Last week, while researching matters related to the bipartisan Digital Equity Act, I noticed that some online public resources were inaccessible. Maybe it was a glitch – a short outage? – but I checked back later, and still nothing. And I wasn’t the only one experiencing these problems. Why? Here, I explain what led to this and reveal how removing critical data on government websites is contrary to the public interest and the law.
There’s a strong bipartisan consensus that transparency matters, especially as it relates to the implementation and expenditure of the public’s tax dollars — in this specific instance, public dollars supplied by the bipartisan Infrastructure Investment and Jobs Act that houses the Digital Equity Act. Removing information from the internet – data that was and should be publicly available, data that the Census Bureau itself published – is not transparent.
After the passage of the Digital Equity Act in 2021, the National Telecommunications and Information Administration (NTIA) and the U.S. Census Bureau worked together to create a webpage for the Digital Equity Act to provide data from 2019 and 2022 on covered populations so that “users can identify and help address the needs of unserved and underserved populations” and “evaluate local populations covered under the legislation.” But when one tries to access the Digital Equity Act Population Viewer, there is a login popup preventing access to the underlying map (figure 1). And when trying to download the Excel data file, there is a 403 Error, which means that I was able to connect with the server but was forbidden from accessing the content (figure 2).
This is not the first government website that was taken down by the new Trump administration and it certainly won’t be the last. Census data and webpages were reported taken down as early as January 31, and reports indicate that over 8,000 webpages have been scrubbed government-wide. These takedowns appear to be responsive to three recent executive orders – Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government (E.O. 14168), Ending Radical And Wasteful Government DEI Programs And Preferencing (E.O. 14151), and Initial Rescissions of Harmful Executive Orders and Actions (E.O. 14148).
I suspect that the latter two are at play here in removing critical data on covered populations that is needed for the implementation of the Digital Equity Act. As the Economic Policy Institute explains, these executive orders and subsequent OPM Guidance “require agencies to remove all DEIA-related materials from their website[s].” Scrubbing the word equity and any related information threatens government programs and will lead to increasing inefficiencies and more waste – especially for the Digital Equity Act, which has the word equity in its title and relies on the prioritization of supporting covered populations in expanding internet access to all Americans in an equitable manner. Not to mention, the Act in the bipartisan infrastructure law uses the word “equity” over 40 times.
Removing everything relating to “equity” from websites that host information on laws with equity in their names, like the Digital Equity Act, will make these websites confusing and harder to use for constituents and grantees. But beyond being technically inadvisable, it is a clumsy attempt to rewrite legislative history – if this administration wants to roll back equity-oriented laws, they must do so using traditional democratic institutions, also known as Congress. Without having a way to include equity in these programs – Americans will get left out of basic internet connectivity, programs with funding and bipartisan support may fail in their mission, and the government as a whole will be less efficient.
To begin, these actions defy the law by making it difficult to comply with it and preventing government agencies from doing what the law says they can do. The Digital Equity Act expressly allows the NTIA to work with federal agencies and other “entities with expertise” to “develop, catalog, disseminate, and promote the exchange of best practices, both with respect to and independent of the covered programs, in order to achieve digital equity” and further requires the NTIA to provide “assistance to entities to prepare the applications” and “other resources… to ensure consistency with data reporting…” By working together to produce the Digital Equity Act Population Viewer, NTIA and the Census Bureau have followed the law – in fact they have done what Congress wanted them to do in order to advance its goals. Requiring agencies to strike the word “equity” or information related to DEI generally ignores the law, frustrates these goals of the Digital Equity Act, and will make it difficult to implement the Digital Equity Act.
Furthermore, even beyond frustrating the implementation of law, courts are beginning to confirm that these executive orders are likely illegal. Last week, a United States District Court Judge ordered the Department of Health and Human Services, Center for Disease Control, and Food and Drug Administration to restore webpages related to The Youth Risk Behavioral Surveillance System, The Social Vulnerability Index, and The Environmental Justice Index, as well as a webpage on “Diversity Action Plans to Improve Enrollment of Participants from Underrepresented Populations in Clinical Studies,” that were taken down as a result of E.O. 14168 described above. In the Memorandum Opinion, the judge found that there was a substantial likelihood of success on the legal claim that the executive order and resultant executive actions violate the Administrative Procedure Act and the Paperwork Reduction Act. The judge further found that the suing party would suffer irreparable injury, that an injunction would not substantially injure other interested parties, and that the public interest would be furthered by the injunction. As a result of this legal analysis, the judge issued a temporary restraining order. This bodes well for a legal challenge on the executive order removing “equity,” as this order was implemented using a similar procedure and swift process.
These executive actions also contravene the will of the people and the express intent of Congress. In the Digital Equity Act, digital equity is defined as “the condition in which individuals and communities have the information technology capacity that is needed for full participation in the society and economy of the United States.” Congress clearly asserted that “achieving digital equity is a matter of social and economic justice and is worth pursuing.” Congress appropriated $2.75 billion for four grant programs aimed at achieving digital equity. In order for applicants and grantees, to effectively use this funding – in line with the law – they must be able to consistently identify covered populations. This is not possible without data on equity. Considering the administration’s keen focus on efficiency and preventing waste, these executive orders and the resultant removal of Digital Equity Act information from the Census website may lead to inefficient expenditures of appropriated funds because grant applicants, recipients, and the public, in general, cannot access critical information on covered populations.
Finally, let’s remember who the “covered populations” are that the Digital Equity Act is meant to help connect to broadband. Many Americans view equity programs as only serving racial groups who have historically been discriminated against. While historical discrimination in sectors like broadband deployment is a fact for racial groups, that is not the only group served by the Digital Equity Act. Under the law, there are eight covered populations that need outreach to increase broadband adoption:
- (A) individuals who live in covered households;
- (B) aging individuals;
- (C) incarcerated individuals, other than individuals who are incarcerated in a Federal correctional facility;
- (D) veterans;
- (E) individuals with disabilities;
- (F) individuals with a language barrier, including individuals who—
- (i) are English learners; and
- (ii) have low levels of literacy;
- (G) individuals who are members of a racial or ethnic minority group; and
- (H) individuals who primarily reside in a rural area.
Each of these groups of Americans have challenges or barriers to adopting essential broadband services. You may know some examples, because they are experiences of your own family or neighbors. Whether it is a disabled veteran, a low income family of four, or a rural Tribal community, all Americans deserve support to connect to broadband, the essential communications service of this century.
As the new administration continues to implement changes, I hope that it finds ways to make these processes even better, rather than breaking the law in order to pursue its pet political objectives or advancing actions and policies that harm some of the most vulnerable Americans. Government websites and government data exist to inform the public, build public trust, and provide a transparent window into government policies and spending. This data – all of it, equity included – is vital for a healthy democracy. Therefore, we must oppose the unilateral, top-down scrubbing of this information from the internet.
*NOTE: While the Digital Equity Act Population Viewer and associated Web Tools on the Census Bureau’s website were down during the time in which I wrote this blog post, it appears that the information and content are back online, likely as a result of court challenges to the executive orders resulting in the takedown of DEI-related content. This does not negate the fact that critical information was taken down for some time in effort to stymie the progress of the DEA’s implementation.