Still Circumventing (Ethically, that is)

Here is an explanation of why I’m posting a book review here. It is a little drafty, so please be kind with the nitpicks.

Creative Commons License
This work is in the Public Domain.

Jessica Dickinson Goodman
Dr Barth
S&T in International Politics
3 February 2010

A Guide to Geeks in a Crisis

In some copyright activist circles, the U.S. Supreme Court decision in MGM Studios vs Grokster Ltd (2005) is a punch line to jokes about technical ignorance among public figures. This is not because, from the perspective of experts in the file-sharing technology in question, it supported the rights of copyright holders over software developers, but because the opinion poorly integrated technical jargon with talking points of the RIAA[1].

I was an intern in the office of the Electronic Frontier Foundation (EFF) the day the opinion came down—EFF was a major part of the coalition that shepherded the Grokster case to the Supreme Court—and the overwhelming feeling was of confusion. Did Justice Ginsberg mean to use the similarity between Grokster and Napster’s names as evidence of Grokster’s culpability for the copyright infringement it was accused of facilitating? Did the Justices understand that computers are designed to make multiple copies of every file, and that charging users individually for every copy they owned would chill the legal uses of computers and be impossible to implement? With an opinion so technically muddy, it was difficult for those of us in the office to guess what the Supreme Court’s expected result was from its opinion.

It was the dynamics of this relationship—between experts and public figures—that Thomas Jefferson worried about in a letter to a friend in 1820, as quoted in Dr Bruce Bimber The Politics of Expertise in Congress: the Rise and Fall of the Office of Technology Assessment. The ex-President felt that experts should not be given power on the assumption that the people were “too poorly informed to make wise decision for themselves”[2]. The ex-President was concerned about the workings of the judiciary, as the staff of EFF was in 2005, but the broader of the role of experts in the formation of public policy (whether those experts are paid by Congress or a non-profit in a warehouse in San Francisco) is still vitally relevant today.

Dr Bimber’s analysis the history, strategy and legacy of the Office of Technology Assessment (OTA), focusing particularly on its institutional context from when was formed in 1972 to its dissolution in 1995, is a fascinating look into the role of experts in policy formation. Unlike the judiciary—where experts may only advise judges from the stand and ex parte communication during trial at least poor form and at most illegal—from 1972 to 1995 Congress used the experts in the OTA to supplement and correct its information from advocates with no patina of neutrality. Bimber argues that the Congress of the last quarter of the twentieth century encouraged an attitude of neutral responsiveness from the OTA by rewarding its strategy of neutrality[3].

Bimber draws from over 100 individual involved with the OTA over its history, from former employees to politicians. He also conducted an in-depth analysis of its documents, Bimber tells the story of this unassuming agency which subtly help street policy formed in Congress by providing full committee with technical information from an office perceived as politically neutral. The breadth of evidence and his regular citations of it make for a convincingly grounded argument.

Congress  formed the Office Technology Assessment (OTA) in the 1972 to provide itself with technical expertise and to strengthen Congress’s independence from the executive (a popular aim in 1972). The office was dissolved during the Republican Revolution of 1995. Between these two legislative upheavals, the OTA survived by crafting a strategy of neutrality that would both allow them to effectively advise Congress and receive funding from them.

Bimber contrasts this path with that of the Office of Management and Budget (created in 1921) which “grew steadily more partisan and politically loyal” until it had “foregone any serious claim to neutrality and disinterestedness”[4]. Bimber argues that the OTA chose to occupy the neutral end of a spectrum of expert politicization not because of the “choices or styles of individual politicians or experts” but because in “Congress, experts are likely to be sanctioned for displaying favoritism and rewarded for signaling neutrality”[5].

The OTA’s strategy of neutrality was a reaction to this institutional context; however, when that context changed abruptly, with the mid-term election of 1994, the OTA this neutrality worked against them. This was not because Republican representatives disliked neutrality, but because their very neutrality had deprived the OTA of strong legislative allies who could defend it from budget attacks.

One of these attacks, offered in the Appropriations Committee report cutting the OTA’s budget, was whether the OTA provided Congress with more utility than they could gain by accessing a decentralized network of experts, including independent think-tanks and universities nationally[6]. I argue that it could not because the OTA represented a group of experts who could be relied upon to provide relatively neutral information. The OTA provided full Congressional committees with access to experts whose neutrality was part of their survival strategy. The OTA provided politicians with technical details that lead to small but vital tweaks to legislation such as the Brady Handgun Control Act of 1991 and the Strategic Defense Initiative[7].

Bimber’s portrait of the OTA is not of a rockstar agency whose members pick politically beneficial projects to burnish their credentials with, but of an unassuming office that consistently provided reliable information on technical fields to politicians. As evidence, he points to the ways that Congress members were willing to (and not willing to) fight for the OTA’s continued existence[8]. Going against the overwhelming feeling of his party, Republican Orrin Hatch “urged his colleagues not to ‘cut off our nose to space our faces’” in an effort to demonstrate their commitment to cutting the federal budget.

Until it was cut, the OTA provided Congress with reliably neutral information on technical aspects of political issues. It had a strong following both on Capital Hill and in the broader scientific community. While this following could not save it from being used as an example of Congressional frugality under Republican leadership, it did provide an example which has been emulated by governments in Europe of a healthy relationship between politicians and experts[9]. To my knowledge, the judiciary in the United States has no such formal relationship—judges are expected to learn all they need from submissions of attorneys and expert witnesses. Neither of these sources can pretend neutrality in our judicial system and so judges are left to winnow politically motivated analysis from more neutral information. Even if the OTA only survived 23 years, perhaps it is a model that could be adapted for federal courts. I believe it would have been a relief that summer day in San Francisco to be fairly sure that the justices at least understood the basic technological issues in our case.

This paper is dedicated to the public domain.

[1] MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005).

[2] Thomas Jefferson, Letter to William Charles Jarvis, Sep. 28, 1820, in The Writings of Thomas Jefferson, Memorial Edition, Vol. XV (Washington D.C.: The Thomas Jefferson Memorial Association of the United States, 1904), National Archives, Washington, DC.

[3] Bimber, Bruce. The Politics of Expertise in Congress: the Rise and Fall of the Office of Technology Assessment. State University of New York, Albany NY: 1996. pp 20, 6.

[4] Bimber, Bruce. The Politics of Expertise in Congress: the Rise and Fall of the Office of Technology Assessment. State University of New York, Albany NY: 1996. pp 6.

[5] Ibid, 7.

[6] Ibid, 74.

[7] Ibid, 9.

[8] Ibid 72.

[9] Ibid, 94.

Inspirational Quote:

“It is impossible for a man to learn what he thinks he already knows.”—Epictetus

Get in touch

%d bloggers like this: