Copyright dispute roils federally-funded database of collateral consequences

May 19, 2015 CCRC Staff

Should a compilation of collateral consequences mandated by federal law and prepared with federal funds be freely available to states and members of the public? The Uniform Law Commission says yes, the American Bar Association says no.

In an article posted on May 18, the Wall Street Journal pulled back the curtain on an on-going dispute between the ULC and the ABA over copyright restrictions the ABA has imposed on data in the National Inventory of Collateral Consequences (NICCC). The ULC is concerned that restrictions on access and use of the NICCC data are likely to stymie adoption of the Uniform Collateral Consequences of Conviction Act (UCCCA), which requires that states create their own inventories. The ABA contends that the existence of other potentially conflicting databases would create undesirable confusion about the meaning of the law. An excerpt from the WSJ piece (a companion to another article on collateral consequences published the same day), follows:

The idea for a national inventory of collateral consequences grew from model legislation created by the Uniform Law Commission called the Uniform Collateral Consequences of Conviction Act. The model bill, finalized in 2010, requires states that enact it to take inventory of collateral consequences within their borders and to create a legal mechanism by which some ex-offenders can petition to have sanctions lifted.

The drafters of the model legislation sought federal assistance for a national database that states could use as a foundation for their own, said Richard T. Cassidy, a Vermont lawyer and ULC commissioner. That led to Congress passing a bill in 2007 that directed the Justice Department’s research arm, the National Institute of Justice, to conduct the inventory. The NIJ outsourced the work to the ABA.

In the spring of 2014, as work on the database was wrapping up, the American Bar Association added a copyright notice to the database website. Under the terms, data downloading and replication of the website is permitted under a revocable license from the ABA, but only on certain conditions.

Harriet Lansing, president of the Uniform Law Commission, wrote to ABA President William C. Hubbard in February, saying the restrictions were “contrary to the interests of the ULC in seeing its laws enacted by the states” as well as inconsistent with the federal law that authorized the creation of the database.

“We do not believe that Congress would have wanted states to have to start from scratch in building their own state-specific inventories, after nearly a million dollars in federal funds had been expended to create a national database that was intended precisely for this purpose,” Ms. Lansing wrote.
Margaret Love, who was an adviser to the ABA project and founded the Collateral Consequences Resource Center, was more blunt: “Experience with monopolies — especially state-sanctioned ones — indicates that they inevitably lead to deterioration of quality and service. This appears to be happening before our eyes.”

In response, Mr. Hubbard wrote that the copyright restrictions ensure consistency and will prevent confusion by users. The existence of other, derivative databases that depart from the ABA database in technical and other ways “may create uncertainty as to the meaning and application of the data.”

The ABA has funding to maintain the database for two more years, Mr. Saltzburg said.

The ABA’s claim that its copyright is necessary to ensure that the public is not misled is ironic. This is because, despite the recent infusion of new government grant money, the ABA appears to be making little effort to ensure that the NICCC is complete and up to date. In the past 18 months, states have enacted dozens of new laws and rules that are not reflected on the NICCC website, and many existing entries are in need of amendment. Data from only six states is current through 2014, and numerous consequences have been inexplicably dropped from the website.

Even if the NICCC were a more reliable source of information about collateral consequences, states need to be able to create and publish their own official inventories, as required by the Uniform Act. (The revised sentencing articles of the Model Penal Code approved by the American Law Institute in 2014 also require states to create their own inventories.) As the ULC points out in its letter to the ABA, Congress intended the states to be able to use the federally-funded inventory for their own purposes in dealing with an enormously important public policy issue. But this congressional purpose will be frustrated as long as the ABA is permitted to control access to the NICCC data. It is not clear how long that will be, since the Justice Department has refused to respond to FOIA requests and other inquiries about its plans for the NICCC going forward.

In the interest of full disclosure, this organization is among several that has a FOIA request pending with Justice for information about the future of the NICCC. The CCRC has also written to Justice asking it to institute a competitive process to determine how the NICCC is administered and maintained in the future, regardless of whether additional federal funding is made available for this purpose. To date it has had no response from Justice to these inquiries.