Why does the government always get it wrong?

Why is digital policy so bad?

The most recent pronouncement from the UK government – reinstating in an updated and worsened way the idea of near-universal surveillance of emails, texts, phone calls and web-browsing – is horrific in many ways (which I will blog about separately) but it shouldn’t come as that much of a surprise. This government, and the last government, and the one before that, have an abysmal record in their dealings with the digital world. They get it wrong in almost every way, almost every time.

They get it wrong at a policy level – this new surveillance plan is just one example. They messed up equally badly with my erstwhile favourite bugbears Phorm was another – not only did the Home Office mess up there, but BERR too – in thinking a nice business plan and some heavy lobbying was more important than people’s privacy.

They get it wrong in their law-making: the Digital Economy Act is up there with the Dangerous Dogs Act as the worst piece of law in recent history.

They even get it wrong on a detailed, practical level: make no mistake, the ill-conceived and inhumane O’Dwyer and McKinnon extraditions are political as well as judicial issues, and have the same origins as the problems at the policy and law-making levels. The problems are deep – but no so deep, I hope, as to be insurmountable.

1     Governments don’t understand the internet

The first and most important problem is that governments, and the politicians that run them, simply don’t understand the internet. They just don’t get it. For their own purposes, they largely think of it either as some kind of global PR network – which is why twitter hashtags like #tweetlikeanmp are so sadly apt and accurate.

For other purposes, they think of it either as a distribution network for digital products (which should therefore be governed largely by the entertainment industry) or a secret network for subversives and terrorists (which should therefore be under constant and universal surveillance).

Governments all over the world seem to think largely in those terms – hence Obama’s new ‘bill of rights for the internet’ refers to people only as ‘consumers’, not as citizens. They simply don’t get that the net has a social aspect, a communicative aspect, a creative aspect, an interactive aspect, a community aspect – and that many (most?) of the people who spend time on the internet are contributing in all those different ways.

They know the words – even in the Westminster Bubble they’ve heard of ‘social networking’ – but they don’t understand it in any real way. They don’t understand how things develop on the net, how the community is the lifeblood of the net, not the big companies who lobby them so effectively.

2      Governments don’t understand the entertainment industry

Then again, that’s not very surprising, because there’s very little evidence that those involved in the entertainment industry really understand how their own industry works. This is the industry, remember, that has opposed pretty much every technological development over the last half-century or more, believing that it was going to ‘kill’ the industry. They opposed the use of home cassette recorders, CDs, the VCRs etc well before fighting the ‘evil’ of piracy – rather than embracing and supporting the new technologies and finding a way to harness the great advantages that the technology begins.

They also say things that everyone knows are not true – copyright infringement isn’t theft, and people know that. Theft means not only taking something but depriving someone else of that thing. Copying a bit of music doesn’t do that – and people who copy music in this way know this all too well. Trying to tell them it is theft won’t convince them – just annoy them, and remind them never to listen to you again.

It shouldn’t be seen as surprising that it took a company from outside the entertainment industry, Apple, to actually find a way to use the net that worked, and worked well. It shouldn’t be so surprising that governments, lobbied heavily by an industry that itself doesn’t ‘get it’, end up doing such mindlessly stupid things as the Digital Economy Act. Again, this is a worldwide phenomenon – SOPA and PIPA in the US were every bit as ill-conceived as our Digital Economy Act… and ACTA shows signs of being just as bad.

3      Governments don’t understand law…

This may be, perhaps an overblown claim – but an important one, given governments’ role as lawmakers. What I mean is that they often seem to misunderstand how law really works.

I was at the BILETA conference last week, and Professor Chris Reed gave a compelling keynote about how even legal theorists often end up getting laws badly wrong as they still conceive of it under a kind of ‘command and control’ model: a law commands, then people obey. It doesn’t really work like that – even more so, perhaps, on the internet than in the ‘real’ world.

Ultimately, laws without ‘consent’ don’t really work – just as government without ‘consent’ only works with ultimate force, and even then it’s hard to sustain. It doesn’t matter how many times and in how many ways governments bring in ‘anti-piracy’ laws – if people don’t believe that piracy is ‘wrong’, they won’t want to obey. Law without consent just doesn’t do the job.

