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Cass Sunstein of the Obama administration’s Office of Management and Budget recently issued a memo to the heads of executive branch departments and regulatory agencies which dealt with the use of social media and web-based interactive technologies. Specifically, the memo warned that “[b]ecause, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning.”

As one source noted, “[A] million Americans can Digg or retweet an important blog post, but government officials shouldn’t use that popularity as an indicator of the post’s value. That’s not always a bad thing considering that a dedicated group of like-minded people can game a casual voting system.”

Mr. Sunstein—who some might call something of an Internet evangelist—is clearly trying to establish best practices for the U.S. government to allow the government to benefit from the good of using the Internet to further legitimate policy making goals while avoiding the bad. Avoiding the bad includes a prohibition on basing policy decisions on the use of information that is or could be gamed in the formation of public policy by “a dedicated group of like-minded people.”And the gaming can be done before or after the fact, and the “like-minded people” can be outside—or inside—the government.

It is not a very large leap to imagine a truly Orwellian world where the government finds that the public supports its policies because it uses information that its anonymized supporters intentionally game or are encouraged to game to produce the desired result. As we noted in Fair Copyright Canada and 100,000 Voters Who Don’t Exist , the legitimate desire by governments to use the Internet to engage with the governed is to be admired. But if the process is selectively managed by bureaucrats with an agenda, it is to be greeted with considerable caution if not outright suspicion.

Recall that we were very suspicious of Industry Canada’s use of anonymous public submissions over the Internet in the most recent public “consultation” on copyright reform in Canada. (For U.S. readers, the Industry Canada “consultation” process closely approximates a combination of field hearings by the Copyright Office and a request for comments from the public.) For mysterious reasons, Industry Canada bureaucrats charged with administering the consultation failed to implement even the most rudimentary controls to screen or qualify these anonymous public submissions. Not only did the Industry Canada bureaucracy fail to implement even rudimentary controls, but they also completely overlooked obvious flaws in the submissions themselves—flaws easily exploited by “a dedicated group of like-minded people.” Unfortunately, Minister Tony Clement was not given the information he needed to realize that his many public statements about the success of the consultation process will forever have an asterisk by them—“*except for the totally gamed online submissions.”

Richard Owens’ Study

Neither Mr. Sunstein nor we are alone in focusing on these important issues–as reported in the Toronto Globe and Mail, fortunately for everyone Canadian lawyer Richard Owens has done some excellent research on the results of the failures of bureaucrats at Industry Canada in the copyright consultations (see “Noises Heard: Canada’s Recent Online Consultation Process–Teachings and Cautions” published on the IPOsgoode intellectual property blog at the prestigious Osgoode Hall law school in Toronto and “Re-doing the Math” by Canadian novelist John Degan). Remember—the consultations are conducted for the purpose of the government receiving testimony from Canadians to be used in the formulation of public policy regarding Canadian intellectual property laws. The total breakdown that followed during the Canadian experience is a lesson to us all. My references to the teaching moment in Mr. Sunstein’s memorandum is not by way of saying that the U.S. approach is the better one, but rather as an illustration of how one government is seeking to both embrace the Internet and insulate itself from the Internet at the same time.

Mr. Owens’ study of the Canadian copyright consultation concludes that:

“While the results of our study revealed a sharp gender, age and Anglophone bias in the submissions, of particular concern is the apparent lack of verification of identity, uniqueness, age (voting or otherwise) or citizenship of those making the submissions. For instance, 70% of the total submissions were “form letters” originating from a single little-known group of modchip distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent related sites. As a result, it appears that many of the submissions were not even made by Canadians. Our study raises serious issues regarding the design and results of the public consultations, and of the need to ensure that future online consultations are better designed to properly represent the views and interests of the Canadian body politic….

