Newsgroups: alt.etext From: dell@wiretap.spies.com (Thomas Dell) Subject: [comp.org.eff.talk] TAP/CR CLINTON DISMANTLES JURIS (fwd) Message-ID: Organization: The Internet Wiretap Date: Thu, 4 Nov 1993 01:31:59 GMT Newsgroups: comp.org.eff.talk From: love@essential.org (James Love) Subject: TAP/CR CLINTON DISMANTLES JURIS (fwd) Message-ID: Date: 29 Oct 1993 11:28:59 -0400 Organization: EFF mail-news gateway Lines: 517 from the TAP-INFO Internet Distribution List Taxpayer Assets Project Crown Jewels Campaign - JURIS October 28, 1993 Note to readers: On Friday October 22, 1993, the Clinton Administration announced an NSF funded project to place EDGAR on the Internet, raising public expectations regarding future public access to government information. On Monday October 25, the Clinton Administration revealed that it planed to permanently shut down the Department of Justice JURIS system. This rather long note addresses this extremely important matter. jamie ----------- - CLINTON ADMINISTRATION PLAN TO TERMINATE NATION'S MOST IMPORTANT DATABASE OF FEDERAL LEGAL INFORMATION - CLINTON PLAN WOULD PRIVATIZE JURIS DATABASE AND REVERSE JIMMY CARTER'S 1979 EXECUTIVE ORDER ON FEDERAL LEGAL INFORMATION - FEDERAL GOVERNMENT TO SPEND MILLIONS MORE EVERY YEAR TO ACQUIRE THE SAME INFORMATION FROM WESTLAW AND LEXIS - BUREAUCRATIC SNAFU SAID TO PREVENT DOJ FROM SAVING MONEY BY REPLACING LEGAL CASELAW INFORMATION PREVIOUSLY SUPPLIED BY WEST PUBLISHING - DEPARTMENT OF JUSTICE (DOJ) MEETS WITH DATA USERS AND PUBLISHERS ABOUT FUTURE OF JURIS - CONGRESSIONAL INTEREST IN JURIS EXPANDS TO ADDRESS ISSUE OF WEST MONOPOLY ON COURT MANDATED CITATIONS TO JUDAICAL OPINIONS - COALITION OF VALUE ADDED PUBLISHERS, ACADEMIC RESEARCHERS, AND DATA USERS BEGIN MOBILIZATION TO SAVE THE JURIS DATABASE AND END WEST MONOPOLY CONTROL OVER JUDAICAL CITATIONS fmi James Love (215/658-0880;202/387-8030; love@essential.org) On Monday October 25, 1993, Stephen Colgate, the Assistant Attorney General for Administration of the Department of Justice (DOJ), chaired a three hour meeting to discus the future of the JURIS program. Attending the meeting were five DOJ officials, staff from Senate and House Congressional Committees, and representatives from GPO and the Congressional Research Services (CRS). Also attending were representatives from the Taxpayer Assets Project (TAP), Public Citizen, the Information Trust, Computer Professionals for Social Responsibility (CPSR), the American Association of Law Libraries (AALL), the Linguistic Data Consortium, and two legal publishers (Tax Analysts and Hyperlaw, a CD-ROM publisher), and individuals from Northeastern University, Howard University and International College. Colgate began the meeting by identifying himself as a "mops and buckets guy" who did not realize the public interest in the existence of the JURIS database. DOJ officials said that all 29 JURIS employees will be terminated by January 1, 1994, and that DOJ intends to shift all online legal research to the commercial services offered by West's WESTLAW and Mead Data Central's LEXIS service. DOJ said it was taking this action because of the September 30, 1993 announcement by West that it would not longer supply DOJ with federal caselaw, and that West was requiring DOJ to erase all federal caselaw provided to DOJ over the past ten years. Colgate said the loss of the historical caselaw makes JURIS economically non-viable. TERMINATION OF JURIS TO RAISE GOVERNMENT'S COSTS OF ONLINE LEGAL RESEARCH DOJ officials said that the Government's costs of online research may increase from $12 million per year to $18 million per year, as a result of the termination of the JURIS program. DOJ said that although it had authority to spend the additional money on the WESTLAW and LEXIS services, it did not have legal authority to purchase the historical caselaw materials that will be erased from federal computers by January, at the conclusion of its current contract with West. WEST WITHDRAWAL WAS A REACTION TO CITIZEN EFFORTS TO OBTAIN ACCESS TO JURIS DATABASE DOJ officials and other participants at the meeting said the WEST withdrawal from the JURIS contract was a direct result of citizen efforts to obtain access to the JURIS database. One non- government participant at the meeting recounted a discussion with a West official at last week's Information Industry Association (IIA) meeting where West expressed great alarm at the expanding role of the Internet in the dissemination of government information, and expressed hope that West could find ways to stop such efforts. CLINTON ACTION WILL REVERSE JIMMY CARTER'S 1979 EXECUTIVE ORDER ON FEDERAL LEGAL INFORMATION JURIS was developed by the Government in the 1970's, before West was ever engaged to provide data. DOJ owns the software and computers for JURIS, and it retains ownership of caselaw collected before 1982 (by the U.S. Airforce), as well as large amounts of non-caselaw federal legal information (see appendix). DOJ was required to provide JURIS to all government offices in 1979, under Federal Executive Order No. 12146. The relevant sections of that Executive Order state: 1-6. Automated Legal Research and Information Systems. 