Rich Dude Goes Back On His Promise About Forcing California Into A Dreadfully Bad Privacy Law, Brings A Worse Version Back

from the this-is-not-how-law-making-should-be-done dept

California is inching ever closer to having its very problematic privacy law take effect. As we've noted, while good privacy legislation would be desirable, this is not it. Indeed, this law is woefully undercooked by design. If you don't remember, the process by which we got here dictated terrible results. A wealthy real estate developer, Alastair Mactaggart, decided that he was going to "fix" internet privacy, by putting a truly bad proposal regarding internet privacy to a public vote, using California's somewhat horrific public referendum system -- that allows for the public to effectively modify California's constitution by popular vote.

While, in theory, this could be an example of popular democracy at work, in practice, the California referendum system has been a way for ultra-wealthy people, with too much time and money on their hands, to push through pet projects -- often either misrepresenting the nuances to the public, or perhaps not understanding them themselves -- and then locking California into the results. Recognizing just what an unmitigated disaster Mactaggart's referendum would have been for an open internet, a deal was cut: if California's legislature rushed through a privacy bill in two weeks, Mactaggart would drop the referendum from the ballot. And that lead to the woefully undercooked CCPA (California Consumer Privacy Act) law, which was at least marginally better than Mactaggart's nonsense proposal.

But, here's the thing, after agreeing to pull that referendum from the ballot, Mactaggart has now announced that he's bringing it back for the next ballot. Really.

The activist who spurred California to adopt the country’s first-ever consumer privacy law is readying for another battle: a new ballot initiative that would be even tougher on tech giants and other big businesses that collect people’s personal information.

The proposal, unveiled late Tuesday, is the brainchild of Alastair Mactaggart, a real estate developer whose efforts beginning two years ago resulted in the California Consumer Privacy Act, or CCPA. Building on that success, Mactaggart has set his sights on the 2020 election, hoping that local voters will enact reforms targeting the way companies harness data to make decisions or serve ads.

But, remember, the whole point of forcing through the undercooked CCPA was to get Mactaggart to back off his stupid referendum, but now it's back, meaning that there's just going to be more nonsense and fighting, to stop a ballot measure from a guy who has no clue what his proposal would actually do to the internet. And, because California's ballot measures are playthings for rich people, Mactaggart will likely get his way:

Mactaggart spent $3.1 million of his own money to gather signatures for his first privacy measure in 2018 and said he’s prepared to spend the same, or more, on this effort. He has said he came to the issue somewhat by accident after having a cocktail party conversation with a Silicon Valley technology engineer that left him startled when he learned about the kinds of information routinely being gathered, sold and bought by companies with relatively low public profiles.

Furthermore, he says he won't even back off this time:

One week before the 2018 deadline to certify the list of statewide propositions, Mactaggart and Democratic legislative leaders announced a compromise that was quickly signed by then-Gov. Jerry Brown.

Mactaggart doubted that he would do the same this time around.

“I don’t think any substantial gains like this are made in the Legislature,” he said. “I’m really happy what I did [in 2018]. It got us a beachhead. But I like the idea of having a new high-water mark that can’t be undone.”

So let's be clear: even if you agree with Mactaggart's position 100% and believe that his ballot initiative is good for personal privacy (which it is not), this is a horrible way to go about making privacy law. This is a rich guy, randomly throwing money at an issue that will get plenty of attention with almost no nuance or understanding, and setting levels that are nearly impossible to change, which will create all sorts of problems. It's not how policy should be made, no matter how you feel about privacy laws.

Filed Under: alastair mactaggart, california, policy making, privacy, referendum

The Bizarro, Fact-free World Of Copyright Policymaking

from the would-be-nice-to-have-some-fact-based-policy dept

If you're a regular visitor to this website, you're likely used to the never-ending parade of horribles detailing how copyright has been used to censor documents, stifle innovation and generally wreak all kinds of unintended havoc.

Even with this constant attention, it's sometimes easy to lose sight of exactly how world-champion strange copyright policy is. Only when it's placed alongside other government policies does it become clear exactly how it has evolved into a bizarro-world version of rational policymaking.

That something does what it's supposed to is usually the baseline for evaluating public policy. It's certainly what I expected to find as I researched my (shameless self-promotion alert) just-published book, Copyfight: The global politics of digital copyright reform. I'm an economist and political scientist by training, and also spent six years as an economist with the Parliamentary Information and Research Service, the Canadian equivalent of the Congressional Research Service. Coming cold to the wonderful, wooly world of copyright, I expected that such a long-lived institution would be grounded at least partly in empirical evidence that it, you know, actually promotes the creation and dissemination of music, books and so on.

Silly me. Here's how Ruth Towse and Rudi Holzhauer conclude their introduction to their 2002 edited volume, The Economics of Intellectual Property:

"For all the sophisticated analysis by economics, economic historians, law-and-economists and lawyers, we still cannot say with any conviction that in general IP law stimulates creativity or promotes innovation, though it may contribute to the process of communication between producers and consumers."

That's not exactly a ringing endorsement. (Towse and two co-authors reach a similar conclusion in a 2008 article reviewing the economics literature on copyright.)

In a 2009 study, "Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright's Bounty," Raymond Shih Ray Ku, Jiayang Sun and Yiyang Fan remark that "even though copyright has existed and continuously expanded for hundreds of years, there has been little research done to test the theoretical basis for copyright's expansion. In fact, so little has been done that one author [in 2006] specifically pled for more empirical research."

