A new platform called Madison seeks to bring more voices to the table, but a few design flaws mar the whole effort.
There is no question that the reviled anti-piracy bills, known as SOPA and PIPA, were terrible. The ways in which they were terrible have been explained across the Internet. But understanding how they were bad is not the same as understanding *why* they were so bad, and the reason extends beyond these particular bills to a persistent issue with intellectual property laws and regulations more generally: the asymmetry of input during the drafting process. In the drafting of SOPA the public and, importantly, the tech community were not consulted during hearings. When the process is so imbalanced, the results will be imbalanced as well.
In the wake of these bills, their two most vocal opponents in Congress, Senator Ron Wyden (D-OR) and Congressman Darrel Issa (R-CA), have proposed alternative legislation, called the Online Protection and Enforcement of Digital Trade Act (OPEN), that they attempted to craft using a more open process, taking innovative steps to correct the perpetual asymmetry. Inspired by the James Madison quotation, "Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives," they created a platform, called Madison, to facilitate crowdsourced commentary and editing of their bill.
In order to evaluate this potential solution we need to fully grasp the problem. It follows the typical contours of anti-lobbying arguments. What has come to be known as "Public Choice Theory" indicates that the preferences of a small, organized group often overwhelm those of the general public. The political economy behind the problem is clear: when legislation significantly benefits a small group and the costs are diffused across an entire population, the small group will have the incentive to organizing and advocate for their interests, while the everyone else -- each negatively effected to a lesser degree -- won't organize around the issue. The resource imbalances at play when the small group is a well-funded industry exacerbate this problem. Basically, this is why the huge lobbying apparatuses of industries dwarf public-interest and consumer-watchdog groups. In a process analogous to "regulatory capture," legislation often ends up being written (or at least substantially framed) by those who stand to benefit from it. For SOPA and PIPA, the benefits of stronger enforcement would have accrued to groups like the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA). SOPA and PIPA were largely the result of a structural problem that is well understood by political scientists. Legislation is always likely to favor the industry because of the asymmetry between who has the incentive to organize and be involved in the drafting process of bills.
What this makes clear is that there are two key dimensions that shape the input legislators receive during the drafting process: barriers to entry and incentive. Lawmakers only hear from people or groups when their incentives overcome the barriers. Typically, barriers to entry are high -- organization, money, and lobbyists are required -- so incentives must be high as well. Thus, those with strong incentives (read: the industry) overcome those barriers.
Thankfully, the same factors that shape the problem indicate the solution and tell us that Wyden and Issa are on the right track. By significantly lowering the barriers to entry the process becomes open to more than just the concentrated interests who are willing to spend millions lobbying because of their huge financial stakes in the outcome. This is exactly what Wyden and Issa have attempted to do with OPEN. They set up a website, keepthewebopen.com, to host a publically editable draft of the OPEN Act text. Changing the barrier to entry from "find enough like-minded committed people to fund a lobbying apparatus" to "go online and participate" makes it possible for a diffuse an unorganized assortment of people, such as net-freedom activists, to be part of the conversation.
While innovative, the Madison platform is not without precedent. President Obama, for instance, flirted with crowdsourced agenda-setting early in his administration. In the U.S, though, the use of technology for "good governance" purposes has mostly focused on transparency rather than engagement, as can be seen in the work of the Sunlight Foundation and data.gov.
However, the crowdsourcing of OPEN fits neatly within the landscape of using online "collaborative consultation" that is emerging internationally but has been slow to come to the U.S. These initiatives use web 2.0 technologies that were designed for non-political purposes, but specifically with low barriers to entry and facilitating engagement in mind, to involve citizens in the political process. The first recorded example is from 2007 when the New Zealand Police Commissioner put the widely criticized 1958 Police Act online as a wiki and invited people to edit it as they saw fit. Similarly, in 2009, the Melbourne city government set up "Future Melbourne," a wiki for residents to collaboratively engage in drafting the city's official ten-year plan. There are many other examples, but by and large they have remained niche enterprises. The extent to which they exist in the U.S. is mostly limited to "submit comment" email forms on agency websites.
So, Wyden and Issa are on to something, but how well does their platform actually work and what kind of participation is it facilitating? Here the picture is less clear. When Issa unveiled the project he was quoted in RollCall as saying:
We developed Madison to empower those shut out from the process that produced SOPA and PIPA. It is an ongoing experiment in direct digital democracy, but the introduced version of the OPEN Act is proof that crowdsourcing can deliver better bills and a more accountable government.
Several things are worth noting. OPEN is a much better bill than SOPA, but much of the improvements were in place before it was put online, the result of SOPA criticism. But, on the other hand, many participants on Madison did make substantive contributions, including catching an error where the draft referenced the wrong piece of existing legislation, streamlining the procedure the bill dictates, and fixing a provision to acknowledge that domain owner and registrant are not necessarily the same thing. The importance of these contributions should not be underrated. They demonstrate that in an open venue the public is able to make informed and meaningful contributions. Moreover, these contributions are specific and contextual to the bill rather than the form-letter or opinion rants that are common when consultation is separate from drafting and people submit stand-alone statements in support or opposition.