Treasury Imposing “Terms of Use” to Access TARP Data
Daniel Schuman
Is anyone aware of other instances where the government requires users of its websites to agree to "terms of service" before they can download data?
DanielTreasury Imposing “Terms of Use” to Access TARP Data
In an astonishing move, the Treasury Department is requiring users to agree to “terms of use” before they can access and download TARP Transaction Reports in spreadsheet format. This requirement undermines the rationale for releasing the data, may implicate federal law, and is simply foolish. It also sets a bad precedent.
The TARP Transaction Reports, which contain detailed information on the government’s Wall Street bailout, are available in PDF format going back to November 2008. Only now are they being published online in a much more useful spreadsheet format, known as XLSX, thanks to President Obama’s Open Government Directive. The Report accompanying the Directive lauds the release of these weekly transaction reports as “improving transparency of federal bank supervisory activities as well as the investment activities of financial institutions.”
The “terms of use” that accompany the TARP reports, reproduced in full at the bottom, require users to:
- Affirm that they have read and understood the site’s privacy policy and disclaimers,
- Acknowledge that the terms of use may be modified at any time, which the user agrees to accept,
- Clearly cite Financialstability.gov on all reuses of data accessed or retrieved from Financialstability.gov,
- Clearly state that neither Financialstability.gov nor the U.S. Government vouches for the data or analyses derived from the data after it has been retrieved from the website.
Users who refuse to click “accept” are not permitted to download the data.
Rationale for releasing the data
The rationale for releasing the data, according to the Open Government Directive, is to “break down barriers to transparency, participation, and collaboration between the federal government and the people it is to serve.” The availability of the data thus far — in PDF format only — has facilitated clever efforts, like those undertaken by SubsidyScope*, to investigate and analyze how TARP money is being used.
Making the information available in a spreadsheet, and not just a PDF, would likely save SubsidyScope hours of data entry, and open up the data to many others who don’t have similar resources to transform the data into a usable format. However, the government’s imposition of these terms of use puts a stumbling block in front of those efforts. If the government can modify the terms of use at any time, they can control how the information can be used. Forcing people to extract data from the PDFs, for most people, effectively makes the data unaccessible. This is antithetical to transparency, participation, and collaboration.
Federal law and government data
I am far from an expert on intellectual property law, but there seems to be a fundamental contradiction here that arises from the intersection of the Open Government Directive, copyright law, and the terms of use.
Federal law prohibits the government from copyrighting “any work of the United States Government.” It is the copyright that gives the owner of information the right to control how a work is published, distributed, and adapted. The government’s terms of use acknowledges that no copyright can be claimed.
Nevertheless, the government asserts that it has the right to control how the data is used, with terms changeable at its whim. It does so by creating a contract of adhesion: the user has no opportunity to negotiate over the terms of the contract. Essentially, the government has created an “end user license agreement” more typically used by software companies.
I do not know if this is legally permissible. The data is in the public domain; can the government retain control? This raises serious questions, and goes against the spirit behind both the Open Government Directive and copyright law’s government information exception.
Also, there are questions of enforceability. For example, suppose user Adam downloads the file and posts it to his website. User Bob then copies the file off of Adam’s website and transforms it. Is Bob bound by the government’s restrictions on Adam? Under the current terms, Adam should require Bob to cite Financialstability.gov, but that’s about it. This is silly, and creates unnecessary confusion.
This restriction on data use is foolish
As noted above, tefore the government made available TARP information in spreadsheet format, it did so in PDF. The PDFs are not subject to terms of use restrictions. The spreadsheets and the PDFs contain the same data, just encapsulated in different formats. Clever folks, like those at SubsidyScope, merely enter the data from the PDFs into their own database. This is not a trivial effort: it takes takes much, much longer to make the data usable, but the consequences are the same. Why should the government treat the same information, just made available in different ways, differently?
My best guess is that the government may be authenticating the PDF files, but not the spreadsheets. The authentication would allow users to know the “provenance” of the information, in a similar fashion to how art dealers verify the authenticity of paintings.
If this is the reason behind the restrictions, it is unnecessary. The government could authenticate the spreadsheet data, just like the PDFs, obviating the need for the terms of service. Or, if it chooses not to authenticate the data in spreadsheet format, a simple warning or note to the user would be sufficient. The restrictions on the use of the data go far beyond that necessary for authentication.
Additionally, requiring users to agree to terms of use that they must click through each time impedes the automated gathering of this information. The whole point of putting TARP information online in database format is to make it easier to share, but the user agreements thwart this.
