Notice & Comment

The Authors Respond, by JoAnne Yates and Craig N. Murphy

Pierre Larouche is right, but it is not just legal scholars: almost everyone who encounters the vast (but rarely noticed) world of private standard setting ends up like the blind men and the elephant of the fable. Most scholars of standardization, and even standards setters themselves, can only describe those parts with which they have become familiar. We are immensely grateful to all of those who took part in the symposium for helping us to understand so many of the parts of today’s standardization elephant that Engineering Rules does not depict. This response is primarily an appreciation and a discussion of what we have learned from you, but we want to begin by saying a bit about our part of the elephant, and why we focused our attention there.

Our Part of the Elephant

Engineering Rules is a history of the organizations, processes, and people involved with consensus-oriented, private voluntary standard setting. It first looks at the elephant from its birth to its maturity in the decades after the Second World War. Because the elephant was still small throughout that part of the story, we were able to provide a relatively complete picture. When we got to the mature—perhaps, aging—beast in the late 1980s, we had to be selective about the new parts that we described. We were perhaps even more selective than other historians who have studied what we call the “third wave,” because we were convinced (as discussed below) that so many of the interesting question raised by social scientists about the current system could only be answered by looking inside the elephant at the detailed workings of standard-setting committees themselves. We chose to look at the largest scale organizational innovations in the recent system—at IETF, W3C, and ISEAL—and at what we have learned from Bridget Dooling to recognize as the “Order Muppets” who created some of them—Tim Berners-Lee (W3C) and Alice Tepper-Marlin (ISEAL)—as well as the battles with Chaos Muppets that gave us IETF. Jorge Contreras may be right that the ETSI story should have been included as well.

We are less convinced by Contreras’s argument that the final section of the book should have been contextualized within a larger picture of the technological transformations and shifts in the global political economy of the last generation. We have some sense of how much would need to be written to do justice to those topics[1] and fear it would require a good deal more than one book. Similarly, while we are sympathetic to Tim Büthe’s frustration that the book’s engagement with much of the recent social science literature on standardization is not in the text, the genre norms of the field of history demanded that most of it be relegated to the notes.

Nonetheless, many of the things we have learned from the symposium have suggested hypotheses for further, largely social scientific, research.

Sectoral Capture as a Source of Failure

Both Sam Halabi and Bernard Bell raise questions about the conditions for policy success of hybrid governance that links actions by private standard-setting committees and the dictates of governments or intergovernmental organizations.  In Engineering Rules we point to instances of two kinds of failure. In one, illustrated by the color TV case in chapter 5, government support for national champions in an emerging technology doomed international private and intergovernmental attempts to achieve compatibility and product standards. In the final chapter we pointed to the second kind of failure: a failure of enforcement. The literature on the impact of private environmental and corporate social responsibility standards suggests that positive outcomes tend to be achieved only when well-policed governmental regulations work in tandem with private standards. If the government is not playing its role, the standard fails to achieve its objective.

A similar situation appears recurrently in the longer history of safety standards of all kinds. As noted in a number of cases throughout the book, the public’s demand for enforcement of safety standards has regularly brought reluctant governments into this part of standardization, even if many of the actual standards enforced by government are originally set by private technical committees.

Halabi points to the case of standards for measuring nicotine and tar in tobacco products in which an ISO committee, despite ISO’s balance rules, was captured by the sectors that manufacture and sell the unsafe product. Yet, recognizing that fact does not fully answer the question of what went wrong: Were no members representing the public interest appointed to the committee? Were they incompetent or captured by the same corporate interests? Finally, since this is a safety field in which governments and intergovernmental bodies (especially the WHO) have responsibility for enforcing standards, did they fail in their oversight? This is a particularly interesting case due to WHO’s very late, and very controversial, decision to take the lead in international tobacco control over the objection of powerful governments beholden to tobacco companies.[2]

The Democratic Contradictions of IBR

Some more general problems of hybrid governance are well highlighted by Alan Morrison, Peter Strauss, and Cary Coglianese in their discussions of incorporation by reference in the US context. Standard setting by consensus through balanced committees of stakeholders is meant to be a democratic process; in fact, many of its early advocates were among the leading democratic thinkers of their day.[3] Yet, IBR can result in regulations that the public can only know by paying for expensive, copyrighted standards, which is hardly democratic. Nevertheless, traditional US (and other) standard setters could not survive without those revenues. Electronic communication technologies have lowered the cost of reproduction and distribution of standards, as well as of the correspondence among committee members during the process of reaching consensus. And firms often pay the travel expenses of members to face-to-face meetings. But other costs—such as the physical and human infrastructures of the organizations and meetings—must still be paid.

The history of US-based standard setting suggests two alternative sources of funding. First, government can pay standard-setting bodies and those who sit on technical committees to set standards following their traditional rules, as the US government did throughout World War II. Alternatively, standard setting bodies can issue free standards, and cover their costs by charging membership fees, perhaps on graduated scales with the lowest fees for under-represented groups as W3C does (and, incidentally, as ISO has covered some of its costs while subsidizing the expansion of the standards community throughout the developing world), but this creates all the “pay to play” problems highlighted by Nina Mendelson.

