When Twitter agreed to allow the Library of Congress to archive its tweets, the public response to the news brought down the library’s website. That hadn’t happened since the release of the Starr Report in 1998, said Hope O’Keeffe, the library’s associate general counsel.
The government’s agreement with Twitter holds mutual benefit, she said: Twitter gets recognition as a culturally relevant tool, while the government preserves “a snapshot of our time.” Although historians and researchers are delighted, many members of the public have expressed alarm at the privacy ramifications of such a deal.
O’Keeffe and Elizabeth Hochberg, assistant general counsel at the U.S. General Services Administration, addressed the legal issues that crop up as agencies move to follow the Obama administration’s directive to increase transparency, participation and collaboration between citizens, communities, businesses and government. They spoke at the recent Gov 2.0 conference in Washington, D.C.
O’Keeffe and Hochberg’s advice is useful both for government agencies and the people who do business with them. Their biggest tip?
- Friend your lawyers. If you jump into a project because you think it’s easier to ask for forgiveness later than permission upfront, you may be risking jail, a lawsuit or the loss of your job, Hochberg said. Or you could be risking having your software platform yanked out from under your feet for noncompliance after you’ve spent months developing it, she cautioned.
“You know you’re going to have to work with us in the future, and trust is really important,” Hochberg said. “We can help speed things up exponentially if you bring us in from the beginning.”
- Go by FAR. The Federal Acquisition Regulation applies to all software applications contracted for with appropriation funds, just like a tangible item purchased by the government.
- Don’t be deficient. If you offer your software application to a government agency for free when it usually commands a price in the marketplace, your software is considered a gift and requires the agency to jump through several internal hoops before accepting it. Otherwise, the agency could be held in violation of the Anti-Deficiency Act.
- Negotiate terms of service. Standard terms of service from software providers usually don’t fly with government agencies. “We understand that you have your policies, but we have our laws,” Hochberg said.
Trouble spots can include:
- Indemnification. The government will never agree to unlimited or undefined compensation for injury or loss.
- Jurisdiction. The federal government cannot be sued in state court, only in federal court, according to the Supremacy Clause of the Constitution.
- Endorsement. The federal government cannot call any business a partner or an official provider. It will allow you to use the agency in a case study, but only if it scrutinizes each word.
- Federal records. The government has to comply with federal records laws.
- Intellectual property. The federal government has a right to copyright its images, and IP provisions must be hammered out in any terms of service. “People think they can screen-grab federal government pages and use them for themselves, but that’s not true,” Hochberg said.
- Privacy. “Privacy is going to be a bigger and bigger and bigger issue for all of us,” O’Keeffe said.
- Accessibility. All electronic and IT services have to be 508 compliant — that is, accessible to citizens with disabilities.
- Advertising. The government has to negotiate out any advertisements that would give the appearance of endorsements, like it has on its Facebook pages.
Make your case. If your lawyers end up being more of a roadblock than help, O’Keeffe and Hochberg suggest building a business case for adopting new technologies. Anticipate their objections, and show them that what you want to do is “a logical outgrowth of something that you’ve already been doing,” O’Keeffe said.
Identify lawyers who are open to technological change and add them to your team working on larger Gov 2.0 goals. Early notice and engagement can go a long way to winning lawyers over, O’Keeffe and Hochberg said.
Image credit: RTimages, via iStockphoto