United States: The Necessity Of eGovernment

Article by William Fenwick,^* Esq., Erin John^** & Jason Stimac^***

Abstract

This paper presents the positive and negative impact information technology (IT) has had on governance in the United States and argues that effective and efficient eGovernment is a necessity created by the increased and widespread use of IT in the private sector.

Part II of this paper discusses transaction costs, describes the functions of governance, and discusses other elements that are causing the government to lose ground. Part III proposes eGovernment as the solution to the problems created by the increased use of IT, provides a brief definition and background of eGovernment, and discusses why eGovernment is necessary to keep social transaction costs affordable while increasing the transparency and effectiveness of government's obligation to facilitate a civil society. Part IV covers some of the problems that eGovernment faces, such as privacy concerns and the distrust generated within the public by the government's failure to follow their own guidelines, and predicts the possible consequences of not having eGovernment.

For economic activity to be sustained over time, government, in one way or another, must provide the context that enables market transactions and precludes destructive abuses. The power of IT, rapid communication, and the conversion of wealth from ownership of physical property to intangible property means governance must adapt. The international race for growth and prosperity, through trillions of transactions, will be won by countries with governance best designed to enable those transactions by combining efficiency (minimized transaction costs) with trust (security of information).

INTRODUCTION

For more than 40 years, the proponents of computerization have promised significant benefits from the increased use of information technology (IT). Many could not contain their enthusiasm and faith in the idea that IT would enable improved speed, prospective recording and storage capacity, and the potential for nearly limitless decision making capabilities. The possibilities for convenience, enormous cost savings, and improved living standards, which would be a natural byproduct of IT use, also generated significant excitement. At the beginning of the movement toward computerization, knowledgeable participants assumed that IT's impact would reach the instrumentalities of society's governance and that government¹ would realize the same benefits as the private sector. Disappointingly, while the private sector has realized much of the promise and possibility of IT, the same cannot be said of state, local, and national governments.

This paper presents the positive and negative impact IT has had on governance in the United States and argues that effective and efficient eGovernment² is a necessity created by the increased and widespread use of IT in the private sector. Implementing eGovernment at the local, state, and federal levels is the only viable option if our society wishes to remain civil and prosperous. Without eGovernment, society risks the near certainty that the "transaction costs" of governance will rise to a level that precludes democratic governance. The number, speed, and complexity of economic and social transactions have, and will continue, to increase at a rate that outstrips the capacity of government to analyze and utilize the information necessary to maintain and facilitate a civil society.

Part II of this paper discusses Coase's Theorem of transaction costs, maps Dahlman's theory of social transaction costs to the tasks of government, describes the functions of governance and its attendant transaction costs, and discusses other elements that are causing the government to lose ground. Part III proposes eGovernment as the solution to the problems created by the increased use of IT, provides a brief definition and background of eGovernment, and discusses why eGovernment is necessary to keep social transaction costs affordable while increasing the transparency and effectiveness of government's obligation to facilitate a civil society. Part IV covers some of the hurdles that eGovernment faces, such as privacy concerns and the distrust generated within the public by the government's failure to follow their own guidelines, and predicts the possible consequences of not having eGovernment.

II. THE PROBLEM WITH TRANSACTION COSTS

A. What are "Transaction Costs"?

Ronald H. Coase, a world-renowned economist and professor emeritus at the University of Chicago Law School,³ is credited with the theory that now bears his namesake. Coase's model describes transaction costs (originally termed " market costs") as "the cost of carrying out a transaction by means of an exchange on the open market."⁴ In his seminal article, The Problem of Social Costs, Coase wrote:

A large subset of these transaction costs can be categorized as information gathering, analysis, and distribution costs. The greater the friction caused by these costs, the less likely transactions will occur because of the adverse impact such costs have on net income for all parties engaged in the transaction.⁶ When Coase developed his theory in the 1930s, it was unlikely that that anyone had conceived of today's powerful computers that have made eCommerce possible.⁷

Nonetheless, the principal motivator for eCommerce is the reduction of transaction costs and the increased speed of transactions made possible through the digitization of information.⁸ Thus far, implementation of eCommerce bears out Coase's theory–the more people and entities that transact electronically, the less their individual transaction cost, and the faster and more frequently their transactions conclude.

