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Josh Tauberer recently announced the release of “Open Government Data: Best Practices Language for Making Data ‘License Free.’ That document sets forth recommendations for federal agencies issuing data, and sample Creative Commons Zero (public domain) licensing statements.

In the memorandum, Mr. Tauberer and his colleagues discuss how open licensing protocols can be applied by various federal government authors—agencies in house, through contractors, or a mix—to different outputs, such as codes, laws, reports, etc. The overriding principle is that because the federal government’s material is not subject to copyright protection, a CC0 license will make it clear to users that the government disclaims its copyright.

When contractors are involved, things get a little more complicated: “Works produced under a contract with the government may be subject to copyright protection. Any such contract should specify that any copyright in the work is transferred to the government.” Transferring the copyright to the government, of course, obviates it, as federal government works are not subject to copyright protection under the Copyright Act. For mixes of government and non-government works, they recommend that “non-governmental contributors be required to waive copyright protection to their submissions,” which is another way of bringing taxpayer funded government work product into the public domain. This shouldn’t be a controversial proposition, but we’ve seen what happens when private standards are incorporated by reference into law.

The Foreign Intelligence Surveillance Court has created a public docket for declassified opinions.

The documents have been released through the efforts of providers like Yahoo, Microsoft, and Google, as well as advocacy groups like the ACLU and the EFF, who filed requests to publish the opinions and filings in the FISC. Since FISA was enacted, the FISC and FISA Court of Review have only released a handful of opinions. The public docket gives us insight into the secret activities of the courts and their litigants.

The docket includes the following cases:

The Electronic Privacy Information Center (EPIC) filed for a writ of mandamus and prohibition in the Supreme Court of the United States yesterday, asking them to vacate the Foreign Intelligence Surveillance Court’s Order requiring production of phone records for domestic customers of Verizon.

In the petition, the questions presented are (1) Whether the FISC exceeded its statutory authority under 50 USC §1861 to authorize foreign surveillance when it ordered Verizon to produce records for wholly domestic communications and (2) Whether EPIC is entitled to relief under 28 USC §1651(a) to vacate the order by the FISC.

28 USC §1651 is known as the All Writs Act, and it authorizes the Supreme Court to issue extraordinary writs in its discretion. EPIC argues that an extraordinary writ is appropriate because (1) the FISC exceeded its statutory authority in granting the order and (2) No other court may grant relief, due to the secretive, ex-parte nature of the FISC orders and opinions.

California’s Public Records Act survived a near miss last week. The EFF reports that the California legislature passed a bill last week that included a trailer to cut CPRA funding. The trailer bill would have made compliance with the CPRA optional for local governments.

Thanks to pressure from activists, the bill was replaced, and the CPRA language removed. But it’s still sitting on Gov. Brown’s desk.

California’s Public Records Act, codified at Cal. Gov. Code §6250 et seq. is a state version of the Federal Freedom of Information Act (FOIA). It is designed to help citizens access the papers and records of state agencies. It covers all public records, defined in Cal. Gov. Code §6252 (e) as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” It also includes “Writings,” defined at §6252(g) as “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”

The Supreme Court issued six opinions today. Read more about the decisions below.

Fisher v. Univ. of Texas at Austin
Docket: 11-345
Date: June 24, 2013

Read commentary & review related lower court decisions here.

Justia Summary:  Since the Court’s 2003 decision, Grutter v. Bollinger, the University of Texas at Austin has considered race as a factor in undergraduate admissions. A Caucasian, rejected for admission, sued, alleging that consideration of race in admissions violated the Equal Protection Clause. The district court granted summary judgment to the University. The Fifth Circuit affirmed. The Supreme Court vacated and remanded, reasoning that the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Supreme Court precedent. A university must clearly demonstrate that its purpose or interest is constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose, and “that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate.” A court may give some deference to a university’s judgment that diversity is essential to its educational mission, if diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision. The University must prove that the means it chose to attain diversity are narrowly tailored to its goal and that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” A reviewing court must ultimately be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity. The Fifth Circuit simply presumed that the school acted in good faith and gave the plaintiff the burden of rebutting that presumption. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice. On remand, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

California is proposing to charge citizens to access and read court files and other public documents. The Administrative Office of the Courts has proposed that the state charge $10 for every name, file, or information that comes back from a search. Techdirt has the story. Charging for search results – where have I heard that before?

