Layers beget layers and it all needs more public lawyers

Two points of setup — one: significant amounts of power and money are moving faster than ever in this moment. Some of that power and money is moving around in the public procurement of technology products that shape society in ways that do not support democratic governance. So to everyone fighting up the hills these situations create, despite all this ongoing grief, loss, and rage — thank you. Two: there is no getting up these hills faster if we’re not always helping each other, correcting and supporting each other, and holding each other as accountable as possible for our words and our work. Even when we’re ragged and delirious.

While democracy is fundamentally about finding a way through a whole bunch of different approaches to shared life, democracy is also about knowing our governments as entities beyond the partisan. It’s about understanding the state as an administrative machine. And knowing that the machine has fundamental obligations to those it serves through its public service. The public service is a powerful mechanism. They way it’s being underused, in this moment in particular, is about more than partisan politics, privatization, and political economy. Something in senior public administration is wrong — senior public servants that work in technology, good kind people, are making choices that may seem like the lesser of two evils, but these lessers are pooling into ever larger future problems.

Within this particular realm there is an abundance of feigned ignorance about the impact of technology on people’s rights and the state’s imperative to do something about it. Consider the lawyers that work for governments, particularly in technology procurement. I don’t know what continuing education looks like in that world, but it’s time to figure it out considering the technologies being sold, bought, and used in every ministry, division, and department of the state. From ministries of education that should be providing support to school boards licensing software used by students to cities inserting payments systems between themselves and their residents to the increasing number of digital health care products and services.

There is a growing list of tech products being sold to governments that should be setting off visceral reactions in professionals that understand their roles in enabling these systems. Leadership — whether that is a CIO, a head of IT — should be updating their ideas of due diligence and doing so publicly to bring people along with their work. Leadership needs to be more publicly accountable for systems as they digitize them — including who those transformations impact and how, because who and how matters the same for every single person that uses them or is forced to use them or doesn’t want to use them. This is the wedge and resistance that good leadership can provide right now to help us all slow down the rights slippages that are occurring.

Humans are bad at understanding relative time. Humans, and particularly those in policy, are bad at removing things to solve problems because the instinct is always to expand and build. But it’s removal and rewiring time. Those in public service technology should be using the power of protected and unionized labour to reorganize the problematic technology landscape that has been encroaching in public administrative space via software. Continuing the same mistakes of the past few decades, mistakes born of cultural excitement and political enthusiasm for technology, is not tenable. Feeding the economy by offering up swathes of public administration landscape was never a good idea. Saying this is a risk mitigation strategy is a flat out lie. Government accountability cannot be outsourced I honestly can’t believe I have to write these words down.

This is not just about understanding automated decisions, though that alone is an important enough reason to hold leadership more accountable and to figure out together how to do so. Problems raised by the intersection of proprietary systems, intellectual property, and trade are festering without clear descriptions of harm not because they aren’t real but because the people they impact have no accessible redress. I don’t understand how people working in public technology keep cranking their neck away from this problem because they can. Here we do have an ethics problem.

But to add in another layer to this problem, software impacts the ways in which government fundamentally operates — it’s entire reason of being. Consider the lack of state capacity in Canada to organize pandemic related help, from PPE to public health workers to vaccines. Instead we had an influx of private actors seeking to embed themselves in public health infrastructures. This infrastructure, and others like it in our public systems, desperately needs more protection from those whose job it is to protect them.

This work of reorganization cannot be left to happen by pressure from civil society and digital rights watchers because the current landscape is torqued and the power asymmetry is vast. It’s ethically indefensible for the public service to rely on this model. And so the era of reorganizing the current landscape must be taken up by public service leadership. There is a lot of pre-procurement work that could be done by this leadership to define the pieces of our system that have hard red lines around them as protected and public and never to be outsourced. This is the kind of challenge that leaders should light up about because the future value of this effort is so high.

Sometimes the good of what’s going on inside government is invisible. Maybe there is a big legal education round happening right now that I can’t see. Ready for corrections as ever. But watching senior public servants describe work they are doing with technology as outsourcing risk when what they are actually doing is weakening capacity for public accountability is getting really hard to watch. Some leaders are enabling digital rights slippages and dependency creation because there are no easily accessible public mechanisms for redress on either front. This problem is not about ethics in AI because this phrase displaces the people. Some of it is a lack of ethics in the professional class. In public service leadership in particular. And this is not to say these people are bad it’s to say the ethics code is so conflicted and conflicting in this realm that we’re losing out on the upside of systems. See Rebecca Williams here. We’re placing far too much responsibility on individual leadership to make sense of the conflicting professional incentives they have to deal with. Rather than say these are unethical people we should take accountability for the unethical system they are working in. It’s going to be ever harder to attract people to enter it if this status quo is not addressed. I know the fight it already is for good talent to stay in these conditions.

