The ACTA Retreat: Their Ignorance, And Ours

Last week the U.S. apparently “caved” on the Anti-Counterfeiting Trade Agreement (ACTA), intended to protect corporate intellectual “property.”  Though only a partial retreat, it’s exciting that the content industries were denied their full wish list of mandatory three-strikes provisions, etc., and will have to settle for a few stocking stuffers like watered-down restrictions on DRM circumvention.

But the intriguing part of this weaker ACTA is:  we’re not exactly sure whom to thank. Canadian professor Michael Geist, tenacious as a wasp in keeping public pressure on negotiators?  The less gung-ho countries who, tired of being Yank-ed around (or perhaps just not seeing what was in it for them), insisted on scaling back the agreement’s ambitions? Maybe the U.S. Trade Representative blundered by pursuing the most undemocratic path available; as James Love suggested, the USTR’s circumvention of Congress may have cost ACTA important legislative buy-in. Or perhaps we should thank “You”—the Time magazine Person-of-the-Year You—for all Your watchfulness and activism.

But no matter to which address we should gratefully ship the Chivas, the ACTA retreat is indicative of a larger crisis in how the policy sphere works today. Specifically: we have no idea how the policy sphere works today.

Once upon a time, it was possible to imagine that we understood policymaking.  There was an official policy sphere comprised of the state (in the U.S., Congress, the FCC, etc.), business, and the public (either public interest groups or individual citizens making their wishes and displeasures known).  Policy emerged from these players working out differences using the (unequal) power at their disposal. To effect policy change was to work through established channels of regulatory authority.

It was never as tidy as that, of course, but the fact remains that today, the legible official policy sphere has been blown all to hell through a combination of new players, differently empowered old players, new technologies for policy, and new technologies of policy.

We also have, importantly, new ignorances. With previous technologies, policymakers may not have understood the technical details but they could usually grasp the basics of the questions they were grappling with, and even some of the implications of those questions.

Today, not so much.  Ted Stevens’ “series of tubes” became a sensation because it was the perfect metaphor for the profound ignorance driving policy today.  The recent Ninth Circuit opinion in Vernor v. Autodesk reaffirms that our policymakers—in this case, judges—are dangerously ignorant of fundamental technological and even legal distinctions. In the other direction, ACTA demonstrates the ignorance of negotiators who, incredibly, believed they could hammer out their agreement in absolute secrecy in this day and age.

But we need to acknowledge our own ignorance of policymaking power as well.  Instead of imagining that we still understand the policy sphere, we need new models, new metaphors for contemporary policymaking. Our old conception of a legible policy sphere won’t cut it anymore.

Some contenders:

The Fraserized Policy Sphere:  Remember how Habermas theorized a unified public sphere for democratic deliberation, and then Nancy Fraser pointed out the existence of subaltern counterpublics?  Maybe that’s what happened to policy: we need to contend with a proliferation of new (or newly visible) subaltern policymaking bodies, from local school boards getting into media regulation, to programmers building policy into their products (“code is law” and all that), to spammers driving policy from the bottom up.

The Networked Policy Sphere:  Borrowing from Yochai Benkler’s own reworking of Habermas, perhaps the better model analyzes networks and nodes of policymaking authority.  Like the Fraserized Policy Sphere but more complex and webby.

The Pains of Policy Stretch:  As discussed by Danny Kimball at the recent Flow Conference, we’re using legacy policy formulated for one set of technologies to govern a new set of technologies, and the resulting legal and regulatory contortions are dislocating a lot of joints.  Maybe we need new regulatory calisthenics to maintain policy fitness, to overextend a metaphor.

The “Spinning Pool Table” Model:  The added complexities of distributed power and technological multiplicity has led to an explosion of unintended consequences, and no one understands where the billiard balls are going, or even where the pockets are.  This is the case in the wrong-wrong-stupid-wrong decision in Vernor, which in the most dramatic interpretation just separated legal transfer from ownership.  That’s what we call a scratch.  How might we begin to establish a new physics of policy so that we can at least regain our ability to estimate the consequences of our policy shots?

I could go on, but the point is that, even if we figure out what really happened to ACTA, we’re left in a state of profound confusion about the range of forces at work in policymaking today.  May those working for the public interest be the first ones to figure it out.

[The photo above is modified from an original by Paul Goyette, released under a Creative Commons Attribution-Noncommercial-ShareAlike license.]

Tags: acta, copyright, intellectual property, policy, policy sphere, policymaking