Spotting Shadow Regulation
Case Study: the UK's Search Engine Voluntary Code of Practice
How do you tell the difference between a code of practice that responds to the needs of the Internet community as a whole, and a sweetheart deal cut between government and industry that avoids democratic accountability and sidelines users? This article reveals some of the telltale signs.
Our case study is the announcement this week of an anti-piracy agreement between search engines and creative industries, that was brokered by the UK Intellectual Property Office. This self-styled "Voluntary Code of Practice" requires search engines Bing and Google to take additional steps to remove links to alleged copyright-infringing content from the first page of search results that they return in response to user queries that would otherwise include such links, and from auto-complete suggestions.
1. Were Users Involved?
One of the simplest tests to discern the legitimacy of such a deal is simply to look at who was involved or consulted in its preparation. In this instance, the Voluntary Code of Practice was inked between Google, Bing, the British Phonographic Industry (BPI), and the Motion Picture Association (MPA). An additional thirteen members of a copyright holder trade group, the Alliance for Intellectual Property, have also endorsed the pact.
But as for users or their representatives, none seem to have been involved at any point. This is, indeed, one of the great advantages of Shadow Regulation for those who wish to conceal their dealings from public scrutiny. Unlike in a lawmaking or rulemaking process, no public consultation, nor any public hearings, are required to reach a "voluntary" private industry agreement, even if government is pulling the strings behind the scenes.
Inclusion of users is an essential precondition for any legitimate industry-wide agreement that affects the interests of Internet users. If users are not included, there is every likelihood that a deal concluded in their absence will trample upon their rights. To give a very practical example, the involvement of users might, for example, have ensured that search engines would not discriminate against results mentioning general-purpose technologies such as BitTorrent or Kodi. It could also help guard against further expansions of the agreement. That's incredibly important: the ink was not yet dry on the "Voluntary Code of Practice" before Stan McCoy, the head of the MPA in Europe, started criticizing it for not meeting even more of the movie industry's demands, calling it "Not Mission Accomplished."
Strike one against the "Voluntary Code of Practice."
2. Was Industry Threatened with Regulation?
There's nothing like the threat of government regulation to induce industry to acquiesce to a "voluntary" agreement that might stave off that threat. In this case, the UK government made very clear that regulation would follow if a "voluntary" agreement was not reached between search engines and copyright holders, as this passage from debate in the House of Lords illustrates:
While there are still elements of detail to be settled, the group is now agreed on the key content of the code and I expect an agreement to be reached very soon. All parties have also agreed that the code should take effect, and the targets in it be reached, by 1 June this year. The search engines involved in this work have been very co-operative, making changes to their algorithms and processes, but also working bilaterally with creative industry representatives to explore the options for new interventions, and how existing processes might be streamlined. I understand that all parties are keen to finalise and sign up to the voluntary agreement, and so we believe there is no need to take a legislative power at this time.
Surely it is better to act on a co-operative basis now, and start tackling this serious issue right away. If, however, a voluntary deal cannot be achieved, we will re-evaluate our options.
Beyond this, the official press release reveals that "Minister of State Jo Johnson MP will oversee the implementation of this Code of Practice, and the IPO will work with all parties to evaluate progress." Doesn't sound like a voluntary private effort any more, does it?
Strike two against the "Voluntary Code of Practice."
3. Is the Agreement Publicly Available?
Even if the public weren't involved in the development of the Voluntary Code of Practice, and even if search engines weren't coerced into agreeing to it under the not-so-subtle threat of direct government regulation, at least the agreement might claim a fig leaf of legitimacy if it were negotiated and published in a transparent fashion. Conversely, if the deal isn't even available online, that's a sure sign that the signatories may have something to hide.
Accountability is another of the simple conditions that EFF places on any industry code of practice that has a similar broad impact on Internet users as laws or regulations. Accountability isn't that hard to achieve. At a minimum, it includes transparency of the agreement and its associated documentation, as well as openness to independent reviews and audits as applicable.
In the case of the "Voluntary Code of Practice," the document has not been published anywhere by the UK Intellectual Property Office. It isn't even mentioned in Google's Public Policy blog, nor made available on BPI's or MPA's websites. In fact, it's not available anywhere on the web. We have requested a copy of it from the above parties, but were separately informed by two of them that they were unable to provide it, unless the UK government made it public. So we're marking this as a third strike against the "Voluntary Code of Practice."
So, let's tally up the results: with three strikes, we can chalk up the "Voluntary Code of Practice" as another example of Shadow Regulation at its worst. It didn't have to be that way. There was no reason why users couldn't have been invited to the table, and the results of the negotiations shared freely with the public. But since they weren't, the legitimacy of the resulting instrument is tainted by that failure.
Copyright maximalists have scored another win this week, but they haven't scored it fairly. Since Google reportedly won't actually be changing its algorithms in response to this agreement the practical effect of the "Voluntary Code of Practice" falls into the "could be worse" category. EFF will continue to call out examples of Shadow Regulation as we see them, and we will identify ways for the public to make their voices heard to oppose such shadowy deals.