Coase further explored the application of his theory to governance activities. He believed that his theory, or some variation of it, as applied to social transactions, would determine what social policies should be implemented and lead to a better balancing of societal interests and economic growth.⁹ Coase explained that:

Thus, Coase believed that the circumstances of some transactions would make the government a more efficient participant than private firms affected by market forces alone. While there is no direct evidence that Coase analyzed the inverse impact that increases in productivity in the private sector would have on governance, the impact has proven enormous.

B. What Are Government Transaction Costs?

Governance becomes increasingly complex in a society with a substantial number of daily transactions. This occurs because the relationship between the number of transactions and the resulting burden on governance is not proportional. Each transaction imposes its own burden, which is amplified by many layers of government. A single transaction in the private sector can impact a variety of governmental entities at the federal, state, and local levels. Moreover, the faster the transactions become in the private sector, the less time the government has to act or react as necessary. This multiplying effect results in a greater number of government actions required over a shorter period of time. As the frequency and speed of transactions that occur in the United States on a daily basis increase rapidly and consistently, the burden on, and attendant need for, governance is dramatically affected. With each government action, there is a requisite transaction cost. Costs incurred by government as it performs these necessary duties consequently affect the private sector in the form of cost of compliance with governmental regulations and potentially even lost business opportunities if the regulations prove cost prohibitive. From an economic perspective, the more profitable transactions the private sector can complete in a stated period of time, the more productive the economy. From a governance perspective, the more productive private sector transactions become, the greater the cost to, and burden on, government.

To best understand the sources of government transaction costs, it is helpful to grasp the concept of social transaction costs as "search and information cost, bargaining and decision cost, policing and enforcement cost."¹¹ It is also useful to understand that, while the United States Constitution provides the basic framework under which the government must operate to accomplish the nation's goals and aspirations, the Framers chose not to be too specific or restrictive and did not dictate how those goals were to be accomplished. The Preamble states that its purpose is "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."¹² The Constitution then specifies and empowers the instrumentalities intended to facilitate these functions and creates the legislative, executive, and judicial branches of the government with checks and balances on the powers of each of the branches.¹³ The Framers wisely avoided directing specific mechanisms to achieve these ends, instead allowing each iteration of government to determine the most efficient and effective way to: (1) gather and analyze information about citizens' needs; (2) formulate policies to meet those needs; (3) create mechanisms to implement chosen policies; (4) disseminate information to the citizenry about chosen policies; and (5) police compliance and enforce chosen policies to ensure fulfillment of the goal underlying the policies.¹⁴ Laws and regulations are the principal tools the government uses to accomplish these goals, and lawyers, judges, accountants, and bureaucrats have traditionally constituted the driving force behind the implementation, dissemination, and enforcement of policies formulated by Congress.

Of Dahlman's three categories of social transaction costs, information gathering and analysis generates the highest costs, and necessarily so. Analysis is the key to gaining consensus as to public needs and the subsequent formation of corresponding policies that facilitate desired activities and discourage undesired activities. Furthermore, information gathering and analysis drives bargaining and decisionmaking costs as well as the cost of policing and enforcement of chosen policies. Disseminating information about those policies and implementing the necessary oversight is essential to achieving compliance with and integration of those policies. Additionally, in the United States, information handling costs are also related to intermediaries between information sources, policy makers and the citizenry. Principal categories of intermediaries are information reporters,¹⁵ lawyers, lobbyists, and their various methods of communication.

But today, "[t]he government faces new and intense pressure to [electronically] collect and use personal data [more effectively]. Much of that pressure reflects the conviction that greater reliance on digital data will reduce costs and enhance convenience, speed, efficiency, and accountability."¹⁶ The development and use of electronic information, the accessibility of the World Wide Web, and the parameters and volume of information needed by the government for efficient operation of its principal tasks have increased exponentially. Advances and application of IT in the private sector have propelled the number, speed, and complexity of transactions in our society to the point where the cost of governance tasks could exceed the fiscal resources that society is willing or able to expend.¹⁷ This warrants a brief overview of the increase in government's transaction costs.

