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

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 508 2.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