AHA Joins Petition to Supreme Court on Electronic Records

On November 4, Public Citizen—joined by the American Historical Association, the Organization of American Historians, the National Security Archive, the American Library Association, the Center for National Security Studies, and several researchers—petitioned the Supreme Court to reverse a recent court of appeals ruling on electronic records policy. The appeals court upheld the National Archives' regulations that allow agencies to routinely destroy word processing and electronic mail records of historic value if an electronic, paper, or microform copy has been made for recordkeeping purposes.

In many agencies the majority of work is now handled through electronic, and not paper, records. At a recent hearing before the Senate Seapower Subcommittee of the Armed Services Committee, Vice Admiral Daniel Murphy noted that during the NATO operations against Serbia all orders were handled electronically and that this was a historic first in American warfare. This development, however, has not come as a surprise to many in the scholarly and congressional communities. The 1985 report of the Committee on the Records of Government, an effort spearheaded by the major historical and archival organizations, began with the words "The United States is in danger of losing its memory." The report examined the need for federal policy to accompany the rapid shift to electronic recordkeeping. Then, in 1990, the U.S. House of Representatives further explored this topic in House Report 101-978, "Taking a Byte Out of History: The Archival Preservation of Federal Computer Records," which included eight very specific recommendations for addressing the problem. However, the National Archives continues to rely on a paper recordkeeping system.

The plaintiffs base their petition on two key questions. The first is whether the archivist was correct in concluding that the format in which government records are stored—electronic, paper, or microform—is irrelevant. In responding to this question, the plaintiffs agree with the position of U.S. District Judge Paul Friedman of the District of Columbia, who (in the lower court ruling in October 1997) stated that electronic records often have "unique and valuable features not found in paper printouts of the records." Friedman followed a line of reasoning similar to that in the 1990 House report stressing the value of electronic formats for research and disseminating information.

The second question focuses on whether the Court should give priority to the Justice Department's interpretations of laws and regulations when those interpretations were not put forward by the National Archives during the administrative proceedings of the case, but were offered for the first time by the Justice Department in defending the agency decision in the appeals court. The plaintiffs' petition makes clear that the interpretation made by the Justice Department counsel and endorsed by the appeals court not only does not appear in the archivist's explanation of the National Archives' policies and regulations "but they appear to be in tension with, if not directly contrary to, his policy statements."

In the lower court, Judge Friedman took a broad view that looked at the big picture of how electronic records of historical value should be preserved and set timetables for agencies to set up new systems. In reversing Friedman's decision, the appeals court took a very narrow view in which it focused on specific words in the current law and concluded that agencies had the flexibility to choose in what "form"—paper or electronic—they wished to preserve records. While the National Archives has expressed a commitment to developing regulations requiring agencies to preserve electronic records of historical significance, the plaintiffs contend that the progress toward this goal has been too slow, with final implementation still many years away. The petition is on Public Citizen's web site at http://www.citizen.org/litigation/briefs/pccarl14.htm.

New Perspectives on Copyright from the NRC

The National Research Council recently released a report titled "Digital Dilemma: Intellectual Property in the Information Age." Randall Davis of MIT who heads the council's committee on property rights in the digital age, presented the report, which had taken two years to prepare. He summed up the dilemma by talking about "how digital information can be distributed without losing control of it—sharing it but not surrendering it."

The report addresses the concerns of authors, publishers, the general public, the education community, representatives of the technology industry, and policy makers. Davis noted that "digital information raises the stakes around the longstanding issue of copying for private use and fair use. "Addressing the trend toward licensing, he asked, "With an online journal, what do you own when the subscription expires?" The report, which urges that we look beyond the technology at hand and deal with underlying issues, asks us to recognize "the difference between accessing digital information and using it-that is, the difference between reading a work and quoting or copying it."