1. Gathering and Analyzing Information

From history's first town hall meetings, elected government officials have struggled with gathering sufficient, accurate, and current information needed to identify services, formulate public policies, and update or abolish outdated policies. The Framers recognized this basic governmental need for information when they inserted a constitutional mandate that a periodic census be taken to gather statistical information about United States citizens.¹⁸ However, in order to operate the young democracy, more was actually required than mere census information.

A lack of regular interaction or direct communication between citizens and high-level government officials made local representatives crucial to the democratic process. By enlisting local representatives to serve as liaisons between the people and government officials, the government sought to gather and analyze information needed to make decisions on behalf of a growing and changing population using the most accurate and current information possible. The expectation was that citizens would provide sufficient information about their community needs to their representatives, and the representatives would consider that information when developing public policy.

As the population continued to grow, and social and economic activities became more rapid and complex, representatives became less able to gather and analyze information about the public and its needs. Today, the acceleration of transactions resulting from the private sector's adoption and use of IT has far outstripped the ability of representatives to gather and analyze the information needed (in form, volume, and timeliness) to determine the nation's needs, to formulate and update the necessary public policies, and to enforce those policies in order to ensure a productive and civilized society.¹⁹ These days, most of the information necessary to permit effective and efficient formation of public policy is available in electronic form, and can potentially be gathered in a matter of hours, if not minutes.²⁰ However, collating, analyzing, and effectively utilizing that information in a timely and economically feasible fashion appears to be a serious weakness of government.

In the past 200 years, thousands of federal, state, and local administrative agencies were created to perform informationgathering and analytic functions.²¹ These administrative agencies gave birth to legions of bureaucrats who were tasked with determining the information to be gathered, the mechanisms with which to employ the undertaking, and the methods to analyze the information being gathered and synthesize their findings for the policy makers. As the creation of administrative agencies became more common and equally as necessary, the result was a dramatic increase in the number of government officials.²² The costs these agencies have added to social transactions have reached alarming levels.²³

The burden that this creates for government is best illustrated by viewing the government as a nodal network. A network requires that there be at least two nodes, and the capacity of a network is increased geometrically through accumulation of additional nodes.²⁴ One way of measuring a network's capacity is to quantify the number of connections it enables. For example, in a network consisting of nodes A and B, each node can make one connection (A–B and B–A). If a third node is added (C), then there are six possible outcomes (A–B, A–C, B–A, B–C, C–A, and C–B). If a fourth node is added, there are twenty possible network connections, and so on. Hence, the complexity of a four node network is ten times that of a two node network, and approximately three times that of a three node network. While federal, state, and local government can be characterized as independent sources of government, in reality they are three interdependent sources of government.²⁵ Each level needs to communicate by interacting within its own level, and with others. When any one of these levels of government creates or delegates any of its functions to an agency, it results in the addition of another node and a geometric increase in the need to communicate and interact. Every agency created (or node added) consumes time and energy, thereby increasing the costs of making inter-governmental contacts.²⁶ Each newly added agency also slows the process and delays government reaction.

In light of the number of agencies created, it is easy to see how this piecemeal approach to IT has served to further burden governance. As the government began to turn more to electronic means for its information functions, it

Due to existing constitutional, statutory, and public policy-based privacy protections, as well as the public's fear of a "big brother"²⁸ government,²⁹ most agencies have only limited ability to transfer gathered information to other agencies who need (or believe they need) the same information. The results of such limitations are that: (1) the private sector must report redundant information to multiple agencies;³⁰ (2) there is an increase in the volume and nature of reported information;³¹ (3) regulations and restrictions are placed on the administrative agencies' use of gathered information;³² and (4) in many cases, agencies are pigeon-holed into using decrepit information handling tools.³³ However, the failure or inability of government agencies to possess and use appropriate IT does not prevent various special interest groups from obtaining information from public and other databases and performing sophisticated Web 2.0-type analyses.

