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

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

1 Introduction to Legal Issues on Social Media & the Federal Government Peter Swire Ohio State University Center for American Progress DHS Conference June 23, 2009

2 Overview Overview of legal issues Legal and policy issues in procuring 2.0 services

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6 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 When does it apply to 3 rd party sites 3.Commercial endorsement & advertising

7 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

8 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

9 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

10 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 shouldnt write its own word processing software – COTS & GSA schedules

11 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

12 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

13 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?

14 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

15 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

16 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.

17 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

18 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


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