Law Librarian Blog

CRS on Marijuana Legalization by the States

The Congressional Research Service has weighed in on the apparent conflict between federal and state drug laws in light of legalization in Colorado and Washington for small amounts of recreational marijuana.  Here is part of the Summary that lays out the issues:

The Colorado and Washington laws that legalize, regulate, and tax an activity the federal government expressly prohibits appear to be logically inconsistent with established federal policy toward marijuana, and are therefore likely subject to a legal challenge under the constitutional doctrine of preemption. This doctrine generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that conflict with federal law are generally preempted and therefore void and without effect. Yet Congress intended that the CSA would not displace all state laws associated with controlled substances, as it wanted to preserve a role for the states in regulating controlled substances. States thus remain free to pass laws relating to marijuana, or any other controlled substance, so long as they do not create a “positive conflict” with federal law, such that the two laws “cannot consistently stand together.”

This report summarizes the Washington and Colorado marijuana legalization laws and evaluates whether, or the extent to which, they may be preempted by the CSA or by international agreements. It also highlights potential responses to these recent legalization initiatives by the U.S. Department of Justice (DOJ) and identifies other noncriminal consequences that marijuana users may face under federal law. Finally, the report closes with a description of legislative proposals introduced in the 113th Congress relating to the treatment of marijuana under federal law, including H.R. 499 (Ending Federal Marijuana Prohibition Act of 2013); H.R. 501 (Marijuana Tax Equity Act of 2013); H.R. 689 (States’ Medical Marijuana Patient Protection Act); H.R. 710 (Truth in Trials Act); H.R. 784 (States’ Medical Marijuana Property Rights Protection Act); and H.R. 964 (Respect States’ and Citizens’ Rights Act of 2013).

The report is State Legalization of Recreational Marijuana: Selected Legal Issues.  It was issued on April 5, 2013.  The order code is R43034.  [MG]

Should Retired Federal Judges' Working Papers Be Archived as Official Government Records Open for Research Purposes?

Never gave the matter a thought. You? Well, Kathryn A. Watts, Univ. of Washington School of Law, has. Judges and Their Papers [SSRN], 2013 New York University Law Review article, may be the first serious attempt to answer the question, "who should own a federal judge's papers?" Here's the abstract:

Who should own a federal judge’s papers? This question has rarely been asked. Instead, it has generally been accepted that the justices of the U.S. Supreme Court and other federal judges own their own working papers, which include papers created by judges relating to their official duties, such as internal draft opinions, confidential vote sheets, and case-related correspondence. This longstanding tradition of private ownership has led to tremendous inconsistency. For example, Justice Thurgood Marshall’s papers were released just two years after he left the bench, revealing behind-the-scenes details about major cases involving issues like abortion and flag burning. In contrast, Justice David Souter’s papers will remain closed until the 50th anniversary of his retirement, and substantial portions of Justice Byron White’s papers, including files relating to the landmark case of Miranda v. Arizona, were shredded. In addition, many collections of lower federal court judges’ papers have been scattered in the hands of judges’ families. Notably, this private ownership model has persisted despite the fact that our country’s treatment of presidential records shifted from private to public ownership through the Presidential Records Act of 1978. Furthermore, private ownership of judicial papers has endured even though it has proven ill-equipped to balance the many competing interests at stake, ranging from calls for governmental accountability and transparency on the one hand to the judiciary’s independence, confidentiality and collegiality on the other.

This Article is the first to give significant attention to the question of who should own federal judges’ working papers and what should happen to the papers once a judge leaves the bench. Upon the 35th anniversary of the enactment of the Presidential Records Act, this Article argues that judges’ working papers should be treated as governmental property — just as presidential papers are. Although there are important differences between the roles of President and judge, none of the differences suggest that judicial papers should be treated as a species of private property. Rather, the unique position of federal judges, including the judiciary’s independence, should be taken into account when crafting rules that speak to reasonable access to and disposition of judicial papers — not when answering the threshold question of ownership. Ultimately, this Article — giving renewed attention to a long forgotten 1977 governmental study commissioned by Congress — argues that Congress should declare judicial papers public property and should empower the judiciary to promulgate rules implementing the shift to public ownership. These would include, for example, rules governing the timing of public release of judicial papers. By involving the judiciary in implementing the shift to public ownership, Congress would enhance the likelihood of judicial cooperation, mitigate separation of powers concerns, and enable the judiciary to safeguard judicial independence, collegiality and confidentiality.

