net.wars: Pass the policy

by Wendy M Grossman | posted on 02 December 2005

This week saw the official launch of the Open Rights Group, the sort-of Electronic Frontier Foundation UK, the desirability of whose existence was discussed this summer. It was a good launch: part networking opportunity, part brainstorming session, and filled with the kind of passionate engagement over the kinds of issues net.wars covers that you don't find too often, in concentrated form, outside of Computers, Freedom, and Privacy every year.

Wendy M Grossman

The brainstorming part involved large pieces of sticky brown paper pinned to the wall. Conversational groups clustered around these, scribbled ideas on index cards, and stuck them onto the paper. Very low-tech stuff, almost painfully so considering the subject. Glancing around at these conversational leavings (I'm sure ORG in the person of Suw Charlton will analyse these much more carefully later) there were several topics that recurred: software patents; the need to communicate effectively with politicians and others; copyright issues; ownership and protection of personal identities and data.

All of these are big issues, of course. But probably the biggest problem facing any digital rights group – or any other collection of political activists – in the UK now is that it is no longer sufficient to organise on a national basis, as difficult as that is all by itself. Increasingly, British law on such subjects as privacy, surveillance, copyright, and related policies are being written not in smoke-filled back rooms in Westminster but smoke-filled back rooms in Brussels. European media are still, in general, nationally oriented: the British papers cover the ins and outs of debates in Parliament, not the ins and outs of debates in the European Parliament.

Take, for example, data retention, which we wrote about last week (and have covered before). There has been a huge amount of back and forth on this issue over the last five years in the UK, with organisations like the Foundation for Information Policy Research fighting to get the most unpleasant clauses removed or ameliorated (as people like to call it). But all of those arguments will ultimately not matter if Blair's government succeeds in its quest to get the European Parliament to enact the data retention directive on December 13. Because if that directive passes, once it comes into effect, any argument within national borders will be met with the response that "We have to do it. It's a requirement of EU law."

Similarly, with copyright. "We have to harmonise the law" said Europe, and picked author's life plus 70 years, as the law had it in Germany. Then "We have to harmonise," said the US – and increased the term from life plus 50 to life plus 70. The US passes the Digital Millennium Copyright Act and criminalises by-passing copy protection; now the EU's gotta have one of those, too.

Gus Hosein, at the London School of Economics, calls this "policy laundering", and it's happening on an ever grander scale. The UK says it has to have biometrics in passports because the US wants it; the US says it's the International Civil Aviation Organization requires it; as far as I can remember, the US wanted it first. Back when restricting encryption and requiring key escrow was the policy du jour, things were a little simpler: the UK said it needed it because the US wanted it and there was that "special relationship"; the US said it wanted it, and that was that. Now, policies seem to fly around the globe until one lucky government somewhere can make it stick, and then all the others play competitive "We have to keep up with the Joneses" neighbour games.

So, it's a reasonable question to ask, plaintively, of our governmental parents: "Where do policies come from?"

Well: who benefits from having laws that are the same everywhere? Not consumers, who traditionally have been able to leverage a little bit, if only when they travel (New York drivers ignoring their New Jersey parking tickets; geeks getting their porn from Dutch sites where it's legal). Often not politicians, since they like to be able to tell their constituents they've been successful at getting a better deal for them – "Look, you're special." (Companies may pay for the policies, but politicians must have votes.)

In the case of the copyright laws, it's clear that the policies emanate from the entertainment industry. Sony – to name 2005's "Most Self-Destructive Company" – has the same interests everywhere it operates. It's less clear where the security and surveillance policies originate.

So, my proposal: a database tracking policies, much the way Patrick Ball's Human Rights Data Analysis Group tracks human rights violations or the Software Patent Institute tracks software technologies and patents. If we harness the collaborative efforts of the globe's political activists and develop a sufficiently coherent coding system, why shouldn't it be possible to gradually track these things to their source? Such an effort would be both valuable to activists and valid scientific research.

That's probably not a cause for the fledgling Open Rights Group – which you can, if you like, help support here -- but it sure would be an interesting project. Anyone?

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    Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).