Through lobbying efforts, powerful interest groups are granted agency and congressional support for their programs and policy designs.³⁴ While proper lobbying has merit in that it can provide the much-needed and sufficiently detailed level of analytic expertise, the prohibitive costs of such practices have the effect of crowding out viewpoints and skewing or mischaracterizing the needs held by the citizens and entities who do not wield the same financial resources or enjoy comparable political clout.³⁵ By relying on lobbyists to perform such information gathering and analysis functions, the government allows the opportunity for corruption of government and the political process through the manipulation of information to suit individual needs.

Lobbyists, who gather and provide information to the government for various vested interests, are now major participants in the representative government of the United States.³⁶ Originally, lobbyists performed the necessary task of gathering and analyzing information that enlightened representative government and alleviated some of the government's information burdens.³⁷ Lobbyists, however, have become contaminated as sources of information because of the special interest groups that they represent.³⁸ Organizations are motivated more by greed than the desire to inform government officials in order to afford them every opportunity to design effective and efficient public policy.³⁹ In essence, lobbyists have become bagmen for special interest groups that attempt to purchase influence within legislatures and have ceased to be champions of public need.

The lobbying system has also enabled incumbent politicians to escape their obligation to meaningfully inform themselves and their constituents of the full extent of an issue and independently form the most appropriate policy. Incumbent representatives encourage lobbyists (either directly or indirectly) to solicit large campaign contributions from their principals in exchange for preferential treatment of their interests over what they might otherwise deserve.⁴⁰ For example, politicians have institutionalized rules that permit earmarking of funds to finance projects that benefit their large campaign contributors.⁴¹ Earmarking,⁴² as it has been practiced in the last decade, has made it possible for incumbents to reward their contributors, without the benefit of public debate or discussion by the legislative bodies of a project's merit (such as the not-so-hypothetical bridge to nowhere).⁴³ Instead of enhancing a competitive market for ideas, lobbyists have corrupted it.

Lastly, "pay-to-play" has driven the costs of election campaigns so high that only the very wealthy candidates, or those with unmerited access, have a chance of unseating an incumbent.⁴⁴ Legislatures have nearly ceased being an assemblage for debating competitive ideas and have become an auction for corruption that simply exacerbates partisan politics. It is ironic to think that the lobbying system arose from the need for a process to timely gather and analyze information so that legislatures might have that information in order to resolve important legislative issues. Today, IT offers the possibility to more efficiently gather, analyze, and make transparent the very information that made lobbyists necessary in the first place.

The primary goal of eGovernment is "[t]he gradual transformation of government business . . . on many levels."⁴⁵ As a solution to these obstacles, "[o]ne of the visions of e-government is to break down these [independent] silos, integrating business processes, service programs, and streamlining information management[,]"⁴⁶ in a way that will allow the government to reduce redundancies caused by having multiple systems of information that cannot communicate or are prevented from communicating; significantly reduce costs of information collection, analysis and distribution; minimize the corrupting effects of lobbyists; and, make government actions transparent, thereby reducing public fear of "big brother."

2. Formulating Appropriate Public Policies and Creating Mechanisms to Implement Them

Diverse transaction costs are associated with the formulation of public policy and the methods used to ensure their effective integration into the daily workings of society. Representatives formulate appropriate public policies to meet the needs of the citizenry and embody those policies in laws that govern the social and economic intercourse between citizens and other entities (both private and public). Ideally this involves weighing the interests of all citizens and entities, an undertaking that requires considerable time and effort. Policy makers necessarily use the information that the government has gathered and analyzed for this purpose. Once the task of formulating appropriate public policies through the collection and analysis of massive amounts of data is completed, the issue of implementing such policies must be addressed.