The next step the Departments must take is to openly publish the results of their own analyses of the Submissions, acknowledge the limitations of the Consultation, and to prepare legislation from a much more informed perspective. The Departments are custodians of the long-term interests of Canadians in their artistic, innovative and cultural endeavors. To fulfill their duty of stewardship, a system of intellectual property rights must be based on a fair, informed and representative consultation process. Unfortunately, none of these three criteria were met in the online Consultation associated with copyright reform. An online public consultation on a highly technical and complex area of law might provide some degree of useful context, but by and large it can accomplish little that will be of direct application. Much more useful is to solicit the opinions of the members of the communities that are truly informed. In Canada, that is certainly a large enough population to yield a great many useful submissions.”

Mr. Sunstein’s admonition fits nicely with Mr. Owens’ conclusions. However, neither of them have the benefit of many, many leaked documents relating to the uncritical acceptance by Industry Canada bureaucrats of the overwhelming number of CCER form letters received by Industry Canada outside of their normal process.

But I do.

I confess that the first time I saw this CCER letter writing wizard it seemed deeply, deeply flawed. So flawed, in fact, that it was hard to imagine anyone gullible enough to fall for it. But leave that to one side for now.

I would start by pointing out that we submitted our own version of the corrupted CCER form letter, clearly pointing out that if the Ministers received our letter, they had been gamed. Apparently they did, because we received a form response back over Minster Clement’s name (as described in detail in Fair Copyright Canada and 100,000 Voters Who Don’t Exist) that confirmed his receipt of our letter through the CCER wizard—which clearly stated that we were submitting it to test whether the system was being gamed. It appears that Mr. Sunstein’s worst fears materialized.

So my own conclusion about this process after having read the leaked documents is that there is such a curious lack of criticism about the CCER letter wizard that it leads me to believe that not only did the bureaucrats recognize the letter as coming from a “dedicated group of like-minded people,” but also that “dedicated group” may include bureaucrats at Industry Canada. Or as one Tennessean put it in another context, “What Did They Know and When Did They Know It?”

The entire process is so seamlessly designed to produce a particular result, it raises a serious question of who thought of what when and whether the CCER letter was all part of the plan hatched by Industry Canada bureaucrats with their fellow travelers to game the consultation process.

What is interesting about the way that the CCER letters are treated in the leaked documents is that no one—no one—ever says that there are a suspiciously large number of form letter submissions coming from an unverifiable source. For example, in a July 27, 2009 email thread, one bureaucrat says in an email to her superior, Edward Malota, “I should note that several [of the then 400 online submissions] are form letters penned by the Canadian Coalition for Electronic Rights. Perhaps we should mention the presence of form letters in the note [to superiors]?”

Malota’s response: “Any changes to recommend to this sentence? ‘As of July 27, a range of stakeholders have made approximately 400 submissions, including a significant number of form letters by the Canadian Coalition for Electronic Rights.’”At a time when the junior bureaucrat knew that Industry Canada had received 184 submissions, 150 of which were CCER form letters, she edited statement to change it to: “As of July 27, a range of stakeholders have made approximately 400 submissions, including a significant number of form letters most of which we believe were penned by the Canadian Coalition for Electronic Rights.”

I find this to be incredible—“most of which we believe were penned”? No, actually the overwhelming majority of which we now know were generated from who knows where by the CCER. (See Owens’ study for handy pie chart.)

Malota’s response? “Thanks!” Pip, pip, cheerio.

Wasn’t it the responsibility of the more senior to temper the enthusiasm of the junior? Perhaps not for the “dedicated group of like-minded individuals”. Or said another way (with sincere apologies to Bay Area residents with long memories)—they drank the Koolaide.

At that point the die was cast, and appears to be how policy was to be made—a prime example of Mr. Sunstein’s concerns. It seems obvious that those who could have stopped using the CCER letters not only did not, but seem to have at least tacitly agreed among themselves that lack of probative value of the ubiquitous CCER form letters was to be downplayed and used by Industry Canada to further its own agenda.

If there were any form letters that were not CCER, I saw no mention of it in this exchange. The only place that there seems to be any doubt that the form letters were from CCER is in the way that the information was shaped that would flow up the chain of command.

