Introduction to Legal Issues on Social Media & the Federal Government Peter Swire Ohio State University Center for American Progress DHS Conference June 23, 2009 Overview
Overview of legal issues Legal and policy issues in procuring 2.0 services Six Legal Hurdles 1. Privacy 1. Persistent cookies 2. Data that goes to 3rd party sites
2. Access for people with disabilities 1. Section 508 2. When does it apply to 3rd party sites 3. Commercial endorsement & advertising Six Legal Hurdles 4. Terms of service 1. State law & indemnity clauses, etc.
5. Paperwork Reduction Act 1. Surveys on the web 2. How to do analytics 6. Computer security & use of 2.0 by federal employees 1. Platforms & their aps
This Panel
Procurement Peter Swire Terms of Service Jodi Cramer Ethics (endorsement) Bob Coyle Records Management Laurence Brewer Privacy Act Kirsten Moncada E-Gov/FOIA/PRA/cookies/FACA Alex Tang First Amendment Aden Fine Procurement Overview of Buying
Free 2.0 Software 3 phases of federal procurement 3 options for procurement Use procurement for free 2.0 services Enable open use of 2.0 Enable conditional use of 2.0 Some recommendations
3 Phases of Software Procurement Custom software NASA rocket software & no private-sector producers Government contracts for custom software Commercial off the shelf software DoD shouldnt write its own word processing software
COTS & GSA schedules 3 Phases of Procurement 2.0 Free Services Procurement law (FAR) applies to the acquiring by contract with appropriated funds Possibly is a concession such as restaurant at national park; but, concessions involve payment of money to the government
Therefore, likely not a procurement under the FAR or DFAR when agency signs up for 2.0 free services Use Procurement Anyways? Pro: Well defined & fair procedures Multiple vendors can alert government to their services
Reduce risk of (perceived) favoritism Avoid lock-in & get to best service at lowest total cost of ownership Use Procurement Anyways? (2) Con: Full procurement will slow use of Web 2.0, especially for smaller sites/agencies/uses Not clear have authority to do procurement when
outside of required scope of the FAR Administrative burden of approving contracts This sort of formal procurement for 2.0 rarely used in the private sector, so why is it worth it for government agencies? Option 2: Open Use of 2.0 Idea government can use 2.0 the way private organizations do
Pro: Encourage rapid adoption of 2.0, consistent with Obama administration statements Encourage experimentation Fewer dollars than paying for software Favoritism concerns are limited by no direct flow of dollars to the vendors Option 2 Open Use of 2.0
Con: Still risk of favoritism and lock-in, especially for high-visibility sites such as whitehouse.gov Open use does not push for government policies for privacy, security, Section 508, FOIA, and other issues Option 3: Conditional Use of 2.0 Actually have a sliding scale from formal
procurement to open use of 2.0 Procedural conditions Get approvals (GC, management) before 2.0 Use 2.0 to govern 2.0, with comments section about vendors, alternative technologies, etc. Option 3: Conditional Use Substantive conditions Instead of requiring full compliance with privacy,
508, etc., can require consideration of such issues, perhaps combined with procedural safeguards A major strategic question how hard to insist on complete compliance with every substantive rule, for 3rd party services, during the ramp-up phase we are in Recommendations
My paper supports conditional use that is fairly close to open use Policy statement encouraging 2.0 & transparency Whitehouse.gov as a model Public comment feature so feedback on vendors & features Conditional use & consider privacy, 508, etc. in choosing 2.0 services Be open to statutory & regulatory changes to move
government & private services toward better achievement of multiple goals over time
