If ACTA Is So Great, Where Are All The Supporters Extolling Its Virtues?

One of the striking features of the ACTA debate is the deafening silence from those who are in favor of it. Maybe that's down to the SOPA effect: companies and organizations are frightened of being associated with such an unpopular idea. Of course, it could just be that even its most fervent supporters can't really come up with any plausible justifications for it. That's certainly the impression you get reading a rare attempt to raise the ACTA flag from the Institute for Policy Innovation, entitled "Acting Out on ACTA." 

On Techdirt.

German Gov't Uses Anger Over Lack Of ACTA Transparency To Justify Further Lack Of Transparency

Even though the ACTA text is now finalized, getting details from national governments about what exactly happened during the negotiations is proving extremely difficult, with information still trickling out slowly. 

On Techdirt.

ACTA Update VII

One of the widely-recognised problems with ACTA is the lack of transparency surrounding its negotiation. Since I have addressed this issue at length elsewhere, I won't repeat myself here. But it occurred to me that there is another way of looking at transparency, and that is in terms of consultation. In a sense, it's the flip side of transparency.

On Open Enterprise blog.

Shining Light On ACTA's Lack Of Transparency

One of the key problems with ACTA is the lack of transparency during its negotiation. That this is becoming a big issue in Europe is shown by the fact that the European Commission has tried to dispose of the question twice -- first in its "10 myths about ACTA", which I discussed recently on Techdirt, and now with a page entitled "Transparency of ACTA negotiations": 

On Techdirt.

Will The Food Industry Ever Swallow Transparency's Bitter Pill?

A fascinating trend in recent years has been the gradual move from a presumption of secrecy to one of openness, transparency and sharing. This began with free software/open source, and has progressively spread to include areas such as open content, open access, open data, open science and open government.
Here's the latest field where people are advocating a more open approach:

On Techdirt.

Open Data: Help "Make it Real"

As I indicated yesterday, I have serious doubts about the UK government's policy on copyright. But while that has been something of a disappointment to me - I naively hoped for better - its work on open data, by contrast, has exceeded my expectations.

It has already made a number of important moves in this area, and with a major new consultation - bearing the rather splendid title “Making Open Data Real” - it looks like it intends to move further toward openness in this area. Not only that, but is actually asking for our views on many aspects. This is quite unlike its approach for copyright enforcement, where it is trying to push through all kinds of stupidities and hope that no one notices, so I suppose we should be grateful for small mercies.

On Open Enterprise blog.

Fighting Openness with New Corporate "Rights"

The opposition between openness and so-called "rights" - which are typically state-granted monopolies like copyright and patents - becomes clearer by the day. But it is extraordinary is that those holding those monopolies think they need more - not least to fight recent minor gains in the field of openness and transparency. Here's some deeply troubling news:

To what extent will a right-wing French MP sympathetic to big business and French government's ongoing manoeuvres to create a "corporate confidentiality" label endanger critical reporting on corporations and business transparency?

Last week, French right-wing MP Bernard Carayon in an interview for the website Rue89 boldly stated "I claim that the State and private companies should also benefit from physical persons' right to privacy. [...] Companies should be allowed to define for themselves which information remains secret [...]."

Specifically:

Carayon wants to increase protection for "economic information" by introducing a three-year prison sentence and a 375.000€ fine for anyone found guilty of breaching “the confidentiality of information of an economic nature".

This would clearly have a chilling effect on efforts by whistle-blowers to expose corporate wrong-doing. But it gets worse, much worse.

The French government, already one of the chief enemies of a free and open Internet (think HADOPI) wants all of Europe to give business this new "right":

the French government, through the Inter-ministerial Delegation on Economic Intelligence (a high-level informal body gathering officials from the Ministries of Defence, Interior, Research, Budget, Environment, Foreign Affairs and the Economy, and that now directly reports to the French Presidency), is also working with a number of big French business lobbies (Medef, AFEP, CDSE, CGPME, Chambers of Commerce...) to design new legislation intended to create a new legal label, “corporate confidentiality”, to protect corporate information that is not covered by existing intellectual property laws. According to the head of this body, Olivier Buquen, this will cover “all strategic information, which can be, depending on the company, a client's database, a business plan or the details of a partnership […] we wish to simplify legal procedures for companies, and to create penalties that are severe enough to act as a deterrent. Our text will foresee legal proceedings against whoever steals or leaks a company's key information.”