In the United States, the implementation of public policy is a function of the executive branch.⁴⁷ The executive branch commonly creates administrative agencies that implement legislated public policies.⁴⁸ These agencies formulate regulations that embody specific explanations and examples of the legislature's intent and provide more guidance as to how to comply with new or modified laws.⁴⁹ Effective communication of the legislative intent and compliance guidelines requires skillful legal drafting.⁵⁰

After statutes and regulations are promulgated, disputes often arise as to their precise meaning and application. Dispute resolution regarding the meaning of statutes, rules, and regulations in this more complex society creates a huge burden on the judicial branch of government.⁵¹ A high percentage of the total cost of judicial dispute resolution is consumed by lawyers' fees for gathering, analyzing, and interpreting the information necessary to arrive at a just result.⁵² Indeed, as demonstrated by the results of a survey taken by a large corporate legal department, the volume and costs of electronic record discovery required by the judiciary is of great concern.⁵³

Distress caused by the volume of information that judicial bodies and litigants create and process has resulted in some change in rules governing electronic discovery.⁵⁴ Some courts, in an effort to comply with constitutionally required public access laws, are now providing on-line access to court records.⁵⁵ This has led to increased judicial staffing costs since warm bodies are needed to store and retrieve those public records. Furthermore, these developments have effectively turned courts into publishers, which is a significant addition to the courts' traditional function. This new function presents unique issues of its own, such as how easily accessible the information should be online. For instance, "[a]cross the nation, the debate about privacy and public documents is percolating at the local level as state governments consider reining in counties that are posting troves of documents on the Web."⁵⁶ Formulating and implementing public policy in a complex and expanding society under current conditions affects all branches and levels of government.

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^{* William A. Fenwick is one of the founding partners of Fenwick & West LLP and is a member of the firm's Litigation and Intellectual Property Practice Groups. Mr. Fenwick received his B.S. in business management from Southern Illinois University where he graduated with honors and was elected to Beta Gamma Sigma. He received his J.D. from Vanderbilt Law School and was elected to the Order of the Coif. Mr. Fenwick first began litigating technology disputes in 1968. Since 1992 he has been involved in a number of Internet-related matters as well as online commerce and communications. Since the early 1970's, Mr. Fenwick has spoken and written extensively on privacy, on information handling and on the intersection of law and technology. He has served as Chairman, EFT Transfer Committee, American Federation of Information Processing Societies, Inc. and was one of the initial members of the Committee on Electronic Legal Research, New York Bar Association. Mr. Fenwick has served as Chairman, Committee on Law Relating to Computers, Section on Science & Technology. During his three years as Chairman of the Practicing Law Institute's program on Computer Litigation, he was the editor of three volumes of working papers on various subjects related to law and technology.}

^{** Erin E. John is a 2009 J.D. Candidate in her third year at Santa Clara University School of Law. Ms. John received her B.A. in English Literature from Willamette University. She currently serves as Lead Content Editor for Volume 25 of the Santa Clara Computer & High Technology Law Journal. She also works as a research assistant for former dean of the law school George Alexander investigating trends in the enforcement of laws regulating false and misleading advertising. Additionally, Ms. John is currently co-authoring a law review article with Adjunct Law Professor Robert Cullen on the need to teach leadership in law school curriculum.}

^{*** Jason A. Stimac is a 2009 J.D. Candidate in his third year at Santa Clara University School of Law. Mr. Stimac received his B.A. in Law and Society from the University of California, Santa Barbara. The authors wish to pay special and heartfelt thanks to Daniel Guidotti, Lead Content Editor for Volume 25 of the Santa Clara Computer and High Technology Law Journal and Santa Clara University School of Law J.D. Candidate 2009, for his keen efforts and skillful editing, which greatly improved this article. Thanks to Kimberly I. Culp, an associate at Fenwick & West LLP and graduate of U.C. Hastings College of the Law, who contributed to the research for this article. Thanks also to Rachael Buchanan, Erica Smith, Linda Wuestehube, Daniel Bednarski, Meng Wu, and all of the Journal Associates who participated in the editorial process.}

Footnotes

^{1. Unless otherwise qualified, "government" as used in this paper is intended to mean the federal, state, and local legislative, executive, and the judicial processes, including administrative and other agencies created by those processes to facilitate the governing of a civil society.}

^{2. As described more fully in the later sections of this article, the term "eGovernment" (electronic government) refers to the use by government agencies of information technologies that have the ability to transform relations with citizens, businesses, and other arms of government.}

