Introduction to Legal Issues on Social Media the

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 3 rd party sites 2. Access for people with disabilities 1. Section 508 2. When does it apply to 3 rd 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 – Do. D shouldn’t 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 3 rd 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