For a land that once believed in liberty and equality, never mind the fraternity, these are shameful proposals, and confirm the present French government's pro-big business, anti-consumer attitudes. We need to fight these now before they get too far in the system and thus harder to root out - do read the whole of the excellent and detailed post from which these excerpts were taken. (Via @CountCulture.)

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Public Data Corporation: How Open, and How Public?

I've been following the move to open data by the UK government for some time on this blog. Major milestones include the creation of the data.gov.uk portal and the recent announcement back in November that “all departments will publish details of their spending over £25,000 for the last six months.” Now we have this:

On Open Enterprise blog.

MPs' Expenses: They're At It Again

Openness is inherently political, because it dares to assert that we little people have a right to see what the powerful would hide. There's no clearer proof of that point than the MPs' expenses scandal last year. You might think that was a battle where openness prevailed; sadly you would be wrong, as a recent press release from the Independent Parliamentary Standards Authority (IPSA) reveals.

On Open Enterprise blog.

Why "Naked Transparency" Has No Clothes

Although I have a great deal of time (and respect) for Lawrence Lessig, I think his article "Against Transparency" is fundamentally misguided. And for the same reason I think these concerns are overblown, too:

The coming wave of transparency could transform this in a hugely positive way, using open data on costs, opportunities and performance to become a much more creative, cost-effective and agile institution, mindful of the money it spends and the results it achieves, and ensuring individuals are accountable for their work.

But it might make things worse, frightening senior managers into becoming more guarded, taking fewer ‘risks’ with even small amounts of money, and focusing on the process to the detriment of the outcome. It may also make public service less attractive not only for those with something to hide, but for effective people who don’t want to spend their time fending off misinterpretations of their decisions and personal value for money in the media. And to mirror Lessig’s point, it may push confidence in public administration over a cliff, in revealing evidence of wrongdoing which in fact is nothing of the sort.

First of all, I think we already have a data point on such radical transparency. Open source is conducted totally in the open, with all decisions being subject to challenge and justification. That manifestly works, for all its "naked transparency".

Now, politics is plainly different in certain key respects, not least because hackers are different from politicians, and there has been a culture of *anti*-openness among the latter. But I think that is already changing, as David Cameron's latest billet doux to opening up indicates:

the release of the datasets specified in the Coalition Programme is just the beginning of the transparency process. In advance of introducing any necessary legislation to effect our Right to Data proposals, public requests to departments for the release of government datasets should be handled in line with the principles underpinning those proposals: a presumption in favour of transparency, with all published data licensed for free reuse.

Now, I am not so naive as to believe that all will be sweetness and light when it comes to opening up government; nor do I think that open goverment is "done": this is the beginning or the journey, not the end. But it is undeniable that a sea change has occurred: openness is (almost) the presumption. And the closer we move to that state, the more readily politicians will work within that context, and more natural transparency - even of the naked kind - will become.

Moreover, shying away from such full-throated openness because of concerns that it might frighten the horses is a sure way to ensure that we *don't* complete this journey. Which is why I think concerns about "naked transparency" are not just wrong, but dangerous, since they threaten to scupper the whole project by starting to carve out dangerous exceptions right at its heart.

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Transparency is in WikiLeaks' DNA

It is somewhat ironic that the man behind WikiLeaks, Julian Assange, is not a fan of being in the spotlight; and therefore perhaps poetic justice that he is increasingly the focus of in-depth profiles. The best one so far has just appeared in The New Yorker, and includes this memorable description:

WikiLeaks receives about thirty submissions a day, and typically posts the ones it deems credible in their raw, unedited state, with commentary alongside. Assange told me, “I want to set up a new standard: ‘scientific journalism.’ If you publish a paper on DNA, you are required, by all the good biological journals, to submit the data that has informed your research—the idea being that people will replicate it, check it, verify it. So this is something that needs to be done for journalism as well. There is an immediate power imbalance, in that readers are unable to verify what they are being told, and that leads to abuse.” Because Assange publishes his source material, he believes that WikiLeaks is free to offer its analysis, no matter how speculative.