Highly recommended. [JH]

New CRS Report on Private Laws: Too late for this year's ALR courses but, hopefully, CRS reports are assigned readings for them

From the summary of Procedural Analysis of Private Laws Enacted: 1986-2013 (RS22450, April 9, 2013):

Between 1986 and 2013 (99th-113th Congresses), 170 private laws were enacted. As of this writing, no private laws have been enacted in the 113th Congress (2013-2014). Most private laws during this period dealt with immigration issues or claims against the government. Of these measures, 65% originated in the House, 9% had cosponsors, and 23% had companion bills. Most were enacted without amendment or need to resolve differences with the other house. This report examines the broad distinctions among these measures in terms of their subject matter, introduction, sponsorship and cosponsorship, referral, method of consideration, amendment, and reconciling of differences between the chambers’ versions of the bill.

Yes, a little late for an ALR course reading assignment this year.  But not next year. Of course, I'm assuming (and hoping) ALR instructors are going beyond the textbook by assigning CRS reports that address executive, legislative and judiciary topics. Another recent example that I believe would be appropriate is The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress (March 8, 2013; R41933) (Featured on LLB here.) [JH]

AALL Launches Website for Monitoring Status of State Online Legal Resources

Thanks to AALL's Digital Access to Legal Information Committee and all the prior efforts by AALL members the State Online Legal Information website "brings together information from AALL's National Inventory of Legal Materials and updates AALL's Preliminary Analysis of AALL’s State Legal Inventories, 2007 State-by-State Report on Authentication of Online Legal Resources  and 2009-2010 State Summary Updates." Information is provided about the electronic delivery of primary legal resources in all 50 states and the District of Columbia in the following categories:

• Official Status
• Authentication
• Preservation
• Permanent Public Access
• Copyright
• Universal Citation

Check the status for your state's eResources. The Committee welcomes your contributions. See also DALIC's Definitions of Inventory Categories.

Hat tip to AALL's Washington Blawg for this announcement. [JH]

Who Owns the Law: Private Ownership of Public Law and How to Stop It

As a follow up to several recent LLB posts, the video of Fastcase CEO Ed Walters' presentation at last month's ReInvent Law Silicon Valley 2013 Conference is now available for viewing on the ReInvent Law Channel. Here's the direct link to Walters' Who Owns The Law: Private Ownership of Public Law, and How to Stop It. Highly recommended as are the other presentations available on the ReInvent Law Channel. [JH]

The District of Columbia Claims It Needs to Copyright Its Code to Protect Itself from Commercial Publishers

Here's an odd twist to the copyright argument from a government actor. Quoting from Luke Rosiak's Ignorance of D.C.’s copyrighted laws can be costly (Washington Times, March 31, 2013):

Vladlen David Zvenyach, who oversees codification for the city council, said in Washington’s case, Mr. Malamud has nothing to worry about.

“At one point, the publishers threatened states over the ownership of their own code. If Lexis is the one doing it and the state goes around and alters it, they could be sued by the publishers. Our copyright is intended to protect us against them, not protect them against the public,” he said. “I have no intention of going after him.”

What was going on here? Carl Malamud acquired, scanned, OCRed and uploaded for bulk redistribution the 20-plus print volume edition of the District of Columbia code published by Thomson Reuters under contract with the Code's copyright owner, the District of Columbia. While Malamud was not looking to be sued, Steve Schultze took this a step further: "I downloaded his [Malamud's] copies, printed one of the volumes, and took a picture inviting Thomson Reuters or the DC Council to sue me... ."

One would think the District of Columbia will not sue Schultze since it does not intend to sue Malamud. As for Thomson Reuters, well, two thoughts. First, Schultze's post, The District of Columbia Claims Copyright on the Law, (includes photo) was published on Freedom to Tinker, a blog hosted by Princeton's Center for Information Technology Policy. While Schultze may have printed out a portion of the code on his own initiative, I'm thinking the Center might be looking for or willing to take on a test case.

