1. Unintended Consequences and the Limits of Transparency
The Bhoomi program and digital divides
There is plenty of evidence both academic and anecdotal that government information can promote a good government. Each scandalous resignation is a testament to the speed with which information in the hands of the public can enforce accountability. But government transparency programs can also have unintended consequences.
Michael Gurstein wrote in a blog post169. Gurstein, Michael. September 2, 2010. Open Data: Empowering the Empowered or Effective Data Use for Everyone? http://gurstein.wordpress.com/2010/09/02/open-data-empowering-the-empowered-or-effective-data-use-for-everyone/ about the difference between opportunity and the ramifications of the actual uses of open government data. Gurstein pointed out that not all data yields an “effective use” of the data, and that is especially the case when not all individuals have an equal opportunity.
One studied case was the 2001 digitization of land ownership records in the south Indian state of Karnataka. The digitization project was called the Bhoomi program. The purpose of the program was to improve efficiency and thus facilitate trade and investment. It was also intended to reduce bribery, for instance, by using software to enforce first-come-first-served policies. But what was the result?
On the one hand, a large database of land titles, soil type, and crop use patterns was created. The records became an important part of how landowners could obtain loans and how farmers would buy seeds and fertilizer. This probably means the information made these markets more efficient. On the other hand, access to electronic records was slower than access to physical records on account of computer malfunction and power outages. Bribery reportedly increased because the number of administrators in the Bhoomi system was much greater than in the previous system (consider all of the new IT infrastructure). New conceptual complexities in the Bhoomi system put poorer individuals at a disadvantage, since they could less afford expediters that understand the system. And by shoe-horning complex legal situations into simplified computer forms, uncommon situations often encountered by the poor were marginalized out of existence. A 2007 report on the subject summarized the consequences of the Bhoomi program:
The main findings, at two levels, contrast conventional wisdom. First the digitization of land records led to increased corruption, much more bribes and substantially increased time taken for land transactions. At another level, it facilitated very large players in the land markets to capture vast quantities of land at a time when Bangalore experiences a boom in the land market.170. Benjamin, Solomon, R. Bhuvaneswari, P. Rajan, and Manjunath. 2007. Bhoomi: ‘E-Governance’, Or, An Anti-Politics Machine Necessary to Globalize Bangalore? CASUM-m Working Paper.
While bribery and electrical power losses are not much of an issue in the United States, the question of equal opportunity is still relevant. Gurstein later called attention to the 70% of individuals world-wide who do not have Internet access, the 80% who do not own a computer, and the 25% who are illiterate, all of whom could not access open government data and open government websites. The result is that new online tools for government accountability are “simply a means to further enable/empower those already well provided by society with the means to influence government,” he wrote.171. Gurstein, Michael. June 20, 2011. Open Data – Louder Voices? Open Knowledge Foundation Blog.
Clay Shirky has given equal opportunity an interesting twist. Typically, equal opportunity is based on something we think is out of the control of the individual: money, race, disability, social connections. That gives equal opportunity a moral grounding. But Shirky wrote, “If transparency lets all interest groups make use of improved information, then we would expect that the better organized interests to make better use of any new transparency.” In other words, we need to be careful not only of imbalances of accessibility to the information itself but also to imbalances in social infrastructure and political climate that affect collective action. “This is not to say that transparency is never good; it is to say that it isn’t always good, and that the negative effects result from imbalances in the will to collective action, not just access to information,” Shirky wrote.172. http://groups.google.com/group/openhouseproject/msg/53867cab80ed4be9, emphasis his
Dana Boyd and Kate Crawford (2011)173. Boyd, Dana and Kate Crawford. September 21, 2011. Six Provocations for Big Data. Presented at Oxford Internet Institute’s “A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society.” warn of new digital divides. When Big Data is housed in private databases, only those with the financial means to buy access — i.e. top-tier universities — will be able to study it. And of course raw data is not something everyone can use. “Wrangling APIs, scraping and analyzing big swathes of data is a skill set generally restricted to those with a computational background,” they wrote. For Boyd and Crawford, Big Data primarily benefits the elite.
But a digital divide is no reason not to publish open government data, for the same reason that illiteracy is not a reason not to publish books. Books have been a boon for everyone, even if not everyone can read them. And the fact that not everyone can fly to D.C. to attend a presidential press conference doesn’t mean journalists should not cover the White House. Direct access by some, especially journalists, is the first step to indirect access for many more.
What made the Bhoomi program so susceptible to bribery was that it was a government service more than it was a publication of open government data: Land titles need frequent correcting and updating, and it is through the interaction with government officials that bribes arose. And it seems that at least part of the reason why Bhoomi records were so useful to those with relative power was because of the new complexities of the larger system in which the records themselves were just a part. The imbalance of opportunity was created in the land management policy at least as much as it was created in the digitization itself.
And even with a digital divide, the most important uses of government data are performed by mediators — especially including journalists — who can create off-line consequences of on-line data. Traditional newspapers do this directly simply by printing their stories off their computers. But all forms of mediation, even websites, can raise an issue into social awareness beyond the confines of those who might have accessed the original bytes. That’s not to say that open government data can’t have unintended consequences, just that unequal access to the actual data isn’t likely to be a cause of it.
What is likely to cause unintended consequences is when data is of unequal relevance to different sectors of the public. Although data from the Securities and Exchange Commission has some role to play in smoothing out the entire economy, which is good for everyone, it clearly has only direct relevance to investors, and more so to the higher-stakes investors.
Instead, the important questions are what data is made open and who is likely to take advantage of it, and how the data is made open so that it can be transformed into civic capital.
The Wonderlich Transparency Paradox
Transparency can have an effect on the accountability of government representatives through different channels. Malesky, Schuler, and Tran (2011) distinguish incentives, “the notion that increased openness forces delegates to perform better in order to win over voters in an electoral democracy”, from selection “which is that increased transparency enables voters to choose better candidates for office.”174. Malesky, Schuler, and Tran. May 2011. The Adverse Effects of Sunshine. Presented at the 1st Global Conference on Transparency Research, Rutgers University-Newark. But they demonstrated that incentives can have a perverse effect on policymaking when the public misunderstands the policymaking process — or at least when the politician fears he will be misunderstood.
Malesky, Schuler, and Tran conducted a rare experiment by actually influencing ongoing politics in Vietnam. In collaboration with VietnamNet, the leading online newspaper in the country, they launched a column that highlighted the political activities of 144 randomly selected delegates of the 493-member Vietnamese National Assembly in 2010. The column posted photos, news articles, interviews, and resumes of those delegates as well as daily performance metrics based on the delegates’ participation in their query session — similar to the British parliament’s question time. Those metrics were:
(i) The total number of the speeches and queries that the delegate made; (ii) The number of speeches and queries by the delegate that were critical of the government policies; (iii) The number of the speeches and queries by the delegate that were relevant to the interests of delegate’s constituents, province, and profession; and (iv) Comparison of the delegate’ [sic] performance in the above indicators with the best, average and worse delegates.175. p19
The expected outcome of this experiment was not particularly clear. As a single-party state, Vietnam’s politicians are relatively shielded from whether their constituents approve of them or not: “The enormous power of provincial election boards in determining the level of opportunity available for a candidate calls into question the level of responsiveness of a particular delegate to underlying voters”.176. p23 (In fact, delegates are so shielded that their voting records are not made public.) If it’s true that constituents do not have much of a role to play in elections, then there would be no incentive for politicians to alter their behavior that was exposed to their nominal constituents. And, at first that appeared to be so. Whether a delegate had been covered by the special VietnamNet column did not, across all delegates, affect the metrics.
But when the investigators took into account that the delegates come from provinces of varying levels of Internet access, a different picture emerged. The delegates who were covered by VietnamNet representing provinces with the highest Internet penetration “ask a full question less and reduce their criticism more than 12%” compared to delegates in digitally-similar provinces that were not covered by VietnamNet. It seems then that even in an authoritarian state public opinion matters, and transparency leads delegates to be more conformist to avoid public scrutiny. If this in turn leads to fewer important issues being discussed by the National Assembly, then transparency resulted in a net loss for making good public policy.
