Laws With Unintended Consequences
Techdirt reports on a recent Florida law intended to ban slot machines and internet cafes – but the law is worded so badly that it is broad enough to ban all computers, tablets and smartphones. It essentially bans any machine or device by which someone can play a game of chance.
The law resulted in about 1000 internet cafes being shut down. One of them has launched a lawsuit and is of course using this bad drafting as part of its case.
As Mike Masnick of Techdirt puts it: “Can we just have lawmakers recognize, once and for all, that they’re really bad at legislating technology?”
This happens far too often. Another case in point is the yet to be declared in force Canadian anti-spam act. It is so complex, with exceptions added to exceptions, that the CRTC has started to publish how it interprets it in practice. It’s a law with good intentions that will be a compliance nightmare for many, and may actually discourage electronic communications and do the opposite of the expressed purpose of the act, which is:
3. The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct
(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;
(b) imposes additional costs on businesses and consumers;
(c) compromises privacy and the security of confidential information; and
(d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.
Here’s a thought – at least for the Canadian Federal government. Disband the Senate as we now know it. Replace it with a standby panel of qualified experts in various fields – who will review proposed legislation with an eye to determining the practical effects of the words, and revise language as needed. The experts from the standby panel would be called in as needed on a consulting basis depending on the nature of the proposed legislation. Be sure to include a few teenagers on anything remotely tech related.
That might get better legislation – and would probably be a lot cheaper than running the senate.
Even if they pushed proposed laws through law schools (as possible classroom analysis and drafting problems) they’d wind up in a better place.
There are a couple of different things going on here, i.e. with David’s examples, that might suggest different solutions.
In the US, many legislators draft their own legislation, i.e. they do not have professional assistance. (It varies from state to state.) In Canada, we have professional drafters in all governments, and they are very good at ensuring that the focus is what it should be.
We also do policy analysis first, or at least with some lead time, over drafting (except in extreme cases), which helps sort out application questions.
However, the CASL debate comes from unresolved policy issues too, which cannot be resolved by drafting, however good and however technically astute. Just how far does the government want to go in regulating unsolicited messages, and is it better to err on the side of inclusion or exclusion? Some smart and sensible observers, such as Michael Geist, think the anti-spam law won’t be as awful in practice as some critics, such as David, think it will.
I would put more money on the Senate getting that right, or workable, than a law school class, however well led and well intentioned. OTOH, it was the Senate that refused to pass the short title of the anti-spam bill, for reasons I have never seen disclosed, which means that there is no consistent name for it other than its 27-word official title. But the Senators can have an off day too, I suppose.
Many pieces of legislation are left with generic provision to be sorted out for application by regulations. Making things work in practice is not primarily a drafting problem, though good drafters can be very helpful. Making things work depends on having policy people who know what’s going on in the real world, and political direction that is clear.
Developing regulations in an atmosphere of ardent lobbying on various sides of practical questions can lead to inconclusive drafting as well. Again, the political folks ultimately decide whether regulations are to be approved, and they can support or not support the efforts of those preparing the regulations to make them coherent, workable or acceptable to one faction or another – or ideally to find a compromise acceptable to all. That hasn’t yet happened with the spam regs.
In addition, press reports suggest that our professional draughtspeople are prohibited from warning the commons if they believe the law will not pass Charter scrutiny.
I suspect we need several different filters applied to proposed laws, including legislative draftspeople, a panel of subject-matter experts and another of semi-retired lawmakers.
The latter is a very approximate description of the Senate or the British House of Lords.
Perhaps we need some “Fact Lords” in our senate (and, if we could get one, a Time Lord)
–dave
Proposed laws get a lot of screens, though their application is subject to the political process: public servants in the in-house policy development process, political staff ditto, professional drafters, Cabinet, then members of the legislature and in many cases legislative committeed with witnesses who may well be experts (and who often claim to be) – and then consultations with experts as regulations are drafted.
One of the pertinent features of the Florida legislation mentioned at the outset was that it was rushed through the legislative process. Rushing is never a good way to get a good product. Assuring that one has time to do a reasonable job at all stages would be a very welcome function for a Time Lord, though maybe not as interesting to watch on TV as the chronologically challenged (or mastered) Dr Who.
DC-B
You may be conflating the House of Lords in its former status as the UK’s highest court with the HL as one of the Houses of Parliament.
In its modern form, the judicial portion of the House of Lords, as a court, was not part of the legislative aspect. I think that, at any given time, there were no more than 7 active members of the HL as a court. I’m sure there were retired members who continued to sit in the HL in its legislative capacity, but there’s no reason to claim they’d be more expert than a retired barrister who was also a member of the House.
For at least the last two centuries, the members of the House of Lords in its capacity as the final UK court didn’t participate in the HL’s legislative aspect. FWIW, it’s probably 200 plus years since the full HL sat as a UK appellate court.
In its legislative aspect – so to the extent it might have people with competence in law – the UK House of Lords was and is the equivalent of our Senate, except we don’t have members who are born eligible for the Monty Python “upper class” twits Olympiad by birth. (I could be nasty and say something like “unless they’re [pick one’s party of choice]” but I won’t, not just because current affairs provides the answer.)
Ours are appointed.