If you are in the podcasting business (as indeed this blog occasionally is), the Canadian government wants to know about you. It hasn’t yet decided what to do about you, to be sure. Fear not, it will, in its own good time. But, while the full implications for the freedom of expression will only become clear once it does make up its mind, it is not to soon to be (re-)learning some lessons about the administrative state.
Michael Geist (among others) has explained what is afoot: in late September,
The CRTC [i.e. Canadian Radio-television and Telecommunications Commission] … released the first two of what is likely to become at least a dozen decisions involving the Online Streaming Act (aka Bill C-11). The decision … involves mandatory registration rules for audio and visual services that include far more than the large streaming services.
Podcasts are “audio services” within the meaning of the legislation. Ostensibly, only those services with more than 10,000,000$ of Canadian revenues are required to register, which includes few podcasts (and definitely not ours, which produces no revenues at all). But of course things are not so simple. Individual podcasts won’t be required to report to the CRTC, but the platforms on which they are hosted will.
Why is that? The CRTC helpfully explains, and is worth quoting at length:
There are a variety of podcasts that can provide a wide range of content relating to information, opinion and entertainment. Without information about online undertakings that transmit or retransmit podcasts, it would be more difficult for the Commission to ensure the achievement of the objectives of subparagraph 3(1)(i)(iv) of the Broadcasting Act, which relate to, among other things, providing a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and of subparagraph 3(1)(i)(i), pursuant to which the programming provided by the Canadian broadcasting system should be varied and comprehensive, providing a balance of information, enlightenment and entertainment for people of all ages, interests and tastes.
Given that podcasts constitute a quickly evolving type of content that is consumed by Canadians, the registration of online undertakings that transmit or retransmit podcasts over the Internet and that are subject to the Broadcasting Act would assist the Commission in improving its understanding of that type of content in order to ensure that the broadcasting system is working to achieve the identified objectives of the Broadcasting Act. [223-24]
Simply put, the CRTC doesn’t have the foggiest clue what is going on, but it sure as hell knows that, whatever is going on, it has got to regulate it. And so it better find out what’s up.
This brings to mind James C. Scott’s Seeing Like a State. The editors of a Cato Unbound symposium on it, on which I draw in what follows, summarise it as follows:
States can only exert their power on what they can know about. Knowing requires measuring, systematizing, and simplifying. It requires, in other words, missing out on a lot of particular local data. Strategies of resistance to state power often take these gaps as their starting point, and problems with state rule often begin here as well. The state itself to a high degree may be said to run on legibility — the ability to know what’s really going on in a governed population or territory. Legibility, however, is in limited supply, and it comes at a cost.
As Prof. Scott points out, forms of legibility that we now take for granted ― even such seemingly self-evident things as everyone having a last as well as a first name ― took considerable inventing, and imposing. But invented and imposed they were, because without them, the state was rather helpless.
It is both striking and important to recognize how relatively little the pre-modern state actually knew about the society over which it presided. State officials had only the most tenuous idea of the population under their jurisdiction, its movements, its real property, wealth, crop yields, and so forth. … Having little synoptic, aggregate intelligence about the manpower and resources available to it, officials were apt either to overreach in their exactions, touching off flight or revolt, or to fail to mobilize the resources that were, in fact, available. To follow the process of state-making, then, is to follow the conquest of illegibility.
The CRTC’s admission of its ignorance and demand for information echo these points. John Perry Barlow had a point, after all, when he taunted “Governments of the Industrial World, you weary giants of flesh and steel … from Cyberspace, the new home of Mind.” On behalf of the inhabitants of this new home, he insisted that governments “do not know us, nor do you know our world”. The CRTC is saying, “damn right we don’t ― but damn right we will”. Its relationship with cyberspace has been pre-modern, but not anymore. It will colonize cyberspace, and to do so it will learn to see it, and to listen to it, like a state.