But transparency can have the opposite, yet perhaps equally detrimental, effect. A 2006 article in the Times of London claimed that British MPs had been participating in more debates and offering more questions for question time in an attempt to influence the metrics of one of the leading government transparency websites there, TheyWorkForYou.com, a project of mySociety. “A senior Commons official told The Times,” the article reported, “ ‘Every time you intervene they would count you down as if it was a speech, even in Westminster Hall, where there are five debates a day and virtually any debate you can get in on. A few Members have grasped this.’ ”177. The Times. Feb. 27, 2006. The MPs who can’t stop talking. The change in the behavior of the MPs wasn’t to be better policy makers: it was to appear to look more active through making the least amount of effort. Contributing a single word to a debate may be more of a distraction than anything else, and so just as fewer questions can be bad for public policy so, too, could be more but irrelevant questions.
Politicians are smart. They will use the tools available to them to elevate their profile and push their message. Shortly after the Sunlight Foundation launched Politwoops (politwoops.sunlightfoundation.com), a database of deleted Tweets178. Politwoops is based on the Dutch website Politwoops.nl, Montana representative @DennyRehberg started tweeting and promptly deleting his tweets with the apparent intention to have his tweets appear on Politwoops. In a retweet-and-delete, Rehberg tried to be funny:
RT @SpeakerBoehner You know what else has been deleted? Jobs in the Obama economy. Where are the jobs? #politwoops via @SunFoundation179. http://politwoops.sunlightfoundation.com/tweet/208231095311937537
It is difficult to judge whether these unexpected effects were good or bad. It’s possible the Vietnamese delegates distilled their list of questions to the most pertinent ones to their constituency, resulting in better use of their question time, rather than culling their questions to be more conformist. Why British MPs would speak more and Vietnamese delegates less under similar conditions of scrutiny has yet to be answered, but either way there are unintended, and perhaps unwanted, consequences of parliamentary transparency.
But it is normally the case that the more we can see of policymakers, the more the policymakers want to take their negotiations somewhere else private. And by no means is that even necessarily a bad thing for reaching good policy outcomes. Sometimes the ability to have frank discussion in private is useful. The most revered of all meetings of politicians here, the U.S. Constitutional Convention in 1787, was held in strict secrecy. James Madison reflected later that “no Constitution would ever have been adopted by the convention if the debates had been public.” And if that’s true, it is still true even if the delegates’ motivations for secrecy were less than pure. Madison surely knew that his Virginia Plan for a strong national government would have faced passionate opposition from his contemporaries still reeling with anti-monarchy bitterness, including Sam Adams and Patrick Henry. No doubt he knew secrecy at the convention gave his plan a better chance of success. And since his vision ultimately became the framework for the Constitution, anyone would have to admit that the end result of secrecy was soundly a success. Thomas Jefferson, learning of the secrecy rule at the convention while in Paris, called the secrecy “abominable.” One should wonder whether he would still think so in hindsight.180. Beeman, Richard. 2009. Plain, Honest Men: The Making of the American Constitution. Pages 83–84, 91–92.
Antiquated transparency laws today are actually hindering transparency and innovation. State open meetings laws are preventing local officials from engaging citizens online for fear of inadvertently having what would be legally considered a meeting that would not meet other requirements such as public notice and public access.181. Bojorquez, Alan J., and Damien Shores. Open Government and the Net: Bringing Social Media into the Light. Texas Tech Administrative Law Journal 11. At the federal level, the 1972 Federal Advisory Committee Act is preventing the exchange of knowledge between the government and private sector. The purpose of the law was to prevent federal agencies from having back-room consultations with corporate executives and other entrenched sources, but the requirements for obtaining public input have grown so complex under the act that today the law is probably preventing federal agencies from getting the best knowledge.
