Our government requires transparency to operate as a functional participatory democracy. It’s not optional. If we do not have an informed citizenry, then we don’t have a participatory democracy. The Sunlight Foundation considers improving transparency to be a key reason for their existence. Larry Lessig wants to improve transparency in congressional funding to Change Congress. Hugo Teufel, the former Chief Privacy Officer at the Department of Homeland Security, considers transparency to be the most important principle when it comes to privacy in the war on terror.

The first step in transparency is access, so let me ask a simple question: Are U.S. Government documents copyrighted? More specifically, Are State or Federal Laws protected as copyrighted works in and of themselves? Oregon decided to use copyright law to protect their statutes from being posted online. In this case, Carl Malamud of Public Resource fought back. If your intuition is telling you that laws are in the public domain and not subject to copyright, then you are correct for the most part, but the situation is really quite a bit more complicated than that.

To investigate a bit of this complication, consider the way the government publishes the law. It’s done in a piecemeal fashion, one law at a time. Yes, there is some structure to the publishing process, but you don’t have to read much of a law to realize that there are a zillion cross references to other laws. This doesn’t even begin to include case law, which clarifies the interpretation of a legal text. Ed Felten poses the scenario thusly:

Suppose I gave you a big stack of paper containing all of the laws ever passed by Congress (and signed by the President). This wouldn’t be very useful, if what you wanted was to know whether some action you were contemplating would violate the law. How would you find the laws bearing on that action? And if you did find such a law, how would you determine whether it had been repealed or amended later, or how courts had interpreted it?

Companies like Thompson West have made billions of dollars publishing information to guide lawyers that must answer questions like this. Typically, these summaries and indices are protected under copyright law as extra-value content. Thus, for virtually all practical purposes, U.S. Government Documents are copyrighted. If you are interested in more information on this, I would highly recommend James Grimmelman’s primer on the subject.

Of course, it’s not just legal texts that are technically in the public domain, but remain plagued by access problems. Court records are also public documents. Once again, this is critical to the very structure of our government. The words “secret government trial” should send chills down the spine of any American. However, as Joe Lieberman recently argued, they are still “behind a paid firewall.” (This firewall apparently comes complete with a government website from 1999.) Carl Malamud of Public Record is once again on the case.

Side note: Carl Malamud is running a campaign to be nominated by the Obama administration as the Public Printer of the United States. He’s garnered the support of Larry Lessig, Tim O’Reilly, and the EFF. (Not to mention Canadians like Cory Doctorow and Tim Bray!) You can read more about his campaign at Yes We Scan.

Technology is changing the landscape of transparency in government documents rapidly. Many of the problems are already solved. The cost of maintaining a website “containing all of the laws ever passed by Congress (and signed by the President)” is orders of magnitude cheaper than managing all this information in print. Ed Felten’s group at Princeton has argued extensively for an open government model that would just give us the data.

Yesterday the Obama administration announced that Vivek Kundra will be the “Chief Information Officer” for the United States. If you are interested in more information on Kundra, I would strongly recommend this excellent podcast on transparency in the Obama administration from the Technology Liberation Front. They discuss their thoughts on the position, his experience as the CTO for the city government of Washington DC, and several other aspects of transparency in the Obama administration.

The future is quite interesting for the development of transparency in government documents. Personally, I think dramatic improvements in public access of U.S. government documents are inevitable, whether they come from individuals like Carl Malamud, corporations like Thompson West, or from the government itself. The only question left is when…

[Update: The Technology Liberation Front posted another podcast today about PACER and accessing online court records. It features Tim Lee, James Grimmelmann, and Steve Schultze. I highly recommend it!]