Second, I doubt Thomson Reuters gives a damn anymore. As this WestMart e-blurb states (last visited on April 3, 2013) the DC Official Code is published by Thomson Reuters under an exclusive contract with the District of Columbia and Thomson Reuters claims it is copyrighted. However, the title is currently out of stock. And it may remain out of stock because the District of Columbia is switching to LexisNexis, presumably under another exclusive contract.

Do note that when Thomson Reuters was the District of Columbia's exclusive publisher it was required to provide a "free access" Westlaw portal for the DC Code (also last visited on April 3, 2013). See Tom MacWright's The Code: Access vs. Ownership for a critique. Is something better in the works? In the context of Lexis replacing Thomson Reuters, Luke Rosiak reports in the above cited Washington Times article that "the city is working to make the full text available in more flexible formats, rather than locked behind mouse-clicks on WestLaw’s website."

Hum... . How? Using Lexis coded eText? Hosted by Lexis? Perhaps someone will make an open records request for the Lexis-DC contract.

Note well that Georgia claims copyright ownership of the Official Code of Georgia Annotated. Lexis, as the state's official publisher, is required to provide a very similar "free access" portal with the following terms and conditions of use:

GEORGIA CODE – FREE PUBLIC ACCESS

The Official Code of Georgia Annotated (O.C.G.A.) is copyrighted by the State of Georgia. By using this website, the user acknowledges the State's copyright interests in the O.C.G.A. Neither the O.C.G.A. nor any portions thereof shall be reproduced in any form without written permission from the Georgia Code Revision Commission, except for: (1) fair use under the copyright laws of the United States; or (2) those limited portions that are in the public domain (statute text and numbering).

Use of this website and the downloading or copying of any material there from shall be subject to the Terms and Conditions of LexisNexis®, which is the official publisher of the O.C.G.A. and maintains this website at its own expense to provide free public access to the law. It is not intended to replace professional legal consultation or advanced legal research tools. Please note that the latest print version of the O.C.G.A. is the authoritative version; and in case of any conflict between the materials on this website and the latest print version of the O.C.G.A., the print version shall control. To report errors regarding this website, please complete the publisher's Feedback Form.

Wouldn't a simple Creative Commons License be the better way to go about this? See Lobbying for More Than Just UELMA. At some point, I'm thinking even our major legal publishers, legal solutions providers, professional legal services (whatever) vendors might find this to be an attractive alternative to today's status quo.

End note. Does the sue-not sue outcome of the DC Code copyright matter remind you of something that happened in the past when Malamud scanned and uploaded for distribution primary legal resources "protected" by a state actor claiming copyright? It should. See Ed Walter's Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes July 15, 2011 VoxPopuLII post for details. [JH]

New CRS Report on FOIA Policy Options for Congressional Consideration

From the Summary of The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress (March 8, 2013; R41933):

This report provides background on FOIA, discusses the categories of records FOIA exempts from public release, and analyzes statistics on FOIA administration. The report also provides background on several legal and policy issues related to FOIA, including the release of controversial records, the growth in use of certain FOIA exemptions, and the adoption of new technologies to improve FOIA administration. The report concludes with an examination of potential FOIA-related policy options for Congress.

Recommended. [JH]

GPO has "no intention of charging public users a fee to access content available through FDsys"

and "GPO remains committed to no-fee access to FDsys for the public as part of our mission of Keeping America Informed." That was Acting Public Printer Davita Vance-Cooks responding to the CASSANDRA (Concerned Government Information Professionals) letter regarding NAPA's Rebooting the Government Printing Office: Keeping America Informed in the Digital Age. (Text of CASSANDRA letter here.)

Remember one of National Association of Public Administration's recommendations was that the GPO consider "cost recovery" for FDsys access. "This is, of course, good news, but we have to temper our enthusiasm with the realization that GPO's ability to meet its intentions will inevitably be dictated by Congress and its budget," wrote JA Jacobs on Free Government Information at GPO Response to NAPA Report's Recommendation to Charge for FDsys access (includes text of Vance-Cooks' letter.) [JH]

Lobbying for More Than Just UELMA

We all know the intent behind UELMA. Authentication, preservation and permanent public accessibility to the most basic state-level digital primary legal resources, namely "state constitutions, session laws, codified laws, and administrative rules with the effect of law" by state actors designated as "official publishers” to carry out the provisions of the Act in those instances where state governments are delivering such legal materials in electronic formats. After that it is game on because UELMA does not affect any contractual relationship between an official state publisher and a commercial publisher, nor does it affect copyright claims.