I'm sure Sir John Sulston had no idea how far his idea of openness would be taken when he drew up the Bermuda Principles....

For Openness – and Open Source - We Need Transparency

Transparency is a close cousin of openness, and it's becoming increasingly, er, clear that we need the former in order to obtain the latter. A new study [.pdf] confirms that the voluntary lobbying register, introduced by the European Commission in 2008 as a sop to those who were pressing for full transparency, is just a joke:

On Open Enterprise blog.

Time to Re-Boot British Politics

So, the forces of stupidity, arrogance, greed, laziness and downright bloody-mindedness prevailed, and the Digital Economy Bill has turned from an ugly, misbegotten chrysalis into a ragged, leaden-winged butterfly, the Digital Economy Act. But along the way, a real, terrible beauty was born.

On Open Enterprise blog.

Big ACTA Leak: Full Consolidated Text

La Quadrature du Net has obtained another ACTA document - and it's a biggie, but at the moment only a 56-page PDF. You can help convert it into text.

But what's really striking to me, as someone who has been covering this area for 18 months now, is how the rate of leaks is increasing: the more leaks there are, the more we get. It's a bit like those slow-motion scenes in films where the dam begins to break slowly, and then more and more cracks appear until finally - transparency.

So, let's keep those leaks coming, please.

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To: EC's Directorate General for Trade

Without much fanfare, the European Commission has arranged an "ACTA Stakeholders’ Consultation Meeting". Of course, the big problem is that it's in Brussels, and few of us can afford to take a day off work to attend - unless we are professional lobbyists, of course, who get *paid* huge sums to attend.

However, it is still possible to make some comments on ACTA, since

Those unable to participate in the meeting and/or wishing to present their positions in writing may send their comments to TRADE-ACTA-MEETING@ec.europa.eu , no later than 22 March 2010.

So if you have a few minutes to spare this afternoon, I urge you to drop the EC's Directorate General for Trade a short note to let them know what you think. Here's mine:

Unfortunately, I won't be able to attend the ACTA Stakeholders’ Consultation Meeting; but I shouldn't need to. If the Internet has taught us anything, it is that such processes can – and should – be opened up to all using this wonderful democratising tool. By resorting to such traditional meetings, the European Commission makes it difficult for ordinary people with jobs (to say nothing of those who are unemployed) from attending and thus voicing their opinions. Instead, it will be the usual well-funded lobbyists who turn up and pack the meeting, crowding out the few who represent the hundreds of millions of ordinary EU citizens.

So my comment really comes down to this: we need full transparency for the ACTA negotiations, with all of the drafts released as and when they are modified, along with all other related documents, so that all of us can participate in this crucially important process. This is not some ancillary facet that can be tacked later, but is absolutely central. If other partners won't agree to transparency, then the EU should simply refuse to negotiate further, since there is no reason why such drafts should not be open for all to discuss – unless, of course, there is something in them that certain participants want hidden until the negotiations have been concluded and can be presented as a fait accompli.

ACTA negotiations without transparency are simply a continuation of the bad old days of closed-door meetings of cosy insider groups to the detriment of ordinary citizens. If the EU is truly to represent the citizens of Europe, it must definitively turn its back on that unrepresentative system, and place openness and transparency at the heart of everything it does.

If it does not, voters' disenchantment with politics will grow, and the already-gaping chasm between the politicians and the people will widen, until our nominal representatives find themselves increasingly alienated from the electorate. That would have dire consequences not just for politicians, but for European democracy itself.

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Important Leaked Document on ACTA

An important document about ACTA has been leaked. It's in Dutch, but Jan Wildeboer has kindly provided a translation. It's worth reading all of it, since it gives one of the best - and frankest - reports on what's going on, at least for certain aspects of ACTA.

In the interests of fairness I have to pick out the follow sections on transparency:

POL [Poland], VK [United Kingdom], OOS [Austria], NL [Netherlands], FIN [Finland], IER [Ireland], HON [Hungary], EST [Estonia], ZWE [Sweden] were in favour of more transparency.