On July 29, 2009, Colette Downey, apparently a midlevel bureaucrat, says to the junior person, “Also want to be sure that you are acting as a “Transformer”…so that you transmit interesting content or trends to me and the rest of the team as it comes in, informally if that’s the best way to communicate it.”

Informally? What does that mean, informally? Since when does a bureaucrat do anything “informally”—so there is no paper trail? And what exactly does the passive voice “if that’s the best way to communicate it” trail off to mean? If you decide that’s the best way?

The response from the junior: “I will do my best to send you and the group interesting submissions and trends – hopefully this is OK by email on weekly basis? As you know [CCER] has created a template letter in English and French on their website and has set up a wizard such that you can send the email without having to go through the consultations website. The template letter so far accounts for 230 of the 400 submissions. I included one of these letters in your package last Friday.”On August 13, 2009, another bureaucrat let the “team” know that CCER “has produced a form letter that has significantly increased submission rates over the last 24 hours. We’re receiving submissions nearly every minute today, a cautious estimate putting us over 500 in the last day. We’re about to Tweet this (happy?) news.”

“We”, that is, Industry Canada, are about to tweet the good news to the general public that a shadowy association of dubious legality has created a nearly untraceable form letter. So this would seem to mean that Industry Canada is actively promoting the use of the CCER form letter by the general public.

Not once—not one time—in all of these emails does anyone say anything like, “Gee, we better be sure that only Canadians are responding” or even, “Gee, we better be sure we can distinguish Canadian from non-Canadian submissions”. The CCER letter writing wizard advocates a self-described “Canadian-to-the-core” solution—wouldn’t you want to be sure that the phrase had some meaning?

Was Mike Lake Deceived?

There is an August 20, 2009 email (no doubt summarizing information to be used by Parliamentary Secretary Mike Lake at the Edmonton roundtable the next day) that clearly states: “Approx. 3000 submissions to date; 1,200 formal submissions and 2,000 letters. So far, just 15-20 formal submissions from associations, copyright lawyers, academics.” The majority of the submissions—not surprisingly—raise issues that are straight out of the CCER letter and the bureaucrats identify these issues as being important. This is, as we say in the trade, “bootstrapping.”

The bureaucrats then prepared “speaking notes” for Parliamentary Secretary Mike Lake to use at the Edmonton copyright roundtable on August 21, 2009 which included this sentence: “[In addition to the roundtables] we have opened up our website to submissions for all Canadians to share their views with us and with each other….So far, after some five weeks in operation, our website has gathered about [3,500 submissions check number closer to date]…”

So—if you heard Mike Lake say these words, you would probably assume that he meant what he said—that Industry Canada was taking submissions through its website for lots of Canadians to participate. Sounds great, right? Very egalitarian and digital.

The only problem is that it was not true. I’m sure that Mike Lake thought that it was true, I’m sure Mike Lake had no reason to think it wasn’t because the “dedicated group of like minded people” who likely knew it wasn’t true didn’t tell him that the overwhelming majority of the submissions were form letters from a shadowy group that were not even coming into the government through its own processes. Form letters that were being sent to the government in a way that intentionally masked their origin. Form letters that were very, very likely not even coming from Canadians, yet were clearly being identified as contributing to making policy.

Enter Derek Noon

And then we have Derek Noon. Derek Noon appears to have been put in charge of communicating to the “team” the updates on how the Industry Canada web activity is going. Who is he? His Twitter profile finds him interested in Creative Commons, Cory Doctorow and…Michael Geist (aka “he who shall not be named,” according to a prominent Canadian artist). His faculty mentor at university sounds like one of these Singularity believers who Jaron Lanier calls the “death denyers.” “I develop these concepts of “general intellect” and “immaterial labour,” and connect them to other Marxist concepts, such as that of “species being, ” to examine the historical trajectory and future possibilities of insurgencies in and alternatives to high capitalism amidst of [are you ready? Here comes the singularity] a cyborg world of digital networks and biotechnologies. My book, Cyber-Marx: Cycles and Circuits of Struggle in High-Technology Capitalism (Illinois University Press, 1999), is a first cut at some of these ideas.”

