E-Government Act of 2002

Pub. L. No. 107-347, 116 Stat. 2899, Dec. 17, 2002, codified inter alia at 44 U.S.C. §§ 3601–3606 (2012), 44 U.S.C. §§ 3551-3558 (2012), 40 U.S.C. § 305 (2012), and 44 U.S.C. § 3501 note (2012).

Lead Agency:

Office of Management and Budget, Office of E-Government and Information Technology

Overview:

The E-Government Act of 2002 (H.R. 2458/S. 803) was signed by President Bush on December 17, 2002, with an effective date for most provisions of April 17, 2003. It was intended to further the federal government’s approach to information dissemination in the Internet Age. It contains many requirements for the government, but the main provisions of interest to administrative lawyers relate to:

• Public Information. To the extent practicable, agencies must provide a website that includes all “information about that agency” required to be published in the Federal Register under 5 U.S.C. § 552(a)(1)-(2).

• Electronic Submission. To the extent practicable, agencies must accept electronically those submissions made in rulemaking under 5 U.S.C. § § 553(c).

• Electronic Dockets. To the extent practicable, agencies must have an Internet-accessible rulemaking docket that includes all public comments and other materials that by agency rule or practice are included in the agency docket, whether submitted electronically.

• Privacy Impact Assessments. OMB is required to develop guidelines for privacy notices on agency websites, and agencies must conduct “privacy impact assessments” before collecting information that will be gathered, maintained, or disseminated using information technology, including “any information in an identifiable form permitting the physical or online contacting of a specific individual, if identical questions have been posed to, or identical reporting requirements imposed on, 10 or more persons, other than” federal agencies or employees. A number of agencies are also required to perform a special privacy assessment for proposed rules “on the privacy of information in an identifiable form, including the type of personally identifiable information collected and the number of people affected.”

The E-Government Act also served to codify many of the White House’s E-Government initiatives. It codifies OMB’s role by creating an E-Administrator and Office of E-Government in OMB. It endorses and requires agencies to support crossagency initiatives such as E-Rulemaking, Geospatial One-Stop, E-Records Management, E-Authentication (especially E-Signatures) and Disaster Management; FirstGov (now USA.gov); and enterprise architecture. It authorizes funds for these activities.

The E-Government Act also created new responsibilities for OMB to:

• file an annual report to Congress;

• sponsor ongoing dialogue with state, local, and tribal governments as well as the general public, the private, and the nonprofit sectors to find innovative ways to improve the performance of governments in collaborating on the use of information technology to improve the delivery of government information and services;

• set standards for categorizing and indexing government information;

• set standards for agency websites;

• create a public directory for agency websites;

• select agencies to engage in pilot projects on data integration; and

• improve access for people with and without computers.

Other provisions in Title II authorize agencies to award “share-in-savings” contracts under which contractors share in the savings achieved by agencies through the provision of technologies that improve or accelerate their work. Under these provisions, the executive branch is supposed to ensure, consistent with applicable law, that these contracts are operated according to sound fiscal policy and limit authorized waivers for funding of potential termination costs to appropriate circumstances so as to minimize the financial risk to the government.

Title III is the Federal Information Security Management Act of 2002. It is very similar to Title X of the Homeland Security Act of 2002, also known as the Federal Information Security Management Act of 2002 (amended by Pub. L. No. 113-283 and codified at 44 U.S.C. §§ 3551–58). Title IV contains an authorization of appropriations and effective dates. Title V contains a series of sections devoted to Confidential Information Protection and Statistical Efficiency.

Legislative History

Representative Jim Turner introduced H.R. 2458 with 40 co-sponsors on July 11, 2001. It was referred to the Subcommittee on Technology and Procurement Policy on September 18, 2002. The Subcommittee held hearings on October 1, 2002. The bill was forwarded by the Subcommittee to the full Committee by voice vote on October 8, 2002. It was reported to the House Floor Committee on Government Reform on November 14, 2002 (with substitute language). H. Rep. No. 107-787, pt. 1 (2002). After being referred sequentially to the House Judiciary Committee, it was discharged by that Committee on November 14, 2002. It passed the House (Committee of the Whole) by unanimous consent on November 15, 2002.