FRA [France] did not object against full disclosure if that would be the consensus, but did have concerns about the U.S. position.

ITA [Italy] sided along with France, was also concerned about impacts on free trade agreements, noted that even if plurilateral setting the precedent of ACTA would in principle be adequate closure. DK agreed with ITA and put reserve study status on the documents.

HON [Hungary] however opposed this with the position that the treatment of ACTA documents would be much more logical to compare with the documents of multilateral negotiations.

And more specifically:

UK once again declared its support for full disclosure of the documents, noted the current position [of secrecy] in EU is hard to keep national parliaments (European Parliament), citizens and civil society should be informed, there was nothing to hide.

UK insisted Cie should take a pro-active stance and should try to convince other parties of the need to be transparent.

So, whatever its undoubted faults in other respects, the UK government seems to be trying to do the right thing as far as transparency is concerned, and it deserves kudos for that. Interesting, too, to see that the main hold-out seems to be Hungary, which surprised me given its positive attitude to open source.

Good to see that more and more countries are backing transparency - and that more and leaks are providing it by other routes.

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Opening Our Eyes to the Tilted Playing-Field

One of the subtlest ways of gaming the system is to hack the system before you even play - for example, by building in a bias that means your particular approach is given a natural advantage. That this goes on, is nothing new; that it's happened at the heart of the European Union is profoundly disturbing. Here's the summary of what's now been discovered:

These findings suggest that BAT [British American Tobacco] and its corporate allies have fundamentally altered the way in which EU policy is made by ensuring that all significant EU policy decisions have to be assessed using a business-orientated IA [Impact assessment]. As the authors note, this situation increases the likelihood that the EU will produce policies that favor big business rather than the health of its citizens. Furthermore, these findings suggest that by establishing a network of other industries to help in lobbying for EU Treaty changes, BAT was able to distance itself from the push to establish a business-orientated IA to the extent that Commission officials were unaware of the involvement of the tobacco industry in campaigns for IA. Thus, in future, to safeguard public health, policymakers and public-health groups must pay more attention to corporate efforts to shape decision-making processes. In addition, public-health groups must take account of the ways in which IA can be used to undermine as well as support effective public-health policies and they must collaborate more closely in their efforts to ensure effective national and international policy.

A number of lessons need to be learned from this.

First, that if you want a system to produce fair results, you need to ensure that its framing is fair. Secondly, full transparency is imperative, especially about the relationships between those who are lobbying for changes to a system. Basically, you just can't have too much openness when it comes to setting key policy like Impact assessment.

This is an incredibly important - and impressive - paper, with huge implications for many areas. One that springs to mind is that of environmental protection. Given that the framing of Impact assessments is biased in favour of business and financial issues, it's not hard to see that other viewpoints - for example of examining the implications for animal and plant life, or of the various commons impacted - will receive pretty short shrift. It's also an argument for the economics of externalities to be developed more so that they can be brought into the equation when such one-side reviews are being conducted.

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EU Official Caught in the ACTA

As more and more people write about the global scandal that is ACTA, a question naturally forms itself: is it worth it? After all, however many times people ask for more transparency, or attempt to probe what exactly is going on and going into ACTA, all we get are the usual fob-offs: maybe it's time to give up?

I don't think so.

In what seems to be a case of constant dripping wearing away the stone, more and more tiny informational breakthroughs are occurring that together are beginning to reveal the bigger picture. Here's the latest one:

An upcoming global trade agreement on copyright and counterfeiting, known as ACTA, will not rewrite EU rules on the liability of internet service providers, a leading European Commission official told EurActiv, denying media reports that suggest otherwise.

Oh, no? So why have we got the wrong impression?

The leading Commission official said media reports were oversimplifying the Anti-Counterfeiting Trade Agreement (ACTA), which wrapped up one stage of a series of negotiations in Mexico last week.

Oh, I *see*: those naughty journalists have been "oversimplifying* things. Mind you, that's quite an achievement, since they are essentially "oversimplifying" nothing, which is more or less what the ACTA negotiators have so far deigned to distribute to hoi polloi.

