The review of the European privacy law – also known as the Data Protection Regulation – has come in for some comment about the lobbying and the eye-opening revelations about the scale of the corporate lobbyists amendments that have been tabled by MEPs. But I feel that this is a rather simplistic way of looking at it. As academics, we have more sophisticated job to do. We have to ask, what is the politics? What is problem that we are being critical of? To say, there’s a lot of lobbying may be a starting point, but is a very long way from the end-game. So what does it really take to analyse amendments in European legislation?
The process of tabling amendments in the European Parliament is known by all the lobbyists. Many of them are lawyers who would know how to craft an amendment, possibly in a more skilled way than many MEPs ( see my book The Copyright Enforcement Enigma - Internet politics and the Telecoms Package. )
A laundry list of lobbying documents (there are a few circulating) tells us that there is a lot of corporate lobbying. It’s also possible to quite quickly make connections between the lobbying documents and the amendments tabled, and thence to individual MEPs.
However, analysing European Parliament amendments is a tough process and it requires a lot of what the Americans call the ‘hum int’ – human intelligence. The analysis needs to be able to identify the political agendas behind the amendments, and the relationships between them. That is what will create the political meaning. It is not, in my opinion, an analysis that cannot be automated.
For example, whilst there is indisputably an astonishing level of corporate lobbying, it is also interesting to see the striking number of tabled amendments based on NGO lobbying. In that context, we have to ask ourselves is it only bad for MEPs to table lobbyists amendments if they come from large corporations and ok if they come from NGOs. Are we setting up a ‘goodies’ versus ‘baddies’ scenario here? And is that really helpful?
Well, what does it tell us about the ‘goodies’? It suggests that the NGOs have some hot-shot lawyers whose a pens are as sharp as any of their highly paid corporate opponents.
What about the ‘baddies’? Why are they bad? Well, that takes quite a lot more analysis. They have their own agenda, and as I’ve suggested in my previous posting, it is about corporate profit, where our data is the raw material for that profit. Broadly-speaking, they want the right to process our data unhindered by regulation. But within that context, there are slightly different agendas because they are also in competition with each other, and each corporate organisation will have its own view of what is best for their business.
In order to understand why they are ‘bad’ we have to know what they want to do. Are they really ‘forum shopping’ or are they switching jurisdiction for their operations in order to get the lightest regulatory regime? What is the difference, and why is it harmful?
The creation of automated laundry lists of corporate amendments is useful in tipping us off that there is a problem, but it tends to miss the subtleties. For example, it has the effect of grouping all corporate lobbyists into the ‘bad’ category and misses that fact that in politics there are at least 50 shades of grey. There are some very strange bedfellows, and lobbyists and politicians hop in and out of each others political beds on a regular basis.
Whilst it’s an easy target to find an Amazon amendment that is in the ‘bad’ category, and have a go at Amazon, it’s tougher to credit Amazon with amendments that fall somewhere into the sliding scale of ‘good’ category. To assess the full implications of an amendment requires more rigorous analysis.
So making a simple accusation of ‘lobbying’ does not provide the full story. In fact, it arguably provides an activist own goal.
If we are to make relevant comment, we need more than a laundry list. We need to understand precisely why the apparent copy-pasting is a problem. What is it that they are trying to do, that is harmful to our privacy? What is the context for saying that? The analysis must be considered, structured and justified.
When I went public on the Telecoms Package copyright amendments, in June 2008, I had already carried out research into the political debate. That work began with reading the various documents pertaining to policy consultations in Brussels and France, and in parallel reading the file sharing sites. Before that, I'd spent time reading in detail on the EU process, and on the context of the file sharing and copyright battles. As a result of all that preparatory work, I understood the issues and I knew what to look for when the committee amendments to the Telecoms Package were sent to me (the committee amendments is the same stage as we are now with the Data Protection Regulation). I knew how to recognise the policy demands from the copyright lobbies, because I had spent so much time researching their proposals in the various policy fora.
I still didn’t quite know how to argue the case until I questioned and probed what could be the reason behind the amendments. It was evident that the amendments concerned a specific agenda of the copyright industries, but what I did not understand was why they wanted those particular changes to telecoms law. I did some more research into telecoms policy and worked it out. All of that resulted in a draft paper. I followed it up with retrospective analysis of the amendments about a year later, and I contemporaneously followed the entire process. That story eventually became my PhD thesis and my book.
The reason why La Quadrature du Net were able to wage such a successful campaign on the Telecoms Package was because they had carried out a high level of preparatory analysis, and they knew from the beginning what the salient issues were (again, see my book The Copyright Enforcement Enigma ).
Therefore, to say ‘there are lots amendments copy-pasted from lobbyists‘ is a very simplistic way of looking at it.
However, if we were able flush out the motives and the tactics of the ‘bad’ lot, I suspect it would be enough to make the fictional Mr Grey blush!
This is an original article from Iptegrity.com. If you refer to it or to its content, you should cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, EU privacy lobbying amendments – monochrome or shades of grey?in www.iptegrity.com, 17 March 2013 . Commercial users - please contact me.