February 17, 2009

Last week I argued that our Information Age is in dire need of what Michael Schrage calls "rules of engagement". As I have been reminded since, in the United States rule making is at best considered a necessary evil. As an American colleague once told me, such an attitude is hardly surprising in a country which owes its greatness to a continuous influx of individual misfits fleeing the stifling conventions of established societies.

The same country prides itself, and rightly so, in having created a haven of freedom whose existence rests on a carefully crafted legal framework. Apparently the irony escapes the American people. Perhaps they single out laws, which are good, from rules, which are bad. Aren't laws voted by elected representatives while rules are written by soulless bureaucrats? I confess I enjoy as much as any to delve into the dizzying depths of rule production.

Savor for instance this juicy rule by the Federal Drug Administration, courtesy of E. J. Levy commenting on a recent case of peanut butter contamination (*). Tomato juice may be seized if it contains on average "10 or more fly eggs per 100 grams or five or more fly eggs and one or more maggots" (1). Could equating five fly eggs with one maggot be an advance worth our taxes? Speaking of which, my CPA asks all his clients this year to sign their name below their answer to the following. "Did you receive dividend income on shares of stock that you did not own for at least 60 days during the 120-day period beginning 60 days before the ex-dividend date?" At last all those years spent studying computer programming are paying me a dividend.

Alert American readers have already spotted my sleight of hand. While my first example of refined rule making truly comes from the pen of civil servants who would feel at home in Bruxelles as much as in Washington D.C., the second reflects a hallowed law of the land (2), laying to rest any attempt to tar the rule but spare the law. One cannot have one's freedom fries and eat them too.

Irony set aside, two arguments can be made against rule making, as against any pattern recognition task. Inevitably some rules are going to be misguided if not entirely wrong, like the current attempts to strenghten identity verification. Equally inescapable is the fact society bears a cost to understand, implement and enforce each and every rule. And the more one tries to compress those costs, the more they tend to reassert themselves.

Take implementation. The more detailed the rule, as in the cases I picked for fun, the heavier the burden it entails. Food processing plants must endlessly tune quality controls. Tax authorities demand ever increasing paper trails. But simplicity is no sure way to save society some money. What rule can be simpler than "you shall not kill"? Implementing it may be straightforward for any individual with a moral conscience, yet society needs a police force to ensure compliance and armies of lawyers and ethicists to interpret its meaning. When does an accident become a crime? What is a living human being?

America though has long closed its frontier, which tested Rousseau's conceit that Man was naturally good in the absence of Society. And no society can exist without rules. To avoid controversy, look at an issue devoid of moral connotation, i.e. physical collisions. However unlikely to begin with, from deep seas, as filed by Alex Barker (**), to deep space, per Demetri Sevastopulo and Charles Clover's report (***), moving objects will collide at a rate which increases with their density in the environment concerned. Given the number of automobiles on our roads, who has right-of-way at an intersection is one of the most necessary and most successful rule of all times. What the French call "la priorité à droite" is not yet another initiative by President Sarkozy. It is a highly catchy name for a simple rule (3) which US driving codes tend to bury in the fine print.

No matter how wide ranging, animals come back to their watering hole. Being no exception, this fillip now to privacy returns. As Noam Cohen cogently explains after the reputation of one more examplary sports star has been caught in a web of lies (****), "as data collection grows, privacy erodes". Like collisions, it is a mere matter of increasing probabilities and my point is quite blunt. However distrustful of rule making one may be, to think one can maintain even a shred of privacy without new urgent rules is to blind oneself and invite compounding the present economic anarchy.

Having thus set the stage, we will next week examine the recent report released by the Federal Trade Commission on online privacy rules. As Saul Hansell duly notices (*****), "two members of the commission, Pamela Jones Harbor [...] and Jon Leibowitz [...], hope for further regulation and possibly legislation on the issue." Should they be arrested as unAmerican? Or will they succeed in arresting a growing menace to society?

Should there be a rule against ambiguous titles?

Philippe Coueignoux

• (*) ......... The Maggots in Your Mushrooms , by E. J. Levy (New York Times) - February 13, 2009
• (**) ....... UK and French nuclear subs in collision, by Alex Barker (Financial Times) - February 17, 2009
• (***) ..... Satellite collision raises fears over debris, by Demetri Sevastopulo and Charles Clover (Financial Times) - February 13 2009
• (****) ... As Data Collecting Grows, Privacy Erodes, by Noam Cohen (New York Times) - February 16, 2009
• (*****) . Agency Skeptical of Internet Privacy Policies, by Saul Hansell (New York Times) - February 13, 2009
• (1) see the complete rule, courtesy of the FDA
• (2) see section 302 (a)(11)(B)(iii)(I) of Public Law 108-27, May 28 2003
• (3) giving priority to vehicles already in a rotary is the exception which proves the rule.