4      Governments don’t understand privacy….

Most directly, they don’t understand that people want privacy on the internet – because, as I said at the start, they don’t understand the internet. If they don’t ‘get’ the fact that people use the net in so many interesting and interactive ways, for personal, intimate, social and community purposes, then they’ll never understand why people do care about things like privacy, and do care about being under constant surveillance. After all, if the net is just an online shopping mall, and shopping malls have CCTV, then why would people on the net mind being under surveillance?

The problem is, the net isn’t like a shopping mall. It’s something quite different, qualitatively different, and is used in very, very different ways. We all know (I hope!) that when we browse or shop at Amazon we’re being recorded by Amazon – just as when we go to a shopping mall we’re being recorded. We don’t, however, want CCTV in our own homes. We don’t expect our communications to be monitored, we don’t expect our every move to be recorded wherever we go – and, ultimately, I hope we won’t accept it either.

So what should the government and politicians do?

  1. First of all, they need to admit they have a problem – everyone knows that’s the first stage in solving a problem. Governments need to take a long, hard look at themselves.
  2. Secondly, they need to start talking to the right people – and at the right time. Who really does understand the internet? Civil society, hackers, maybe even some academics – understand it much, much more than politicians, and than industry lobby groups. Talk to the people who know first, not last, and don’t just treat them as add-ons at the end. Frankly, the average punter on the net understands it better than some industry representatives…
  3. When the real experts talk, listen! If Ross Anderson tells you that ‘anonymisation’ doesn’t work, believe him!
  4. Put the lobby groups back in their place. The entertainment industry in particular, as noted above – but the advertising industry can be just as bad, just as misleading, just as out of touch. These industry groups need to be listening to others themselves!
  5. Be willing to admit you were wrong. The Labour Party in particular should grasp that nettle – the DEA was a nightmarishly awful piece of legislation and they should be brave enough to admit it and abandon it. It’s hard, because politicians seem to be under the impression that changing your mind is completely unacceptable. It shouldn’t be – if you find out you’re wrong about something, admit it!
  6. Let those within your party who DO understand it take a bigger role. There are good people in most parties – who do a sterling job as back-benchers and on key committees – who should be listened to at the very least. Labour should put Tom Watson in charge instead of Harriet Harman – and the Coalition should replace the desperate Ed Vaizey with Julian Huppert.
  7. Be brave enough to face up to the security pressure groups, both internal and external. At the moment, just the barest whisper of the word ‘terrorism’ seems to make politicians of almost all parties quiver at the knees and sacrifice their own principles and OUR rights.
  8. Start to trust real people a bit more… and then real people might begin to trust you a bit more.

N.B. MPs, please, please, please take what your civil servants tell you with a huge pinch of salt: they’re even more likely than you not to understand the internet, and even more likely than you to be swayed inappropriately by the copyright and security lobbies!

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35 Responses to Why does the government always get it wrong?

  1. I have not joined wordpress; this may not register; it is an excellent analysis of the problem, and I feel it needs to be generalised and discussed widely, but I feel I do not want to be constrained by joining wordpress. So can you perhaps e-mail me direct at rjtechne@iol.ie?

    See also http://www.iol.ie/~rjtechne/scihist/bernalim.htm for some background to my concerns.

    Roy Johnston Dublin

  2. paulbernal64 says:

    Thanks Roy – you don’t need to join WordPress in order to comment! I’ll drop you an email…

  3. Doug Newdick says:

    Many civil servants do understand the internet – but politicians rarely listen to them! In general I think you are right that governments (in the sense of political parties who rule) don’t understand privacy, but an overall government (as in the whole executive arm as well) is a a diverse thing, and some parts do get privacy and/or the internet, though many don’t.

    • paulbernal64 says:

      Of course you’re right – but in a blog post I can’t really bring all the complexity in. I focussed on the politicians at first – but the civil servants are equally important, and the problem is often that the wrong civil servants are listened to. Those advocating for security, for example, get far too much airtime, whilst those who understand privacy are often ignored….

