SFLC represents FOSS developers at the OECD 2016 Ministerial Meeting on the Digital Economy: Innovation, Growth and Social Prosperity

By Mishi Choudhary | June 27, 2016

On 21-23 June 2016, Ministers and stakeholders gathered in Cancún, Mexico, for an OECD Ministerial Meeting on the Digital Economy: Innovation, Growth and Social Prosperity, to move the digital agenda forward in four key policy areas foundational to the growth of the digital economy. Our Legal Director, Mishi Choudhary represented the United States civil society at the OECD Ministerial Panel on The Economic and Social Benefits of Internet Openness, chaired by the Canadian Minister of Innovation, Science, and Economic Development Hon’ble Navdeep Singh Bains.

Questions 1 & 2:

Q – What are the best practices, policies, and regulations for harnessing the full potential of Internet openness while taking into account the challenges raised by Internet openness?

Q – Given the strong potential for a country’s digital economy policies to have effects beyond its own borders, what is the best way for stakeholders to address Internet openness opportunities and challenges cooperatively?

Here is an excerpt of her remarks.

Thank you OECD for your work that provides guidance to countries beyond your membership. Thank you to all the civil society members here and users of the internet to whom the net belongs and all other institutions are merely trustees.

I am a lawyer and the meaning of words is crucial for me. Unlike many a buzz-word in the tech world, the words being discussed here are not the product of a marketing genius but convey the real meaning and promise of the net.

Openness might be best defined here as “openness to participation” – its the breadth of participation which technology makes possible. It started with Free and Open Source Software (FOSS) at the end of 20th century. What that did was made participation in software making and services by allowing everybody to copy, modify and share possible for anyone who was interested. The internet allows everyone to participate because protocols are open, they are adopted by consensus and everybody can implement them. We talk about open APIs and open standards when what we mean is that process of technology definition at the API level where programs talk to one another and standards where organizations and programmers in FOSS projects discuss harmonization or common approaches, in those cases open APIs and open standards mean is everybody can participate-you don’t have to pay to play. This is crucial in the same way that open participation in science is crucial, everybody is there because we learned in 20th century that maximum participation makes better social policy.

The possibility of this broad participation is the real, economic and social promise of the net and when we talk about open what we are always referring to are the participatory mechanisms and cooperation through methods pioneered by the sharing economy.

OECD’s goals should be the operational equivalence of the propositions of openness, transparency and participation. In that context, best Practices are those that involve

  1. Use of federated services and not centralized services that maximize participation and minimize centralization.

  2. Always using software that everybody can copy, modify and share and use it in ways that anybody can inspect-Free and Open Source Software (FOSS) and using the community to train your populations on real technical skills.

  3. Not talk about technical education using vendor names such as access to knowledge via one of the platform companies and online education websites as that isn’t technical education but brand slaves. That’s what my technology clients know and evangelize.

  4. Whether you like it or not Internet’s default is the U.S. First Amendment and what we risk is moving to a world where speech is stifled and internet shutdowns become norms.There has to be in built respect for free speech and expression and other crucial human rights without which we can only pretend to achieve the full potential of the net.

  5. Trade negotiations that are increasingly covering access to knowledge, data sharing, information flow are negotiated in secrecy creating multiple layers of regulations and laws that will lead to whole different kind of fragmentation. The opaqueness of such arrangements not only create uncertainty but takes away voices of the users.

  6. Increase use of encryption for security and intelligent conversation around data security, shunning the belief that math will work differently for the good guys and the bad guys, in other words stop the talk of backdoors by security agencies.

  7. Data localization demands by multiple jurisdictions prompt from not only the desire to control, but also tax complications because of multi-national nature of platform companies and must be addressed.

  8. Watch developing countries and let information and learning flow both ways, for example the fintech revolution in India, mobile payments of not only bringing a large democratic population under a public distribution system but using biometrics and mobile technology to check corruption and learn from them.

  9. Mandate network neutrality, equality and integrity with a complete prohibition on creative ways of creating winner and losers by the Telecom Service Providers in the guise of zero-rated platforms, sponsored data that increase the barriers of entry to market.

