InfoCommons

Lessig: Against Transparency

Posted in Uncategorized by coda on October 16, 2009

Can this be right? Lessig Against Transparency:

How could anyone be against transparency? Its virtues and its utilities seem so crushingly obvious. But I have increasingly come to worry that there is an error at the core of this unquestioned goodness. We are not thinking critically enough about where and when transparency works, and where and when it may lead to confusion, or to worse. And I fear that the inevitable success of this movement–if pursued alone, without any sensitivity to the full complexity of the idea of perfect openness–will inspire not reform, but disgust. The “naked transparency movement,” as I will call it here, is not going to inspire change. It will simply push any faith in our political system over the cliff. The naked transparency movement marries the power of network technology to the radical decline in the cost of collecting, storing, and distributing data. Its aim is to liberate that data, especially government data, so as to enable the public to process it and understand it better, or at least differently.

There is however a context:

Or think about recorded music. Until the late 1990s, the record industry had a happy fate. Every couple of years a new format would best an earlier leader–eight-track beating the LP; cassettes beating the eight-track; CDs beating cassettes. Consumers would then eagerly migrate to the new thing. With that migration, new content would have to be bought. Old content had to be replicated. Music was like old library books that you would have to check out again and again and again–except that this lending was not for free.

Along comes digital technology, and this model of profit was significantly threatened. The nature of digital is perfect copies, freely made. The nature of certain popular technologies–Napster, and then peer-to-peer (p2p) more generally–was to encourage literally millions of people to make literally billions of perfect copies and then share them for free. Such behavior could not help but dampen the demand for some recorded music (even if it spurred the demand for other recorded music–namely, music that wouldn’t have been discovered if the price of admission had been a $20 CD). And it couldn’t help but inspire a richly different “free culture movement.” An industry that had become addicted to the blockbuster album was obviously allergic to a technology that threatened this promise of reliable profits.

Both of these developments have inspired Luddite-like responses. There is a regular call to close free access to news on the Web. There are principled objections to Craigslist, even if they are faint and confused. And there are politically well-supported objections to peer-to-peer file-sharing, seeking both laws and technology to kill the p2p “market.” In all these cases, the response to the problem is to attack the source of the problem: the freedom secured by the network. In all these cases, the response presumes that we can return to a world where the network did not disable control.

But the network is not going away. We are not going to kill the “darknet” (as Microsoft called it in a fantastic paper about the inevitable survival of peer-to-peer technologies). We are not going to regulate access to news, or ads for free futons. We are not going back to the twentieth century. In a decade, a majority of Americans will not even remember what that century was like.

But then what? If we can’t go back, how do we go forward? For each of these problems, there have been solutions proposed that do not depend foolishly upon breaking the network. These solutions may not produce a world as good as the world was before (at least for some). They may not benefit everyone in the same way. But they are solutions that remove an important part of the problem in each case, and restore at least part of the good that is recognized in the past.

With p2p file-sharing, scholars such as William Fisher and Neil Netanel have proposed models of compensation that would achieve the objectives of copyright without trying to control the distribution of content. Filesharing would be legal, at least in some contexts. But then artists would be compensated for the harm caused by this file-sharing through systems that track the popularity of downloads. Britney Spears would get more money than Lyle Lovett (the mysteries of taste!), with revenue coming either from a tax or from fees paid by key nodes in the network. The Electronic Frontier Foundation has a related proposal for a “voluntary collective license”: pay a certain flat amount, and you secure an immunity from prosecution for non-commercial file-sharing. The Green Party in Germany has taken this idea one step further, and proposed a “cultural flat rate” that would apply to culture on the network generally, securing compensation for the artists and immunity from prosecution for the kids. All these changes would render legal the behavior your kids are engaging in right now (trust me), and assure some sort of livelihood for artists.

C Malamud Larry Lessig and Naked Transparency:
” Policy takes time. It takes focus. And it takes open eyes. I read Lessig’s argument not as an attack on the transparency movement, but an urgent plea to focus on the broader impact of their work, to redouble their efforts and dig in for the long haul. Engraved on the walls of the U.S. Capitol are these words by Louis Brandeis:

The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.