  4. Politicians are able to conceptualize that the next phase after a manufacturing economy is an information economy. Digital activists argue “piracy doesn’t hurt anyone because nothing of value is being taken”. Politicians have a problem with this because no one is providing a coherent answer to the question: “how does a digital economy work if digital goods have no value” and “how do you generate reliable income if payment for goods is optional?

  5. realist says:

    I think that using apple as an example of someone who
    Gets’ it, would sound ironic tobacco politician. If apple gets it so do they. Control from top to bottom with a pretty face.

    • paulbernal64 says:

      Apple ‘get it’ in a different sense – they know how to produce what people need. You may not like their method of operation, but it’s hard to deny that it’s effective and matches people’s desires..

  6. asuffield says:

    Recommendation #3 is a problem because the government doesn’t know who the real experts are. And most of the time, neither does anybody else outside the field.

    • paulbernal64 says:

      In some cases that’s true – but where there ARE experts, governments should listen to them, and they don’t! Ross Anderson on anonymisation, Bruce Schneier on cryptography, Tim Berners-Lee on the web etc are almost never listened to. And, in online communities, crowd-sourcing creates ‘expertise’. Advocacy groups also tend to know more…. Privacy International, EFF etc….

      • asuffield says:

        I know that Schneier wrote the book on cryptography and is one of the world’s leading experts on security in practice. So do you. The government doesn’t know this. They just know there are half a dozen people being introduced to them as experts who are all saying different things. Hence the problem.

      • paulbernal64 says:

        Agreed – but why can’t they go through the same kind of research process I did to discover that Schneier was the man for cryptography? It isn’t that hard, and they should at least know who to ask, or where to ask… and sometimes the experts come to them, and still they don’t listen. I’ve seen Ross Anderson practically banging his head on a wall at a workshop where the government representative just wouldn’t listen…

  7. Jürgen A. Erhard says:

    Good analysis. But: don’t expect govs to follow your advice. Like they’d *ever* admit they’re wrong… people who are even able to do so rarely if ever make it.

  8. Pavlos says:

    I think the word you’re after is “space”. Taboo, I know. The Internet is a public space. In that respect it’s not new.

    Anglo-saxon societies have always been uneasy with public space. Sometimes they protect it, usually they restrict it to specific classes of people or purposes (decent people in the park), but rarely do they declare it free. Latin societies I think have a more civic view of space, such as forum or ordinary public square, which is why I think there’s more concern for privacy and less surveillance in continental Europe.

    In any case the internet is not new. Its space. The debate about how to govern but not restrict public space is ages old, and still relevant.

  9. moritheil says:

    Since the Internet is new, we haven’t culturally developed an instinctive sense for the nuances that would make some of these comparisons obvious – such as the ones you make between monitoring in a store vs. monitoring on the Internet. That culture, if we had taken the time to develop it, would cause politicians to instinctively realize that many proposed measures go too far, and be more resistant to lobbying.

    That aside, I do feel like there is a real tendency of people with authority on their side to stamp their feet and insist that everyone should obey their own vision of the law, even when consensus is far from being reached. I’ve been noticing it as a problem in the specific field of downloading foreign cinema: heated, bitter arguments have gone back and forth about the legality/morality/desirability of it for years. It’s interesting to see that this is part of a larger disconnect between law and the governed.

    • paulbernal64 says:

      Yes, there’s some way to go before a real consensus is reached – but isn’t acknowledging that crucial in itself? When there’s insufficient consensus there’s a strong case for a ‘wait and see’ approach to legislation rather than a Draconian direction.

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  11. koulmomo says:

    You missed one important reason:

    Government is bought.

    The current CEO of the MPAA that is pushing for all of these laws is former Senator Chris Dodd, who currently receives a 1.5 million dollars a year salary.

    After Obama’s initial stance against SOPA, Hollywood fundraisers threatened to pull their support from the President. Now he seems to be in support of SOPA.

    Lobbying is not simply the ability to get face time and state your case to a politician, it also incorporates what is essentially bribery. Lobbyists could offer and/or threaten campaign contributions, as well as offer a lucrative lobbying career to a politician after retirement (or upon them leaving office).