VoxPopuLII has a great post from few days ago about access to published court opinions by the guys at Ravel Law. In their post, they discuss the de facto privatization of the law, and how to effectively change that. It’s a concise, organized overview of the problem and solution.

President Obama issued an executive order last month calling on the federal government to open access to public documents by making them “open and machine readable.” He called on government information to be “managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable.”

Well, I can think of a huge dataset waiting to be opened: case law from the US Federal District and Appellate Courts. Right now, some of the case law is published in slip format (the unofficial decision) in FDSys. It is machine readable, and contains metadata – both good things, consistent with this directive. However, it’s not official. If we are to take the White House mandate seriously, the official, published case law (issued by a private publisher), should be hosted in FDSys. This would make it “usable” under the Order.

In support of this move, President Obama references the release of government GPS and weather data, which encouraged entrepreneurs to create applications and tools of value to the American people.

According to a new infringement lawsuit filed Tuesday in federal court (read it below), the Google Wallet app violates a Canadian resident’s U.S. patent.

Plaintiff Peter Sprogis holds U.S. Patent No. 7,298,271 for a “Method and apparatus for providing awards using transponders.” The ‘271 patent abstract describes a customer loyalty program using ‘electronic data storage elements’ (EDSE) like RFID tages can be used to encourage customer loyalty by offering coupons or loyalty points for visiting a business.

Sprogis accuses Google of infringing at least nine claims listed in his patent.

The plaintiff’s claims appear to paint a wide swath over Google’s app. Google Wallet enables Android phone users to securely store credit and debit card information on their mobile devices to shop locally as well as online.

Happy Friday! We’re back from Cornell’s Law via the Internet conference just in time for our weekly writers’ picks.

Dept of Texas, Veterans of Foreign Wars v. Texas Lottery Commission, US 5th  Cir. (10/10/12)
Constitutional Law, Gaming Law

Plaintiffs, a group of nonprofit organizations licensed to conduct bingo games, filed suit challenging restrictions on the Texas Bingo Enabling Act (Bingo Act), Tex. Occ. Code 2001.001 et seq. Plaintiffs challenged provisions in the Bingo Act that prohibited charities from using the money generated by conducting bingo games for lobbying activities or to support or oppose ballot measures. The district court granted summary judgment in favor of plaintiffs and issued a permanent injunction preventing enforcement of the challenged statutory provisions. The court reversed and held that the Bingo Act’s restrictions on the use of bingo proceeds for political advocacy were permissible conditions on a government subsidy and did not operate to penalize speech.
Read More:
Court Rejects ‘Citizens United’ Arguments in Texas Bingo Case, Wall Street Journal Law Blog

NE Coal. for the Homeless v. Husted, US 6th Cir. (10/11/12)
Constitutional Law, Election Law

Ohio requires that provisional ballots be cast in the correct precinct, with a completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error, O.R.C.  3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). A 2010 consent decree required the counting of certain wrong-precinct and deficient-affirmation provisional ballots where poll-worker error caused the nonconformity and the voters used the last four digits of their social security number for identification to cast their ballots. The ballot of a provisional voter using any other form of identification (e.g., current photo identification, current utility bill, paycheck) would not be counted.The district court denied a motion to vacate the decree and entered a preliminary injunction requiring the counting of all wrong-precinct and deficient-affirmation provisional ballots to remedy systemic exclusion of nonconforming ballots caused by poll-worker error. The Sixth Circuit affirmed the wrong-precinct remedy and reversed the deficient affirmation remedy and remanded for the district court to address the equal protection issue created by the consent decree’s provision for counting deficient-affirmation ballots by voters providing social security numbers, and a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.
Read More:
Court rejects Ohio voting law on tossing ballots filed in wrong precincts, CBS News

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