Setting a precedent
In the coming weeks and months, the government will likely make available a tremendous amount of data to the public in formats that encourage the use, analysis, and transformation of the underlying data. This term of use agreement is unwise from a policy perspective, but hundreds of term of use agreements would be a disaster for open government. The administration should set consistent policies that address the questions of authentication, the needs of the agencies to avoid liability for disclosures (if any liability exists), and most importantly ensures the broadest possible public access to the information. And it should do so in consultation with the public.
Terms of Use
December 9, 2009This terms of use agreement (the “Agreement”) governs your use of the data (the “Data”) available through this FinancialStability.gov Web site (the “Site”). You acknowledge that you have read and understood the Site’s Privacy Policy, available at http://www.financialstability.gov/about/privacypolicy.htm, including without limitation the Disclaimer of Endorsement, the Disclaimer of Liability, and Official Seal, Names and Symbols. In addition, you acknowledge that once the Data has been downloaded from the Site, the United States Government (including the Department of the Treasury) cannot vouch for its quality and timeliness, and the United States Government cannot vouch for any analyses conducted with the Data retrieved from the Site.
The Site may modify this Agreement from time to time, and your continued use of the Data and/or the Site constitutes your acceptance of any and all modifications.
No copyright may be claimed for any work on this Site that was created or maintained by any Federal employee in the course of their duties. Images and text appearing on the Site may be freely copied, however, with respect to the Data you agree:
1. To cite the date that Data was accessed or retrieved from FinancialStability.gov; and
2. To clearly state that “FinancialStability.gov and the United States Government (including the Department of the Treasury) cannot vouch for the data or analyses derived from this data after the data has been retrieved from FinancialStability.gov”.
This Agreement and the Data available through this Site is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by a party against the United States Government, its Departments, Agencies, or other entities, its officers, employees, or agents. Nothing in this Agreement alters, or impedes the ability to carry out, the authorities of the United States Government, its Departments, Agencies, or other entities, its officers, employees, or agents to perform their responsibilities under law and consistent with applicable legal authorities, appropriations, and presidential guidance, nor does this Agreement limit the protection afforded any information by other provisions of law.
By clicking on the “I Accept” button below, I acknowledge that I have read, understand, and agree to the above conditions.
* SubsidyScope is an initiative of The Pew Charitable Trusts’ Economic Policy Group, in conjunction with the Sunlight Foundation, its research and technology partner.
Daniel Schuman
Policy Counsel | Sunlight Foundation
Twitter: danielschuman | 202-713-5795
Joseph Lorenzo Hall
seem to have any downstream licensing requirement, so you could
publish a "Get your TARP data without terms here", post and there's
nothing the terms could do to stop you. Of course, they shouldn't be
there in the first place! best, Joe
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Joseph Lorenzo Hall
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UC Berkeley School of Information
Princeton Center for Information Technology Policy
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Chris Kinnan
Josh Tauberer
>
> Is anyone aware of other instances where the government requires
> users of its websites to agree to "terms of service" before they can
> download data?
agreement:
http://www.baltimorecity.gov/government/moit/egis/public_access.php
Some other relevant cases, but not explicit agreements:
The House committee videos are labeled with a TOS-like message which I
noted a few threads ago:
> One note, some committees display a note at the starts of their
> videos: �The use of duplications of broadcast coverage of the
> Committee on Transportation is governed by the rules of the House.
> Use for political or commercial purposes is expressly prohibited.� I
> hope no one takes that message seriously, and I wonder what legal
> basis this message has. I don�t believe I am subject to the rules of
> the House.
(http://razor.occams.info/blog/2009/11/10/committee-webcast-archives/)
And a few threads before that we talked about the issues of the
government using social media tools, and terms of service imposed by the
third party service providers.
(http://razor.occams.info/blog/2009/05/29/gsa-social-media-tos-review/
and http://www.usa.gov/webcontent/resources/tools/TOSagreements.shtml)
The FEC notes restrictions on its data download page, but they are not
contractual terms but instead a summary of relevant statutory law:
> Reports and statements filed by political committees may be inspected
> and copied by anyone. The names and addresses of individual
> contributors, however, may not be sold or used for any commercial
> purpose or to solicit any type of contribution or donation, such as
> political or charitable contributions. 2 U.S.C. �438(a)(4); 11 CFR
> 104.15. This restriction applies to Federal reports and statements.
> Any person who violates this restriction is subject to the penalties
> of 2 U.S.C. �437g.
