Existing in a Legal Limbo: The PrecariousLegal Position of Standards-DevelopmentOrganizations

I. IntroductionAt 11:40 on the morning of February 7, 1904, Chief Belt of the Washington, D.C., Fire Department received a telegram from Baltimore. ' The telegram read, "Big fire here. Must have help at once."2 At 12:06, a train loaded with fire equipment pulled out of Washington and began the forty-mile trip to Baltimore.3 The train arrived in Baltimore just thirty-one minutes later, "probably the record for time between the two cities."4 When the Washington fire brigades went to work, however, they found that the couplings on their hoses did not match the Baltimore hydrants, rendering the Washington equipment useless.5 Help arrived from New York, Philadelphia, Annapolis, Wilmington, and other towns, but the threads on their hoses also failed to match the Baltimore hydrants.6 The fire burned for thirty hours and destroyed more than seventy blocks of downtown Baltimore,7 while the assembled firefighters "stood around looking silly."8 "The glare of the conflagration forty miles away was plainly visible in Washington."9At the time of the blaze, fire protection groups had been advocating for the installation of a standard size hose coupling. Chief Musham of the Chicago Fire Department stated in the wake of the fire:I notice[d] that when the Washington engines arrived it was found that the [Baltimore] hydrant threads would not fit the Washington apparatus. It has long been agitated that all cities should have threads the same size and style, but each city insists that it has the best equipment and no progress is made.10The disaster in Baltimore convinced American cities to standardize the size of hydrant threads so that the hoses of one city would match the hydrants of another.11 Today, standardization is everywhere. We take for granted that an electrical plug will fit in a standardized outlet, that a new radio will receive signals broadcast in a standardized format, or that a garden hose will fit the spigot on the side of a house.12 It is only when standards are absent, as in the Baltimore fire, that we become aware of how vital they are.This Note will explore Congress's response to the continuing need for standardization-the National Technology Transfer and Advancement Act of 1995 (NTTAA).13 As of 1995, private standards-development organizations (SDOs) set almost half of the standards in the United States.14 The NTTAA requires all federal agencies to "use technical standards that are developed or adopted by voluntary consensus standards bodies ... as a means to carry out policy objectives or activities."15 It also requires that agencies "participate with such bodies in the development of technical standards" when "such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources."16 Congress's scheme, however, has created organizations that can persist, on the one hand, unfettered by the constitutional restraints on state actors and, on the other hand, with immunity from the laws that punish the anticompetitive behavior of private actors. This Note argues that the NTTAA, by closely allying agencies with SDOs, has placed SDOs in a legal no-man's-land, drifting between the law controlling private organizations and the law controlling government agencies. This situation cannot continue.This Note examines the reasons behind the NTTAA's passage, its susceptibility to abuse, and its position in a legal limbo. Part II begins by laying out the processes employed by several of the most influential SDOs.17 It concludes by discussing the legislative history of the NTTAA and the policy decisions that spawned it. Part III evaluates whether the NTTAA's program is susceptible to abuse. It addresses three arguments against government use of private standards: first, the possibility that the government will exert too much control over SDOs and thereby cancel out the benefits of private industry participation; second, the fear that larger members of an industry will dominate an SDO and prevent smaller members from fully participating in standards development; and third, that industry members will ignore the public interest in favor of industry interests. …