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A Powerful Call to Open Source America's OS

BY Nancy Scola | Thursday, September 10 2009

Carl Malamud, that clarion of the open public records movement, won a standing ovation for a spirited address to the Gov 2.0 Summit earlier today. What brought the crowd to its feet was Malamud's call to "open source America's operating system" -- in other words, pulling back the curtain on the legal code by which our country runs. You have to imagine that at least part of the reason Malamud got such a strong reception is that, amid the strong but often sometimes ungrounded principles that mark the "Gov 2.0" field, Malamud has refined a detailed, tangible vision of what nirvana looks like to him. He has goals, and he has worked out ways to achieve them. In that spirit, Malamud wrapped his speech this morning with a set of core ideas that blend an activist's passion for participatory politics with a programmer's eye for how to work out the bugs that plague our legal system. Cribbed from his talk, here are Malamud's three central themes.

One, If there's a document that the government produces, inspires, or commissions that has the force of law, then the public has to be able to see it. If that seems obvious, it's not a given. There are fees for access to some court records, and in some jurisdictions statute is treated as proprietary. The bad part there, says Malamud, is that if courts don't open themselves, others will. And that has the effect of fuzzying the authenticity that the courts should see as their duty to keep clear. (One such project by "outsiders" to open the courts: Recap, a Firefox plug-in that adds a layer of transparency and access to the federal judiciary's PACER system.)

Two, if a meeting shapes law, then it must be public. And in 2009, "public" must mean online. After reaching a high-water mark a short while back, Congress has reverted to only half-heartedly posting hearings online -- often fuzzy and choppy webcasts that aren't even archived once they've finished. Again, not giving the public its rightful access has the undesirable effect of delegitimizing the institution.

And three, the Chief Justice of the Supreme Court in his role as chief administrative office of the judicial branch and the President in his role as the head of the executive branch should lead a top-down reform push throughout the U.S. that creates the expectation that America's legal code and court system should be, at all times, knowable to the people who live within its bounds.

On that last point, the interesting wrinkle here is that for better or worse Malamud and his allies don't really need a mass movement for real reform to take place. A swell of public opinion probably wouldn't hurt, but to get many of their changes achieved all he needs is a small cadre of folks -- John Roberts, the powers-that-be in Congress -- to sign off on a few systematic changes. Roberts, for one, has taken baby steps towards reform. Advocates are hopeful that more fundamental change is soon coming.

Always the archivist, Malamud has posted a text and pre-recorded audio copy of his talk.