WASHINGTON (CN) — Pregnant and researching infant bath seats, expectant mom Lisa Milice learned that she had two options to see the federal safety standards for herself: She could either pay $56 to a third party to see a copy of the law, or go to Bethesda, Maryland, where there are two copies of the standard available.
Purchasing the standard from the third party American Society for Testing and Materials — a nonprofit whose business is developing safety standards — would have cost Milice twice as much as the bath seat.
For Milice, the problem is that Consumer Product Safety Commission did not publish the full text of the standard in the Federal Register because ASTM owns the standard to the copyright. Her attorneys at the New Civil Liberties Alliance call it a paywall, pure and simple.
“It may be easier for the administrative state to outsource the rule-writing process to safety organizations and standard-writing organizations, but that doesn’t mean they can hide the law from the rest of us,” Mark Chenoweth, executive director and general counsel for the alliance, said in a video about the case.
Jared McCalin, a fellow attorney at the alliance, told the D.C. Circuit on Monday at oral arguments that no government agency can charge the public to access a law.
He noted that the safety commission didn’t even provide the public with free access to the standard during the notice-and-comment period that took place in September 2019 once the final standard was issued. The changes were available online, but the standard was still only available in the reading room in Bethesda, or by purchasing it from ASTM.
“So during the comment period, unless you had the financial wherewithal to pay for the standard, you couldn’t see it?” asked U.S. Circuit Judge Patricia Millett, an Obama appointee.
“It was available for inspection in the D.C. area,” replied Justice Department attorney Courtney Dixon, who represents the commission.
“Well, if they can’t afford the money to pay for the standard, it may well be that they can’t afford a plane ticket and a hotel to Washington, D.C., to come look at it,” Millett said. “How are they supposed to comment if they can’t see it?”
Millett asked Dixon several times how commission thought the comment period was going to work.
“How did the commission think the consumer that loves their baby, as profoundly as can possibly be, but doesn’t have a lot of resources and lives in California, Arkansas, Nevada, pick your state, Montana, how are they going to comment?”
Dixon explained that when the agency published its final rule in September, it quoted the changes that ASTM made to its standard, and explained its findings of how it believed those standards improved the safety of the bath seat. But Millett retorted that by only having access to the changes and not the underlying standard, the information was “a bunch of technical mumbo jumbo.”
“Would your explanation make any sense to someone that doesn’t have the underlying standard as well?” Millett asked.
McCalin argued that all information — including the underlying standard — published in the Federal Register should be “reasonably available," per the Freedom of Information Act.
“What is reasonable evolves with time,” McCalin told judges. “And as the machinations improve to allow the government to make the law more accessible to the people, access to the law should improve as well.”
With the panel appearing to side with Milice and her attorneys, U.S. Circuit Judge Judith Rogers even suggested that the reading room in Bethesda be made available over Zoom.
“In this day and age, with the year we’ve all been through, we know there are many ways to make things publicly accessible,” said Rogers, a Reagan appointee.
The ASTM filed an amicus brief in the case. Its attorney, Kevin Fee, with the firm Morgan Lewis, told the court Monday that allowing the public to have access to the standards free of charge is a slippery slope.
“Plain language of ‘reasonably available’ does not require the government to provide unlimited and free online access,” Fee said, arguing that allowing the public unlimited access to the standards would alter a decades-long private-public partnership.
“The petitioners argument is asking this court to adopt a rule that federal agencies must publish thousands of privately authored standards that were admittedly copyright protected, without the copyright owners’ consent,” Fee said. “Based solely on the fact that a federal agency, such as CPSC, happened to incorporate the privately authored work by reference.”
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