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!