Let’s talk about democracy, and technology, and how sausages are made.

This is my favourite inscription on the side of Holyrood, the Scottish Parliament building. It’s a reminder that lawmakers can only shape good legislation if they have the insight of non-lawmakers outside their bubbles. It’s not a Depeche Mode lyric, btw. Probably should be.

From my garden lockdown at home in Glasgow, where my co-workers include three foxes, dozens of songbirds, a few blowsy bumblebees, and a random arsehole cat, I’ve been monitoring progress on the domestic draft internet regulations within my brief, such as the online harms white paper and the Age Appropriate Design Code. (Twitter followers might have noticed.) I’m also keeping an eye on Europe, but that’s a post for another day.

I have to say, domestic policy is keeping me amused, and today I’m going to tell you why.

Last year I wrote about the flaws with the AADC (the Code, for sanity’s sake) in terms of its deliberate threats to the open web, intermediary liability, freedom of expression, privacy, and children’s wellbeing. That was May 2019. It’s now the last week of May 2020, and the Code’s supporters – who, oddly, have never had anything to say about the issues we raised – are in the usual broadsheets blasting the statutory delay to the Code becoming law. They have also stated that opinion in three different Parliamentary committee hearings held this month, where government ministers held the line that the Code is indeed on the tarmac and waiting for a departure slot.

The final Code, you’ll recall, is a 115 page PDF with almost no margins. Once it passes into law, impacted professionals (that means you) will have one year to come into compliance or be forced to explain to these folks WHY YOU HATE CHILDREN.

Today I want to talk about how we got to that 115 page PDF, and how sausages are made. Because this particular sausage has been undercooked and is guaranteed to make an unwelcome return. This bout of indigestion has me wondering about how we make laws, why we make them that way, and who we make them for – and why we squandered the first possible opportunity to do it right.

Table layout makes an unwelcome return

Think back to last year: the ICO’s consultation on the Code closed on 31 May. Working with Coadec, I submitted our response probably squeakily close to the deadline (who me?) You know those mornings where you think, I’ll just get this task out of the way and it’ll be done, and three hours later you’ve lost the will to live? Submitting this consultation response was one of those days. Because that morning I learned that their mandatory consultation response form was a Microsoft Word document with the questions set out as protected table cells. No other formats accepted.

Screen cap of one of our question responses in a Word table cell.

The careful wordsmithing we’d done collaboratively in Google Docs had to be cut and pasted one unit at a time, and of course, the way the document was formatted constantly threw me into the next table cell for the next question before I’d finished the one I was in. Because the ICO broke each question into three sections rather than treating each question as one unit, I had to scroll up and down up and down through the rigidly locked template to answer each question as I went.

Forget about formatting either, like hyperlinks to external standards. They all died. Like tears in rain. In table cells.

Where did these table cells go? You can only sympathise with whatever civil servant at the ICO had to take several hundred Microsoft Word documents, extract the text into – who knows, another Word document? – and decide what responses to use to inform the final Code.

Which, as you know, was a PDF.

The ICO’s lack of technical prowess about the things they regulate is notorious and, as I witnessed at a conference, a bit of an inside joke to them. There comes a point where the joke isn’t funny anymore.

Microsoft Word table cells were how I formatted papers as a university student in the 1990s. HTML table cells were how I formatted the sites I was building for my student jobs.

Mandatory Microsoft Word table cells as the sole means of crafting code standards which will shape global web development in 2020 is insane.

<sarcasm>But what, pray tell, might have been a better way of soliciting responses on a draft standard about code which will impact how we develop?</sarcasm>

Shaping standards in the open

Here’s one we made earlier. In the long-gone good days when I was a contributor to the WordPress open source project, I worked with the plugins team to add one line to the plugin guidelines – the basic rules on what plugins can and can’t do – which made an instant improvement to the health of the project and the integrity of the open web. The standards are pushed to the web from a Github repo. Anyone with a suggested change to any one of the standards can submit their change as a pull request. The team will discuss it and accept it or, maybe, iterate it further.

Collaborative, iterative, open web standards are a beautiful thing

Here’s how it worked. Explain your stance, suggest your code. Easy, no? A heck of a lot easier than cutting and pasting.