1-601. The Attorney General, in coordination with the Secretary of Defense and other agency heads, shall provide for a computerized legal research system that will be available to all Federal law offices on a reimbursable basis. The system may include in its database such Federal regulations, case briefs, and legal opinions as the Attorney General deems appropriate. Jimmy Carter, July 18, 1979. By terminating all JURIS employees and shutting down the JURIS system, the Clinton Administration is effectively overturning the 1979 federal Executive Order. TAX ANALYSTS SAYS IT WILL TAKE SIX MONTHS AND $5.5 MILLION TO REPLACE THE MISSING CASELAW LAW Tom Field from Tax Analysts provided DOJ with an unsolicited proposal to replace the missing caselaw. According to Field, it will take six months and $5.5 million to replace the federal caselaw that had been gathered by West over the past decade (higher than the $1 to $2 million estimate TAP reported in an earlier note), and about $450 thousand per year to maintain the collections of federal caselaw (less when all courts provide for electronic dissemination). The Tax Analysts proposal will give DOJ the title to all data, including the rights to make the data available to the public. (The Tax Analysts proposal would allow the publisher to recover its key punching and data processing costs, plus a fee of $1. Field said that he picked the $1 figure in honor of the $1 men who volunteered their services to their country during the Second World War). PRIVATE VALUE ADDED LEGAL INFORMATION PUBLISHERS EXPLAINED ANTICOMPETITVE IMPACT OF WEST MONOPOLY ON CITATIONS AND PAGE NUMBERS OF FEDERAL JUDICIAL OPINIONS Most federal courts and many state courts require lawyers to provide West citations and page numbers for court decisions quoted in legal briefs. West claims a copyright on both the citations and the page numbers. Only Mead's LEXIS service has been given a limited license to use these citations and page numbers (due to a secret out-of-court settlement in a federal antitrust action). Hyperlaw is a New York company that publishes legal information on CD-ROM. Alan Sugarman, the Hyperlaw CEO, told DOJ that he initially wanted to use CD-ROM technology to publish legal treatises, that would include judicial opinions, laws, regulations, law review articles and other materials on the same disk. Hyperlaw was unable to develop these products, however, without permission from West to use its page numbers and citations. Sugarman said that the West monopoly on the page numbers and citations has stifled innovation among firms like his, and made it difficult to compete against West even in the dissemination of the opinions themselves, since he cannot provide lawyers with citations that will be accepted by the courts. Tom Field from Tax Analysts offered additional insight into the citations and page number problem, and told DOJ that the break with West offered an opportunity for DOJ to develop a non- proprietary system of citations and page numbers, that would vastly expand competition among private sector value added legal publishers. Field argued that commercial data vendors should compete on the basis of searching engines, headnotes and other value added features, rather than monopolistic control over citations and page numbers. The issue of the citations and page numbers received a very large amount of attention during the meeting, particularly since there was great concern than even if DOJ could replace the missing caselaw, the data would not be useful to DOJ lawyers without an acceptable method of citiations that was accepted by the Judiciary. ACADEMIC SCIENTISTS WORKING ON LEGAL EXPERT SYSTEMS SAY OF WEST/LEXIS MONOPOLY ON FEDERAL LEGAL INFORMATION HAS STIFLED ACADEMIC EFFORTS TO DEVELOP NEW TECHNIQUES OF ANALYZING FEDERAL LEGAL INFORMATION Professor Carole Hafner from Northeastern University and Rebecca Finch from the Linguistic Data Consortium (headquartered at Penn) told DOJ that computer scientists working on expert systems that can analyze judicial opinions (sort of like creating headnotes on the fly from the full text of the body of caselaw, using concepts rather than keywords) have found it impossible to do research on this topic for decades. Hafner said that researchers had tried for years without success to obtain bodies of caselaw from West and Mead, and that DOJ had refused to make available even a portion of the JURIS data, even after researchers suggested that DOJ create a commercially useless database that was missing every third or fourth case. LAW LIBRARIANS, PUBLIC