(http://www.fec.gov/finance/disclosure/ftp_download.shtml)
Voter registration lists are generally handled in a similar way as far
as I see --- with limitations written into statutory law. But maybe some
state does it via a contract.
- Josh Tauberer
- CivicImpulse / GovTrack.us
http://razor.occams.info | www.govtrack.us | civicimpulse.com
"Members of both sides are reminded not to use guests of the
House as props."
Eric C. Kansa
of the data it offers via (http://www.datasf.org/). See example:
http://gispub02.sfgov.org/website/sfshare/index2.asp
Unfortunately, there's no explicit public domain requirement for most
local and state level government information as far as I can tell.
Here's a link from the infallible Wikipedia on the issue:
(http://en.wikipedia.org/wiki/Copyright_status_of_work_by_the_U.S._government#State_and_Local_Governments_in_Florida.2C_California.2C_and_Minnesota).
Anyway, very lame of Treasury to attempt this stunt.
I have a feeling that a lawyer at Treasury is attempting to be "risk
adverse" (maybe worried about getting sued for tarnishing the reputation
of one of the financial institutions they bailed out?). I was recently
at a meeting with another government agency where click-through
agreements to access educational materials were also discussed
(including water marking, and all sorts of other technical roadblocks)
because of the fear that somebody may do something dumb with their
materials and the agency would get blamed. Fear of some sorta "gotcha"
seems like a pretty ingrained reaction among many in government, and
leads to all sorts of strange ideas on how to control against this kind
of thing.
A good backlash against these kinds of attempts at control may prove
useful "pour encourager les autres". The costs of attempting to control
such information should be seen as much higher than the value of the
illusion of security gained by such measures.
-Eric
PS: The previous comment by Chris Kinnan seems right on the money!
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---------------------------------
Eric C. Kansa, PhD.
Executive Director
Information and Service Design Program
Adjunct Professor
UC Berkeley, School of Information
http://isd.ischool.berkeley.edu/
Office: (510) 643-4757
Mobile: (415) 425-7380
Fax: (510) 642-5814
---------------------------------
Stephen Schultze
here.
===
Sadly, this approach is neither unprecedented nor illegal (at least in
the context of the Copyright Act). Caselaw in the last couple of
decades has had the effect of ensuring that the contract exists wholly
independent of copyright law. Specifically, with respect to public
domain materials, ProCD v. Zeidenberg (1996) held that contracts can
limit rights on non-copyrightable works. The fundamental issue was
whether federal copyright statute overrode (or “preempted”) state
contracts. The court held that it doesn’t. The case also happened to
speak to the question of whether a EULA or “shrink-wrap license” was
binding. It ruled that it was. For more, google “copyright preemption”
or “supercopyright”.
Now, it is theoretically possible that one could make a stronger
argument for preemption given the very explicit carve-out for the
public domain in the Copyright Act… but I wouldn’t count on it.
We have seen similar behavior from the government in the case of
federal court records. The judiciary places terms of use on any
records obtained via a fee exemption (used by academics, indigents,
pro-bono attorneys, and pro se litigants):
http://pacer.psc.uscourts.gov/announcements/general/exemptnotice.html
===
...but you all probably already knew that.
On Dec 14, 2009, at 12:59 PM, Josh Tauberer wrote:
> On 12/14/2009 12:05 PM, Daniel Schuman wrote:
>>
>> Is anyone aware of other instances where the government requires
>> users of its websites to agree to "terms of service" before they can
>> download data?
>
> A Google search came up with Baltimore selling GIS data w/ license
> agreement:
> http://www.baltimorecity.gov/government/moit/egis/public_access.php
>
> Some other relevant cases, but not explicit agreements:
>
> The House committee videos are labeled with a TOS-like message which I
> noted a few threads ago:
>
>> One note, some committees display a note at the starts of their
> (http://razor.occams.info/blog/2009/11/10/committee-webcast-archives/)
>
> And a few threads before that we talked about the issues of the
> government using social media tools, and terms of service imposed by
> the
> third party service providers.
> (http://razor.occams.info/blog/2009/05/29/gsa-social-media-tos-review/
> and http://www.usa.gov/webcontent/resources/tools/TOSagreements.shtml)
>
> The FEC notes restrictions on its data download page, but they are not
> contractual terms but instead a summary of relevant statutory law:
>
>> Reports and statements filed by political committees may be inspected
>> and copied by anyone. The names and addresses of individual
>> contributors, however, may not be sold or used for any commercial
>> purpose or to solicit any type of contribution or donation, such as
>> Any person who violates this restriction is subject to the penalties
>
> Voter registration lists are generally handled in a similar way as far
> as I see --- with limitations written into statutory law. But maybe
> some
> state does it via a contract.
