me.  I called
Jerry and he sent me a copy of "The Right to Know:  Public Access
to Electronic Public Information," an article he had written for
the Software Law Journal [Volume III, Summer 1989, Number 3].  In
that article, Jerry wrote:


     Under OMB Circular A-130, government agencies are
     required to place "maximum feasible reliance" on the
     private sector in developing government electronic
     dissemination systems to avoid duplication and to
     ensure that systems are developed in a cost-effective
     manner.  It is important to keep the government from
     developing databases which the private sector may
     establish more efficiently and effectively.


     Another goal of federal information policy is to ensure
     a diversity of information sources.  The growth of the
     private sector information industry is important for
     the economy and a diversity of information sources is
     essential to ensure the free flow of information.
     Unfair government competition may stifle the private
     sector and create government monopolies over
     information.


Jerry's article was long, and I won't summarize every point here,
but he did go on say that before the government launched a new
information product or service, it needed to first determine if
the private sector could provide the service, which is the basic
approached used in the PRA reauthorization.  This provision has
been strongly opposed by us and by the library community.


The data vendors thought they died and went to heaven.  The old
"unfair competition" agreement was endorsed by the ACLU, and
embellished as a defense against government monopolies.




7.   Shari raised a number of misleading points about OMB
     Circular A-130.  She said:


     Ironically, the language that Jamie Love criticizes in the
     PRA as being "vendor oriented" is the very same language
     contained in the recently revised OMB Circular A-130, which
     Jamie Love praises. We also support the recent A-130
     revisions regarding the dissemination of government
     information. In fact, EFF, along with OMB Watch officials,
     is proud to have had a role in crafting the language in both
     the PRA bill and the final A-130 circular.


First of all, OMB Circular A-130 is a very long document which
deals with many issues.  We have "praised" the provisions in OMB
Circular A-130 that deal with the pricing of government
information (limited to the costs of dissemination).  Like many
groups, we see the new 1993 A-130 as an important improvement
over the original 1985 version, which it replaces.


As Shari points out, there are some similarities between the new
A-130 and the PRA reauthorization which EFF and the vendors
support.  Both measures would create a special forum where
vendors can seek to block new agency information products or
services.  In fact, both the PRA and A-130 see privatization
concerns as the only issues which deserve public comment.


In contrast, the Owens bill requires federal agencies to accept
public comment *every year* on a wide range of information policy
questions, including such topics as product lines, pricing,
standards, outlets and modes of dissemination.




7.   Shari thinks that EFF was unfairly accused of being corrupt.
     In her words:


     Anyone who disagrees with Jamie Love is characterized by him
     as not only incorrect, but obviously corrupt.  ... Jamie
     Love is not objective on this matter and uses ad hominem
     arguments to discredit those he disagrees with. For example,
     he accuses EFF of taking money from the Information Industry
     Association.  This happens not to be true.  But even if it
     were, EFF has demonstrated time and again that we take
     positions on the merits of the issue and not simply to
     please any one of our many individual, member, corporate and
     foundation funding sources.


The word corrupt is Shari's, not mine.  I think that EFF has the
right to take industry money.  I also think that its germane to
mention the source of EFF's funding, even though I didn't make
much of it in the Cook article.


I didn't think there was any dispute over the funding from the
Industry Information Association (IIA).  But I guess the "happens
not to be true.  But even if it was" comment gives it away.
According to an April 13, 1993 post to comp-priv by former EFF
employee Gerard Van der Leun, IIA was one of the funders of the
Communications Policy Forum (CPF), which EFF runs.  So
technically, I guess, the money never went to EFF.  According to
earlier press reports, Jerry Berman also raised money for the CPF
from Mead Data Central (owner of LEXIS/NEXIS) and Dun &
Bradstreet, when Jerry was still with the ACLU.


A lot of this is old history.  Jerry's pretty sensitive about
this all, because of an earlier dispute.  While at the ACLU,
Jerry was negotiating changes in the PRA, as a representative of
"public interest" community, while Ron Plesser, the vendor
lobbyist, was helping Jerry raise corporate money for the CPF.


This was the subject of a few articles in 1991, including Sheila
Kaplan's "Libraries, Vendors at Odds over Electronic Data:  Issue
splits Public-Interest Community," from the July 15, 1991 issue
of the Legal Times.


Final note:  Shari, who wrote this for you?




==============================================================
James Love, Taxpayer Assets Project; 12 Church Road, Ardmore, PA
19003; v. 215/658-0880; f. 215/649-4066; Internet: love () essential org