This article was written by David Halperin and Carl Malamud. Malamud is founder and president of PublicResource.Org, based in Sebastopol, CA. David Halperin, a Washington DC lawyer, advises the organization. A longer discussion of these issues, and links to the world’s hidden laws, are here.
“The rule of law,” Aristotle wrote, “is preferable to that of any individual …. Passion perverts the minds of rulers.” All over the world, for thousands of years, nations have embraced the rule of law — the principle that prescribed rules, rather than the whims of any individual, should govern society. The rule of law, enshrined in ancient texts and modern legislation, is a central protection against tyranny and unfair justice.
But the rule of law fails unless citizens have ready access to the law. In ancient Greece and Rome, India and China, the laws were inscribed on giant objects placed before the citizenry. Only if people have the right, unfettered, to read the law, and to communicate the law to others, can we expect them to obey, know their rights, and participate in improving the law. As such, it is a settled principal that access to the law should not be concealed, rationed, or sold. As Supreme Court Justice Stephen Breyer has stated, “If a law isn’t public, it isn’t a law.”
Yet around the world, public safety, a critical function of government, is in fact often regulated by laws hidden from public view. These are technical standards, many of them created by private organizations, and subsequently incorporated into law by acts of government. These technical rules control a huge swathe of our modern life — building codes, food and product safety, hazardous materials, the environment, job safety in factories and farms.
Compliance with these standards is mandatory. Yet obtaining them generally costs money – they must be purchased from a private organization or government agency — and disseminating them to others is normally prohibited.
These include standards governing the safety of oil pipelines – vital information for first responders and others in the event of a disaster like the Gulf oil spill or the 2010 pipeline explosion in San Bruno, California. These standards, and nearly a thousand others covering a wide range of public safety matters, have been incorporated into federal regulations by the United States Government and thus made binding on U.S. citizens. The American Petroleum Institute (API) sometimes charges over $1000 to read just one of these pipeline standards. API has threatened to sue U.S. organizations that have posted its standards on the Internet, even where those standards were lawfully purchased from API.
They include the Eurocodes – the building codes of the European Union, made mandatory by the European Parliament for government construction projects. These standards are binding on Europeans, yet purchasing a set of them costs over $10,000.
They include even an Ethiopian standard governing the manufacture of that nation’s national staple, injera bread.
Keeping the law hidden, or behind expensive pay walls, is an unfortunate characteristic of repressive and corrupt societies. It has no place in a free and open society. Decisions of the U.S. Supreme Court, for example, have made clear that copyright claims cannot bar publication of the law, because citizens own the law. Principles of open government, due process of the law, and free speech demand that the law be available to all to read and speak. Charging fees for access to the texts of the law itself is like charging voters to vote.
Our friend and colleague Aaron Swartz was one of those who worked tirelessly to advance the cause of putting the law online for people to read.
The tide may be turning on the issue of standards. Congress, surprised that API asked even a congressional committee to pay cash for its standards, recently passed a law requiring that new pipeline rules only incorporate standards that are publicly available.
Seeking to vindicate the principle that the law belongs to the people, Public.Resource.Org spent over $180,000 to purchase technical standards from across the globe, and, just before the new year, posted on the Internet 10,062 of these standards from 24 countries – laws that were not, until now, freely available.
Public Resource is not simply publishing the standards, but improving their readability and usability. With the Internet, governments and individuals have the power to link technical standards directly to the laws that incorporate them, to make the standards searchable, to present the information in new ways that enhance public understanding, to create new businesses and spur innovation.
By making standards available and useful to all, we can make society better. Public safety officials can do more to protect citizens. Researchers can enhance their knowledge of technical fields. Small businesses can more easily comply with the law and increase commerce and trade.
Innovation and education will benefit by opening up this world, but at the root are basic issues of democracy and justice. Government cannot tell people that they must obey laws that are only available in exchange for money. And government must not punish people for speaking the law to their fellow citizens.
This article also appears on Huffington Post.
Filed under: General