^{3. University of Chicago Law School, Ronald Coase, http://www.law.uchicago.edu/faculty/coase/}

^{(last visited Mar. 17, 2009).}

^{4. R. H. COASE, THE FIRM, THE MARKET, AND THE LAW 6 (1988).}

^{5. R. H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 15 (1960).}

^{6. Id. at 16-18.}

^{7. The U.S. Department of Commerce states that "[E]-commerce is the online transaction of business, featuring linked computer systems of the vendor, host, and buyer. Electronic transactions involve the transfer of ownership or rights to use a good or service. . . . Common illustrations include Amazon.com, llbean.com, CompUSA.com, travelocity.com, and hotels.com." Export.gov, What is ecommerce?, http://www.export.gov/sellingonline/whatisecommerce.asp (last visited Mar. 17, 2009) (emphasis added).}

^{8. See, e.g., AUSWEB E-Commerce, Benefits of eCommerce, http://business-ecommerce.ausweb.com.au/web/eCommerce-News/Business/Benefits-ofeCommerce (last visited Mar. 17, 2009). Following the logic to its inevitable conclusion, eCommerce will lead to more sales of relevant goods and services.}

^{9. Coase, supra note 5, at 43.}

^{10. Id. at 17-18.}

^{11. This was Dahlman's formulation of Transaction costs, of which Coase expressly approved. COASE, supra note 4, at 6 (citing Carl J. Dahlman, The Problem of Externality, 22 J.L. & ECON. 141, 148 (1979)).}

^{12. U.S. CONST. pmbl.}

^{13. U.S. CONST. art. I, § 1, art. II, § 1, art. III, § 1.}

^{14. See, e.g., OFFICE OF MGMT. & BUDGET, SECTION 213 OF THE E-GOVERNMENT ACT REPORT TO CONGRESS: ORGANIZATIONS COMPLEMENTING FEDERAL AGENCY INFORMATION DISSEMINATION PROGRAMS 1-2 (2005), available at http://www.whitehouse.gov/omb/inforeg/section_213_report_04-2005.pdf [hereinafter SECTION 213 Report].}

^{15. Historically, this group consisted of television and newspaper reporters, but in the past 20 years or so, this segment has increasingly consisted of bloggers and other nontraditional internet sources.}

^{16. Fred H. Cate, Government Data Mining: The Need for a Legal Framework, 43 HARV. C.R.-C.L. L. REV. 435, 436 (2008).}

^{17. See discussion infra Part III.D.}

^{18. U.S. CONST. art. I. § 2.}

^{19. See generally Antonio Cordella, Transaction costs and information systems: does IT add up?, 21 J. INFO. TECH. 192-202 (2006), available at http://personal.lse.ac.uk/CORDELLA/publications.html}.

^{20. Some outlets are run by the federal government: See, e.g., United States Department of the Treasury, www.ustreas.gov (last visited Mar. 18, 2009); United States Patent and Trademark Office Homepage, www.uspto.gov (last visited Mar. 18, 2009) (allowing anyone to search patent, trademark, and copyright databases and initiate applications for all three types of intellectual property).; United States Department of the Treasury, www.ustreas.gov (last visited Mar. 4, 2009). On the other hand, some websites are run by private companies. See, e.g., Gov.com, Making Government User-friendly–Government Information, www.gov.com
(last visited Mar. 18, 2009) (aggregating various government websites); The New York Times, www.nytimes.com(last visited Mar. 18, 2009) (a national newspaper that has successfully transitioned onto the internet). The preceding four examples constitute a small fraction of the wealth of information outlets available over the internet.}

^{21. See History of Administrative Agency, http://law.jrank.org/pages/4066/Administrative-Agency.html (last visited Feb. 22, 2009) (giving a history of the creation of some of the major federal agencies).}

^{22. See Paul C. Light, The True Size of Government, GOVERNMENTEXCECUTIVE.COM, Jan. 1, 1999, http://www.govexec.com/features/0199/0199s1.htm (discussing the fact that the size of U.S. federal government has increased from 1969 to 1999 despite claims to the contrary).}