Let us ask a few questions about Derek Noon. Why would the copyright consultation “team” need to have someone in charge of reporting to them on the consultation website activity? Why wouldn’t the “team” just go look themselves? What was happening on the website that the experienced bureaucrat would want to insulate themselves from knowing? Why not just send an automated website analytics report? And even so, if they were going to pay special attention to what was being done on the web, why wasn’t that handled by the usual department PR hack or (digital) clipping service? Why did they need to burn up their headcount on one person in their group who was monitoring the web?

So on the eve of the Toronto town hall, certainly a significant, if not the most influential, audience the Minister is likely to have, what is Derek Noon’s report to the “team”?

“Online Activity, Aug 27. Toronto town hall will be a Tweetfest. Digital locks remain a hot topic. Wary praise of the consultations: ‘The online discussion forums—unlike most government run websites—have been boisterous. Geist’s blog suggesting IC altered submissions was circulated on BongBoing.”

Twitter, digital locks, “wary praise” and Geist. It actually sounds like a day in the life of Geist, doesn’t it?

More “Online Activity, Sept. 2. CCER Tweets…Positive description of Peterborough roundtable by attendee Howard Knopf who also posted their [sic] comments. This has been reposted by many bloggers/Twitters. Canadian Pirate Party starts to speak out on reasonable copyright balance.”

And that’s it for the week of September 2? That’s all that happened online on a hot topic like copyright reform in Canada? Really? CCER, Howard Knopf and the Canadian Pirate Party. It is not entirely clear that the “Canadian Pirate Party” actually existed at the time, but the Pirate Party was important enough to Derek Noon to take up 1/3 of the internal reporting on the copyright consultation. CCER “Tweets”? Why in the world would Industry Canada be spending time on CCER tweets? I guess that would depend on who was tweeting, wouldn’t it.

Another bureaucrat provides the “stats” for the August 31 to September 4 period. 4,710 submissions, 3,585 from CCER as is duly noted. No one—no one—seems the least surprised at this gross disparity in the submissions.

Derek Noon reports again for the week of September 8. “Bloggers counting down the remaining days in the consultation. Geist’s “4000 submissions” post has been reposted frequently. CCER (form letter source) has updated their position statement.”

Are you beginning to get the idea that Derek Noon has a very narrow view of what constitutes “online activity”? Or maybe he doesn’t.

Maybe his readers do.

Maybe he knows that his readers are not really interested in all online activity (because there was a lot more). Maybe he knows they are just interested in certain online activity.

It All Starts With A Cigar

Former Secretary of State George Schultz had a great line during the Iran-Contra hearings—“It all starts with a cigar.” If you are going to take the public’s money and with it the public’s trust, don’t take a lobbyist’s cigar.

The point of all this is that when you read the email threads from within Industry Canada, it becomes increasingly obvious that there was something unholy going on. If I’m wrong about that, believe I am all ears. Please show me the evidence. I haven’t found it, Richard Owens hasn’t found it, and I frankly doubt that anyone else will find it either–because it doesn’t exist.

There are strange redactions that don’t seem to be necessary. There are references to emails sent in response to voice mails, and the voicemail recipient saying “I hope you don’t mind” that they are responding to voicemail with email. There are requests that this matter be handled “informally”.

There are ambiguous edits of language that create clearly misleading inferences. But most of all, there seems to be a fixation on maintaining a letter writing process that was clearly being promoted by Michael Geist, Industry Canada bureaucrats and it’s anyone’s guess who else.

The only conclusion that can properly be deduced is that somebody wanted to game the online submission process during the consultations because they were unsure of the result from the town halls.

Meaning that they were unsure of how many real people would actually show up to town halls which was the one part of this process that was not easily gamed. Moreover, they were unsure what those real people would actually say, so they wanted to create a ghostly online army that would say what the “dedicated group of like minded people” wanted them to say to compensate for the lack of real Canadians showing up at town halls who might speak their minds. Hence the ubiquitous form letter.

