Televised debates and the General Election

I spoke with Raidió na Gaeltachta this morning on the upcoming TV events and debates in the UK general election campaign (which I guess starts officially today with the proroguing of Parliament, in advance of dissolution on Monday).  It has of course been a long time getting here – not just the long-running campaign, but the attempt to agree a format for the debates and “debates”. For someone working both in media law and in public law, it’s a fascinating topic.

The conversation is in Irish; listen again here.

Edit: A follow-up discussion, the morning after the night before, is available here.

Recommended reading, 7-13 February 2013

News, blog posts, etc

European Commission, ‘EU Cybersecurity plan to protect open internet and online freedom and opportunity‘ (press release, 7 February 2013).  Marking the release of a new strategy and proposed Directive (download both of them here) on this topic.  The interesting bit about this is how it’s framed – legally speaking it’s an internal market measure (not crime!); strategically, it follows up on the many comments about ‘trust’ in the Digital Agenda documents of the last couple of years.  While most of the operative provisions of the Directive are about national authorities for infrastructure and cooperation between them, there is an interesting (proposed) obligation for member states to regulate ‘market operators’ in terms of security and also notification of breaches.  (Incidentally, is this category of ‘market operator’ a new one?  It has two sub-categories – information society services ‘which enable the provision of other’ ISSes (examples in an Annex are cloud computing platforms, app stores, search engines, social networks), and operators of certain types of critical infrastructure.  Art 14 doesn’t apply, in essence, to telephone/mobile/broadband providers, because the electronic communications directives already occupy the field.  (It also doesn’t apply to certain players in the much-maligned electronic signatures field – although I read that exclusion as being broader than those entities contemplated in the 1999 Directive).  (The ‘open internet’ etc language of the strategy and press release is slightly overstated, I think).

John Brodkin, ‘Wi-Fi “as free as air”—the totally false story that refuses to die‘ (Ars Technica 8 February 2013). This is most curious. The (interesting and potentially significant) work of the FCC on what to do with UHF ‘white spaces’ – spectrum formerly used or left as a buffer for TV broadcasting but becoming available for other uses – has been of interest in IT law for some years now.  Then seemingly from nowhere, a normal development in the regulatory process became the basis for an article about free wifi.  This is not to say that white spaces and Internet access are unconnected; clearly, it’s one of the reasons that people beyond spectrum gurus talk about it.  (I wrote about it in passing in this 2009 article, in section 5.5).  But the licensing process does not deliver a free service by any means (even if, as is being discussed, the regulatory model would not include a license fee for spectrum use).  Nor has anything particularly interesting happened in recent weeks – as Brodkin’s deconstruction points out, the interesting stuff either happened a few years ago (when the opening up started) or will happen in the future (if new services are launched).

Simon Fodden, ‘Edwin Mellen Press’s Curious Case‘ (Slaw 10 February 2013).  A comment, with plenty of links, on the developing (and worrying) story about the huge defamation claim (the applicant seeks the equivalent of over £2m!) against a librarian (who wrote some quite critical things about a publisher, informed by his knowledge of the field) and his university employer.  I would certainly not have anything to do with this publisher as a result of its actions in this case (whatever about the underlying allegations themselves!).

Alexander Hanff, ‘The murky world of privacy advocacy‘ (10 February 2013). A new blog and a rollicking start, with a detailed analysis of corporate funding for tech-related NGOs. It’s about time. Given the field I’m working in, I’ve seen quite a few of these organisations (and indeed, their close cousins, the consultant reinventing themselves as an NGO/think-tank with no membership, no membership and often nothing to add). I think the post by Hanff demonstrates a very honest attempt to understand the weaknesses of the lobbying system and reminds us all to think about the motives as well as the contents of interventions.

Virtual currency and virtual property revisited‘ (Technollama 11 February 2013). An overview of recent developments on virtual £££ and IP and other things, prompted by a piece in Forbes which mostly about virtual property). See also this nice PBS video on Bitcoin, etc.

Academic articles

Nina Mendelson, ‘Should Mass Comments Count?’ (2012) 2 Michigan Journal of Environmental & Administrative Law 173 (SSRN). This is a response to the author’s earlier work (and a debate about it), but reading the article covers much of what before quite neatly.  The issue is a controversial one – how, when public consultation happens, to deal with different forms of participation (particularly one-click or template methods).

Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34’ (2012) 12 Human Rights Law Review 627-654 (£, link).  The author of this article was the rapporteur work on this General Comment and discusses the comment as well as some of the cases and stories it relied upon.  Watch out for the interesting discussion of article 19 and emerging technology, too.

E Tarantino, ‘A simple model of vertical search engines foreclosure’ (2013) 37 Telecommunications Policy 1 (£, link).  The new volume of this journal (mix of law, business, economics, etc) starts off with one of the topics of the year, competition law and search engines.

Intellectual property: love or hate?

Now available via ‘advance access’ (institutional login required) to the Journal of IP Law & Practice (JIPLP) is my colleague Prof. Christopher Wadlow‘s barnstorming piece on Marmite, the BNP and the law, The Marmite Election. I had the pleasure of hearing the ‘live’ version of this piece earlier in the year, and it has already received a good deal of informal praise (including from those outside of law – note the use of semiotic theory and cultural studies alongside the expected doctrinal legal analysis). Aside from the thorough analysis of a range of trademark, copyright and passing off issues, including the relationship between these points and freedom of political expression, the reader will also find a remarkably wide range of references to authors, bands and musicians (from Florence & the Machine to Morrissey via Vera Lynn and Samuel Beckett), the X Factor and snowclones (to name but a few) in the text and footnotes. It’s also quite funny, and as such is an appropriate way for JIPLP to mark the end of another busy year. Enjoy!

Matthew McGregor (Blue State Digital) at UEA

Live-blog. Excuse errors, lack of links, etc. Now complete, but will be revised and corrected at a later stage. Note that this should be read as summary/paraphrase not verbatim, not checked with speaker or recording, etc

Nick Anstead (lecturer at the School of Political, Social & International Studies) introduces the guest. He mentions interviewing McGregor during his PhD research, and his discovery that Jon Cruddas’ campaign was McGregor’s handiwork, and also the very current work with the Man. United supporters. We start with questions and answers.

Q: what are the differences between old and new style campaigning?

A: there isn’t a big difference. ‘Election campaigns are won by people speaking to their neighbours’. It’s how you use your email lists / followers – building of relationship, turning it into action (which is as a whole, offline). These tools are means to an end, e.g. talking to people at a door about reasons to vote for a candidate.

Q: indeed, this isn’t a completely revolutionary break. So if I was a potential customer and asked what is the BSD method, how would you pitch that?

A: first, a caveat: you can have the best technology, campaign and strategy in the world, but if your product isn’t good, that’s still a problem. McCain wouldn’t be president if he had Obama’s tools – he had the wrong vision for America. So: using online communities is a principle that can be applied – trade union, individual, not just in the US – but there are still differences between tactics. That said, you must operate with transparency and authenticity. (1) During the Obama campaign, David Plouff recorded short videos on his Mac explaining (in a reasonably open way) what was going on. People want to see openness if they are investing time in an organisation – treating with respect.

An example is email, 3 questions before you send – why am I on this list, what do you want from me right now, what comes next. Email is the most important tool right now – not Twitter or Digg! It’s about starting a conversation (like door-knocking), while a website is more like a street stall.

At the RNC, Sarah Palin said ‘do we really think that being a community organiser is a qualification for being President’ – attempt to put Obama down, but also directed at those campaigning for him. 10 minutes later, email by Obama campaign in response, sent to 10 million users. More money raised from this than any other email during the campaign.

Q: can you talk about Hope not Hate, a British example with some success?

A: 150k on the email list – up from 6k. Shows example of email – ‘not a newsletter’. One thing is the focus. Key information is in first 2 lines. One action requested – click on link and type in name (in this case, co-signing letter to local newspaper). Also provokes to tell friends – press a button, forward/tweet/share/etc. On average, every time someone takes an action, tells three others. This builds up the total number. This can mean quick and powerful responses, e.g. over 10k emails to head of ClearChannel protesting at BNP advertising. Time is important – e.g. email sent out after midnight when BNP candidates were elected with a bigger task – 7,500 uploaded ‘not in our name’ photos – ultimately turned into video. This is a good way of talking about social media, which can work to amplify (e.g. video and petition), which again brings more people in. For Facebook, though, you don’t control the data and it’s not your site – ‘they are more like embassies’, a tourist strategy. Also: you don’t persuade people not to vote for the BNP by sending emails to your friends – you need an offline strategy. For HNH this was flooding areas with campaigns, getting people on the ground. The email etc drives people to take offline action. Barriers to joining in are lowered, e.g. no need to demonstrate passion to ‘join’, search by postcode rather than specific contact details, etc. For HNH, ended up delivering more leaflets than the 2 major parties during the European campaign, over 3m, much more than planned.