But then we get a little more detail on why ACTA will not "rewrite EU rules" on ISP liability:

A leaked Commission paper on ACTA in October allegedly showed that negotiators at the global talks were attempting to rewrite current EU rules on the liability of internet service providers (ISPs) for pirated content on their networks.

The official denied those allegations and added that under the EU's eCommerce laws, ISPs can already be held liable for content on their network if they do not meet certain requirements.

For example, if an ISP is defined as a "mere conduit," a carrier of content, then it is not responsible for pirated content if it does not "initiate or modify" it and has no say on where it ends up, the official explained.

Ah-ha: what this reveals is that the reason ACTA won't "rewrite" the rules is because the rules are *already there*, according to this interpretation: ACTA will simply foreground them. It's tacitly admitting that there are latent ACTA-like provisions in the eCommerce laws; the big difference is that ACTA will activate them, so to speak.

In which case we need to look carefully at what exactly those laws say to find out whether that "mere conduit" definition is quite so, er, water-tight as the EU official would have us believe. [Added: more specifically, as Rui Seabra points out on Twitter, "ISPs technically initiate [and] modify many connections."]

If this is new information, as it seems to me, it shows the virtue of pressing ACTA officials again and again, because they often let slip what seem to them to be insignificant information that is actually more important than they realise.

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Visualising Open Data

One of the heartening trends in openness recently has been the increasing, if belated, release of non-personal government data around the world. Even the UK is waking up to the fact that transparency is not just good democracy, but is good economics too, since it can stimulate all kinds of innovation based on mashups of the underlying data.

That's the good news. The bad news is that the more such data we have, the harder it is to understand what it means. Fortunately, there is a well-developed branch of computing that tries to deal with this problem: visualisation. That is, turning the reams of ungraspable numbers into striking images that can be taken in at a glance.

Of course, the problem here is that someone has to spend time and effort taking the numbers and turning them into useful visualisations. Enter the Open Knowledge Foundation, which today launches the self-explanatory site “Where Does My Money Go? - analysing and Visualising UK Public Spending” (disclaimer: I have recently joined the OKFN's Advisory Board, but had nothing to do with this latest project.)

Here's what the press release has to say about the new site:

Now more than ever, UK taxpayers will be wondering where public funds are being spent - not least because of the long shadow cast by the financial crisis and last week’s announcements of an estimated £850 billion price tag for bailing out UK banks. Yesterday’s pre-budget report also raises questions about spending cutbacks and how public money is being allocated across different key areas.

However, closing the loop between ordinary citizens and the paper-trail of government receipts is no mean feat. Relevant documents and datasets are scattered around numerous government websites - and, once located, spending figures often require background knowledge to interpret and can be hard put into context. In the UK there is no equivalent to the US Federal Funding Accountability and Transparency Act, which requires official bodies to publish figures on spending in a single place. There were proposals for similar legislation in 2007, but these were never approved.

On Friday 11th December the Open Knowledge Foundation will launch a free interactive online tool for showing where UK public spending goes. The Where Does My Money Go? project allows the public to explore data on UK public spending over the past 6 years in an intuitive way using an array of maps, timelines and graphs. By means of the tool, anyone can make sense of information on public spending in ways which were not previously possible.

There's currently a prototype, and a list of the datasets currently analysed available as a Google Docs spreadsheet. There are some really cool interactive visualisations, but I can't point you to any of them because they are hidden within a Flash-based black box – one of the big problems with this benighted technology. Once HTML5 is finalised it will presumably be possible to move everything to this open format, which would be rather more appropriate for a site dedicated to open data.

That notwithstanding, it's great to see the flood of information being tamed in this way; I hope it's the forerunner of many more like it (other than its dependence on Flash, of course) as governments around the world continue to release more of their data hoards. Meanwhile, do take it for a spin and pass on any suggestions you have that might improve it.

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Why the UK's “Smarter Government” Plan is Not So Clever

There's no doubt that the area outside computing where the ideas underlying open source are being applied most rapidly and most successfully is that of open government. Alongside the US, which is has made great strides in this area, Australia, too, has caught the transparency bug. So what about Blighty?

On Open Enterprise blog.