^{23. The substantial costs to small cap companies of complying with the Sarbanes-Oxley Act (discussed infra) provides a recent illustration of this point. See 15 U.S.C. § 7262 (2006), which establishes some of the more onerous requirements associated with Sarbanes-Oxley.}

^{24. Scott Burris, Michael Kempa & Clifford Shearing, Changes in Governance: A Cross- Disciplinary Review of Current Scholarship, 41 AKRON L. REV. 1, 13 (2008).}

^{25. Id. at 26.}

^{26. See E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2900 (2002).}

^{27. Mark LeVigne, Electronic Government: A Vision of a Future That is Already Here, 52 SYRACUSE L. REV. 1243, 1248 (2002).}

^{28. GEORGE ORWELL, 1984 (Harcourt Brace Jovanovich 1977) (1949). In Orwell's 1984 novel, citizens are constantly reminded that "Big Brother is Watching You." The term "Big Brother" has come to symbolize an overreaching government that pries into its citizens' personal affairs.}

^{29. Know-alls, ECONOMIST, Sept. 27, 2008, at 73, available at http://www.economist.com/world/international/displaystory.cfm?story_id=12295455}

^{30. Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Relations, and the Census of the H. Comm. On Gov. Reform, 108th Cong. (2003) (statement of Mark A. Forman, Assoc. Dir. for E-Gov't and Info. Tech., Office of Mgmt. and Budget), available at http://georgewbush-whitehouse.archives.gov/omb/legislative/testimony/forman031303.html .}

^{31. Cate, supra note 16, at 439.}

^{32. Id. at 464-65 (detailing restrictions placed by the Privacy Act of 1974, 5 U.S.C. § 552a (2006); discussed infra).}

^{33. For a striking example, see S. SELECT COMM. ON INTELLIGENCE & H.R. PERMANENT SELECT COMM. ON INTELLIGENCE, JOINT INQUIRY INTO THE INTELLIGENCE COMMUNITY ACTIVITIES BEFORE AND AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, S. REP. NO. 107-351, H.R. REP. NO. 107-792, at 341 (2002), available at http://www.gpoaccess.gov/serialset/creports/pdf/fullreport.pdf ("[B]ecause the [FBI] lacks effective data mining capabilities and analytical tools, it has often been unable to retrieve key information and analyze it in a timely manner–and a lot probably has slipped through the cracks as a result.").}

^{34. Elisabeth Bassett, Reform Through Exposure, 57 EMORY L.J. 1049, 1062-63 (2008).}

^{35. Id. at 1063.}

^{36. See id. at 1062-63.}

^{37. Vincent R. Johnson, Regulating Lobbyists: Law, Ethics, and Public Policy, 16 CORNELL J.L. & PUB. POL'Y 1, 17 (2006).}

^{38. Id. at 12. 39. Bassett, supra note 33, at 1061.}

^{40. Id. at 1062.}

^{41. Id. at 1061.}

^{42. ROBERT KEITH, CONG. RESEARCH SERV., FEDERAL BUDGET PROCESS REFORM IN THE 110TH CONGRESS: A BRIEF OVERVIEW 6 (2008), available at http://wikileaks.org/leak/crs/RL33818.pdf ("[A]n earmark generally is considered to be an allocation of resources to specifically-targeted beneficiaries, either through earmarks of discretionary or direct spending, limited tax benefits, or limited tariff benefits.").}

^{43. Id. at 1061-62.}

^{44. Philip Sherwell, The $2 Billion Election, TELEGRAPH (London), Jan. 08, 2007, http://www.telegraph.co.uk/news/worldnews/1538810/The-2-billion-election.html .}

^{45. LeVigne, supra note 24, at 1248.}

^{46. Id.}

^{47. U.S. CONST. art. II, § 2.}

^{48. Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 373 (1989).}

^{49. Id. at 369.}

^{50. For example, with more than 150 administrative agencies producing 8,000 new rules in any year, there are, at any given time, over 500 proposed regulations open for comment. Rob Thormeyer, Information Overload a Potential Problem for FDMS, GOV'T COMPUTER NEWS, Dec. 6, 2005, http://gcn.com/articles/2005/12/06/information-overload-a-potential-problem-forfdms.aspx . E-government eases the public's ability to comment on these rules. However, for egovernment to succeed, these same agencies must develop and implement technology that analyzes the comments.}