Brandeis was actually writing in support of whiskey bootleggers in this famous quote from his dissent in Olmsted v. United States, 277 U.S. 438 (1928). Brandeis was dealing with the unintended effects of policy in this opinion. He was a strong supporter of prohibition, but had grown increasingly distressed by the methods federal agents were using to enforce the ban, and it led to Brandeis increased focus on civil liberties, privacy, and free speech, an evolution that took Brandeis 23 years on the bench.

Those invoking sunlight must also look into the darkness and remember the past. A good place to start is with Brandeis himself. His Supreme Court opinions, his essays, but also his life. For his life, one can do no better than the new biography from Melvin I. Urofsky, “Louis D. Brandeis: A Life.”

Lessig’s essay is a call for us all to pay attention. Transparency cannot start and end inside the beltway, it needs us all. As Brandeis himself noted when he argued before the court in Muller v. Oregon (208 U.S. 412) in his pathbreaking Brandeis Brief, the first brief to use hard social science data to try and change the law of the land, “the most important political office is that of the private citizen.”

Policy takes time. It takes focus. And it takes open eyes. I read Lessig’s argument not as an attack on the transparency movement, but an urgent plea to focus on the broader impact of their work, to redouble their efforts and dig in for the long haul. Engraved on the walls of the U.S. Capitol are these words by Louis Brandeis:

The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.

Brandeis was actually writing in support of whiskey bootleggers in this famous quote from his dissent in Olmsted v. United States, 277 U.S. 438 (1928). Brandeis was dealing with the unintended effects of policy in this opinion. He was a strong supporter of prohibition, but had grown increasingly distressed by the methods federal agents were using to enforce the ban, and it led to Brandeis increased focus on civil liberties, privacy, and free speech, an evolution that took Brandeis 23 years on the bench.

Those invoking sunlight must also look into the darkness and remember the past. A good place to start is with Brandeis himself. His Supreme Court opinions, his essays, but also his life. For his life, one can do no better than the new biography from Melvin I. Urofsky, “Louis D. Brandeis.”

Lessig’s essay is a call for us all to pay attention. Transparency cannot start and end inside the beltway, it needs us all. As Brandeis himself noted when he argued before the court in Muller v. Oregon (208 U.S. 412) in his pathbreaking Brandeis Brief, the first brief to use hard social science data to try and change the law of the land, “the most important political office is that of the private citizen.”

Transparency. It is about trade-offs.

There is also another issue. Press reporting and media coverage have done to raise the heat by increasing transparency – there have been, and still continue to be some problems. One in particular, perpetuating soundbites and misunderstanding of the core issues. No one has held all the persons involved in the Dodgy Dossier saga to account.

The BBC has a number of good programs. How do you justify this form of policy debates via media”: Jeremy Vine and the confusion between Royal Mail and Parcel Force or Any Questions – how many on the Panel actually read the Cambridge Report – Children, Their World and Education

Jeremy Vine’s program has this caption:
“Every weekday Jeremy wants to hear your opinions on the biggest stories of the day. Speaking to everyone from politicians to the public, it’s a daily dose of topical discussion and, of course, a great selection of music.”

Opinions based on a less than sound understanding of the complexity of the issues results in alienating people, reduce the quality of debates and appeals to prejudices of the mob. Lessig’s word chime true:

“…you will begin to see the attention-span problem everywhere, in public and private life. Think of politics, increasingly the art of exploiting attention-span problems–tagging your opponent with barbs that no one has time to understand, let alone analyze. Think of any complex public policy issue, from the economy to debates about levels of foreign aid.”

Further Reading

How Money Watered Down the Climate Bill

“On June 26, the House narrowly passed the American Clean Energy and Security Act of 2009 (HR 2454) by a vote of 219 to 212. The final version of the bill that passed the House Floor differed substantially from the version that was originally introduced by Reps. Waxman and Markey. As the bill heads to the Senate for further markups and compromises, MAPLight.org examined some of the House actions that illustrate the influence of special interests on the legislative process. House members’ positions on changes to the bill tended to correlate with financial support from the interest groups that would benefit from these changes.

Campaign contribution figures cited in this report and on the MAPLight.org website are based on MAPLight.org’s analysis of contribution data from the Center for Responsive Politics.”

Other People’s Money

A Fung, et al, Full Disclosure: The Perils and Promise of Transparency

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