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Larry Lessig and Naked Transparency

Larry Lessig had a dream. In this dream, he was standing on K Street, preaching in the dark. Suddenly, a naked posse on Segways went whizzing by, shining their flashlights in people’s faces. Bystanders were all blinded by these random lights and lost their night vision. When Larry turned around, the naked posse was racing towards the White House for an open government rally, trailed by a screaming mob of marijuana-smoking birthers.

Larry Lessig wrote up his dream in a cover article for the New Republic entitled “Against Transparency: The perils of openness in government.” I suspect that this article will cause some angst inside the Beltway, where you’re either with us or against us. But, before the posse turns into a lynch mob, it is important to give the article a careful read.

Lessig starts by identifying what he calls the naked transparency movement, using as his centerfold Maplight’s report on “How Money Watered Down the Climate Bill.” What could be wrong with a report that allows citizens to see that members who voted against protecting forests got $25,745 on average from the Forestry and Paper Products industry, ten times as much as those voting to protect the forests?

In a truly memorable paragraph Lessig poses his straw man carefully before lighting the match:

What could possibly be wrong with such civic omniscience? How could any democracy live without it? Finally America can really know just who squeezed the sausage and when, and hold accountable anyone with an improper touch. Imagine how much Brandeis, the lover of sunlight, would have loved a server rack crunching terabytes of data. As a political disinfectant, silicon beats sunlight hands down.

Louis Brandeis is often invoked as the patron saint of sunlight, the creator of the idea that one can disinfect only what one can see. What we often forget is that Brandeis was talking about big corporations and robber barons, not the government. The Bedford edition of “Other People’s Money and How the Bankers Use It” is well worth a careful read, particularly the introductory essays which remind us that what Brandeis wanted was disclosure of salaries of corporate executives to avoid excessive compensation in an era when there was no minimum wage, no safety regulations, and workers were living and working in filth and poverty. The high salaries were offensive, and he thought no self-respecting member of society would pay himself that much if the word got out.

As we know from the financial meltdown, disclosure of corporate salaries has done nothing to reduce the shocking abuses we saw on Wall Street, where multimillion dollar bonuses were deemed essential—indeed, a right—to retain low-level employees with sufficient incentive to keep working at bankrupt firms being bailed out by the taxpayer. With executive compensation, the result of transparency “was not of shame, but jealousy, leading to even higher pay.”

The point of Lessig’s essay is not that transparency is bad. After all, Lessig is an active member of Sunlight Foundation’s Advisory Board. Lessig’s point is that transparency, naked and by itself, with no broader and deeper aims, will not automatically produce good results, and may indeed produce randomness in our government or far worse.

In particular, Lessig worries about what scholars have called “targeted transparency” in the recent book “Full Disclosure: The Perils and Promise of Transparency,” policies that use simple metrics to quickly allow a broad audience to determine influence or performance.

An example of the misuse of metrics is strikingly brought home in the recent essay by Jill Lepore in the New Yorker, “Not So Fast.” Lepore writes about the world of management consulting and how it has often failed in her review of Matthew Stewart’s new book “The Management Myth: Why the Experts Keep Getting it Wrong.”

Lepore also invokes Louis Brandeis, but in this case his unfortunate embrace of Frederick Winslow Taylor’s scientific management methods. Brandeis, a labor hero, was entranced by Taylor’s precise methods and simple metrics, choosing to believe a claim that railroads could save “a million dollars a day” by working smarter. Working smarter turned out to be based on the idea that “large powerful Hungarians” were loading 24 tons of pig iron per man per day, but by careful management, the output could purportedly be increased to 47.5 tons per day. The number had no basis in fact, but the new standard derived by carefully analyzing the workers got made into the new quota, and working conditions kept on deteriorating, and the unions cried out to Brandeis for making their life even worse.

