Introduction to Legal Issues on Social Media & the Federal Government Peter Swire Ohio State University Center for American Progress DHS Conference June.

Introduction to Legal Issues on Social Media & the Federal

Government

Peter SwireOhio State University

Center for American ProgressDHS Conference June 23, 2009

Overview

• Overview of legal issues• Legal and policy issues in procuring 2.0

services

Six Legal Hurdles

1. Privacy1. Persistent cookies2. Data that goes to 3rd party sites

2. Access for people with disabilities1. Section 5082. When does it apply to 3rd party sites

3. Commercial endorsement & advertising

Six Legal Hurdles

4. Terms of service1. State law & indemnity clauses, etc.

5. Paperwork Reduction Act1. Surveys on the web2. 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– DoD 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 3rd 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