Job Vacancies: CPSC

The Consumer Product Safety Commission has posted a vacancy for a General Attorney position, GS 11/14 (excepted service). The closing date is Monday, August 2.

Electronic Access to Information: Recent Developments

Since last week, there have been two noteworthy developments that concern federal agency practices with respect to electronic information. First, on July 22, the General Accountability Office (GAO) published testimony about challenges that federal agencies face in using Web 2.0 technologies (e.g., agencies' presence on Facebook, Twitter, and YouTube). In brief, the challenges that GAO identified included (1) determining how the Privacy Act applies to information exchanged in the use of Web 2.0 technologies, such as social networking sites; (2)determining how to appropriately limit collection and use of personal information and how and when to extend privacy protections to information collected and used by third-party providers of Web 2.0 services; (3) safeguarding personal information from security threats; (4)government identification and preservation of federal records; and (5) appropriately responding to Freedom of Information Act requests.

Second, on July 26, at a ceremony to mark the 75th anniversary of the Federal Register, the Archivist of the United States and the Director of the Federal Register unveiled Federal Register 2.0. According to a National Archives press release, Federal Register 2.0 is "a new user-friendly version of the daily online Federal Register" accessible at http://www.federalregister.gov/.

Communications: Second Circuit Invalidates FCC Indecency Policy

On July 13, the U.S. Court of Appeals for the Second Circuit held in Fox Television Stations v. FCC, that the Federal Communications Commission's indecency policy "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." (Slip op. at 4) While the Supreme Court had held, on appeal from the Second Circuit's prior decision in this case, that the FCC's policy was not arbitrary and capricious under the Administrative Procedure Act, it remanded for the Second Circuit to consider the vagueness argument.
The Court of Appeals found the FCC's standards to be "indiscernible," and noted that "even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment " (id. at 27). It also found that the FCC's policy "has chilled protected speech" (id. at 29), citing examples from various television and radio programs.
In striking down the FCC's policy, the court was careful to state that "[w]e do not suggest that the FCC could not create a constitutional policy." It held only that the FCC's current policy -- which the court stated "has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment" --"fails constitutional muster" (id. at 32).