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Features - Don't Fence Me In

By Al Podboy, Published on September 1, 2002

Al Podboy is Director of Libraries at Baker & Hostetler LLP, Cleveland, Ohio. Al has his MLS and JD from Case
Western Reserve University and currently serves on the American Association
of Law Libraries
(AALL) Executive Board.


In the summer of 1969 Richie Havens performed at Woodstock the song “Freedom.” His beautiful lament became the refrain for a generation. His performance also coincided with the birth of computer-assisted legal research (CALR). CALR in turn signaled the freeing of legal research from the constraints of traditional hard copy resources. CALR itself has evolved from a system limited by software to the almost limitless freedom of the Internet.
The Internet is my frontier. I’m too young for the frontier of American West and too old to explore the frontier of space. I have, however, grown up with the computer revolution. I love the Internet frontier. I love the freedom of ideas that it allows. I love its frontier anarchy. I love the way the Internet allows me to distribute information in a robust cost-effective manner. But I fear the challenges that are endangering my new frontier.

Jonathan Zittrain, professor of Entrepreneurial Studies at Harvard Law School and co-founder of Harvard’s Berkman Center for Internet and Society, recently gave a presentation at Case Western Reserve University Law School. His presentation was entitled “Barbed Wire on the Electronic Frontier: Private Sheriffs and Their Private Weapons.” He addressed the effects of federal legislation, its private remedies and court interpretation on the electronic frontier. I agree with his thesis and his fears of private sheriffs and private weapons, but I also fear the effects of our public sheriffs and public weapons. Today, the Internet is being challenged by not only federal but state legislative initiatives. These challenges go directly to the public’s right to obtain information in a cost-effective manner.

As a librarian, I am not fearful of change. We in the library profession constantly address change. We have downsized our collections to reflect the use of the computer-generated format. We have also structured our budgets around public and private vendor distribution of computer-assisted legal research material. The material available to our libraries and to our users has escalated at an astounding rate. The speed at which we can serve our users has also increased. Governmental agencies are increasing their services to our citizens, publishing electronically their material at a never-before-seen rate and entering the software business. We live in a different world. We live in an exciting world where small, low cost enterprises can and do compete with mega corporations. Electronic material is not governed by the same rules of production that limited the distribution of information in the past. Today, in large part, the distribution of information is limited only by the creativity of the individuals providing the information. This, however, may not always be true.

Today the Internet is under attack not from terrorists but from well-meaning governmental officials and their lobbyists. Under the guise of protecting competition, these individuals are limiting competition. The individuals in question want or claim to protect private vendors by limiting the competition of public providers. An example of this proposed legislation is that drafted by the American Legislative Exchange Counsel (“ALEC”).  ALEC claims to be “a bi-partisan membership association for conservative state law makers who shared a common belief in limited government, free markets, federalism, and individual liberty. . . .” I agree with those professed beliefs in limited government, free markets, federalism and individual liberty. I do not, however, agree with their proposed model legislation as a solution. Terry Lane in an article on the ALEC website wrote “States Considering Bills to Limit Government Role in E-Commerce” on May 17, 2002. In that article, Lane cites Ohio House Bill HB-482 (the Electronics Government Securities Act) which will, if adopted, create a review mechanism that any government entity would have to clear before it could launch an Internet initiative that would compete with the private sector. This and similar bills based on ALEC model legislation have been introduced in six other states: Mississippi, Missouri, Pennsylvania, Rhode Island, South Carolina and Tennessee. In the article, Lane avers that these legislative initiatives are designed to encourage competition.

I believe that this is untrue and that this proposal is “conservative” in the truest sense of the word. This model legislation is based on a fear of change, a fear of competition, and a protection of current players over new public players. As currently drafted, Ohio HB 482 would “prohibit a government agency from providing duplicative or competing electronic commerce services with the private sector unless the government agency complies with procedures established by the Act.” Subsection (C) of the proposed legislation provides: “‘Electronic commerce services’ mean services relating to commercial activity that are the same as, similar to, or overlap information technology based services provided to the public by two or more competing private enterprises. Electronic commerce services includes services made in connection with the transaction completed over a computer network, such as the buying of goods or services over the internet.” Subsection (E) of the legislation provides “government agency means either of the following: (1) a state agency as defined in Section 117.01 of the Revised Code or (2) a similar agency of a county, township, municipal corporation, or other political subdivision of this state.” These are very broad parameters. Those services and those agencies then come under some extremely strict guidelines as to what they can provide. Finally, with government material becoming easily accessible to the public, legislation such as this proposed legislation will strangle the public’s right to access.

It is not my intent herein to discuss all the sections of proposed HB 482. I would suggest that you go to the Ohio government website, and review the legislation on your own. Also, review the well-researched and thorough article by J. P. Finet, “Bill May Short Circuit High Court Data Base,” 5 Ohio Lawyers Weekly, at 74 (Feb. 25, 2002). Finet, reviews many of the difficulties of this proposed legislation. The bill is currently in redraft in the Ohio legislature. The sponsor representative, Buehrer, has taken the legislation out of committee and has had it assigned to reconsider some of its wording. Once he has received more input, he plans on reintroducing the measure. By reading the Bill, the Ohio Lawyers Weekly article, and the ALEC review, you will get a broad understanding of this legislation. It and similar proposed legislation are a huge threat to the electronic frontier. To understand this legislation, one must understand what constitutes the core services of state government. A state must provide its cases, statutes, court docket information and public records to its citizens. Under this legislation, it is unclear whether it can do this on a competitive basis. Many of the new services that we as citizens have grown to expect could be challenged by this type of legislation under the “protection of competition” rubric. This proposed legislation does not protect competition, it limits it. It is yet another threat to the free access of information on the Internet.

The Internet has forever changed how we do business. The speed and delivery of “the Net” allows government to quickly get information to the public. The Internet allows government to do this in a cost-effective manner. It disseminates the information at a speed that has been previously unheard of. It increases the service of government. The Internet allows all vendors, both public and private, big and little, to enter the marketplace. It allows survival of the best provider. They do not need the protection of legislation like that modeled after ALEC. Now is not the time for our vendors to retrench and go into a protective mode. Now is the time for them to allow the best products, whether public or private, to compete head-on in a free, open system.

This article is reprinted with permission from the July 2002 edition, Volume 9 #7 page 26 of the LawTech News © 2002 NLP IP Company. All rights reserved. Further duplication without permission is prohibited.