Now to talk about donations. Obama raised half a million dollars from activists including through social media. You can indeed raise funds through the same type of emotional connection that drives campaigning – this is different to traditional charitable approach where donors don’t get ‘involved’. Presents the ‘ladder of participation’ – breaking down the email list, from ‘freeloaders’ (don’t read or read infrequently), then affiliates (read but little response), responders, volunteers, participants, donors, evangelists, superstars. For HNH again, offered training on how to do more at one of 12 venues – now has 550 people across the country, without previous political involvement, now active in communities. This is more inspiring than a large email list.

Audience questions:

Scott Wright: Is campaigning itself being democratised? Is this ‘revolutionary’ – e.g. would Obama have succeeded without new media? Also, is there a difference due to the cynical voters of the UK? Third sector more successful than political parties in the UK?

A: Both Tories and Labour say they haven’t been able to utilise tools because Obama was a ‘start-up’, it’s like turning around a tanker. This only goes so far – and tools don’t change fundamental human relationships. HNH was around and working, but new media amplified it. You could also ask if Kennedy wouldn’t have been President without TV. In the coming election, independent non-party groups will make a major impact, and social media will make an impact on the reporting, in particular the leaders’ debate.

John Street: do you worry about the populist (or negative) aspects?

A: I don’t think so: the interactions are much deeper than soundbites, politicians are incentivised to get involved in longer conversations. Like all tools, can be used for good or evil. Two examples from Obama: (1) Obama voted to absolve telcos for wiretapping, which supporters didn’t like, using tools on Obama website to organise against this – this wouldn’t have happened in the UK, but in this case it stayed, Obama responded on the group, 3-hour webchat, was explained to press as a different style of campaign. (2) during the transition, people could leave policy ideas on the website, legalise cannabis was top of the poll, slightly awkward but lots of ideas are circulated and this is positive. Mentions here too Power 2010 campaign in the UK, with 3,500 detailed reform proposals often on constitutional details, broken down to 30, then to 5 for campaign (100,000 votes). By opening things up, you find people interested in the future of the country, and maybe we aren’t as cynical as is thought.

Rupert Read: how much do you charge?

HNH – 3 members of staff; Labour – 4 working on new media; Obama – 110 on new media by end of campaign. To do the type of work that is expected, especially breaking down to categories, it can take a lot of time (e.g. HNH emails are broken down to around 10 targeted mails). There isn’t a menu of prices, but it’s substantial and a lot of organisations cannot afford. But alongside this, a small list of friends or a major managed list, the same principles apply.

Q (?): Is political activism through new media possibly capable of being based on rational arguments or just calls to action?

A: Referring to the HNH email discussed earlier, it involves rational arguments but also strong emotional appeal in a short email. The same link is used in a number of different places.

Q: does new media organised grassroots or astroturf?
Q: is Blue State Digital as a name a statement about politics (Democrat support?)

A: taking 2nd question first – yes, we are a Democratic-supporting firm (blue states on electoral map), we are on the left – trade union, social democrat, won’t work for companies that act in negative or damaging ways. On 1st question, new media can be used for either. We’ve been here before, e.g. use of radio. Yes, can be used to ‘fake’ activism, but on the whole people may see through this.

IDP2009: Written Report of Day 2

This post is a slightly more structured version of the report I presented at the end of the second (and final) day, with the slides available here. It’s reconstructed from speaking notes and is presented to give virtual attendees a chance to sample my dubious words of wisdom. All comments are still welcome!

The second day of the conference was certainly as interesting as the first, although the approach was quite different in parts, drawing on the political process and political science rather than the more legal approach of Day One. The theme for this was set by Agustí Cerrillo, director of Law & Political Sciences at UOC, in his opening remarks, highlighting the importance of co-operation between the businesses active in the area, although this raises further questions about the appropriate balance between self-regulation and established legal mechanisms. Our main questions were ‘what will we do’ – what will the development of social networking enable us to do, and ‘how will we stay safe’ – i.e. how we and our services are protected, noting that cybersecurity in the UK and US are seen as part of a broader narrative of national security but also that political participation and similar uses require confidence in security, data protection and more if they are to be as transformative as promised.

