Principles, Norms, and Constraints: building a new national approach to digital issues

Discussion document for the new IIEA National Digital Principles Group: We are present at a unique moment in time when the shape and character of the emerging digital area is becoming clear. To grasp the opportunity, consider as historical precedents the decades following Gutenberg’s Press, or early decades of the Industrial Age. Strategic and inventive thought is critical at this moment because now is the time when the gains of smart action, and the costs of poorly conceived action, may be greatest.

A note of context about this document: The IIEA has started a new initiative that draws together heads of and senior personnel from government departments, regulators, startups, VCs, legal experts, and thinkers. The idea is to build a new approach to national decisionmaking on digital issues. Eamon Ryan, a former minister for communications (and no family relation, despite the name), is chairing the initiative and I am leading it as a pro bono side project. Eamon approached the IIEA to start this initiative with the idea that Ireland needs a set of “national principles” in its approach on digital issues. In the discussion document below,  I set out the approach by which we will weigh these principles against each other, and against technical constraints.

Introduction

We are present at a unique moment in time when the shape and character of the emerging digital area is becoming clear. To grasp the opportunity, consider as historical precedents the decades following Gutenberg’s Press, or early decades of the Industrial Age. Strategic and inventive thought is critical at this moment because now is the time when the gains of smart action, and the costs of poorly conceived action, may be greatest.

As a starting point, let it be established that though the objective of this exercise is to produce guidance on specific areas of policy, and develop concrete positions that will have an impact on citizen’s daily lives, this document begins with what may appear a rather abstract layer of work, under Tier 1. We take this approach because we believe that it is necessary to consider the macro view before working toward specifics – particularly now, at a time when continuing blindly with the assumptions of the Industrial Age may obscure the best course of action under the new conditions of the emerging digital era.

Four tiers: from macro to micro view.

Four tiered approach to determining Irish national approach to digital issues

Tier 1 Pattern 

This tier describes the overarching change of the emerging digital era, and how the assumptions of the industrial era should be recast to better fit the digital one.

What we propose to do: describe this pattern in a simple manner that establishes a foundation for thinking about policy in the digital era.

Proposed starting point: As a starting point Tier 1 may be summarised as a shift in control from central points to many points of equal power or responsibility across the network. This entails a trend toward empowerment of smaller organisations, and ultimately individuals, for good or for ill.

Tier 2 National Principles & Technological Constraints

This second tier has two elements: National Principles, and Technological Constraints. These elements, and the principles and constraints within them, will often be at odds.

National Principles refer to the national disposition toward large issues, such as ownership, privacy, and freedom of speech, etc. that arise in the digital context. Establishing these principles will not only guide policy, but will establish an important new dimension to Ireland’s international profile. The model for this is Frank Aiken’s “good citizen” position on nuclear disarmament at the UN. Another model is the recent Creative Commons movement, which mobilised support for a new approach to copyright.

What we propose to do: establish and publicise National Principles as models for international emulation.

Suggested National Principles: Freedom of Speech, Transparency, Privacy, Property Rights…

The second element, Technological Constraint, refers to the limits on our ability to pursue National Principles. Though the national disposition is to support a given course of action, technological constraints may render that action impotent, or counterproductive. This could apply to the issue of child pornography and to the protection of intellectual property, for example. Building this layer of “will it work” reasoning into the process will equip us to propose practical, achievable measures that fit with the grain of the technology.

What we propose to do: establish the technological constraints that act on national principles when formulating the norms in Tier 3.

Suggested Technological Constraints: (examples) web filtering ineffective, DRM (digital rights management) ineffective

Tier 3 Norms

This tier brings the elements of Tier 2 Together into a practical form that can be applied to specific challenges and opportunities in policy making. Norms are the result of weighing competing national principles, and then evaluating the applicability of the result in the light of any technological constraints that may apply. They are an “operating principle”. Since Technological Constraints are a moving target, norms can change in a way that National Principles do not. The norms exist to establish a practical basis for policy decision making.

For example, the principle (Tier 2) of freedom of speech might be trumped by the competing principle of protecting children from sexual exploitation, leading to the position that all conceivable measures should be taken against child sexual exploitation material on the Internet. However, the constraint of technology, when taken into consideration, renders this position unworkable since effective measures have yet to be found to properly block the viewing of this content. So though the principle may be to act against by blocking, the norm would be, for example, that only certain measures, such as improved judicial cooperation, should be considered. In this hypothetical case the norm we would arrive at is that Ireland is against blocking, and for enhanced judicial cooperation to expedite prosecution of producers of offending material.

What we propose to do: establish norms in initial areas of focus, and publicise these at national and international level.

Suggested areas of focus: (i) music, film & copyright, (ii) privacy and data use.

Tier 4 Specifics

This tier is the practical, concrete bottom layer that applies relevant Norms (Tier 3) to specific problems and opportunities. As an issue arises its specifics will be considered in the light of relevant Norms. Where time allows, and where no relevant Norms have yet been determined, additional Tier 2 principles and technological constraints can be considered to develop relevant Norms and provide a sound basis for guidance on the specifics.

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