< The Public Access Crusade of Carl Malamud


Friday, July 23, 2010

BROOKE GLADSTONE: You might think that public documents would be, well, public - that is, accessible and for the most part free. But, in fact, though many non-classified government documents and videos are technically available, they are neither free nor easy to procure. Enter the crusading Carl Malamud, who’s spent the better part of the past two decades provoking, coercing, persuading the government to make its public workings truly public. He’s currently president of Public.Resource.Org. Carl, welcome to the show.

CARL MALAMUD: Thanks, Brooke.

BROOKE GLADSTONE: So you actually get things done, partly because you’re a crusader and all that that implies, and partly because you know what you’re doing. So, let's start with the first part. What sent you on this quest?

CARL MALAMUD: It was actually very personal at first because I was writing professional reference books about networks, and it cost me tens of thousands of dollars to buy the technical specifications underlying some of these networks that were out there. And that just offended me personally that I couldn't download these international standards and just read them.

BROOKE GLADSTONE: So it began with the fact that you were being blocked, but then you ventured into whole swaths of blocked information that are supposed to be public, everything from financial disclosures from corporations to laws.

CARL MALAMUD: Yeah, it was sort of an accident. I was running the first radio station on the Internet in the early '90s; my flagship program was called Geek of the Week. And we were doing a demo before the United States Congress, and Congressman Markey came up and wanted to know why the Securities and Exchange Commission database, called EDGAR, wasn't available on the Internet. And, at the time it cost 30 dollars to buy one of these public reports that corporations filed with the SEC. And I looked at the database for the congressman and I said, well, you know, technically there’s really no reason why this shouldn't be available. So I got lucky. I actually got the National Science Foundation to give me taxpayer money to buy taxpayer data to put on the Internet to give away to taxpayers for free.

BROOKE GLADSTONE: You put documents online in a cheap and accessible way. The SEC itself said essentially that it couldn't be done.

CARL MALAMUD: They didn't say [LAUGHING] it couldn't be done. They said it would cost a lot of money.

BROOKE GLADSTONE: Thirty million dollars.

CARL MALAMUD: Yeah, it would cost 30 million. And, more importantly, it would destroy our system of free enterprise because there were companies out there making a lot of money selling these documents.

BROOKE GLADSTONE: So how did you convince them otherwise?

CARL MALAMUD: Pretty soon, 50,000 people a day were using our database, and that conclusively demonstrated that there was a demand for this. And the demand was senior citizen investment clubs and it was journalists and it was students, and it was people that otherwise couldn't get access to this data. And then the last obstacle was his computer people said, well gee, you know, we'd love to do it but, you know, it'll take us two, three years. And so, we put a bunch of workstations and servers in the back of a station wagon and drove them down to the Securities and [LAUGHS] Exchange Commission and got their Internet line up and running. And at that point there were no excuses, and they were in the business.

BROOKE GLADSTONE: You also did battle with C-SPAN that few would regard as an enemy of disclosure, but it was rather tightfisted with its own little domain.

CARL MALAMUD: C-SPAN is a wonderful nonprofit, and they were putting Congressional hearings online. And they just felt that they had copyright in all this material, and they sent a takedown notice to the speaker of the house telling her to take down a YouTube clip of herself testifying before the Congress.

[LAUGHTER] And that seemed to me to be a little bit [LAUGHS] overreaching. I sent a [LAUGHS] public letter to Brian Lamb that said, hey, you know, this is nuts. And to C-SPAN’s credit – this was several years ago – they looked at the situation and they changed their policy so that anybody can use any of their government material as long as it’s for noncommercial purposes.

BROOKE GLADSTONE: You've also drawn swords with the federal courts’ online document service called PACER. Explain what you had against PACER.

CARL MALAMUD: They have a system which, you know, to be fair, Congress told them to do this – in which they charge eight cents a page. They had a public access program for a little while, and we managed to use that to grab about 20 million pages of PACER documents.

[BROOKE LAUGHS] If I had purchased those documents at eight cents per page, it would have been 1.5 million dollars. The only people who can afford them are the big data mining companies, right, the credit reporting companies that are mining these documents for Social Security numbers.

BROOKE GLADSTONE: But let's talk about regular people who might want to use PACER to get some documents. I mean, is the cost so onerous?

CARL MALAMUD: Yeah, actually [LAUGHS] I know a young lady who ran up a 30,000-dollar bill, um [LAUGHS] investigating her landlord. But even more importantly, we did a survey of 66 law schools and 63 of them don't let the law students access the PACER system because it costs money. The Department of Justice spends four million dollars a year. They have to pay in order to access these trial court databases. Journalists, if you want to do a real investigation of court cases, you’re going to have to go to your editor and say, hey, I'm going to run up a few hundred dollars in bills.

BROOKE GLADSTONE: You've had a lot of resistance from what’s called the legal information industry.

CARL MALAMUD: Well, the legal information industry is a 10- billion-dollar-a year industry with companies such as WestLaw and LexisNexis and W.S. Hein, and they mainly sell legal information to working lawyers. And it’s a big business. So I am fine with a company taking a court case and having their lawyers analyze it and tell you what the significant points of law are and selling that, but the core information needs to be available. And we've gotten ourselves into a situation in which the only way to read the official reports is to go to some company that has been designated as the official reporter, and that’s wrong. Right? There’s a, a court decision, known as the Veeck decision, says if it’s the law then there’s no copyright. Right? If people have to obey the law and have to read it, and there’s criminal penalties then you can't say it’s copyrighted. But despite that, the building, electrical fire, all the public safety codes have very firm copyright assertions.

BROOKE GLADSTONE: So now you’re launching a new project called Law.Gov.

CARL MALAMUD: Law.Gov is an idea that every governmental body should make their laws available so that other groups, such as WestLaw and LexisNexis, but also nonprofits and universities and Internet startups, can download what I call “America’s Operating System”, right, the, the, the rules that govern our society.

BROOKE GLADSTONE: You’re truly a geek to call this “America’s [LAUGHING] Operating System.”

CARL MALAMUD: [LAUGHS] But, you know, the analogy does hold, because these are the, the technical regulations about how we live our lives. So Law.Gov, we held workshops and looked at all these issues. We looked at, what about privacy, what about technical standards for how to make this information more broadly available, and did a very in-depth examination with many of the leading scholars in, in the field. And the hope is that we can distill this and then present it to the Judicial Conference and the President and the Congress and say, you know, there ought to be a law.

[LAUGHTER] And the law says that the law ought to be more widely available, and so charging for PACER document’s no different than a poll tax, right? Charging for access to the polls BROOKE GLADSTONE: Mm-hm. CARL MALAMUD: denies equal protection under the law. Charging for access to the law denies equal protection under the law.

BROOKE GLADSTONE: So you plan to take this to Congress and to the White House. The Obama administration has made a public avowal of transparency being a priority. It isn't always in practice in this White House. What do you anticipate Obama’s reaction will be?

CARL MALAMUD: My basic assumption is that if we can lay out a broad consensus and say, look, all the law schools and the industry and public officials have all participated in this process, and we all agree that the law needs to be more broadly available, we think President Obama, being a Constitutional scholar, will take about 30 seconds to get this.

BROOKE GLADSTONE: Carl, thank you so much.

CARL MALAMUD: Thank you, Brooke.

BROOKE GLADSTONE: Carl Malamud is the president of Public.Resource.Org.