INTEREST GROUPS AND OTHERS ARGUED THAT THE CURRENT PRIVATIZED MARKET FOR FEDERAL LEGAL INFORMATION WAS PRICED TOO HIGH FOR MOST CITIZENS Brian Baker from Howard University Law Library said that many academic law libraries face a dilemma because while they have low cost access to LEXIS and WESTLAW for law students and facility, they are required to deny unauthorized users access to the data. Professor Melodie Hainsworth from International College urged DOJ to continue JURIS so that the information could be distributed freely on Internet sites, vastly broadening public access to the information. Susan Tullis from AALL explained how many federal government law libraries rely upon JURIS for affordable access to legal information. Paul Wolfson from Public Citizen said that much of the non-caselaw on JURIS was difficult or impossible to find in most law libraries, and that if DOJ ended the JURIS program an enormously important source of government information would be lost. Dave Banisar from CPSR talked about the importance of low cost access to JURIS information for citizen groups who do not have the economic resources of business lobby groups. These points were echoed by many others. Several participants said that if the Government made JURIS information widely available, the market for legal information would become more competitive, and commercial rates would dramatically fall, particularly for specialty products, such as CD-ROM products, and that this is the principal concern of West. CLINTON ADMINISTRATION SAYS BUREAUCRATIC SNAFU WILL PREVENT GOVERNMENT FROM TAKING STEPS TO SAVE JURIS One of the hotly debated issues in the meeting concerned the seemingly stupidity of DOJ terminating its own system when it will cost more to end JURIS than to reprocure the missing caselaw. If, for example, DOJ's total online legal bill would increase from $12 million to $18 million in one year, the additional $6 million per year is more than enough to recover all the historical cases that will be missing form JURIS. Thus, a pretty simple cost benefit analysis seemes to favor a very rapid payback. Colgate said the problem concerned the method of financing JURIS. The system is paid for by hourly billings to DOJ and other government officials, who "choose" to use JURIS out of funds appropriated for online legal research. Once DOJ determined that JURIS would be without the West caselaw on January 1, it anticipated an extreme drop off in these "subscription" revenues, forcing DOJ to lay-off the entire 29 member JURIS staff (11 have already found other jobs). DOJ says it cannot reprogram its appropriations to pay for the acquisition of the missing caselaw without legislative authority, which is nearly impossible now since the DOJ appropriation just passed Congress. For those who want to think about this a bit more, consider the following. Controversy over public access to JURIS has been heating up since 1991. DOJ has been in negotiations with West for a renewal of its contract for about one year. The last five year West contract expired in July, but the company continued to negotiate with DOJ until September 30, 1993. DOJ's first announcement that it would shut down JURIS came in an October 8, 1993 news story by the Electronic Public Information Newsletter (EPIN). Meanwhile, the DOJ appropriation bill moved out of committee on the House on June 24 and in the Senate on July 22. The Conference bill was reported out on October 6, before DOJ announced that it would shut down JURIS, and the bill passed Congress on October 21. By continuing its negotiations, West delayed public knowledge that JURIS would be crippled until it was too late to find a second bidder or to seek an appropriation to replace the missing caselaw. DIGRESSION ON WEST PRESIDENT VANCE OPPERMAN Today TAP received a copy of an August 23, 1993 article from the Minneapolis Star Tribune, titled "The new WEST; Publisher exploring information frontiers," which profiles the new West President, Vance Opperman. Portions of that article read: Board members who chose the new president said he is the kind of big-picture guy West needs. He is an expert on copyright law, having successfully defended West's page number system in its law book series from a competitor's challenge, and an expert on antitrust . . . The son of Dwight Opperman, West's president for the past 25 years and one of the most politically well connected people in the state, Vance Opperman is simultaneously an insider and an outsider. A major fund-raiser for the DFL Party in Minnesota, Vice President Al Gore returns his calls. No one knows what Gore and Opperman talk about, but Gore was clearly on Opperman's mind when West made its September 30, 1993 announcement that it was pulling out of JURIS. The West press release praised Vice President Gore's reinventing government initiative, which it credited for