>
> - Josh Tauberer
> - CivicImpulse / GovTrack.us
>
> http://razor.occams.info | www.govtrack.us | civicimpulse.com
>
> "Members of both sides are reminded not to use guests of the
> House as props."
>
John Wonderlich
A fee exemption applies only for limited purposes. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Therefore, fee exempt PACER customers must refrain from the use of RECAP. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.
These agreements seem to be built in fear of risk, with no appreciation for public utility weighing against those risks.
Like a playground made entirely of sponges -- safe, but useless.
Daniel Schuman
This is an incredibly interesting discussion. I had not considered whether federal copyright law would preempt state contract law with regard to EULAs on government data. Of course, even if these kinds of agreements are legal permissible, they don't make sense in this instance.
A quick update: according to our friends at SubsidyScope, there's no watermark or other authentication on the TARP PDF files. So, there's no distinction (except the format) between the PDF files and spreadsheet files, even though one is subject to the terms of use agreement and the other is not.
Daniel
John Wonderlich
44 USC 3506 (link)
(d) With respect to information dissemination, each agency shall—
...
(4) not, except where specifically authorized by statute—
...
(A) establish an exclusive, restricted, or other distribution arrangement that interferes with timely and equitable availability of public information to the public;
(B) restrict or regulate the use, resale, or redissemination of public information by the public;
Also, incidentally, the same section requires agencies to certify the following about proposed information collection activities:
In other words, this is SCARY:
[done a hundred things that will take at least 2 months]
GPO still maintains the service described, but I wonder if it gets more than 10 clicks a year?
Someone needs to step up and clarify the Paperwork Reduction Act. It's a morass of confusion ranging from complete irrelevance to overbearing intimidation.
A good start would be to amend Section 3507 to exempt "information collection activities which are clearly voluntary and therefore impose no burden". There's a lot more to do than that, but this simple fix would render countless annoying conversations unnecessary.
(also on the sunlight blog)
Joseph Lorenzo Hall
<dsch...@sunlightfoundation.com> wrote:
> Is anyone aware of other instances where the government requires users of
> its websites to agree to "terms of service" before they can download data?
A friend pointed me to this case, which I wasn't aware of:
Under LAPD v. United Reporting, the Supreme Court upheld the principal
that the government could put limits on how publicly-released data
could be used. In that case, arrest records could not be accessed
unless the individual stated that it would be used for one of several
approved purposes (and not for marketing).
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=98-678
Daniel Schuman
In reviewing the opinion, there's many significant distinctions between that case and the TARP EULA which could lead to a different analysis or result. The opinion concerns whether a facial challenge is permissible, and remands for resolution of the other issues. (It doesn't address the as-applied challenge.) Additionally, it regards the state's denial of provision of information in a commercial setting, not controlling how that information can be used in a political context.
As Scalia and Thomas write in their concurrence, "insofar as this case presents a facial challenge to the statute, the fact that it is formally nothing but a restriction upon access to government information is determinative." They add: "But it is an entirely different question whether a restriction upon access that allows access to the press (which in effect makes the information part of the public domain), but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech rather than upon access to government information."
Ginsburg, O'Connor, Souter, and Breyer seem to agree in their concurrence: "Anyone who comes upon arrestee address information in the public domain is free to use that information as she sees fit. It is true, as Justice Scalia suggests, ante at 2, that the information could be provided to and published by journalists, and §6254(f)(3) would indeed be a speech restriction if it then prohibited people from using that published information to speak to or about arrestees. But the statute contains no such prohibition. Once address information is in the public domain, the statute does not restrict its use in any way."
That, I think, is the situation here. The information is publicly available -- and I think is required to be publicly available by law -- but its use is subject to state control. Requiring citation is probably harmless, but the state's reservation for itself the right to impose additional terms is not.
Thoughts?
Daniel
--
Steve Schultze
Patrice McDermott
Patrice McDermott, Director
OpenTheGovernment.org
1742 Connecticut Ave NW, 3rd floor
Washington, DC 20009
202.332.OPEN (6736)
www.openthegovernment.org
From: Joseph Lorenzo Hall [mailto:joe...@gmail.com]
To: openhous...@googlegroups.com
Sent: Sun, 20 Dec 2009 13:04:32 -0500
Subject: Re: [openhouseproject] Treasury Imposing “Terms of Use” to Access TARP Data