Is UELMA flawed because of what it leaves unaffected? Of course not. The Uniform Laws Commission could not venture into contract and copyright laws. However, as folks lobby for UELMA adoption (current status available on the ULA site see also AALL's 2013 bill tracking report) they may want to take a look at what is happening in California.

California was the second state to adopt UELMA. SB 1075 was signed into law by California Governor Jerry Brown on September 13, 2012. If my always faulty memory isn't up to its usual tricks, I believe the Act takes effect in 2015. However state copyright claims and state publishing contracts with a commercial vendor remain an issue.

Lobbying for Creative Commons licensing in addition to UELMA. Recently California Assemblyman Brian Nestande (R-42nd Dist.) tossed AB 292 into the bill hopper. It calls for applying a Creative Commons License to the California Code of Regulations to allow any individual, at no cost, to use, distribute, and create derivative works based on the material for either commercial or noncommercial purposes because the California Office of Administrative Law holds an exclusive copyright on the CCR. I doubt Assemblyman Nestande would mind if I republish his office's press release in full. So here it is:

The agency responsible for reviewing and approving new regulations, the Office of Administrative Law (OAL,) holds an exclusive copyright over regulations that are created with taxpayer dollars.  All taxpayers already fund the activities of government, including the creation of new regulations.  Restricting access to these regulations requires taxpayers to pay twice for the same government activity.  Because all taxpayers are bound by the law, businesses are compelled to pay for complete access to the regulations that bind them.  The cost of purchasing access to the regulations can vary from $30 to more than $3,000, depending on what sections of regulations are needed.

AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.

While OAL is required to post a copy of the California Code of Regulations (CCR) on its Web site, it makes this version prohibitively difficult to navigate, and restricts access with the following restriction: “no part of this Web site may be reproduced, duplicated, copied, downloaded, stored, further transmitted, disseminated, transferred, or otherwise exploited without Thomson Reuters’ prior written consent.”  These restrictions require businesses to purchase complete access from Thomson Reuters, from which OAL derives a share of the profits.

When the Legislature enhances the profitably of an activity, it incentivizes that activity.  By allowing OAL to profit from access to taxpayer funded activities, the Legislature is inherently making a statement that California needs more regulations.  By giving a profit motive to approve regulations, it incentivizes the approval of more regulations.

Allowing OAL to profit from the sale of access to the regulations it has the authority to approve creates an inherent conflict of interest.  OAL currently uses its proprietary copyright to issue an exclusive license to Thomson Reuters in exchange for a $400,000 annual license fee and 7% of all royalties.  As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit.  This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.

Due to the restrictions OAL sets forth on access to state regulations, search engines such as Google cannot legally access and index the CCR.  In addition, developers cannot create user-friendly applications for smartphones and tablets that would allow the public to easily access, manipulate, and share regulations. This in turn can limit innovation and transparency.

Additionally, because of these restrictions to the CCR no individual can legally reproduce the text of a regulation.  This prevents covered entities from freely sharing and discussing new regulations.  Even a petition to repeal a regulation would violate OAL’s copyright if it quotes from the text of that regulation. This hindering of political speech is counter to an open and transparent government.

Finally, access to statutes and regulations should be consistent across all of California government.  Unlike OAL’s copyright over administrative law, the Legislature holds no copyright over the laws it creates.  Legislative Counsel covers the cost of making laws and is available to every taxpayer because this is a proper and legitimate role of government.

By making the CCR free and readily available to the public, we are creating a more transparent government and easing the burden on businesses that must purchase access to the regulations that bind them.

In those instances where states claim copyright ownership of primary legal resources, UELMA lobbyists might want to look to AB 292 for model language to include or at least submit as companion legislation. Such language should also eliminate any commerical publisher's copyright claims to section heading texts in codifications of otherwise public domain primary legal resources if created by the publisher. This way any individual could at no cost easily use, distribute, and create derivative works based on the material for either commercial or noncommercial purposes.