Davis also highlighted the report's question "of whether the notion of a 'copy' remains an appropriate foundation for copyright law in the digital age." Copying, he noted, is directly related to the way computers function, for that is how data is accessed; thus, he suggested, control of copying would provide powers that go beyond those intended by copyright law. In suggesting the need to develop an alternative framework for understanding copyright, Davis said that the question would not be whether a copy had been made, but whether a use of a work was consistent with the goal of copyright law and whether it was substantially destructive of an author's incentive to publish.

Update on NHPRC

On November 16 and 17 the National Historical Publications and Records Commission (NHPRC) met to consider policies and grant applications. The meeting began with debate and votes on a number of resolutions brought by the commission's executive committee. The commission passed resolutions that recommend that reauthorization legislation for the NHPRC grants program specify a period of five years at a level of $10 million per year beginning October 1, 2001; commend collaboration between the archivist of the United States and the NHPRC to develop a plan to support significantly enhanced initiatives to implement the NHPRC's strategic plan and to support the necessary funds required to carry out those initiatives; support the development of a proposal for NHPRC to augment the grants budget with donations from the private sector; clarify the cost-sharing guidelines for grant applications; address the critical need of broadening the base of archival expertise in the area of electronic records; and endorse a proposal from George Washington University for a phase of an Eleanor Roosevelt documentary editing project.

The report of executive director Ann Newhall covered a range of topics and noted that 89 percent of the grants completed in fiscal1999 met the results promised in the grant applications. In the National Archives' strategic plan's performance targets, the goal for 1999 called for 80 percent of the NHPRC-assisted projects to produce results promised in the applications. The careful work of the staff in rigorously evaluating applications contributed to these strong results.

The commission approved eight documentary editing projects related to the founding fathers for a total of $1.3 million, and $1.2 million for several electronic records projects. There was considerable discussion, basically to seek information and clarification, about the grant of $244,000 to the University of California's San Diego Supercomputer Center for a project on collection-based long-term preservation. The intent of this project is to leverage the techniques developed by the center in its work with the National Archives to smaller projects and organizations. The Supercomputer Center provides the technology needed to store immense amounts of digital data by providing the ability to capture, analyze, interpret, and preserve data for hundreds of years. There was some frustration among commission members over the use of such technical terms as "feasibility of ingestion" in describing the project. However, the NHPRC staff encouraged those who seek to better understand this project to read the June 1999 report that the San Diego Supercomputer Center prepared for the National Archives. It may be seen at http://www.sdsc.edu/NARA.

Larry Hackman, director of the Truman Presidential Library, was presented an award at the meeting for his distinguished service in documentary preservation and publications. In addition, meeting participants witnessed a presentation and celebration of the Model Editions Partnership, which has developed procedures and standards for placing edited documents on the Internet in a reliable, easily accessible, and long-lasting format. Led by Project Director Dave Chesnutt of the University of South Carolina history department, the demonstration highlighted the research capabilities of seven scholarly documentary minieditions projects. The Model Editions include the papers of the first Federal Congress, Nathanael Greene, Henry Laurens, Lincoln's legal papers, Margaret Sanger, Elizabeth Cady Stanton, and Susan B. Anthony, and the documentary history of the ratification of the Constitution. The Model Editions Partnership may be reviewed and researched on the Web at http://adh.sc.edu.

Senate Confirms Seven to Serve on Humanities Council

On November 10 the Senate voted to confirm seven people to serve three-year terms on the National Council on the Humanities. The newly confirmed individuals will probably be sworn in during the spring council meeting. The 26-member council meets three times a year to advise the chair of the National Endowment for the Humanities on new program initiatives, policies and procedures, and grant applications. It has been over two years since the Senate has confirmed new members of the council; thus many of the current members have continued to serve past their allotted terms. Even after the seven new members-two lawyers, a professor of English, and four historians (Edward L. Ayers of the University of Virginia, Ira Berlin of the University of Maryland at College Park, Pedro Castillo of the University of California at Santa Cruz, and Evelyn Edson of Piedmont Virginia Community College)- are sworn in, there will be six members who will be serving past their terms. In January 2000, the terms of seven more members will expire, bringing the total for needed replacements to 13. It is anticipated that the president will nominate and the Senate will confirm a number of additional council members next year.