NCLA Brief Responds to CPSC and ASTM Excuses for Keeping Consumers in the Dark on Safety
August 07 2020 - 7:14PM
“Buyer Beware” takes on a whole new meaning if you wish to see the
U.S. Consumer Product Safety Commission’s (CPSC) safety standards
for a product before purchasing it. The New Civil Liberties
Alliance, a nonpartisan, nonprofit civil rights group, today filed
a reply to the government’s brief in the case of Lisa Milice v.
U.S. Consumer Product Safety Commission, taking the CPSC to task
over the practice of keeping its standards hidden behind a private
paywall.
NCLA client and new mom Lisa Milice is asking the U.S. Court of
Appeals for the Third Circuit to require CPSC to meet its legal
duty to provide the public free and guaranteed access to CPSC’s
binding product safety standards. Ms. Milice, who was looking to
purchase an infant bath seat, asked CPSC to let her see a
copy of its safety standard for infant bath seats. The Commission
advised Milice that she would have to purchase a copy of the
standard through ASTM, a private organization that specializes in
creating safety standards, for $56.00—about twice the cost of an
infant bath seat (which costs approximately $30.00).
CPSC defends its practice by claiming it has no choice but to
hide the law from the public because it must respect ASTM’s
copyright above all else. However, a third party’s copyright
interests do not in any way justify the Commission’s violating the
constitutional rights of consumers. NCLA argues that CPSC (or any
other government agency, for that matter) cannot charge for access
to the law because citizens are the government and the authors of
the law—and the law in its entirety belongs to the citizenry.
In response to NCLA’s lawsuit, ASTM has indicated its
willingness to voluntarily make a read-only version of the standard
available for free on its own website. But there is currently no
legal mechanism to compel the company to provide access to its
standards freely—or at all on the government’s behalf. In fact,
ASTM can ignore or exclude participants, remove its standards from
its website, or even increase its prices exponentially—all without
legal recourse.
Hiding the law behind a paywall violates due process. Ms. Milice
asks this Court to order CPSC to make any binding standards
permanently accessible to the public for free.
NCLA released the following statements:
“Ms. Milice does not have—and should not have—an interest in how
CPSC and ASTM resolve their copyright dispute. If the agency
created such a conundrum by outsourcing its functions to a private
entity, it is exclusively the government’s responsibility to fix
the problem without violating citizens’ rights. Secret law does
more than undermine consumer choice and violate the Freedom of
Information Act (FOIA), it also violates the
Constitution.”
— Caleb Kruckenberg, Litigation Counsel, NCLA
“It’s astounding to see our U.S. government stand up in court
and tell a concerned citizen that she has no right to see the law
unless she pays a private party for access to it. Most people can
feel in their gut that the right thing to do here is to allow free
access to these safety standards, so that Ms. Milice and other
consumers can decide how best to keep their infants safe from
harm.”
— Jared McClain, Staff Counsel, NCLA
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by
prominent legal scholar Philip Hamburger to protect
constitutional freedoms from violations by the Administrative
State. NCLA’s public-interest litigation and other pro bono
advocacy strive to tame the unlawful power of state and federal
agencies and to foster a new civil liberties movement that will
help restore Americans’ fundamental rights.
###
- PRESS RELEASE_Lisa Milice v. U.S. CPSC_reply brief
Judy Pino, Communications Director
New Civil Liberties Alliance
202-869-5218
media@ncla.legal