Does this sound like a fit of developer pique? Trust me, it isn’t. I work to shape laws because I’ve worked to shape code. I know how they work together, and I know how they don’t work together. So I try to make sure they do. And I know you can’t shape the future of the web if your perspective is stuck in a 1990s word processor.

Insisting that laws about technology must be shaped by Word tables doesn’t just show a lack of knowledge about the stuff you’re legislating. It’s an indicator that the end result – “getting the thing done” – is more important to you than what’s in it.

And don’t we know it.

One-night standards

One of the constructive suggestions we requested in our consultation response, as did many others, was a second round of iterations and edits. After all, if the consultation document was Draft v1, why not engage further with Draft v2?

The ICO would hear none of it. After a few months, they came down from the mountain with the final Code inscribed on stone tablets. No ifs, ands, buts, further consultations, or iterations. For it is written.

Now here’s the thing about that final Code. To make her legal deadline for doing so, the then-Minister for Digital laid the Code before Parliament on 22 November, despite the General Election meaning there was no Parliament to receive it. The new Parliament met only briefly in December, scrapped about Brexit, shut down for the holidays, and came back in January to resume scrapping about Brexit.

They would have known fully well that there was no possibility of the Code being debated before then – even as the Code worked through its mandatory EU processes. And no sooner had we got Brexit done than the world fell ill, and Parliament went onto a war footing. This means the Code is waiting for its turn behind all the other legislation which was also bumped by the pandemic, quite rightly so, and might not get there until later in the year.

Yet by that time, we’ll still be working to a standard inscribed in stone and PDF, from last year, based on one round of draft consultations informed by table cells in emails.

I don’t hit “publish” on anything important which I haven’t walked away from, reconsidered, and ruthlessly liberated from my preciousness. Friends know me as a regular pleader of “can you take a second look at this for me?”, and vice versa.

So how did we get to a point where a single draft stands ready to become a law mandating development code standards, and its backers are expressing outrage that it isn’t already?

Well, they have only themselves to blame for that.

Had the ICO and the Code’s backers simply swallowed their egos and agreed to a second round of collaborative iterations – even if it was in more table cells – that delay would have made no difference at all. (Indeed, it might have even sped up the code’s progress, as being laid down after Brexit would not have required the EU’s review.) It also would have increased professional trust and buy-in about a policy which set out some of the most hostile anti-tech stances ever seen in tech legislation.

Instead, they rushed to lay it down when they knew it had no chance of being heard, and now they’re crying outrage that it isn’t being heard at a time when people are dying.

It’s faux outrage for their own arrogance.

Check your ego at the repo

And that, perhaps, is another lesson for lawmakers to take on board. It’s something every code contributor learns from day one. If you want to enage in truly collaborative practices, in the open, which aim to build a better web, you can’t be precious about your work. If you put something into the world, you do so fully expecting that others will adapt, iterate, criticise, and eventually overwrite it. You don’t expect to be able to take the credit, you don’t expect to have your name appear next to it, and you certainly don’t take it personally when things aren’t going your way.

Shaping the laws which shape technology must be about principles, not personalities. And that’s a big ask when individuals who are not technologists attach themselves to their idea so firmly that they become the law’s public face, boosted by well-oiled PR machines.

They really have no idea how to do this at all.

That’s important for all of us seeking to make a better web, because what we are dealing with are proposed laws about technology, shaped by specific personalities, crafted to target specific personalities. Those laws are being shaped in closed-door meetings which never collaborate, never iterate, and only dictate.

This is no way to make sausages.

Let’s do something different.

If we really are moving into a new era, as a new country, doing things on our own rules, we had an excellent chance to prove that by making the laws of a nation in a new way. The Code couldn’t have been a more perfect test subject. Instead, those concepts simply never occurred to its backers or to the regulator seeking to prove that very point. This isn’t just classic Mayism, which views the Great British Internet as something which must be restricted and restrained and controlled. It’s a profound failure of imagination.

Why aren’t we experimenting with online collaborative platforms for shaping and reshaping democracy, as are well established in other countries? Why are we allowing egos, personalities, and campaigning newspapers to dictate public policy? Why are consultations still a matter of compliance theatre – they bring you in for a meeting, say blah blah blah, and then are able to say they consulted with civil society – rather than active civic involvement? Why are we regulating the internet with word processors?

Why are we shaping the future with the tools of the past?

And who’s going to be brave enough to think different?