On the Senate side, a companion bill, S. 803, had been introduced on May 1, 2001, by Senator Joe Lieberman. After a hearing on July 11, 2001, before the Committee on Governmental Affairs, the Committee reported the bill to the Senate floor on June 24, 2002, with an amendment in the nature of a substitute and an amendment to the title. S. Rep. No 107-174 (2002). On June 27, 2002, S. 803 passed the Senate with an amendment and an amendment to the title by unanimous consent. On November 15, 2002, the Senate received and agreed to H.R. 2458 as passed by the House, sending it to the President. President Bush signed it on December 17, 2002, as Pub. L. No. 107-347.

Bibliography

Legislative History and Congressional Documents

• H.R. 2458 and S. 803, the E-Government Act of 2002, Hearing Before the Subcomm. on Tech. and Procurement Policy of the H. Comm. on Gov’t Reform, 107th Cong. (2002).

• Ensuring Coordination, Reducing Redundancy: A Review of OMB’s Freeze on IT Spending at Homeland Security Agencies, Hearing Before the Subcomm. on Tech. and Procurement Policy of the H. Comm. on Gov’t Reform, 107th Cong. (2002).
• E-Government Act of 2002, H.R. Rep. No. 107-787 pt. 1 (2002).
• E-Government Act of 2001, S. Rep. No. 107-174 (2002).

Executive Orders and OMB/OIRA Documents

• Archived Reports from 2003-2015
• 2015 Annual Report to Congress: Federal Information Security Modernization
• 2015 Annual Report to Congress: E-Government Act Implementation
• 2016 Annual Report to Congress: Federal Information Security Modernization
• 2016 Annual Report to Congress: E-Government Act Implementation
• 2017 FISMA Report to Congress
• Federal Cybersecurity Risk Determination Report and Action Plan (2018)
• OMB Circular A-130, Managing Information as a Strategic Resource (July 27, 2016)
• OMB Memorandum M-19-21, Transition to Electronic Records (June 28, 2019)
• Executive Order 13892, Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Oct. 9, 2019)

ACUS Recommendations

• 2011-1 Legal Considerations in e-Rulemaking
• 2011-8 Agency Innovations in E-Rulemaking
• 2013-5 Social Media in Rulemaking
• 2018-6 Improving Access to Regulations.gov’s Rulemaking Dockets

GAO Documents

• GAO-03-901, Electronic Rulemaking: Efforts to Facilitate Public Participation Can Be Improved (2003).
• GAO-04-561T, Electronic Government: Initiatives Sponsored by the Office of Management and Budget Have Made Mixed Progress (2004).
• GAO-05-12, Electronic Government: Federal Agencies Have Made Progress Implementing the E-Government Act of 2002 (2004).
• GAO-05-420, Electronic Government: Funding of the Office of Management and Budget’s Initiatives (2005).
• GAO-05-777, Electronic Rulemaking: Progress Made in Developing Centralized E-Rulemaking System (2005).

Other Government Documents

• Gen. Serv. Admin., E-Authentication Policy for Federal Agencies, 68 Fed. Reg. 41370 (July 11, 2003).
• Nat’l Archives & Records Admin., Implementation of the E-Government Act (FY 2006-2017).

Books and Articles

• Thomas C. Beierle, Discussing the Rules: Electronic Rulemaking and Democratic Deliberation (Apr. 2003) (Resources for the Future, Discussion Paper 03-22).

• Barbara H. Brandon & Robert D. Carlitz, Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure, 54 Admin. L. Rev. 1421 (2002).

• Barbara H. Brandon, An Update on the E-Government Act and Electronic Rulemaking, 29 Admin. & Reg. L. News 7, Fall 2003.

• Cary Coglianese, E-Rulemaking: Information Technology and the Regulatory Process, 56 Admin. L. Rev. 353 (2004).

• Cary Coglianese, Enhancing Public Access to Online Rulemaking Information, 2 Mich. J. Envtl. & Admin. L. 1 (2012).

• Cary Coglianese, Stuart Shapiro & Steven J. Balla, Unifying Rulemaking Information: Recommendations for the New Federal Docket Management System, 57 Admin. L. Rev. 621 (2005).

• Connecting Democracy: Online Consultation and the Flow of Political Communications (Stephen Coleman & Peter M. Shane eds., MIT Press 2013).

• Bridget C.E. Dooling, Legal Issues in e-Rulemaking (Mar. 17, 2011) (report to ACUS).

• Cynthia R. Farina et al., Rulemaking 2.0: Understanding and Getting Better Public Participation, 65 U. Miami L. Rev. 395 (2011).

• Michael Herz, Using Social Media in Rulemaking: Possibilities and Barriers (Nov. 21, 2013) (report to ACUS).