Note that this sort of thing entirely undermines the expertise justification for administrative power. Scholars who support the administrative state and insist that legislatures should delegate vast powers to it, while courts must defer to its decisions, including when those affect constitutional rights or purport to say what the law is, tend to justify these violations of the separation of powers by pointing to administrative expertise. As, for example, Matthew Lewans writes in Administrative Law and Judicial Deference ” we cannot hope to address [the] issues” facing modern societies “intelligently without harnessing the experience, expertise, and efficiency the modern administrative state provides.” (187) As Professor Scott points out ― and as the CRTC demonstrates ― the experience and expertise of the modern administrative state are manufactured.
They are also incomplete to the point of being quite fake ― and dangerously so. Consider one of the examples Prof. Scott uses in his contribution to the Cato symposium. He describes “the invention of scientific forestry in 18th-century Prussia and Saxony”. In the process,
… the forests were reconceptualized as streams of salable commodities, above all so many thousands of board feet of timber and so many cords of wood fetching a certain price. … Missing were all those trees, bushes, and plants holding little or no potential for crown revenue. Missing as well were all those parts of trees, even revenue-bearing trees, which might have been of great use to the population but whose value could not easily be converted into fiscal receipts. … From a naturalist’s perspective, nearly everything was missing from the state’s narrow frame of reference. Gone was the vast majority of flora … Gone were most species of fauna, except for the large game integral to the aristocratic hunt. The utilitarian state could, quite literally, not see the real existing forest for the (commercial) trees.
But the state did not stop at rethinking: it proceeded to remake. It made the
attempt to create through careful seeding, planting and cutting, a redesigned forest that was easier to count, manipulate, measure, and assess. Thus was born the modern, “production” forest: a mono-cropped (Norway spruce or Scotch pine), same-age, timber-farm planted in straight rows. The very uniformity of the forest vastly simplified its management and exploitation. … Redesigning the forest as a “one-commodity machine,” however, had, in the long run, catastrophic consequences for forest health and production. The mono-cropped, same-age forest was far more vulnerable to disease, blight, and storm damage.
A little knowledge is a dangerous thing, and Prof. Scott’s shows that the state only ever has a little knowledge. This is a similar point to Hayek’s, but Prof. Scott’s reasons are different (and complementary). While Hayek emphasized the inherent unavailability to the state of information about rapidly-changing individual needs and desires, Prof. Scott points to the inevitable simplification and deliberate sidelining if not destruction of information that must occur for the state to “see” anything. Either way, it is dangerous for the state to presume that it knows enough to start not only understanding the world around it but also to improve it. In the attempt to improve, it will often destroy.
In fairness, there are occasions when the state’s gaze has its uses ― perhaps even its benefits. For example, Prof. Scott notes that “[t]he opacity of local society was, of course, actively maintained by local elites as one effective means of resistance to intrusions from above”. It seems plausible that, at least in some cases, oppression by these local elites may have been worse than whatever form of governance the modern state substituted for it. It is also frequently the case that, however simplified they may be, and sometimes precisely because they are simplified, centralized ways of seeing things reduce transaction costs (both in a literal sense and in a broader one too, as in Prof. Scott’s opening example of a unified road numbering system making it easier for emergency services to reach the scene of an accident). Then again, as some of the contributors to the Cato symposium note, such co-ordination devices may well emerge without the state’s coercive direction. (The modern English language, trimmed down and bastardized from its Old English origins to serve the needs of the various ethnic and linguistic groups co-habiting Britain would be a good example of this.) All this is the subject of a good deal of interesting discussion in the Cato symposium, but there is no need for me to summarize that here.
Whatever good seeing like a state may sometimes do, there is no real case that it is beneficial or even useful when it comes to, of all things, podcasts. There are no local elites exerting a droit du seigneur on hapless podcasters, and the transaction costs one most incur in order “to be exposed to the expression of differing views on matters of public concern” or “a balance of information, enlightenment and entertainment for people of all ages, interests and tastes” are very close to nil. The CRTC’s endeavour to learn about podcasting is nothing more than a colonialist enterprise intended to do nothing more than expand its empire. As Jen Gerson has noted in The Line, what begins as seemingly benign information-gather will become the conduit through which podcasts of any size can be regulated ― potentially out of existence.
Double Aspect 