End note: Granted potential separation of powers issues abound but I would push further for Creative Commons licensing of state publications. For example the Ohio Judicial Conference, an independent statutory entity within the judicial branch of government, claims copyright ownership for Ohio Jury Instructions. Lexis has the contract to publish OJI in print. List price is a whopping $544. Compare that to other state agency authored pattern jury instructions pricing.

Granted Lexis OJI includes some editorial enhancements -- "explanatory Committee Notes, references to Ohio Revised Code sections, cases and other materials for your own research," is updated at no small expense, and even includes a CD (not yet, if ever, to be replaced by a "free" eBook). But for a print version, Lexis OJI is the only game in the Buckeye State.

For online distribution of OJI, the Ohio Judicial Conference currently limits licensing to three vendors. At the moment they are Lexis, West and Casemaker. Why not more? To create a bidding war? Isn't it time to stop an "independent statutory entity within the judicial branch of government" from milking this cash cow?

I have no doubt that watchdogs in other states can find similiar examples at many, if not most, branches of state government. [JH]

March 10-16: Gearing Up for Sunshine Week 2013?

I think we law librarians know what Sunshine Week is. Promoting open government and freedom of information by way of this annual week-long series of events is one way to advocate for the public's right to know. AALL will again co-sponsor a Sunshine Week webcast with OpentheGovernment.org. It will to be held on the morning of Friday, March 15. For details, see Save the Date! Sunshine Week 2013 (Washington Blawg) and/or the March issue of Washington E-Bulletin.

In addition to AALL, the co-sponsors of OpentheGovernment's March 15th event include the American Library Association, American Society of News Editors, Association of Research Libraries, Center for Effective Government, League of Women Voters, National Freedom of Information Coalition, Project on Government Oversight, Reporters Committee for Freedom of the Press, the Special Libraries Association, and Sunlight Foundation. For more information, see Register Now: OpenTheGovernment.org’s Sunshine Week Event on March 15. Here's the event's agenda.

According to Sunshine Week's About page, Bloomberg LP and the John S. and James L. Knight Foundation are providing financial support for Sunshine Week 2013. Did someone forget to ask Thomson Reuters? The American Society of News Editors FOI co-chairs Andrew Alexander and Tim Franklin discuss Sunshine Week 2013 in the below video. [JH]

Open States: A non-profit, non-partisan public resource for monitoring state legislative activity

"If you're interested in your state lawmaker, you'll be able to get notifications for their actions, a map of their district, voting records, committee assignments, campaign finance records from Influence Explorer, local news articles and contact information. If you're curious about a particular piece of legislation, Open States allows you to check on its status, find the sponsors, break down votes, view bill text and all supporting documents. Our powerful search capabilities allow you to find similar topics across states and view overview pages for each state, chamber and committee." --- Nicko Margolies, Open States: Find and Follow Your State Capitol (Sunlight Foundation Blog, Feb. 14, 2013)

In February of 2009, the Sunlight Foundation announced that its next big goal was "The Fifty State Project." The objective was to provide the same sort of access to legislative data and related information OpenCongress did but for all 50 states from one website. Not an easy task but the Foundation stayed the course. Last month the Sunlight Foundation announced the launch of the full Open States site.

After more than four years of work from volunteers and a full-time team here at Sunlight we're immensely proud to launch the full Open States site with searchable legislative data for all 50 states, D.C. and Puerto Rico. Open States is the only comprehensive database of activities from all state capitols that makes it easy to find your state lawmaker, review their votes, search for legislation, track bills and much more.

Let's add that Open States data is available for bulk downloading.

Give Open States a test drive. Some may want to toss it into an ALR lecture on researching state legislation. Others may want to add the resource as an alternative to very expensive research offerings for monitoring state legislation. And some may even want to experiment with repurposing the data made available by bulk downloads. For an introductory tutorial, see Exploring State Legislative Data.

Just as OpenCongress has evolved since 2009, my hunch is Open States also will. [JH]

White House Directs Agencies Create A Public Access Plan For Federally Funded Research

What with all the talk leading up to the sequester kicking in today, sometimes it’s hard to notice some of the things the Obama administration are doing.  Here’s an example from last Friday.  The White House Office of Science and Technology Policy issued a directive to executive departments and agencies to develop policies to make federally funded research available to the general public after one year of publication.  The entire document is here.  An excerpt:

The Office of Science and Technology Policy (OSTP) hereby directs each Federal agency with over $100 million in annual conduct of research and development expenditures to develop a plan to support increased public access to the results of research funded by the Federal Government.  This includes any results published in peer-reviewed scholarly publications that are based on research that directly arises from Federal funds, as defined in relevant OMB circulars (e.g., A-21 and A-11). It is preferred that agencies work together, where appropriate, to develop these plans.

