First Thing We Do, Let’s Friend All the Lawyers

Elizabeth HochbergOffice of General Counsel

U.S. General Services Administration

Hope O’KeeffeOffice of General Counsel

Library of Congress

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Why Are We Here?

• To understand why Gov 2.0 teams need to include tech-savvy federal attorneys

• To introduce the federal rules that govern Gov 2.0 tools

• To identify federal legal roadblocks to Gov 2.0 – and how to roll by them

• To examine case studies on Gov 2.0 wins & failures

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Don’t Attorneys Only Slow Things Down?

• Actually, we can help speed things up exponentially if you bring us in from the beginning.

• Here’s why:–We speak the language–We know the rules – and the loopholes–We are advocates–We are negotiators–We are creative thinkers–We are problem-solvers

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Isn’t it better to ask forgiveness than permission?

• Sure – if you want to risk jail, job loss, or a lawsuit.• Breaking the rules has real consequences for feds:

– Criminal – Civil– Political– Public relations– Future projects– Erosion of whuffie

• And for contractors:– The contract may not be enforceable

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Yes, the FAR Applies to You.

• Per the FAR, if appropriated funds are used to contract for a new Gov 2.0 app, that new Gov 2.0 app is government property, the same as a computer or a desk chair. Or a tank.

• So you decide to give your Gov 2.0 app to the feds instead of going the contract route. Guess what? It’s probably a gift.

• Government agencies can accept your free software if that’s the market price. But we cannot accept a special government-only price (i.e., free) without jumping through some internal hoops first.

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Federal appropriation laws affect all Gov 2.0 players

• You may have wondered why a contract we sign with you is for one year with additional option years.

• It is because under the Antideficiency Act we cannot promise to pay you for something unless we already have the money in hand.

• This is why in your ToS’s, federal agencies cannot agree to pay any lawyers’ fees in subsequent contract years. It is a violation of the Antideficiency Act. Violating it can cause an agency to have to send the following slide…

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Appropriation Law Violations go to POTUS

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Lethal Terms of Service Provisions

• Indemnification–Sorry, but we cannot agree to unlimited or undefined

indemnification clauses. Ever.• Jurisdiction & Choice of Law

–Under the Supremacy Clause of the Constitution, we cannot be sued in state court. We can only be sued in federal court. We can apply your state law in the absence of federal law – but that’s still up to our discretion.

–So, when we tell you that we need to negotiate your ToS, this is why. We understand that you have your policies, but we have our laws.

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More Likely Federal Roadblocks

• Endorsement• Privacy (e.g., cookies)• Intellectual Property land grabs• Federal records• Accessibility• Advertising• Security

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IP and Gov 2.0

Terms of Service agreements with the leading Web 2.0 providers all have IP provisions. These must be hammered out when the ToS is negotiated.–Can’t copyright USGW or provide exclusivity–Protect USGW trademarks–Avoid endorsement appearance –Unique issues with UGC on federal sites

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It’s not over when the contract is signed …

• Just because someone clicked and approved of your ToS doesn’t mean they were authorized to do so.

• Ongoing monitoring of IP, etc.– GSA constantly monitors user profiles to find infringing

uses of the Starmark.– Facebook immediately removes them but Twitter is

often frustratingly hesitant. YouTube won’t help.• New issues usually arise as use expands and tech

evolves. For example, Facebook …

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… There Can Be New Problems.

And these new problems are called: “Community Pages”.

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Case Study-The Market: Mapping Software

• GSA found a bona fide need to use certain mapping software on agency websites to help the public locate and identify public buildings.

• Over 75 employees downloaded the free version of the mapping software, blindly clicking through the standard ToS.

• The mapping software owner declined to enter into ToS agreement for free service – would only negotiate ToS for their fee-based version.

• Agencies can buy the fee-based version on GSA schedule, with fed-friendly contract. But this did not help with the current problem of GSA employees using the unauthorized free version.

• GSA removed unauthorized installations and ceased using the free version on GSA webpages.

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Case Study Lose/Lose: Playing Chicken

• Small firm had GSA-approved TOS for terrific product

• Firm wanted a clickable logo on agency’s website• Agency agreed to logo but not clickable because of

concerns about .gov status• Agency ended up not using the perfect product for

its needs.• Firm lost high-visibility user in their core market

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Case Study Win/Win: Twitter Archive

• Twitter signed donation agreement after swift negotiation

• Win for Twitter: preservation; validation of cultural importance

• Win for Library: preserve digital snapshot of our time

• Reaction:

– Library website crashed for 1st time since Starr Report

– Historians & academics thrilled

– Magnified concerns regarding privacy once it’s the Government collecting tweets

– Public second-guessing of value of Gov 2.0

• Twitter & Library will work together on implementation

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Case Study-Flexibility: Flickr & USGW

• Flickr default: Creative Commons licenses• Agency Flickr account used least restrictive – CC-

BY• Blogosphere got cranky about ANY restrictions on

USGW• Agency & Flickr agreed on USGW tag – overnight• Caveats added to limit uses based on non-IP

issues such as privacy & endorsement

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What if the roadblock IS the lawyers?

• Sometimes we’re just the fall guy• Think like a lawyer

–Build the business case–Anticipate the issues–Demonstrate the precedents–Show the risk analysis

• Coopt us by early notice & involvement• ID the tech-friendly lawyers & add them to 2.0 team

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Questions?

elizabeth.hochberg@gsa.gov loke@loc.gov