The Bill Is a Great Step for Government Transparency

The U.S. government has made huge strides in its open data practices over the last few years. Since it launched in 2009, has become a crucial source for everything from climate and agricultural data to Department of Education records. For the most part, this new era of data disclosure didn’t happen because Congress passed new laws; it happened through presidential orders and procedural improvements in the Executive Branch.

Unfortunately, it might be just as easy for future administrations to roll back the current open data program. That’s why EFF supports a bill that would mandate public access to government data and urges Congress to pass it.

Recently introduced in both the House and Senate, the Open, Public, Electronic, and Necessary Government Data Act (OPEN Data Act, S. 2852, H.R. 5051) would require all federal government agencies to automatically make public any data sets they produce, subject to narrow exceptions for national security or other reasons (more on those reasons in a minute).

It would also require that that data be shared in a machine-readable format—that is, a format that can be processed by a computer without a person having to manually tinker with each entry. In 2013, President Obama issued an executive order that government data be shared in machine-readable formats. The OPEN Government Data Act would lock that requirement into law and provide a stronger legal definition for machine-readable data.

EFF applauds the OPEN Data Act and hopes to see it pass. By turning the good practices that the Executive Branch has gradually adopted into law, the OPEN Data Act can help usher in a new era for U.S. data transparency.

Keeping Public Data in the Public Domain

The OPEN Government Data Act would require that all public data either be shared under an open license or be dedicated to the worldwide public domain.

We’re thrilled that the law would explicitly posit that government data is in the public domain globally. As we recently discussed, although works created by the United States government are not copyrightable in the U.S., the government has disputed their public domain status outside of the country. Those areas of uncertainty can become unnecessary obstacles for using public domain works for research, free software projects, or any other application that’s not necessarily limited to domestic use. The law asserting the public domain status of government works internationally, then, is a huge step in the right direction, and one that we hope to see in future policies regarding government-created works.

Of course, raw data itself is not copyrightable, but there are still good reasons to explicitly assert its public domain status. The Supreme Court has said that some databases have a limited layer of copyright protection—to the extent that creativity goes into the structure, selection, and organization of the database. Additionally, the European Union and several other countries have some form of a sui generis database right, a copyright-like right that’s awarded to people or entities that compile data sets. Dedicating the data covered under the law to the global public domain assuages any confusion about whether it’s protected under copyright or any copyright-adjacent rights.

Generally speaking, EFF would prefer for government agencies to dedicate data to the public domain, rather than restricting its use with license conditions. Nonetheless, the OPEN Government Data Act defines “open license” very specifically, requiring a license that doesn’t restrict reuse or redistribution in any way (in essence, something very close to a public domain dedication). As defined, the open licensing option doesn’t pose significant threats to reuse, though an across-the-board public domain dedication would be easier for users to understand.

Keeping Exceptions for Private Data Narrow

The OPEN Government Data Act would require that every government agency regularly conduct a review of any new data sets that it’s developed and determine whether those data sets can be shared publicly. It provides specific reasons why an agency might choose not to share data: for example, confidentiality, security risks, or that it would be too cost-prohibitive to convert the data into a usable format. There’s also a catch-all, “any other considerations that the Director determines to be relevant.”

There are certainly legitimate reasons why some data should not be made public, but EFF is concerned that the catch-all exception may swallow the rule requiring greater public disclosure. We think it would be better to carve out narrow, explicit categories of records that should not be public rather than giving agencies discretion to withhold records.

Similarly, EFF hopes that Congress would consider adding a provision requiring agencies to annually reassess their previous determinations about restricting access to data to make sure the reasons for withholding the data still exist. Data that might have presented a public security risk a year ago might not today; a past decision to keep certain data private should not prevent its disclosure permanently.

Once again, we’re excited about the OPEN Government Data Act hope to see it pass this session. We thank Rep. Derek Kilmer, Sen. Brian Schatz, and all of the bills’ cosponsors in both houses for their support on this important initiative to open up government data to the public. That said, it shouldn’t be the last open data reform. We’re eager to continue to work with lawmakers on optimizing the law for bringing the most data into the public, with exceptions that are narrow and clearly defined.