^{51. See, e.g., NAT'L JUDICIAL COLL., JUDICIAL SURVEY: ELECTRONIC FILING IN U.S. STATE TRIAL COURTS 2 (2005), available at http://www.lexisnexis.com/efiling/NJC-E-filing-Survey-060705.pdf}

^{52. In the Judiciary, judges are facing an ever increasing deluge of cases and paperwork . review making it difficult for judges to keep up with the burden. See id.}

^{53. FULLBRIGHT & JAWORSKI L.L.P., SECOND ANNUAL LITIGATION TRENDS SURVEY FINDINGS 7 (2005), available at http://www.fulbright.com/mediaroom/files/FJ0536-US-V13.pdf .}

^{54. K&L Gates, Electronic Discovery Law, http://www.ediscoverylaw.com/2008/10/articles/resources/updated-list-local-rules-forms-andguidelines- of-united-states-district-courts-addressing-ediscovery-issues (Oct. 24, 2008). In a recent litigation, author William Fenwick's firm Fenwick & West had over 30 terabytes (that is over 30 trillion bytes) of discovery data in over 106 million files. If one digitized all the volumes in the Library of Congress, the resulting database would be 10 terabytes.}

^{55. See, e.g., Jennifer Lee, Dirty Laundry, Online for All to See, N.Y. TIMES, Sept. 05, 2002, http://query.nytimes.com/gst/fullpage.html?res=9A04E4D9173EF936A3575AC0A9649C8B63 .}

^{56. Id.}

^{57. Public libraries are, however, becoming reliable vehicles for access to the Internet as 99% of the citizenry can access the internet at a public library. SECTION 213 Report, supra note 14, at 16.}

^{58. A simple example will illustrate the magnitude of this point. There have been roughly 1,500 volumes of the Federal Reporter published since 1924, and roughly 1,500 volumes of the Federal Supplement published since 1932. Each of these volumes averages roughly 1,200 pages (volume size generally increases over time). Multiply 3,000 by 1,200 and the result is 3.6 million pages of potential legal precedent. Add that to U.S. Supreme Court materials, the U.S. code, state law case reporters, state law codes, Congressional materials, and then add in the regulations promulgated by 150 or so U.S. administrative agencies. The amount of information involved is staggering, and most of it is not available to non-lawyers without additional effort beyond a regular trip to the public library.}

^{59. See Marc Galanter, News From Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77, 79-80 (1993).}

^{60. The practical result is that this limits legal access only to citizens who consult with (read: can afford) lawyers. 61. See, e.g., Dan Lips & Evan Feinberg, The Administrative Burden of No Child Left Behind, HERITAGE FOUND. (Mar. 23, 2007), http://www.heritage.org/research/education/wm1406.cfm (discussing how implementation of the No Child Left Behind Act has fallen to state and local agencies).}

^{62. One example of this is that the SEC has increased its IT budget 37% per year from 2002 to 2005 (from $47m to $113m) in an effort to better regulate securities markets. Alison Sahoo, SEC Increases Use of Tech to Monitor Industry, IGNITES, Nov. 3, 2005, http://ignites.com/articles/20051103/increases_tech_monitor_industry}

^{63. See, e.g., Marc Ransford, Consolidating Local Government Agencies Could Save Hundreds of Millions of Dollars, BALL STATE UNIV. NEWSCENTER, Jan. 26, 2009, http://www.bsu.edu/news/article/0,1370,--60951,00.html}

^{64. See, e.g., Evan Mills et al., Cutting Government Programs to Save Energy Overlooks Benefits, L.A. TIMES, Sep. 10, 1995, at D2, available at http://eetd.lbl.gov/emills/PUBS/opedlatimes.html (describing what could amount to billions in losses to poor taxpayers if the government cuts energy efficiency programs).}

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