Secrecy is a dynamic process responding to structurally imposed transparency. The New York Times reported that after a new 2008 ethics law imposed stricter lobbying reporting requirements, the number of registered lobbyists started to dramatically decline.182. Kirkpatrick, David D. January 17, 2010. Law to Curb Lobbying Sends It Underground. The New York Times. Referring to the Honest Leadership and Open Government Act, P.L. 110-81, the article’s headline “Law to Curb Lobbying Sends It Underground” was a little dramatic. Not all of the lobbyists who de-registered did so with the intention to violate the law — some decided that the requirements outweighed the need to lobby at all, especially when their lobbying duties could be transferred to another registered lobbyist in their organization. But, still, anyone involved in policymaking would prefer to not have to play their hand in the open. That’s how negotiating works, and no doubt many lobbyists who de-registered did so legally but strategically by reducing the amount of time they spent lobbying to fall under the minimum requirements.
Similar effects happen with other sorts of rules. The New York Times reported in 2009 on the effects of a ban on trips by Members of Congress financed by lobbyists. The ban successfully cut the number of such trips in half or more, but violations continued and loopholes were exploited. The article gave fascinating details of the Congressional Black Caucus’s retreat at a casino resort in 2008:
Each of the 14 House members submitted a detailed agenda for approval to the ethics committee. It listed social events like a golf outing, but it also included serious topics like health care and global warming. But there is something missing from the agenda sent to the ethics committee.
A different copy handed out to the caucus members is much the same — except for the line under each event that names a corporate sponsor. A workshop focused on health care included the words ‘Sponsored by Eli Lily,’ the big drug company with a huge stake in health care legislation. Edison Electric Institute, an association of power plant owners, hosted the global warming seminar. Wal-Mart sponsored a clinic to teach lawmakers and other attendees how to skeet shoot; after the lessons came a competition sponsored by the International Longshoremen’s Association.
William A. Kirk, the Washington lawyer and lobbyist who helped arrange the weekend, said the sponsor companies did not directly pay for the events or member travel. They became sponsors by contributing to the general fund of the caucus’s Political Education and Leadership Institute, which is a nonprofit. Money from the general fund, however, paid for hotels and other accommodations. Members were responsible for their own flights, though some used campaign funds.183. Lipton, Eric and Eric Lichtlau. December 6, 2009. Rules for Congress Curb but Don’t End Junkets, The New York Times.
Is this bribery? It is without a doubt inappropriate. But lawmakers will be lawmakers so long as they continue to have the same incentives. A travel ban does not pay for a Caucus retreat. It might make some think twice before violating the rule, but others will take their chances, perhaps rationalizing their actions, and accept inappropriate funding anyway.
It is impossible to shine a light and actually see everything that is there. Each new spotlight changes the game and sends some activities scurrying away beyond the light’s reach — a little like cat and mouse. But there’s so much cat and mouse all the time that you have to wonder whether anything truly ever changes. That’s captured well in what has been called (by a few) the Wonderlich Transparency Paradox, named after John Wonderlich at the Sunlight Foundation. It is one of those terms that is bound to make the textbooks one day. Anyway, Wonderlich once wrote, “How ever far back in the process you require public scrutiny, the real negotiations . . . will continue fervently to exactly that point.”184. http://groups.google.com/goup/openhouseproject/msg/94060a876083d86a Or, to paraphrase, no matter how much transparency you put into the system, the real work is always going to happen just off stage.
A paradox is something you cannot avoid. It is impossible to require truly public debate. Even 24/7 filming of politicians’ lives won’t create transparent decision-making. The stars of reality shows already know how to get around film crews: by mixing in explicit content the film crews won’t air. There are other techniques. A negotiation in plain sight is meaningless if those watching don’t know when to watch, or can’t understand the terminology, or are overloaded with too much information to process. And if transparency regulations make the lives of politicians so onerous, we should start asking whether it impedes their ability to do their job or even affects what sorts of people would be willing to put up with the burden (in the case of 24/7 transparency, more exhibitionists would run for office). Transparency is not something that can always be legislated, and in certain cases, like the Constitutional Convention, not something we should always want.