And:

To the extent feasible and consistent with applicable law and policy; agency mission; resource constraints; U.S. national, homeland, and economic security; and the objectives listed below, digitally formatted scientific data resulting from unclassified research supported wholly or in part by Federal funding should be stored and publicly accessible to search, retrieve, and analyze. For purposes of this memorandum, data is defined, consistent with OMB circular A-110, as the digital recorded factual material commonly accepted in the scientific community as necessary to validate research findings including data sets used to support scholarly publications, but does not include laboratory notebooks, preliminary analyses, drafts of scientific papers, plans for future research, peer review reports, communications with colleagues, or physical objects, such as laboratory specimens.

The administration put out a Request for Information on the issue and solicited comments on November 3, 2011.  Many university libraries and publishers weighed in.  Libraries supported the idea of public availability for federally funded studies.  Publishers not so much, although they seemed to embrace the idea that the government should reimburse them for editorial and other fees they expend in bringing these articles to market if the works are publicly available.  The comments (available with the RFI) reflect the commercial bias of most publishers who describe the current high priced subscription system as working well.  I tend to think that if federal funding was involved in a study, then it should be publicly available.  We should wait for the details to emerge as the agencies have yet to formulate their plans under the directive.  [MG]

Opening PACER

Hat tip to Legal Research Plus for calling attention to OpenPACER.org's draft bill, The Open PACER Act of 2013.

The Open PACER Act provides for free and open access to electronic federal court records. The courts currently offer an expensive and difficult-to-use web site. They charge more than their cost of offering the service—more than Congress has authorized—violating the E-Government Act of 2002. This Act seeks to, once and for all, compel the courts to fulfill Congress' longstanding vision of making this information "freely available to the greatest extent possible".

[JH]

An UELMA Update

Published on SLAW by Judy Gaskell. Read more about it at Can You Trust Law Online? a 2012 UELMA Update. [JH]

The Obama Administration's 2012 National Data Strategy

Hat tip to Text Radar's Alice Wilson for calling attention to the National Strategy For Information Sharing and Safeguarding (Dec. 2012). From the Executive Summary:

Our national security depends on our ability to share the right information, with the right people, at the right time. This information sharing mandate requires sustained and responsible collaboration between Federal, state, local, tribal, territorial, private sector, and foreign partners. Over the last few years, we have successfully streamlined policies and processes, overcome cultural barriers, and better integrated information systems to enable information sharing. Today’s dynamic operating environment, however, challenges us to continue improving information sharing and safeguarding processes and capabilities. While innovation has enhanced our ability to share, increased sharing has created the potential for vulnerabilities requiring strengthened safeguarding practices. The 2012 National Strategy for Information Sharing and Safeguarding provides guidance for effective development, integration, and implementation of policies, processes, standards, and technologies to promote secure and responsible information sharing.

The Strategy focuses on achieving five goals:

1. Drive Collective Action through Collaboration and Accountability.
2. Improve Information Discovery and Access through Common Standards.
3. Optimize Mission Effectiveness through Shared Services and Interoperability.
4. Strengthen Information Safeguarding through Structural Reform, Policy, and Technical Solutions.
5. Protect Privacy, Civil Rights, and Civil Liberties through Consistency and Compliance.

For an overview, see David Perera's White House data strategy calls for standardized metadata and identity authentication on FierceGovernmentIT.

On a related note, CRS issued The Protection of Classified Information: The Legal Framework on Dec. 17, 2012. From the Summary:

The publication of secret information by WikiLeaks and multiple media outlets, followed by news coverage of leaks involving high-profile national security operations, has heightened interest in the legal framework that governs security classification and declassification, access to classified
information, agency procedures for preventing and responding to unauthorized disclosures, and penalties for improper disclosure. Classification authority generally rests with the executive branch, although Congress has enacted legislation regarding the protection of certain sensitive information. While the Supreme Court has stated that the President has inherent constitutional authority to control access to sensitive information relating to the national defense or to foreign affairs, no court has found that Congress is without authority to legislate in this area.

