First Thing We Do, Let’s Friend All the Lawyers
Much of federal agencies’ opposition toward using Gov 2.0 tools and applications comes from fear. This fear then manifests itself in the creation of roadblocks, which federal administrators may perceive as insurmountable and immediately use to quash change. Rarely are these roadblocks fatal – if you know about them in advance. This presentation will introduce participants to an ally that can provide them with a map of likely roadblocks and strategies to navigate through them.
Participants can be from industry or government, and need not have a legal background. In fact, non-lawyers and industry personnel might benefit the most from this presentation.
II. You ask: “Can we do that?” We say: “Yes, you can – and this is how”.
A 2008 study by the IBM Center for the Business of Government listed agency Offices of General Counsel as a major institutional barrier to adoption of Gov 2.0. It doesn’t have to be that way – if you make attorneys a vital part of the 2.0 team from the beginning.
What lawyers do for a living is solve problems and work as advocates. We identify roadblocks and find ways around them. Thus, if you bring a lawyer into your group from the outset, you add a tool that can save you a lot of time and effort later on. It’s important in any bureaucracy to have someone who is fluent – even trilingual – in tech, legalese, and bureaucrat-ese. Tech-savvy attorneys will know if legal precedent exists – or how to create it – and will find ways to work within the rules to find the best (and sometimes most creative) way to make happen. They can also serve as advocates for the project, helping pave the way for management approval.
Knowing the rules and language, determining what’s important and not important – this is just a portion of the value which tech-savvy lawyers can provide. Much of what lawyers do is triage and risk assessment. When brought in from the beginning, lawyers will immediately start not only working through the technological side of Gov 2.0 tools and applications, but also ascertaining whether any federal appropriations laws, ethics laws, acquisition laws, and intellectual property laws may provide areas that will have to be concurrently addressed. There are likely to be impediments in these areas, but they’re not showstoppers if dealt with early.
III. What roadblocks will we encounter? How can we avoid them?
One of the things that attorneys can help Gov 2.0 teams with is anticipating potential roadblocks before they are erected. There are a number of topics we would like to make participants aware of, and then offer guidance on how to work through. Among them:
• Understanding the contracting process (including for “free” services) and the use of appropriated funds to purchase and develop IT.
• Identifying copyright and intellectual property issues, U.S. Government and public domain works, and authentication issues.
• Dealing with real and illusory security risks. (Security officers are often even more scared of Gov 2.0 technologies than the lawyers are.)
• Navigating issues related to control of content and the message. This often manifests initially with the issue of who speaks for the agency, and morphs into concern over the management of user-generated content, when agencies can and cannot moderate citizen input on social media sites, and when agencies can and cannot control the ways in which agency content is repurposed.
• Addressing employee management issues, particularly concerns about employee use and abuse of 2.0 tools.
• Anticipating and planning for the familiar but navigable roadblocks of privacy law, accessibility, and records retention.
• Policing trademarks and registering defensive domain names.
IV. The Takeaway.
Participants in this presentation will come away with a more realistic sense of the legal roadblocks they may encounter in the Gov 2.0 environment as well as strategies for dealing more effectively with their offices of general counsel.
Elizabeth Hochberg, General Services Administration
Hope O’Keeffe, Library of Congress
Elizabeth Day Hochberg, LLM
Assistant General Counsel
Office of the General Counsel
General Services Administration
Hope O’Keeffe has been Associate General Counsel of the Library of Congress since November 2006, working primarily on collections matters including increasing digital access to the Library’s collections. She serves on the Library’s Web 2.0 Group, Digital Library Content Group, and Internet Operations Group. She participates in GSA’s multi-agency team working to negotiate federal template agreements with social media providers. She has been active online for many years, including being on the team that developed and wrote the National Endowment for the Arts’ first website in 1995. She participates actively in the Metanet online community, on Facebook, and in LinkedIn, writes a personal blog, has a Flickr feed and a YouTube channel, and tweets book reviews as lentigogirl.
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