Lessig’s point in the New Republic and Lepore’s in the New Yorker are identical. Merely revealing data is not enough. One must work with it, work with policy, and monitor effects. Transparency without a long-term commitment to policy is transparency without context, transparency that is merely naked:

This is the problem of attention-span. To understand something—an essay, an argument, a proof of innocence—requires a certain amount of attention. But on many issues, the average, or even rational, amount of attention given to understand many of these correlations, and their defamatory implications, is almost always less than the amount of time required. The result is a systemic misunderstanding–at least if the story is reported in a context, or in a manner, that does not neutralize such misunderstanding. The listing and correlating of data hardly qualifies as such a context. Understanding how and why some stories will be understood, or not understood, provides the key to grasping what is wrong with the tyranny of transparency.

Policy takes time. It takes focus. And it takes open eyes. I read Lessig’s argument not as an attack on the transparency movement, but an urgent plea to focus on the broader impact of their work, to redouble their efforts and dig in for the long haul. Engraved on the walls of the U.S. Capitol are these words by Louis Brandeis:

The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.

Brandeis was actually writing in support of whiskey bootleggers in this famous quote from his dissent in Olmsted v. United States, 277 U.S. 438 (1928). Brandeis was dealing with the unintended effects of policy in this opinion. He was a strong supporter of prohibition, but had grown increasingly distressed by the methods federal agents were using to enforce the ban, and it led to Brandeis increased focus on civil liberties, privacy, and free speech, an evolution that took Brandeis 23 years on the bench.

Those invoking sunlight must also look into the darkness and remember the past. A good place to start is with Brandeis himself. His Supreme Court opinions, his essays, but also his life. For his life, one can do no better than the new biography from Melvin I. Urofsky, “Louis D. Brandeis.”

Lessig’s essay is a call for us all to pay attention. Transparency cannot start and end inside the beltway, it needs us all. As Brandeis himself noted when he argued before the court in Muller v. Oregon (208 U.S. 412) in his pathbreaking Brandeis Brief, the first brief to use hard social science data to try and change the law of the land, “the most important political office is that of the private citizen.”

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  • http://petewarden.typepad.com/ Pete Warden

    Thanks for digging up the Taylorism analogy. I think an increased emphasis on transparency, measurements and evidence will help solve a lot of intractable problems, but a knowledge of history is vital for teaching us humility.

    You only have to look back to the Vietnam war to see how the technocrats running it were blinded by statistics. You start by measuring what you value, and end by valuing what you can measure.

  • http://basiscraft.com Thomas Lord

    Lessig’s piece is interesting. I found a large flaw (in my opinion) in his reasoning and a significant omission:

    The flaw concerns his claim that the solution to the dangers of campaign contribution is publicly funded election, perhaps with public funding augmented an unlimited number of limited size contributions from individual citizens. He acknowledges that this might give unfair advantage to incumbents but weighs this against a system in which the appearance of quid pro quo between elected officials and large campaign donors is eliminated.

    The flaw is is simply that if large donors may not give directly to a candidate’s campaign, they will give elsewhere. They can give to PACs. They can give to a politicians’ favorite and strategically relevant charitable organizations. In trade, large money influencers can favor firms whose success benefits the politician. The list goes on. Sunlight may be good for killing bacteria on a bedsheet but if you let some into a roach infested room, the roaches simply hide.

    The omission is, perhaps, more interesting:

    Quis custodiet ipsos custodes? Who watches the watchmen?

    Lessig seems a bit bewildered by the transparency movement’s own lack of attention to its impact. He writes: “We are not thinking critically enough about where and when transparency works, and where and when it may lead to confusion, or to worse. And I fear that the inevitable success of this movement–if pursued alone, without any sensitivity to the full complexity of the idea of perfect openness–will inspire not reform, but disgust.”

    The possibility of corruption, it seems to me, cuts both ways. Just as politicians might sometimes be corrupted by donations, so too might a transparency advocate sometimes be corrupted by the indirect rewards that accrue by generating such reactions as “disgust” (with politicians). After all, even if reactions like a non-critical disgust are irrational, they are spectacle and they represent power.

