Finding a Way to Do Business Without Government Websites

The inability to use the FCC website is a major disruption to his work flow, said Drinker Biddle broadcast attorney Howard Liberman. It’s common for two attorneys on opposite sides of a television or radio station transaction to use the FCC’s website to collaborate on drafting the required transfer application, Liberman said. None of the FCC’s resources is available, said Sinclair Broadcast Vice President-Advanced Technology Mark Aitken. Instead of simply checking the agency’s website for documents he needs, Aitken has resorted to calling up the heads of organizations such as the National Telecommunications and Information Administration to get copies of their old ex parte filings, he said.

The FTC is legally required to accept premerger filings during the shutdown, several lawyers said. Although the FTC’s site is down, the Premerger Notification Office has remained open, fielding calls and accepting filings through the mail or in person, said an office representative. Hard copy is the preferred filing method for attorneys submitting premerger filings to the FTC, said communications transaction lawyer Lew Paper of Pillsbury Winthrop. Only large corporations that process large quantities of premerger filings, such as General Electric, prefer submitting electronically, he said.

Applications developers have had to seek alternate sources for FTC regulation compliance information, said Association for Competitive Technology Executive Director Morgan Reed. ACT works with small and mid-size app developers and joins with the FTC to educate developers on federal regulation compliance. Without access to FTC’s information on complying with the Children’s Online Privacy Protection Act, app developers were unsure how to proceed with various projects in development, Reed said. In response to developer’s concerns, ACT posted an archived version of FTC’s COPPA-compliance FAQs (http://bit.ly/1a2xj8E) on its site two days after the shutdown began. But ACT’s expertise extends only so far, Reed said. “I think we do find we may have to answer more questions with, ‘We don’t know,'” he said.

Universities and advocacy organizations have also provided alternate resources during the shutdown. Code for America, which connects web-industry professionals with local governments, collected backups of Census data and compiled them on a new web page (http://bit.ly/1c1k4d5). Cornell University continued hosting the Department of Agriculture’s National Agricultural Statistics Service on its own server (http://bit.ly/ck03Zv), even though USDA’s website was pulled down. Cornell’s Mann Library partners with the USDA to compile and publish reports and data sets on domestic and international agriculture and wanted a venue for researchers to access the information, said a university representative.

The Internet Archive also provides a way for people to access archived versions of government websites through a feature known as the Wayback Machine (archive.org). The site has archived versions of the FTC’s website from Sept. 27 (http://bit.ly/1erUA77) and for the FCC’s website from Sept. 23 (http://bit.ly/17KUqBS). But while the home pages and some of both agency’s rules and regulations are accessible, some of each archived site’s links occasionally redirect to a shutdown notice. The Internet Archive did not say whether it had seen a traffic bump since the government shutdown.

There’s no reason for access to the FCC’s databases to go away during a government shutdown, said Baker Hostetler cable attorney Gary Lutzker. “That’s all automated; what’s the point of denying access?” he asked. To some extent that’s true, Center for Democracy and Technology Senior Staff Technologist Joe Hall told us. “For websites that are principally about information dissemination, there’s probably not a lot of risk keeping it up” while there are fewer people monitoring the site’s security, he said. But the FCC and FTC are both interactive sites, with forms allowing users to input information. That type of site is at a greater security risk when unmonitored, Hall said. “There is substantially more risk, especially towards spam and small-scale fraud,” he said. A common method to get access to a site’s “underlying system” is to enter “strange characters” into forms, Hall said. While programmers can engineer the site not to accept these “strange characters,” part of the site’s ongoing security is actively monitoring it to see what the new trends are, he said. The government can’t monitor these trends during the shutdown, Hall said. “All of these websites have people making sure they're up and running, patched against known problems, and other things, and that can’t happen now,” he said.

The lack of access will just increase the burden on government websites when they go live again, said Lutzker and Liberman, who both frequently access the FCC site. Along with all the delayed filings, a rush of interested parties will be accessing documents that were unavailable during the shutdown, Lutzker said. For Liberman, the website’s being down means not only that he can’t file transfer applications, but that it’s difficult for him to get a head start on preparing them. “My fear is the system will be overwhelmed when the shutdown ends,” said Liberman.