motivating West to pull the plug on JURIS. DOJ's CLOSING COMMENTS At the end of the October 25 meeting, which lasted more than 3 hours, DOJ's Colgate seemed to leave the door open for discussions about future action. Clearly DOJ had been focusing on very short term issues (the January 1 loss of the West caselaw) without much of a longer term plan. The fact that there was a large public interest in the continuation of JURIS seemed to come as somewhat of a surprise to Colgate, and he was clearly moved by a number of the arguments that had been made. One interesting point that came up concerned the criticisms toward DOJ's somewhat casual attitude toward the prospect of paying $6 million per year in higher online charges once JURIS was gone and DOJ began to rely entirely upon the commercial WESTLAW and LEXIS services. DOJ's Roger Cooper suggested that DOJ hoped it could negotiate new lower priced contracts with WESTLAW or LEXIS that would mitigate somewhat DOJ's costs of terminating JURIS. The non-government participants said that if this happened, it would simply be an effort by West or Mead to take the steam out of efforts to revive JURIS, but that this too was a short sighted strategy, since DOJ would become even more dependent upon the two vendors. JURIS, after all, provided DOJ with leverage in its negotiations, and as time passed it would only become more expensive and more difficult to make it operational again. DOJ was told that it wasn't learning from its past mistakes, such as the 1983 decision to "lease" rather than "buy" the data, to save a few dollars in the short run. Moreover, unless the Government can find ways to make the data more widely available, the public will never benefit from broader competition in the market for legal information. DOJ was pressed several times to simply refuse to return the West caselaw until it could reprocure the data, paying West whatever damages it had to. Alan Sugarman from Hyperlaw suggested that DOJ should treat this much the same as when a lease on a building isn't renewed at the last minute after a landlord bargains in bad faith with a tenant. DOJ said it would not do so, since it maintained that West had bargained in good faith, an assertion that was met with considerable skepticism. There was a fair amount of buck passing in the meeting, with DOJ suggesting that it was really a Congressional or Court problem. It also seemed as though the management persons who are fielding the inquiries for JURIS do not feel comfortable with making policy on the larger policy questions regarding privatization or copyright issues. WHAT COMES NEXT All of the non-government participants at meeting were committed to further efforts to save the JURIS program and to solve the problem of West's monopoly over the caselaw citations and page numbers. Several avenues of action are possible, including Congressional hearings, appeals to the Clinton IITF section on government information (OMB was a no-show at the meeting), litigation to determine if the judicial opinions provided by West are subject to FOIA, and creative methods of financing the reprocurement of the caselaw. After the October 25 meeting it appears as though there will be further action by Congress, both on the issue of the reprocuremt of the caselaw, and on the citation and page numbering problem. It is doubtful, however, that anything will stop DOJ from terminating the entire JURIS staff by the end of the year. TAP will be providing additional information about efforts to save JURIS, including a number of grass roots lobbying efforts. There are a number of strategic issues which must be resolved. If anyone wants to do something right now, they should write their own members of the Senate and House of Representatives and urge them to find a way to preserve this incredibly important database of federal legal information. In closing, it is worth saying that the battle over JURIS is only entering a new stage. While we were told dozens of times that the SEC's EDGAR system would not be available online, we simply pressed ahead, trying to find the right argument or the right leverage. Eventually things fell into place. JURIS has never been available to the public, and while it is deeply troubling that the program is being dismantled, the technological and economic barriers to getting it back on track are relatively small. In many respects, the current crisis improves the chances of public access to these public records, since West will no longer be in control of the DOJ data collections. If and when DOJ does reprocure the caselaw, it should finally be available to the public. James Love, Taxpayer Assets Project love@essential.org; v. 215/658-0880 CONTACTS FOR MORE INFORMATION ABOUT JURIS: Expert Systems: Professor Carole Hafner, Northeastern (617/373- 5116); Rebecca Finch, Penn (215/573-3959) Value Added Legal Publishers: Alan Sugarman, Hyperlaw (800/825- 6521); Tom Field, Tax Analysts (703/533-4400) Law Librarians: Susan Tullis, AALL (202/662-9200); Brian Baker, Howard University (202/806-8045) Citizen Groups: Scott Armstrong, Information Trust (202/296- 5098); Paul Wolfson, Public Citizen (202/833-3000); David Banisar, CPSR (202/544-9240) DOJ: Roger Cooper (202/514-0507); Ricard Krips (202/514-5682) ----------------------------------------------------------------- Appendix SELECTED PORTIONS OF JURIS DATABASE CASELAW U.S. Supreme Court; Federal Reporter, 2nd Series; Court of Appeals Unpublished Decisions; Federal Supplement; Federal Rules Decisions; Atlantic 2nd Reporter (DC only); Bankruptcy Reporter; Courts of Military Review; Military Justice Reporter; Court of Claims. STATUTORY LAW Public Laws; United States Code; Executive Orders; Anti-Drug Abuse Act of 1988; Section-by-section analysis of anti-drug abuse act of 1988; Criminal Division Handbook on CCCA; The Organic Laws of the United States FEDERAL REGULATIONS Code of Federal Regulations; Unified Agenda of Federal Regulations; Defense Acquisition Regulations DEPARTMENT OF JUSTICE BRIEFS Office of the Solicitor General; Civil Division; Civil Division Trial; Environmental and Natural Resources Division; Tax Division Criminal Appellate; U.S. Attorney's Offices; U.S. Trustees' Offices. ADMINISTRATIVE LAW Published Comptroller General Decisions; Unpublished Comptroller General Decisions; Opinions of the Attorney General; Office of Legal Counsel (U.S. Dept. of Justice Board of Contract Appeals; ADP Protest Report (Summary of ADP Procurement Protests before the GSBCA); Federal Labor Relations Authority Case Decisions; FLRA Administrative Law Judge Decisions; Federal Service Impasses Decisions; Decisions and Reports on Rulings of the Assistant Sec. of Labor for Labor Management Relations; Federal Labor Relations Council Rulings on Requests of the Asst. Sec. of Labor for Labor Management Relations; HUD Administrative Law Decisions; Merit System Protection Board Decisions; Decisions under Immigration and Nationality Laws; Environmental Protection Agency General Counsel Opinions; Equal Employment Opportunity Commission Decisions; Equal Employment Opportunity Commission Policy Statements; U.S. Office of Government Ethics Decisions; HHS Department Appeals Board Decisions. MANUALS United States Attorney's Manual; United States Trustees' Manual; Federal Personnel Manual; Federal Acquisition Regulations; Federal Acquisition Circulars; Federal Travel Regulation; Federal Information Resources Management Regulation; Federal Property Management Regulations; Principles of Federal Appropriations Law; Justice Department Acquisition Regulation; Justice Property Management Regulations. TREATIES AND OTHER INTERNATIONAL AGREEMENTS United States Treaties and Other International Agreements; Department of Defense Unpublished International Agreements. FREEDOM OF INFORMATION ACT FOIA Update Newsletter; DOJ Guide to the FOIA Case List Publications. IMMIGRATION AND NATURALIZATION LAW Decisions Under Immigration and Nationality Law; Title 8 - Code of Federal Regulations; Immigration Reform and Control Act of 1988, Legislative History; Equal Access to Justice Act, Legislative History; TAX MATERIALS US Tax Court Decisions; US Board of Tax Appeals Decisions; Tax Division's Summons Enforcement Decisions; Tax Division's Tax Protester Case List; Tax Division's Criminal Tax Manual; Tax Division's Criminal Tax Indictment/Information Forms; Tax Division's Standardized Criminal Tax Jury Instructions; Tax Division's Criminal Section Newsletter; Tax Court Memorandum Decisions; IRS Cumulative Bulletin; Tax International Acts; IRS News Releases; IRS General Counsel Memoranda; IRS Actions on Decisions; IRS Technical Memoranda. INDIAN LAW Opinions of the Solicitor (Dept. of Interior); Ratified Treaties; Unratified Treaties; Presidential Proclamations; Executive Orders and Other Orders Pertaining to Indians. DEPARTMENT OF JUSTICE WORKPRODUCTS Civil Division Monographs; Civil Division Torts Branch Handbook on damages under FTCA; Criminal Division Monographs; Criminal Division Forms; Criminal Division Guidelines for Drafting Indictments; Criminal Division Narcotics, Forfeiture, Prosecution Manual; Criminal Division Directory of Services; Asset Forfeiture Manuals; Obscenity Enforcement Reporter; Environmental and Natural Resources Division Monographs; US Sentencing Commission's Guidelines Manual; Sentencing Guidelines Updates. LEGISLATIVE HISTORIES OF FEDERAL LAWS Equal Access to Justice Act (EAJA); Immigration Reform and Control Act of 1986; Sentencing Reform Sections of the Senate Report of the CCCA of 1984. --------------------------------------------------------------------- TAP-INFO is an Internet Distribution List provided by the Taxpayer Assets Project (TAP). 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