    Transparency advocates operate in an economic and political context. They form privileged connections “inside the beltway”. They receive funding from non-profit organizations. They receive press attention and, one can infer, access to employment opportunities. In their efforts they can choose projects that benefit one politician or cause while harming another.

    There is a widespread confusion that transparency is automatically neutral and benefits or harms the public in general equally – yet only a little bit of thought about the matter suggests otherwise. Advocates of the modern open government movement stand the most to gain, personally, regardless of the consequences for the general public.

    There is a tendency, in the tech industry, for people to look for ways to maximize return on investment by doing those things which are easiest. Startups don’t do deep CS research projects they do product research searching the space of projects that can be brought to market quickly.

    It’s natural that that same tendency and mentality would appear in the transparency movement. The community of advocates is inclined – because of their own career interests – to have large “impact” as quickly as possible. Relative to their patrons and partners, and the general public audience, the advocates are themselves driven by the “attention-span problem” that Lessig writes about.

    Lessig writes about solutions to the perils of transparency, even if I disagree with him about campaign finance reform. I think that the problems that arise from the natural conflicts found in a small community of transparency advocates are going to be hard to fix. I don’t see any silver bullet. One thing that would help, I think, is for the transparency movement to expand its scope and become, as well, a “meta-grass roots movement.”

    By that, I mean that just as transparency advocates use their IT skills to help bring government data into the light, they should apply their skills to help and encourage third parties organize at a grass roots level to consume this data and offer feedback to government. I don’t mean that the open government movement should take positions about *what* causes citizens should organize around – they should simply work on creating the tools for organizing, locally (intra-organizationally) consuming government data, and communicating back to government in meaningful ways.

    If that “meta-grass roots” path were to succeed, one side effect would be an ecosystems of grass roots organizations who are the main “customers” of opened government data. The desires and behaviors of that customer base could be used both as a guide to which data to try to open next, and as feedback about the impact of opened data.


  • http://friendfeed.com/markterranova Mark Terranova

    Transparency is not a ship that steers itself. Citizens must be involved, follow up, & be engaged If we truly want to create change; it takes involvement. Larry Lessig is doing what he does well – creating a dialog & forcing people to examine their surroundings.

  • Herbert Barry Woodrose

    Lessig’s post was disappointing, lacking some basic scholarly procedure and critical thinking. Just taking it in broad sweeps, the article was full of “we all know where this leads” type of rhetoric. No – we all don’t.

    There are also no “obvious futures” – if you have a point to make, make it.

    But the lack of real sourcing was the real disappointment. “So and so made an app that links votes to campaign contributions. Data can be made to say anything.” No, data can’t be made to say anything.

    Scholarly writing points out real world examples, not straw men.

    I disagree with the argument in a basic way – but I bother to read opposing viewpoints because I need these ideas tested. I seek civil discourse from the other side whenever I can get it because I learn a lot when I can glean what people really want – authentically. I seek out scholarly writing most of all because I want the kind of fact-based review that we don’t get, as a rule, from corporate/government press-releases. This was a real let-down.

    Right away, there’s an argument made by Lessig that all this data is ‘needlessly confusing and scary’ (paraphrasing). What a disappointment to be referred to once again, essentially, as ‘the great unwashed masses’. If the point is to engage in ideological bickering, than he is going to have to accept that his argument merits nothing more than an angry retort, something along the lines of “you just give us the reports on what we goddamn-well pay for, and we’ll worry about our feelings, thanks.”

    He writes with the certainty of a physicist – certainly it can’t work any other way! these are elementary conclusions! – arguments he seems to believe require no real-world backing. Instead, there’s pure derision, sarcasm – what’s wrong with open data? Why, it provides too much frivolity, like knowing ‘whether Peet’s or Starbucks is closer … among other essential data”. Not even a full two pages in he has announced that the real problem in all this – incredibly – is that he is an old codger at heart who is angry and scared of this new-fangled generation and their Ipods.