Why did Derek Noon limit his reporting up the chain to the very few sources he used—like the Canadian Pirate Party, against copyright reform? Why didn’t he include the other online reporting on the consultations? Do you think that a bureaucrat at his level would go rogue and just decide that he would make up his own mind about what would be relevant to his immediate audience?

No. More likely—he was doing exactly what he was told to do, perhaps “informally” in line with the admonition from Colette Downey. He was providing “informal” reports on exactly the people and the kind of activity that he knew would interest his audience.

But would the Minister himself have been in on this? It is unthinkable that the Minister would have any part of it, particularly given the many throne speeches supporting intellectual property. “Cultural creativity and innovation are vital not only to a lively Canadian cultural life, but also to Canada’s economic future. Our Government will proceed with legislation to modernize Canada’s copyright laws and ensure stronger protection for intellectual property.”

The direction of the Government is clear. Ministers, like cabinet secretaries, must rely on their staff. It seems obvious that Minster Clement was far too busy to reach down to the Derek Noon level, and he relied on his staff to provide him with accurate information, as did Mike Lake, I’m sure.

Little did they know that their staff was busily creating a ghostly “army” of voters who don’t exist. Or it sure looks that way.

Saving the Digital Democracy

Mr. Sunstein and Mr. Owens have put their fingers on an issue at the heart of incorporating the internet into the digital society–how can we preserve the confidence of the people in the democratic process in all its aspects while at the same time utilizing the tools that will enhance deliberation and responsiveness.

Mr. Owens sums it up nicely:

“[T]he Departments – if they have not done so already – need to answer a number of questions: How were the CCER (and the international BitTorrent community) able to dominate the process, accounting for 70% of the Submissions? Is the CCER involved, either directly or indirectly, in any other Canadian Copyright reform lobbying or activities to undermine the will of Canadians? Why did so few Canadians make substantive submissions on copyright reform and, in particular,why were Francophones and women so grossly underrepresented in the Consultation process? Unfortunately, given that the Consultations are over, the answers to these questions cannot save last summer’s Consultation process, but my hope is that the answers we find may help to remedy public copyright consultations in the future.”

Ask yourself if the consultation is a shining example of government playing by the rules. I suggest to you that at least with respect to the online submission process, the opposite is true. However well-intentioned the minsters may have been in conducting the consultations, they got really, really bad advice and were ill-served by the bureaucracy.

Like the core principles of representative democracy, it’s not as important who wins as it is that they won fair and square and played by the rules. The artists, songwriters, actors, directors, screenwriters, authors, illustrators, photographers–the professional creative community–deserve–and expect–no less. Not only in Canada, but everywhere.

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Postscript

It now appears that Geist has offered some defense of the CCER letters that Owens’ criticizes, which should come as no surprise. You have to wonder if he’s being paid by Industry Canada to respond, as it seems he’s being paid by Industry Canada for so many other things, why should this topic be different?

But it is this statement by Geist that really took the cake: “As for the lack of francophones [meaning French Canadians, largely citizens of Quebec or “Québécois”], perhaps it reflects the fact that francophones are not nearly as concerned with creator-focused copyright as some suggest (or perhaps many decided they wanted to do something else with their summer).”

As someone who played benefit concerts for René Lévesque when most English Canadians thought he was just a chain smoking whackjob (i.e., before his Parti Québécois swept into power in Quebec in 1976), I REALLY take issue with the idea that the carefree Québécois would rather go frolicking in Morin-Heights in the summer time than concern themselves with the weighty matters of state that concern Geist. This from a province that has produced a healthy professional creative class and international stars for decades when, frankly, their English countrymen were struggling for airplay on their own radio stations. But let’s let bygones be bygones on that score.

See also: Fair Copyright Canada and 100,000 Voters Who Don’t Exist

See also: What do Canada, Vietnam, China, Russia, Ukraine and Romania have in common? (And, no, it’s not future sites of the Creative Commons Internationale)

See also: Artist rights are human rights

See also: The Spy Who Consulted Me Redux: The Consultation of the Mikado

See also: A closer look at Lawbytes, Inc. f/s/o Michael Geist