Being good researchers, they did just that, looking at whether the number of works created in the United States from 1870 to 2006 increased as the government strengthened copyright law. They found that stronger copyright indeed led to more works being created.

Kidding! They actually found "that when lawmakers consider whether to expand copyright law, there is little empirical or theoretical support for the position that increasing copyright protection will increase the number of new works created."

Despite a lack of evidence that would spur calls for a fundamental rethink in almost any other area of public policy, copyright continues to spread and strengthen, from books to computer programs to online works, from a renewable 14 year term to life of the author plus 100 years in Mexico.

And of course there's Ian Hargreaves' 2011 report, which called for UK copyright policy to be "evidence based." Imagine that.

While none of this will surprise readers of this website, to any non-copyright policy wonk this state of affairs is insane.

It's not that all (or even most) public policy is purely evidence based (see: Drugs, War on). Power, self-interest and morality shape all policy debates. But copyright is unique in that it is driven almost purely by these factors. Even morality-based arguments for the War on Drugs have to contend with the actual, measurable effects of government anti-drug policy.

Copyright reforms should be evaluated based on how they would affect the production and dissemination of creative works. How much is being produced? How many people are able to access these works?

That doesn't happen. Instead, policy is driven by morality-based arguments about how copying is theft, and by its effects on specific industries and business models (often citing industry-supplied data). Not good.

We'll never eliminate power and self-interest from copyright politics. However, it could be made a bit more sane by adopting an evidence-based focus on how well it fulfills its dual objectives in the interests of society as a whole. In doing so, analysts could help ground a debate that, in the absence of evidence, is polarized by self-interested arguments and irreconcilable questions of morality and "rights." This should've happened 300 years ago, but better late than never.

Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.

Filed Under: copyright, facts, faith-based, policy making

How Multilateral Free Trade Agreements Are Bypassing Democratic Decision-Making Around The World

from the behind-closed-doors dept

One of the most worrying aspects of ACTA -- which began life as a "simple" treaty about combatting counterfeit goods -- was how it morphed into a new approach to global policy making. This had two key aspects. First, the treaty would be negotiated in secret, with minimal input from the public, but plenty from lobbyists, who were given access to key documents and to negotiators. Secondly, the results of those secret negotiations were designed to constrain the participating governments in important ways that nullified ordinary democratic decision-making. If at all, representative bodies were presented with a take-it-or-leave it choice; changing individual details was not an option.

That, in its turn, meant that public in those countries had very little chance to fight harmful provisions in a treaty, since the only way to do that was to persuade their government to reject it completely, which was extremely difficult after the years of negotiation. The European Parliament's dramatic refusal to agree to ACTA was largely because of the unusual division of power in the European Union.

TPP has adopted exactly the same process: negotiations behind closed doors, but this time, without even the occasional official release of drafts as happened with ACTA (luckily, there have been leaks.) And assuming the negotiations are concluded successfully, it is likely that national legislatures will be presented with the same take-it-or-leave-it offer, with huge pressure to accept.

More recently, the newly-announced transatlantic free trade agreement (TAFTA) between the US and the EU is gaining momentum, not least in terms of the countries that may ask to join. At the last count, these included Mexico, Canada and Turkey. The US has also started talking to West African states about a free trade agreement, and it's easy to see that being rolled into TAFTA at some point.

TPP is also expanding rapidly. Mexico and Canada have already joined, under pretty humiliating terms, while Japan has signalled that it wishes to do so. Recently we learned that South Korea and Taiwan are considering applying.

As we've noted before, putting together TPP and TAFTA, it's striking how they include all of the world's biggest economies outside the so-called BRICS group of emerging countries -- Brazil, Russia, India, China and South Africa. The natural response to being locked out of the two US-centric trade areas would be to form their own, and in fact India has begun talks with the Customs Union of Russia, Belarus and Kazakhstan about a free trade agreement. Significantly, enlarging that to including other nearby countries is already being mooted:

Kazakhstan's neighbour Kyrgyzstan is likely to be the fourth entrant and Tajikistan could over time be the fifth country to joint the Customs Union. Ukraine, Armenia and Moldovia would also be moving close to the Customs Union but for some time they are likely to be the first three countries outside the core.

Meanwhile, China is keen to form a major trade bloc with South Korea and Japan:

"China's intention is to first form a Northeast Asian economic cooperation that excludes the U.S. while Japan can't sit still as South Korea advances to the Chinese market with Korea-China free trade talks," said Heo Yoon, a professor at Sogang University Graduate School of International Studies.

It's easy to imagine other countries that are part of the Association of Southeast Asian Nations (ASEAN) Free Trade Area joining the group if and when formal negotiations get underway, not least because ASEAN already has free trade agreements with China, Japan and South Korea.

Although bilateral trade agreements are hardly new -- Wikipedia lists dozens of them, some going back to the 1980s -- there has definitely been a step-change recently. Increasingly, the emphasis is on joining multilateral free trade agreements like TPP and TAFTA, involving significant numbers of countries. On the part of smaller nations, their interest is probably driven by a fear of getting shut out of key markets. But for the bigger players -- notably the US and EU -- it's a convenient way of imposing unpalatable policies not just on the citizens of other countries, but on their own, too.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, democracy, free trade agreements, policy making, tafta, tpp