In America, dealing with the legal system isn't cheap If you find yourself in court, chances are that you'll spend a fortune hiring the best lawyer you can afford. But while good legal counsel costs a bundle, access to the law itself is supposed to be free. In other words, although you may need a professional to help you understand the legal code, you are supposed to be able to find out what the laws are without paying for the privilege.
But that's not the case with all laws. For some, you have to pay a stiff price just to take a peek.
Codes and standards -- the rules governing everything from fire safety in your office to your home electrical system -- occupy a twilight area between private information and public law. On the one hand, some of these rules are part of the legal system, and a failure to abide by them can result in stiff penalties. On the other, many of them were developed and updated by private organizations like the U.S. Green Building Council, the National Fire Protection Association or the Society of Automotive Engineers. Having produced these codes and standards, these nonprofit organizations are legally allowed to charge for access to them.
A Battle For Democratic Ideals
According to Jerry Goldman, research professor of law and director of the Oyez Project at the Chicago-Kent College of Law, this poses a serious challenge to some of America's most deeply-held ideals. "In a democracy, our laws are our operating system," he argues. "The operating system has to be free if we want a vibrant democracy."
By denying access to the law, Goldman claims, standards-setting organizations have created a "barrier to entry" for people who want to know the rules governing many aspects of their lives: "A layperson who wants to understand building code -- who wants to lift up the hood and see what's going on, as it were -- will be stuck with the full price of the code, and will be deterred from pursuing the issue further."
One group has faced the code issue head-on. Public.Resource.Org, a nonprofit organization dedicated to free access to the law, has spent the last five years posting state safety codes online. Recently, the group upped the stakes with their decision to copy and distribute 73 safety standards manuals that are integrated into federal law. In a largely symbolic move, they sent out 25 copies of the code books to a variety of groups, including the National Archives, the White House, and Harvard Law School.
But while Public.Resource.Org's actions were symbolic, the costs -- and potential consequences -- are far more tangible. All told, those 73 manuals cost the group $7,416.26, and the fines for reproducing them could total more than $273 million.
Charging for the Law
Why do standards-setting organizations charge so much for code books -- and why do they threaten such high fines for copying? To Goldman, the answer is simple: "As far as I can tell, there's no reason, apart from profiteering on the part of the organizations that render this service."
But not everybody sees the problem in such black-and-white terms. Thomas Bruce, director of Cornell's Legal Information Institute, notes that creating codes and standards isn't cheap: "The standards-setting organizations develop these codes at some expense to themselves," he explains. "They have to do extensive testing, writing and editing."
On the other hand, Bruce also admits that there is a definite problem with denying public access to the law. As he puts it, "A very real problem is that people can find themselves being held legally accountable for access to information for which they have to pay a fee."
To make things worse, the cost to access many codes has gone up, raising questions about where the money is going. Ideally, standards-setting groups like the NFPA or the SAE would use the money generated by their publishing wings to fund their testing and development programs, with little cash left over. In reality, though, Bruce notes, "It's reasonable to ask how many of these standards-setting organizations are becoming profit centers."
Commerce vs. Democracy
Ultimately, the question of access to codes translates into a battle between the democratic ideal of free access to the law and the very real -- and very high -- cost of developing these codes. If standards-setting groups were forced to publish their work for free, then there would be little economic reason for them to continue the high-cost process of developing codes. Or, as Thomas Bruce puts it, "If we take an ideological position and assume that we want total access to these standards, we have to ask how we shift the cost of producing them."
The obvious answer is that, if private organizations were no longer able to produce standards, the federal government would fill the gap, at some expense to taxpayers. But Jim Shannon, president and CEO of the NFPA, argues that the financial costs would be the least of the problems with federally-produced standards. A much bigger concern, he claims, would be the loss of an efficient, independent, and highly responsive standards-setting body.
The National Fire Protection Agency, Shannon's group, brings together more than 5,000 employees and volunteers to produce and test its standards. Representatives of all interested parties -- including manufacturers, consumers, the government, and other groups -- take part in the code-creation process. But while the NFPA draws from a wide variety of shareholders, it isn't dependent upon any of them for its funding, which means that it can maintain complete independence.
That's radically different from government organizations, like the FDA and the SEC, whose regulations generally bear the fingerprints of an army of well-paid lobbyists. And, unlike the food, drug and financial industries, which have been riddled with scandals and corruption, the NFPA's standards have proven quite successful, at least for the 150 countries -- including the United States -- that have adopted them. "It's a classic example of a public/private partnership that works," Shannon argues.
Much Ado About Nothing?
But what about access to the law? According to Shannon, the issue has been greatly overblown. Far from the high-priced barrier to legal access that Public.Resource.Org claims, he notes that the NFPA actually goes to great lengths to ensure that the public is able to access all of its codes at low cost: "We have put our codes and standards on the Internet in a read-only format. People can access them for free, but can't download or print them out."
Shannon argues that the NFPA's system works well for all of its shareholders.
"We don't get complaints from states, experts, agencies, or really even the public," he says. "We do hear complaints from third-party groups that want free information in the abstract." But while their argument is abstract, Public.Resource.Org's push for free publication of standards, Shannon notes, would have very real impacts: "It would destroy a system that has worked for 100 years. The consequences would be huge."
A Bad Example
In some ways, the NFPA represents an ideal example of a standards-setting body. The Fire Code, their main publication, is an exhaustive, 668-page compendium of fire protection requirements, updated every three years. It costs $82, but -- as Shannon notes -- is available online for free. What's more, it is self-funding: Proceeds from its sale pay for its development, as well as public education, advocacy work and lobbying for stricter safety standards.
But the practices of some standards-setting bodies are a bit more questionable. For example, the U.S. Green Building Council, a nonprofit group that creates the standards for environmentally-sustainable buildings, charges quite a bit more for its materials. For example, the group's main publication -- the 645-page LEED Reference Guide for Green Building Design and Construction -- costs $195, more than twice the price of the Fire Code, and the data isn't available for free online.
This wouldn't be a major problem, if not for the fact that all new work on every federal building must meet the LEED gold standard. In other words, if an engineer, architect, contractor -- or even Public.Resource.Org's ideal civilian who wants to take a peek under the hood of America's laws -- would like to know about the legal requirements for a government building, he or she would have to pay a premium for the information. Tristan Roberts, editorial director of BuildingGreen, points out the basic rules are available online for free, but they lack a lot of key information. "You'd be crazy to try to certify or construct a LEED building without the reference guide," he says
Surprisingly, Public.Resource.Org has not chosen to target the USGBC. They have, however, taken aim at Underwriters Laboratories, an organization whose standards aren't actually codified into the law.
Ultimately, Public.Resource.Org's quest for the disclosure of all our laws is certainly worthwhile, but their targets seem to be cherry-picked for maximum political impact, regardless of whether or not the groups involved are actually obscuring the law. And, with organizations like NFPA working to balance ease of access with protection for their intellectual property, it's worth asking if Public.Resource.Org's quest is a constitutional crusade or a bit of political positioning.
Public.Resource.Org refused our request for comment.
Bruce Watson is a senior features writer for DailyFinance. You can reach him by e-mail at email@example.com, or follow him on Twitter at@bruce1971.