    I don’t know how widespread corruption is on your side of the pond and thus maybe money does not play AS BIG a deal with crafting your laws, but money is pretty much the barometer by which American politics works.

    How this affects Europe and the UK, is the fact that a corrupt and bought US tries to also do the bidding of their masters overseas, see:

    http://thenextweb.com/eu/2012/01/05/us-government-reportedly-threatened-spain-into-adopting-sopa-style-piracy-law/ US government threatening Spain to adopt piracy laws

    http://www.zdnet.com/blog/london/tv-shack-extradition-approved-every-uk-citizen-is-now-at-risk/3427 US getting extradition of TVShack founder from the UK.

    http://arstechnica.com/tech-policy/news/2012/01/why-the-feds-smashed-megaupload.ars The takedown of megaupload by the feds

    • paulbernal64 says:

      Thanks for the comment – and I wouldn’t say we’re less corrupt this side of the pond, just differently corrupt. The ‘entertainment’ industry doesn’t have the same influence. We’re in thrall to the bankers, but so far they don’t care about the Internet much!

  12. Bribery may be the answer, or simple power-lust. Even though politicians average older than the general population, the internet has been around long enough that politicians should have some understanding of the net just by having used it.

    • paulbernal64 says:

      They should – but in practice, in this country at least, they generally don’t, from what can be seen of their actions, their question and answers in parliament and in parliamentary committees. It’s not so much corruption as ignorance – though the former may well be growing!

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  14. Your assertion about piracy not being theft is a very odd one to make without any qualification. It certainly causes harm, and it cuts across an important human right – those of the creator (Article 27 IIRC). I find it incredibly odd that so many I people are happy to make such an unsatisfactory statement – especially as it provides the intellectual cover for an outrageous act of un-compensated mass appropriation of IP by a range of technical interests.

    So what’s going on here?

    • paulbernal64 says:

      The assertion is a simple and direct one: it’s NOT theft, as ordinary people understand the word. Theft, as people who are victims of theft know, means depriving someone of their goods. If someone steals my car, I don’t have my car anymore!

      That’s not in any way to suggest it doesn’t do harm – it can, and often does do harm – but that doesn’t make it theft. It makes it breach of copyright, which is something qualitatively different. What’s more, it doesn’t always do harm – if someone pirates a song, it doesn’t in any way mean they’d buy that song if they couldn’t pirate it. Very often they wouldn’t at all – they’d just go elsewhere, and listen to something else. It’s not necessarily a lost sale at all.

      The real point, though, is that most pirates – and most kids – know very well that it’s not ‘theft’, and all those ‘scary’ ads they see before movies just annoy them, and make them more convinced than ever that the copyright lobby are just trying to stiff them. I’ve taught IP law to students for four years now, and this understanding is pretty much universal. The ‘content’ industry needs to understand this and find a better way. Carrots, not just big sticks.

  15. Paul,

    Ooo. We mustn’t upset kids with scary assertions that people should be paid for their work, should we? If this is the shallowness of what you’re teaching your students, then we’re all in a bit of trouble.

    You mention ‘big sticks’. What big sticks? There are no proposals on the table to enforce the vast amount of copyright violation that goes on. If you imagine that the Digital Economy Act is, in some way ‘draconian’ or censorship, I suggest you spend a day or two reading about places that do have draconian laws or where censorship is practiced with enthusiasm. This is, as Andrew Orlowski puts it nicely, Pseudo Masochism.

    It *is* theft. If you charge people to produce an IP-based product, and I take a copy and give it to someone who would otherwise have paid for it, I’ve stolen something from you. I’ve stolen the money you would have earned if you’d been paid for it.

    Worse, I’ve also reduced the perceived value of the work that you do and reduced the likelihood of you being able to produce a similar piece of work. I’ve also sent a very clear “don’t be a fucking idiot” message to anyone who would ever be tempted to invest in the work that you do.