Back to holding each other accountable. I was reminded recently that we can do this through our little video squares if we have to, if your life also has these squares right now. One has to keep adapting and finding the discipline to be receptive to each other’s signals. A month or so ago I was taking part in a workshop about accountability and tech and was speaking about the government in Canada and their lack of knowledge about some of the digital issues that are manifesting in technology procurement. As I was speaking my colleague was raising her eyebrow. It was one of those subtle challenges to the story I was telling, it was a realization that this point on which I go back and forth wasn’t helping anyone. Her eyebrow was saying that the government knows very well what it’s doing. And she’s right. It’s a matter of who in the government is ok with it. And this is where we have leadership problems, staff side.

I reflect on my words often. I think about how I am both a state apologist and a capitalist apologist — by which I mean I am willing to represent ideas of different modes of each despite their failures to date. I am these things because I am still confident in people’s accountability to each other as a potential force to manifest changes to those systems. Not in an ignorant of past violence or history kind of way, but more of a “this is what we’re dealing with tomorrow morning” kind of way. I situate the way I do my work in a spectrum of knowing that we need people agitating all over the place to keep our political story, as humans, moving along, alive in different concurrent arenas. I’m willing to do it with one foot stuck firmly in the travesty and potential that is the modern administrative state.

So back to the raised eyebrow and the point here. As detailed in a recent piece by Blayne Haggart and Natasha Tusikov, “Official reports bemoaning the state of Canada’s civil service have been raising concerns about a lack of policy capacity since the 1990s, even as governments continue to spend billions on outside consultants.” Recently at the Standing Committee on Industry, Science and Technology hearing on the proposed Rogers Shaw merger, there was conversation about the Competition Bureau’s lack of capacity. This, in the face of Canada’s second largest potential merger in history. When a problem is said, reported, and known for close to four decades, under various types of leadership. Well. It’s the raised eyebrow. To the oft-quoted Deb Chachra , reappropriating Clarke’s third law — “Any sufficiently advanced negligence is indistinguishable from malice.”

One of the challenges in this moment is to figure out how to stop this advanced negligence. How to hold government accountable for its mandate to discern critical functions related to rights within the technology systems and architectures they are responsible for. If tasked with these explicit requirements, there is already adequate technical capacity to do this at all levels of government today.

There is never one singular truth or problem defintion in problems as old and advanced as this one. There are myriad issues with public service capacity right now, which do include excessive privatization of the public service through consulting firms and governments incorrectly fearful of suppressing innovation through regulatory clarity. Building more policy capacity is necessary too.

But one part of this tangle that the public can hive off and help with — and we’re doing it, slowly — is to agitate against the perverse incentives that currently enable some (not all, but too much) public service leadership to work against their very core responsibility: to retain the structures required to provide accountability for decision-making in the public service. There is currently no mechanism to manage this problem. Quite the opposite — we’ve got a system that incentivizes the government privatizing itself. So how do we continue to address this problem from outside?

I know this post is for a small audience that doesn’t need the paragraphs of examples of these problems. It’s for those that have a tacit understanding of this gnarly problem of very nice people that mean well pushed into lesser evil stances because they are incentivized to. A shift is not going to happen without self-critique and self-reflection and accountability. I’m asking us all to think about this accountability problem as out loud and together as possible because it has been so effectively spread out and shared by the public, private and third sectors that no one seems to thinks its theirs.

I’m always asking myself what my role is in all of this and every day I’m not sure. I’m not trying to throw rocks around here. I’m genuinely asking us to figure out how to pick up these pieces and how to work inside/outside to do it. How does the public engage in organizational design and human resourcing issues of their government? Is this a table we create in public view to help those in leadership?

Writing anything on this subject always feels off because of the size and age of the large knot of concurrent issues at play in public sector technology and policy. At the same time, a lack of accountable standards for leadership is part of what’s maintaining so much unnecessary complexity in the first place. Engaging in these conversations that diagnose public service issues is fraught because so much nuance and context is always missing. I add to this problem in my writing too, of course. But I know we all keep some kind of rhythm and energy alive when all of us partake in it. Hugs in the chaos and seeming futility. We’re figuring it out despite the steep hills.

“Black and White Blurry” by rileyroxx is licensed under CC BY 2.0