Private Standards Organizations and Public Law

Peter L. Strauss, Columbia Law School

6/11/2014
(Original Publish Date: 7/23/2013)

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute, and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors OSHA requires for use in workplace caution signs, one must purchase from ANSI the standard OSHA has referenced in its regulations, at the price ANSI chooses to charge for it. The regulations governing incorporation by reference as a federal matter have not been revised since 1982, and so do not address the changes the digital age has brought about in what it means for incorporated matter to be “reasonably available,” as 5 U.S.C. §552(a)(1) requires. This essay seeks to bridge that gap, suggesting a variety of approaches that might bring the use of incorporation by reference into conformity with modern rulemaking practices and respect the general proposition that documents stating citizens’ legal obligations are not subject to copyright, while at the same time both honoring clear federal statutory policy favoring the use of privately developed standards in rulemaking and respecting the needs standards organizations have to find reasonable means to support the costs of their operations. Business models created in the age of print need to change; the challenge is to find ways to permit the market in privately developed voluntary standards to thrive, without thereby permitting the monopoly pricing of access to governing law.