    This, I think, directly answers your point about people who wouldn’t necessarily buy it if they didn’t pirate it. If I do work in any other sphere and people who weren’t prepared to pay for my service wanted to use it any way, they’d get a short answer in the finest anglo-saxon tradition. As a trade unionist, I’m totally sick of my fellow workers having their work given away – or worse – monetised – by people who contribute nothing to the value of that work. And this isn’t even just a consumer issue either. Why is it OK to rip individuals off on some spurious public interest argument?

    Just because musicians and indie producers can’t enforce their rights properly, are you saying that they’re fair game? If so, there must be some Feudalist Society somewhere you can join.

    It is very plainly theft, and it baffles me as to why so many people have invested so much intellectual capital in supporting an assertion that is, at best, weasel words, and at worse, downright dishonesty.

    That’s a direct question for you: Why are you investing so much energy in asserting that theft isn’t theft?

    • paulbernal64 says:

      You may be surprised to know that I agree with a great deal of what you say – your points about the damage caused by content piracy are very well made. I’m not saying at all that piracy isn’t bad. My points are rather different, and based most directly on the belief that the approach being taken – and the assertion that piracy is theft – don’t work.

      A few points related to that:
      1) I’m not at all saying we shouldn’t scare the kids, mostly because they’re not scared! All the scary talk, the scary videos, just annoys them and doesn’t ring true, so they ignore it.
      2) By ‘big sticks’ I mean threats to disconnect from the net, big fines, the odd jail sentence (e.g. the Pirate Bay people), extradition (O’Dwyer). Again, these don’t scare, they anger, and encourage rather than deter the pirates.

      I don’t go for the grand censorship arguments – you’re right, it’s a false analogy, and I do have experience in countries that do ‘real’ censorship, having spent time in Burma and China. My wife’s Romanian, and grew up under Ceaucescu….

      …no, my argument is principally practical. That’s why I argue against the use of the term ‘theft’ – because using it is counterproductive. We need a new language, and more effective, positive, affordable ways to reward the creative – ways that ring true for the consumer. I want creators to be properly rewarded – I just don’t believe the current approach is the way to do that.

  16. Thing is – I’ve looked, but I might have missed it – I can’t find anywhere on your site an example of you making the case that piracy is bad or any acknowledgement that it does harm. The balance of argument is always – everywhere – in the other direction from open rights advocates. I never do find anything like that on ‘open rights’ advocates sites. Anywhere.

    I’m an open rights advocate myself. I think there are effective forms of transparency and approaches to IP that can increase the commonwealth of intellectual property in the UK and worldwide. I just think that most ‘open rights’ advocates actually demand conditions that reward only closed locked down approaches to IP.

    O’Dwyer earned $230,000 from his site. He wouldn’t be facing extradition if we were to take ‘draconian’ steps in the UK to take measures against people who engage in harmful illegal activity. If he’d been fined modestly early on, I doubt if he’d be spending so much time sitting on the crapper and pondering his fate now. Anyone who has argued against copyright enforcement in the UK has O’Dwyer on their conscience now.

    I don’t buy this ‘we need new language’ argument. Call a thief a thief. I understand the proportionality argument and I don’t think most minor IP infringements that do no harm should be challenged. But when it does harm, it should be stamped upon in the same way other harmful activities are.

    I agree that the fact that the only positive campaigning on this comes from Hollywood – that’s because most of the people hurt by piracy don’t have a pressure group. Hollywood do direct lobbying and the astroturfing that Google are so good at isn’t in their wheelhouse.

    I don’t mean to troll you here, but I don’t get into arguments with people to just pass the time of day. I’d suggest that you should change the way your express your arguments and you should be making the case for more effective IP protection and arguing for the modest forms of enforcement of the kind outlined (say) in the Digital Economy Act and qualifying statements that you make about IP theft with acknowledgements of the harm it does.

    • paulbernal64 says:

      Paul, I’d happily call a thief a thief if I thought it would work, but from everything I’ve seen and heard over the last four years of teaching students, and all my time on the net, I simply don’t believe it will. I do understand your arguments, and they have intellectual force – but that doesn’t matter if the people they’re supposed to work on don’t believe them.

      I do take your point, though, that I should qualify my remarks about piracy – and I’ll endeavour to make the more positive statements when I do.

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