“In a time of crisis, the international community turns its attention to the Information Society”. This remark, included in the Spanish government’s recent update to the Avanza plans discussed so clearly by Oscar Martinez in the second session of the day, is a really important one, and we can see the parallels for this in many jurisdictions, including those like Ireland where economic growth was said to have been built on ICTs. The difference, though, is that we are now more interested in public services and political context rather than in attracting large industries for hardware and software alone. The next Spanish presidency of the EU will take forward important topics: safety on the network, e-commerce, copyright protection as priorities. On the specific issue of safety, the role of ‘confidence, security and accessibility’ helps us to understand why it matters. However, it is important to situate this work in the context of recommendations of the Council of Europe, the OECD, the ITU and others. For our purposes, we should come away today knowing that there are interesting projects at a national level that can be a building block for international co-operation.

Oh what a difference an O makes – this was the key point I take away from Jose Manuel Alonso’s discussion of open government, as distinguished from e-government. His three pillars of citizen-centred services, designed with transparency and accountability, and the fostering of innovation, underline the role of open data in the broader governmental project. He was critical, too, of the focus on availability rather than use in some of the metrics and research available at present. Usefully, then, Nacho Alamillo’s discussion of security risks, and the need to foster a culture of security, made an important link between electronic administration and the need for protection and proper planning.

Whatever about the economic situation, there are certainly good examples of where trust in politicians is at a low level, with the example of the expenses of British members of parliament cited by Ismael Pena-Lopez in his opening remarks. He paid tribute to the Guardian’s tool that enabled users to assist in the massive project of reviewing the disclosed documents. Indeed, this entire affair is characterised by intruiging uses of both law and technology – FOI precipitated it, new media stirred it up, open data enhanced scrutiny and even the political reforms included the appointment of Tim Berners-Lee to reform UK government policy on data. So Jose Antonio Donaire’s comments on a ‘crisis of authority’ and the looming paradigm shift are helpful, as is Alberto Ortiz’s reminder that no political party can win an election on a promise to digitise the administration alone! We also heard, in the last session, a very helpful discussion of the need for political spaces 2.0 rather than mere politics 2.0, and I think that the presentation by Ricard Espelt showed how, even at a local level, the concerns of the citizen can be put at the centre of new models. His virtuous circle of complaints, resolutions and reforms is a remarkable case study and, along with other presentations today, serve as a timely reminder that consideration of social networking and its social context should not begin and end with the Obama campaign. We are reminded by Maarta Cantijoch’s research that those in the ‘critical’ category are attracted by unconventional or extra-representative forms of participation and how new technology can facilitate that.

We have taken care, though, not to fall into the trap of believing that either data or platforms can solve everything. There are, as ever, mixed consequences. Take for example the application that Jose Manuel Alonso discussed: Are You Safe Washington DC, using information from the DC data catalog to create an iPhone application that provides information on the crime stats where you stand. To me,this is a creative use of public data and an example of the right spirit, but what of the consequences of the on-site ‘blacklisting’ of a neighbourhood – or indeed the fact that the application itself depends on being permitted by Apple to be included in the iTunes App Store, with some controversial exclusions in recent weeks? Finally, we returned to the question of IP, in Graells’ discussion of Creative Commons licensing in Catalonia, which, as well as showing how to drive through a positive project, highlights the ongoing dialogue between creativity and bureaucracy, as he put it.

So what to we do next? Well first of all, we can take up Alonso’s invitation to send comments to the W3C’s Access to Government interest group. But we should also be cautious – to build on Ortiz’s discussion of the 19th-century ‘come back tomorrow’ satire, if we were to ‘come back next year’, would we see the same politicans using Web 2.0 like they promised? Espelt said that his project was in ‘constant beta’, which is a fair description of many of the projects discussed today. Indeed, if we were to look back to last year, or two years ago, the sites being discussed would have been different – a lot more Myspace and a lot less Twitter. Thinking of Twitter, then, the conversation through that platform has been very interesting, and deserves reading (in multiple languages).

To conclude: social networking forms a very important part of what we are doing right now, but some issues have been canvassed with earlier discussions on virtual identity (e.g. Sherry Turkle’s Life on the Screen, nearly 15 years ago!). Today’s proceedings have been characterised by the experience of learning what has been happening, not just by national governments but by sub-national entites and international collaboration. The legal discussions of Day 1 are useful here, particularly where we can understand the role of law as facilitator of innovation and protector of an open, activist culture. We must also consider whether existing laws are being enforced, and the social consequences of non-enforcement, particular in the area of data protection and privacy. I do hope that the conference has been as valuable to participants present and virtually present as it has been to me.