This report provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. Finally, the report describes some recent developments in executive branch security policies and legislation currently before Congress (S. 3454).

[JH]

The CRS And CBO Takes On The Fiscal Cliff

With all the talk about the impending doom regarding the “fiscal cliff,” I offer the Congressional Research Service’s take.  The Service issued a report in September called The “Fiscal Cliff”: Macroeconomic Consequences of Tax Increases and Spending Cuts (R42700, September 20, 2012) by Senior Specialist in Economic Policy Jane G. Gravelle.  From the Summary:

A major policy concern for Congress is when and whether to address the “fiscal cliff,” a set of tax increases and spending cuts that would substantially reduce the deficit in 2013. In projections made in March 2012 by the Congressional Budget Office (CBO), this fiscal restraint, constituting 5.1% of output in 2013, would reduce growth to 0.5% from 4.4%. Unemployment would increase by 2 million. In August, updated estimates projected growth at a negative 0.5%.

Policy choices with respect to the fiscal cliff are difficult because of the conflict between shortrun and long-run economic and budgetary objectives. In the short run, the reduction in demand from the reduced budget deficits could damage an already fragile recovery. In the longer run, however, deficit reduction is needed to address a projected unsustainable debt level.

For FY2013, compared with FY2012, the policy-related fiscal cliff is $502 billion, 80% reflecting tax increases. There is an additional $105 billion from economic changes. The expiration of the 2001, 2003, and 2009 tax cuts (extended in 2010) and the expiration of the alternative minimum tax (AMT) “patch,” which indexes the AMT exemption for inflation, account for 44% of the policy-related fiscal cliff. Other tax provisions include expiration of the temporary two percentage-point reduction in the employee’s Social Security payroll tax (19%); the expiration of other tax cuts, including depreciation and the “extenders (13%); and taxes scheduled to come into effect as a part of health reform (4%). Spending reductions include the automatic spending cuts under the Budget Control Act (13%); the expiration of extended unemployment insurance benefits (5%); and the “doc fix” that will lower Medicare payments (2%). Most changes take effect after 2012, although the AMT and many of the extenders expired after 2011.

Here is the Congressional Budget Office’s take in a report from May of this year called Economic Effects of Reducing the Fiscal Restraint That Is Scheduled to Occur in 2013.  The latest CBO report is Choices for Deficit Reduction from November 8^th.  A companion post on the CBO Director’s Blog is here.  [MG]

Law Via The Internet Conference 2012

Former Supreme Court Librarian (and before that, Director of the Law Library at DePaul University) Judith Gaskell reports on the Law Via The Internet Conference 2012 on SLAW.  From her post:

I have been retired for one year, but still continue to work on one of my favorite causes – access to legal information as a basic societal right. Many years ago, when I was a documents librarian, the rallying cry of law librarians was “Documents to the People.” Now we have a much less catchy, but more accurate American Association of Law Libraries (AALL) policy statement that “Federal, state and local authorities must ensure government legal information is permanently available to the public at low or no cost, in an easily accessible and professionally maintained environment.” This policy does not preclude print documents, but does reflect the reality of our digital age, where members of the public expect information to be free and fast.

The rest of the post describes the different issue tracks that were presented at the conference.  It’s well worth a read.  [MG]

CRS Economic Report A Bit Too Touchy For Senate Republicans

It’s a pity that Don LaFontaine has passed on.  You may not have known his name, but you certainly have heard his voice.  He provided the dramatic narrative to countless numbers of movie trailers, commercials, and other promotional material.  If he were alive today he could speak words such as “In a world where politics define reality rather than the other way around….” Those words could easily apply to a news story in today’s New York Times.  It describes successful efforts by Senate Republicans to have the CRS report titled Taxes and the Economy: An Economic Analysis of the Top Tax Rates Since 1945 (copy available courtesy of the NY Times) removed from circulation. 