    ‘There are obviously a million ways data could be inspired to speak’. No, there aren’t obviously anything. The man wrote for pages and pages – and nary a fact breaks through into sunlight. The veiled (thinly) implication here is that that’s what the makers of the original app did – shamelessly manipulate data to say something it doesn’t really say.

    Well, if that’s happening, that’s a noble point to make – and *real work* devoted to uncovering this, and explaining it, detailing and diagramming it, would have been noble as well. Nope, Lessig moves on to the next straw man immediately because, frankly, scholarly writing is a lot of hard work. And he has already informed us up top that he doesn’t think Americans are really smart enough to have things explained to them, or even to receive a metaphorical receipt itemizing what services have been received in exchange for all the money in the world. It’s too easy to just make decrees and pronouncements. Quite capitalistically, he has no incentive to do his best – just enough to get paid. This, he has done.

    But let’s break through a very important piece of rhetoric that is flawed in logic; if the problem is that people aren’t smart enough to interpret data correctly, everyone but a bigot, or elitist, would agree that indicates a problem due to lack of exposure. Although the rhetoric in the article would indicate otherwise, I’m going to give Lessig at least the benefit of doubt, and say that if he is not an outright supremacist of some kind, he should see that logically the answer is to continue to empower people, expose them to the tools that will one day give them effective control over their own lives and governance. It will stutter and stumble for a while as movements and revolutions do.

    Continuing to treat the average citizen with a slaver’s mentality, denying them proper education and involvement because ‘they aren’t equipped mentally’ is heinous. In the absence of proper scholarly research, we are left to take nothing from this article except some strange conclusions about the author. No, we can’t even take away the idea, as Malamud asserts, that even transparency advocates have to be more careful and thoughtful and … whatever. Lessig simply did not make a coherent enough, well-reasoned enough, but most importantly, properly researched article for us to draw thoughtful conclusions on what anyone involved should be doing. Malamud seems to make that concession in an attempt to be reasonable and gentlemanly towards Lessig, but I’m going to go ahead and disagree with him as well, because I don’t see where Lessig has done anything more than rant blogtastically.

    Which brings me to my last point: Noam Chomsky once said that the worst thing about the internet is simply how quickly it works. At some point, he said, he realized he was getting writings emailed to him from people he had really respected that were just awful. No one edited anymore, they just ranted for a while and then hit “send”.

    I suppose I’m taking the cop-out here when I say that for a comments-field like this, maybe you can get away with run-on stream-of-consciousness; Lessig’s cover article was full of phrasings, repetitions, and bizarre opinions that weren’t well backed-up. I think if he had edited his work more seriously the article could have been blessedly shorter (attention span is one thing – putting the audience to sleep with repetitive rhetoric is quite another), and, if there is a jewel in this article somewhere, it might have been better-expressed.

    Now that my rant is over, I will pull a Lessig and simply hit “submit”.

  • http://sunshineingovernment.org Rick Blum

    Thank you to Carl Malamud for remind us Brandeis saw sunlight as much as a deterrent as a catalyst for efficient markets. People are more likely to do bad things if they think they can get away with it. This advantage to greater transparency is lost in Mr. Lessig’s critique. In my work coordinating a coalition of media associations called the Sunshine in Government Initiative, I know that when the military recalls armored vests upon learning a reporter was about to publish the ballistics tests showing the vests failed, transparency works. When firefighters die when life-preserving systems falter in hot or wet conditions, only to have the story published years later, transparency wasn’t quick enough. Time and time again, government transparency showing government mistakes has catalyzed fixes and shown transparency is a useful tool and a vital democratic value.

    (ps– If it’s of interest to anyone or affects any reader’s judgment of my comments, I should mention I’ve worked for several nonprofit groups pushing for more transparency in government.)