  10. Encourage open-data practices in all government dealings as sunlight is the best disinfectant- making a number of datasets open including: public contracting; company ownership; budget, spending and corporate tax records; inter alia other information.

  11. Intellectual Property Rights regime is not an end in itself and its affect on access to knowledge and sharing of data has consequences rarely discussed in forums dealing with internet issues. As pointed out earlier, these issues are often conflated and confused. Sharing is what makes internet possible therefore creative commons and FOSS have become an inherent part of internet economy and they are conspicuous by their absence in these discussions and OECD reports.

  12. Strengthen the regulatory landscape around competition in countries, toothless anti-trust regulations that fail to check most powerful companies and their alliances are one of the biggest threats to openness.

  13. Shun using the term multi-stakeholderism while paying only lip-service to independent voices or risk being rejected by people all around the world as a result of internet powered communications. They use these tools to bring revolutions and will no longer subscribe to empty rhetoric.

  14. Ensure affordable and non-discriminatory internet. Inclusive participation means having diverse voices especially from the global south with effective remote and national level participation.

  15. In the age when artificial intelligence is becoming a reality, retrofit Isaac Asimov’s “Three Laws of Robotics”

  1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.

  2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.

  3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

Question 4:

Q4 – Given the strong potential for a country’s digital economy policies to have effects beyond its own borders, what is the best way for stakeholders to address Internet openness opportunities and challenges co-operatively?

Response to Q4:

As the world bank rightly says digital dividends aren’t going to be reaped without analog infrastructure. No magic.

Continuing our prior discussion about openness, on the basis of that preference for participation, we now have to observe that while we want to broaden everybody’s participation, we don’t want to make identity the price of participation. Everywhere now the people who use data mining on identity are trying to understand individuals and groups of individuals in order to predict their behavior whether to sell advertising or perform government functions. All the people who mine identity have an impulse to condition participation on disclosure of identity. This is the problem that we are calling- privacy.

It is helpful to be analytically clear about what we mean by privacy just as we what we mean by open.

Privacy—as we use the word in our conversations now all around the world, and particularly when we talk about the net— really means three things.

The first is secrecy, which our ability to keep messages “private,” so that their content is known only to those who we intend to receive them.

The second is anonymity, which is our ability to keep our messages—even when their content is open—obscure as to who has published them and who is receiving them. It is very important that anonymity is an interest we can have in both our publishing and our reading.

The third is autonomy, which is our ability to make our life decisions free any force which has violated our secrecy or our anonymity.

These three are the principle components of the mixture that we call “privacy”. With respect to each, further consideration shows that it is a precondition to the order that we call “democracy”, “ordered liberty”, “self-government”, to the particular scheme that we call in the United States “constitutional freedom.”

Without secrecy, democratic self-government is impossible. Because people may not discuss public affairs with those they choose, excluding those with whom they do not wish to converse.

Anonymity is necessary for the conduct of democratic politics. That’s why the United States jurisprudence is so important.

What we are trying to do is secure participation without destroying autonomy that has a lot of high level consequences. We don’t want people carrying packets with too much awareness of identity.

There is too much effort now to increase the security of government computers by increasing secrecy, that is exactly wrong. What we really want is transparency, and we want an approach to security that takes advantage of transparency to prevent things from hiding where we can’t find them. We need to deal with the organs of public security and their need to do things which are subject to the rule of law. At the same time we need to understand that tools like those not under the control of rule of law are despotism and they are desperately dangerous and so humanity has now a new challenge in dealing with these tools because they are both necessary and also desperately dangerous.

Difficulty that we have now is that the level on which we are effective in dealing with this is national, we are beginning to watch national governments take charge of understanding and build that level of policy for them but in the same way that people don’t see as privacy as an ecological matter, governments are not yet able to work with one another to conceive their digital policies as part of an ecological whole. They are too much involved now in security and borders. They are not spending enough time even beginning to think about what it means that humanity is connected but are spending all their time trying to decide about what it means that their citizens are connected. As a consequence of which governments by and large are hostile to the platform companies—not because platform companies are dangerous to their citizens—that ’s not mostly what they think about. They think of platform companies as threats to their own national sovereignty and autonomy.

What we need is a re-think of all of this.

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