I wrote a brief post about the report last September.  Its thesis is that tax cuts do not lead to economic growth.  This conclusion came after studying 65 years’ worth of policy.  I’ll repeat the report’s abstract from the earlier post:

Advocates of lower tax rates argue that reduced rates would increase economic growth, increase saving and investment, and boost productivity (increase the economic pie). Proponents of higher tax rates argue that higher tax revenues are necessary for debt reduction, that tax rates on the rich are too low (i.e., they violate the Buffett rule), and that higher tax rates on the rich would moderate increasing income inequality (change how the economic pie is distributed). This report attempts to clarify whether or not there is an association between the tax rates of the highest income taxpayers and economic growth. Data is analyzed to illustrate the association between the tax rates of the highest income taxpayers and measures of economic growth. For an overview of the broader issues of these relationships see CRS Report R42111, Tax Rates and Economic Growth, by Jane G. Gravelle and Donald J. Marples.

Throughout the late-1940s and 1950s, the top marginal tax rate was typically above 90%; today it is 35%. Additionally, the top capital gains tax rate was 25% in the 1950s and 1960s, 35% in the 1970s; today it is 15%. The real GDP growth rate averaged 4.2% and real per capita GDP increased annually by 2.4% in the 1950s. In the 2000s, the average real GDP growth rate was 1.7% and real per capita GDP increased annually by less than 1%. There is not conclusive evidence, however, to substantiate a clear relationship between the 65-year steady reduction in the top tax rates and economic growth. Analysis of such data suggests the reduction in the top tax rates have had little association with saving, investment, or productivity growth. However, the top tax rate reductions appear to be associated with the increasing concentration of income at the top of the income distribution. The share of income accruing to the top 0.1% of U.S. families increased from 4.2% in 1945 to 12.3% by 2007 before falling to 9.2% due to the 2007-2009 recession. The evidence does not suggest necessarily a relationship between tax policy with regard to the top tax rates and the size of the economic pie, but there may be a relationship to how the economic pie is sliced.

I guess the nonpartisan conclusions of the CRS seem to run counter to economic reality policy of one major political party.  I guess that’s close to blasphemy in an election year.  Why not rebut it rather than supress it.  Too hard?  [MG]

A Constitutional Challenge to Virginia's State FOIA as It Applies to Non-Residents

On Oct. 5, 2012, the Supreme Court granted cert in McBurney v. Young, 12-17 [SCOTUSblog case page] a case involving a state's power to grant access to its public records to its own citizens but deny access to non-residents under the rarely interpreted Privileges and Immunities Clause and the dormant Commerce Clause. For background, see Courthouse News reports Out-of-Staters Take Info Access Dispute to D.C. and Out-of-Staters Have No Claim to Virginia Files (Covers 4th Circuit ruling at 667 F.3d 454). [JH]

GAO Report Looks At Privacy In Wireless Location Information

The Govermemnt Accountability Office has released a report called Mobile Device Location Data:  Additional Federal Actions Could Help Protect Consumer Privacy.  Here's a bit from the summary of what the GAO found:

Using several methods of varying precision, mobile industry companies collect location data and use or share that data to provide users with location-based services, offer improved services, and increase revenue through targeted advertising. Location-based services provide consumers access to applications such as real-time navigation aids, access to free or reduced-cost mobile applications, and faster response from emergency services, among other potential benefits. However, the collection and sharing of location data also pose privacy risks. Specifically, privacy advocates said that consumers: (1) are generally unaware of how their location data are shared with and used by third parties; (2) could be subject to increased surveillance when location data are shared with law enforcement; and (3) could be at higher risk of identity theft or threats to personal safety when companies retain location data for long periods or share data with third parties that do not adequately protect them.

Industry associations and privacy advocates have developed recommended practices for companies to protect consumers’ privacy while using mobile location data, but companies have not consistently implemented such practices. Recommended practices include clearly disclosing to consumers that a company is collecting location data and how it will use them, as well as identifying third parties that companies share location data with and the reasons for doing so. Companies GAO examined disclosed in their privacy policies that the companies were collecting consumers’ location data, but did not clearly state how the companies were using these data or what third parties they may share them with. For example, some companies’ policies stated they collected location data and listed uses for personal information, but did not state clearly whether companies considered location to be personal information. Furthermore, although policies stated that companies shared location data with third parties, they were sometimes vague about which types of companies these were and why they were sharing the data. Lacking clear information, consumers faced with making a decision about whether to allow companies to collect, use, and share data on their location would be unable to effectively judge whether the uses of their location data might violate their privacy.

[MG]