Here we go with another petition from the “factiness” squad. Canada has a long streak of problems with “petitions” of dubious provenance when it comes to copyright–first the gaming of the last “consultation” as was documented by attorney Richard Owens.
Richard Owens’ Study of the Canadian Copyright Consultation
As reported in the Toronto Globe and Mail, fortunately for everyone Canadian lawyer Richard Owens has done some excellent research on the gaming of petition-like online results 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 Degen).
Remember—the consultations were 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.
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.”
What is even worse than the gaming of Canada’s copyright consultation? “Petitions” that are not verifiable and are at best described as “casual voting” used to try to intimidate politicians into changing policy positions.
Cass Sunstein’s Standards for Casual Voting Results for the U.S. Executive Branch
Cass Sunstein of the Obama administration’s Office of Management and Budget 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 [or Reddit or “like”] 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 reading Mr. Owens note made me very suspicious of Industry Canada’s use of anonymous public submissions over the Internet in the public “consultation” on copyright reform in Canada held in 2009. (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, then-Minister of Industry 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.” At least when they count the votes of the dead in Chicago, there was an inter vivos voter registration (most of the time).
Imagine the potential for chicanery in a “petition” that is essentially unverifiable.
The EFF Debacle
And then there was an incident in 2007 involving an EFF “petition” against the RIAA. When you click on a “see signatures” link you are taken to a page full of 5 or 6 digit numbers all in columns and rows. What was this? There were literally a couple hundred number sequences, like little serial numbers, all arranged in neat columns and rows under the heading “Those Who’ve Taken a Stand Against the RIAA!” like you’re at the Tomb of the Unknown or something (in more ways than one). It’s like you would have expected to see names, but instead you see numbers. And when you click on the numbers, the links point you back to the same page you were on when you clicked the link.
I tried clicking a few other numbers and the same thing happens. Then I finally happen to hit on one that actually shows a few names, names like “O. Online Poker”, “T. Texas Holdem”, “P. Poker Rooms”, towns like “Google, CA” (must be Stanford?), “Świnoujście, ME”, “f, MA”, “Beverly Hills, LA”, “Beverly Hills, MI”, Dubai, “SCOTLAND!!, AK”, and my personal favorite “J. Travolta, Los Angeles”. And then there’s “r. little boys” of “George, AL“. No comment.
So if you didn’t before, you get the idea about why Mr. Sunstein had reservations about using online petitions to make policy.