• Stephen M. Johnson, The Internet Changes Everything: Revolutionizing Public Participation and Access to Government Information Through the Internet, 50 Admin. L. Rev. 277 (1998).

• Stephen M. Johnson, Beyond the Usual Suspects: ACUS, Rulemaking 2.0, and a Vision for Broader, More Informed, and More Transparent Rulemaking, 65 Admin. L. Rev. 77 (2013)

• Jaime Klima, The E-Government Act: Promoting E-Quality or Exaggerating the Digital Divide?, 2 Duke L. & Tech. Rev. 1-9 (2003).

• Jeffrey S. Lubbers, The Future of Electronic Rulemaking: A Research Agenda, Regulatory Policy Program Paper RPP-2002-04 (Mar. 2002), reprinted in 27 Admin. & Reg. L. News 6, Summer 2002.

• Jeffrey S. Lubbers, A Survey of Federal Agency Rulemakers’ Attitudes About E-Rulemaking, 62 Admin. L. Rev. 451 (2010).

• Oscar Morales & John Moses, e-Rulemaking’s Federal Docket Management System (May 24, 2006).

• John Morison, e-Democracy: On-Line Civic Space and the Renewal of Democracy?, 17 Can. J. L. & Juris. 129 (2004).

• Beth Simone Noveck, Designing Deliberative Democracy in Cyberspace: the Role of the Cyberlawyer, 9 B.U. J. Sci. & Tech. L. 1 (2003).

• Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 Emory L.J. 433 (2004).

• John C. Reitz, Section VI: Computers and Law, E-Government, 54 Am. J. Comp. L. 733 (2006).

• Todd Rubin, Regulations.gov and the Federal Docket Management System (Dec. 1, 2018) (report to ACUS).
• David Schlosberg, Stephen Zavetoski & Stuart Shulman, To Submit a Form or Not to Submit a Form, That Is the (Real) Question: Deliberation and Mass Participation in U.S. Regulatory Rulemaking (2005).

• Democracy Online: The Prospects for Political Renewal through the Internet (Peter M. Shane ed., 2004).

• Peter M. Shane, Turning GOLD into EPG: Lessons from Low-Tech Democratic Experimentalism for Electronic Rulemaking and Other Ventures in Cyberdemocracy, 1 J. of L. & Pol’y for the Info. Soc’y 147 (2005).

• Stuart Shapiro & Cary Coglianese, First Generation E-Rulemaking: An Assessment of Regulatory Agency Websites, Univ. of Pa. Law School, Public Law Research Paper No. 07-15 (April 11, 2007).

• Stuart W. Shulman, The Internet Still Might (but Probably Won’t) Change Everything: Stakeholder Views on the Future of Electronic Rulemaking, 1 J. of L. & Pol’y for the Info. Soc’y 111 (2004).
• Stuart W. Shulman, E-Rulemaking: Issues in Current Research and Practice, 28 Int’l J. Pub. Admin. 621 (2005).

• Michael Tonsing, Two Arms! Two Arms! E-Government Is Coming!, 51 Fed. Law. 18 (2004).

• Hui Yang & Jamie Callen, Near Duplicate Detection for eRulemaking, in Proceedings of the Fifth National Conference on Digital Government Research (2005).

• Stephen Zavestoski & Stuart W. Shulman, The Internet and Environmental Decision Making: An Introduction, 15 Org. & Env’t 323 (2002).

Agency Regulations

• Office of Personnel Management, Information Technology Exchange Program (5 C.F.R. Part 370).

Statutory Provisions

E-Government Act of 2002

• Title 44 U.S. Code, Chapter 35, Subchapter II—Information Security
  • § 3551. Purposes
  • § 3552. Definitions
  • § 3553. Authority and functions of the Director and the Secretary
  • § 3554. Federal agency responsibilities
  • § 3555. Annual independent evaluation
  • § 3556. Federal information security incident center
  • § 3557. National security systems
  • § 3558. Effect on existing law
  • § 3559. Federal websites required to be mobile friendly
• Title 44 U.S. Code, Chapter 36—Management and Promotion of Electronic Government
  • § 3601. Definitions
  • § 3602. Office of Electronic Government
  • § 3603. Chief Information Officers Council
  • § 3604. E-Government Fund
  • § 3605. Program to encourage innovative solutions to enhance electronic Government services and processes
  • § 3606. E-Government report
• Other Provisions
  • 40 U.S.C. § 305. Electronic Government and information technologies
  • 44 U.S.C. § 3501 note. Paperwork Reduction Act