by Glyn Moody

Filed Under:
gag clause, government, open, open data

If It Comes With A Gagging Clause, It's Not Open Data

from the going-off-the-rails dept

One of the richest seams of open data concerns transport. After all, by their very nature, transport systems generate huge amounts of new data every day -- times, routes, travel options. Similarly, huge numbers of people use multiple means of transport, which means there is a big potential audience for analyses of that data. And it's definitely in the interest of transport operators to make that information freely available so that developers can use it in new ways, since that is likely to make traveling easier, and lead to increased custom.

Despite that manifest logic, transport companies have been slow to release that data in a form that developers can use. And even when they do, it often comes hedged around with conditions that make it useless. Here's an example from the UK, where Alex Hewson has been trying to get hold of live train data to create applications using it.

As his fascinating blog post explains, something called the Association of Train Operating Companies (ATOC) collates the primary data:

Through its subsidiary TISL ("Train Information Services Limited", more commonly known as NRE / National Rail Enquiries) ATOC owns a datasource called Darwin. If you want an API for querying live train running information complete with all the delays and cancellations at any given moment they're the only shop in town.
Fair enough, you might think, since it's their data. But it's not quite so simple:
[ATOC] look a bit like a public body but aren't, instead taking funding from the various train operators. ATOC are fond of making the claim that they don't take a penny of public money but it's somewhat disingenuous: their funding comes from train operators and many of those have been subsidized by [UK] taxes.
To be exact, the UK's train operators receive over $6 billion from taxpayers each year. This means that there is a strong case for the train data to be released as open data -- over and above the fact that doing so will probably increase the number of people traveling by train, which has got to be good news for the train operators that fund ATOC.

As a series of blog posts by Hewson reveals, the relationship between ATOC and developers has not been of the best, especially once a formal license to use the data was required in 2009.

During a "Developer Engagement Day" in January this year, and responding, perhaps, to criticism over the way it makes this publicly-funded data available, NRE expressed a desire to work with the development community more constructively. Hewson was naturally keen to see the details of the license that was being offered in the wake of this new openness, and noted a couple of unusual elements:

There are clauses saying you'll lose access to the data if you bring TISL into "disrepute" and that the signatory may not publicly discuss the subject without written consent from TISL.
15.2. Either party shall be entitled to terminate the Agreement on notice without liability at any time if:


15.3.1. the Customer brings TISL, the TOCs or the passenger rail industry into disrepute
Disrepute is a fabulously broad word -- it covers anything that blackens their name even if what you said was true. In other words you aren't allowed to criticise them.
It gets worse:
No public announcement, communication or circular (other than to the extent required by law) concerning the subject matter of this Agreement shall be made or despatched [sic] by the Customer without the prior written consent of TISL.
WTF. You can't use the live UK train data without accepting a gagging clause.
TISL/ATOC clearly still has a lot to learn about how to work with developers, to say nothing of what it means to make information generated with the support of taxpayers freely available as open data, as is fast becoming the norm in many countries.

By a happy coincidence, the body that oversees the national railways in the UK, the "Office of Rail Regulation", has been conducting a review into "how NRE deals with applications for access to its RTTI database ('Darwin')." I'm sure many of the developers who have had dealings with ATOC's subsidiary over the last few years will have submitted their views on this topic. I can't wait to read them.

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  • identicon
    Pete Austin, 5 Mar 2013 @ 1:49am

    Aargh! Consultation's Closed

    "Real Time Train Information - a consultation by ORR on the findings from its review
    Reference: ORR/013/2012
    Date published: 7 December 2012
    Start date: 7 December 2012
    Closing date: 28 February 2013"

    Note the dates. I hate it when an author gets me riled up about a subject and all ready to contribute to a consultation, but tells me just too late!

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 5 Mar 2013 @ 2:57am

    Well, can you imagine all that data in the hands of terrorists? No can do, right? I say it's paranoia at its finest.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2013 @ 3:16am


      For your protection, and to avoid terrorists we will not tell you when the train departs or where it is going.

      reply to this | link to this | view in chronology ]

      • icon
        Vidiot (profile), 5 Mar 2013 @ 4:41am

        Re: Re:

        Better yet, do what Flight Aware, Passur and others do for aviation: Delay the "live" info by ten minutes, so you can't use your USB bazooka launcher for unattended rail terrorism. Then publicize the fact that your data is ten minutes behind, and let riders do the math. Simple!

        I once saw a barroom clock, traditionally set 20 minutes fast, with a hand-lettered sign taped to it: "This clock is 20 minutes fast." Brilliant.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2013 @ 3:43am


      um, the information itself is relatively freely available. ( there are a good half-a-dozen apps in the iTunes store for example) the contract means you can't criticize ATOC. Oh, the contract term is unfair, but do check the criticism is accurate.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 5 Mar 2013 @ 4:32am

    Fake sensationalism on TechDirt. Surprised?

    You can't discuss the terms of the agreement. That has nothing to do with the use of the actual data itself. And the licensor doesn't want you to embarrass them. Big whoop.

    I expect this kind of stupidity and sensationalism from Masnick, but not you Glyn. Please do better next time.

    xoxo, Anonymous

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2013 @ 4:35am

      Re: Fake sensationalism on TechDirt. Surprised?

      A government funded entity does not want to be the subject of criticism ... good luck with that.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Mar 2013 @ 6:26am

        Re: Re: Fake sensationalism on TechDirt. Surprised?

        Oh, it worked in Denmark, where the journalist with the most knowledge about DSB and the highest production of critical articles was hired by Waterfront as a consultant. The work he did was payed for by DSB to keep him from writing critical pieces about the company as it says in internal mails between DSB and Waterfront. Having hit the surface Waterfront has been shown to be a bit more creative in how they interact with politicians. Basically they created detailed profiles about every politician having oversight over DSB and therefrom acted as lobbyist without giving that information.

        Since DSB is publically owned all of the above is pure golden hyper-reality better than what most paranoid criminal novelists can come up with! It is getting invested at the moment at an extremely limited capacity... By DSB!

        reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 5 Mar 2013 @ 9:34am

      Re: Fake sensationalism on TechDirt. Surprised?

      And the licensor doesn't want you to embarrass them. Big whoop.

      Actually, that is a huge whoop. It interesting that you can't see the problem with terms like that. That sort of clause should be an instant showstopper for anybody thinking about entering into any sort of contract.

      reply to this | link to this | view in chronology ]

  • identicon
    Michael, 5 Mar 2013 @ 4:45am


    Is it a bit ironic that Darwin is preventing the evolution of train information software in Europe?

    reply to this | link to this | view in chronology ]

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