Morrison highlights how both the cost of standards and the exclusiveness of technical committees contradicts the “comment” part of the democratic process of notice and comment. It may, however, be worthwhile to reflect on typical critiques of such processes offered by early democratic theorists [see note 3] who supported stakeholder standard setting. They might argue that it would, in most cases, be better to assure that all stakeholders in a technical standard are represented by competent experts from the very beginning of the process; that is, it would be better to focus on improving the technical committees rather than focus on a haphazard, often-uninformed process that occurs after a standard has been set.

Are We Too Optimistic About the Engineers?

A number of the commentators asserted that Engineering Rules presents a one-sided, overly optimistic view of the people who have taken part in private standard setting. Perhaps so. Indeed, we were aware of many critiques of standard setting, especially around issues of power, and we deliberately embraced a glass-half-full approach, focusing on “power to do” rather than on “power over” (p. 12). Nevertheless, we certainly hope that, in addition to our portraits of the various boring, but admirable Order Muppets, readers will also remember those of the Nazi-sympathizing Huber-Ruf, the lazy and self-aggrandizing Henry St. Leger and Brooks Short, the clueless Murray Freeman and all the others who continued to try to create anticipatory standards for an Internet that was already functioning, and the “sharp-elbowed” Ryan. Justus Baron is certainly correct that in order to be able to assess the relative power of the conflicting motivations of the people involved in voluntary standard setting we need to develop sets of data covering a large representative sample of the tens of thousands of voluntary consensus standard setting committees that have operated over the last 120 years.

In fact, almost all of the theories of the operation of the standard setting system need to be addressed at that level. Frye, for example, compares the situation in which patents are owned by small businesses or individuals, to that in which they are owned by large firms, as in the story of container corners; large-scale empirical data about the frequency and effect of such differences would be valuable. Yet, there are very few studies that actually look inside technical committees and interrogate their members. This is why, in the second half of the book, we moved back and forth between the global picture and the detailed case studies of US involvement in international standardization in the electromagnetic compatibility domain over many decades, and of the five years of W3C’s WebCrypto Working Group. We know from acquiring detailed information on these cases[4] that obtaining and analyzing the records and interviews needed to create such data will be a major task, especially in the beginning. We hope that with the cooperation of SDOs and standardization scholars across the disciplines, the process of obtaining and analyzing such records will eventually become commonplace. This has happened, for example, with the records of many local and European-level consensus-oriented regulatory meetings, contributing to the robustness of the findings in the literature on deliberative democracy that we refer to in the book.[5]

What’s the Bigger Problem: Who’s at the Table or Who’s Powerful Outside?

Many of the commentators (Halabi, Mendelsohn, Büthe) echo a central concern in much of the empirical literature on deliberative democracy as well as on standard setting: the systematic exclusion (intentional or unintentional) of a variety of interests and perspectives from a supposedly multi-stakeholder consensus-making process, an issue that has been dealt with (with limited success) by every generation of voluntary standard-setting organizations.  In the long run, current claims of success are likely to ring hollow. For example, the fact that today’s ISO social responsibility standard setting is a good deal more legitimate throughout the developing world than efforts undertaken by most of the organizations in the field—who often have no representation from the global South—will become increasingly meaningless if ISO’s own record does not continue to improve. It is certainly possible to point to better and worse attempts to deal with the problem. The long ISO-UN cooperation to establish both standard-setting bodies and the engineering profession itself throughout the developing world may be more effective than IETF’s scholarship program for a few women and minorities.

Nonetheless, we deliberately close the book with an attempt to focus equal attention on the less widely discussed question of the power of different stakeholders “outside the standard-setting process itself” (p. 338). For example, “[B]ecause every global company wants access to the American, Chinese, and European markets, the views of the US government, the Communist Party of China, and the European Commission always matter in standard setting, even when they are not at the table (p. 338).”  The standards movement has always worked within the larger structures of power of the global political economy.

Questioning National Experience

Both standard setters themselves and scholars of standardization sometimes see those larger structures, and the standardization system itself, through the blinders of their own national experience. In researching the book we were struck by how frequently the standard setters in the most powerful countries developed mirror images or near-mirror images of each other, starting in the 1920s when the Germans, Americans, and British all were convinced of the nationalistic advantage-seeking of the others’ activities in Latin America. Today, American-based standard setters (and scholars) are likely to point to the undue advantage that ISO and IEC rules give to those in Europe or the global South due to national voting. For Europe and the global South, the near-mirror problem is that of global American firms gaining representation in multiple national delegations, or packing the meetings of open forums such as the IETF.

It is possible that these mirror images reflect real problems, but, given the regular recurrence of such mirroring, it may be worthwhile for scholars to look for concrete evidence that the problems are real.

Policy-oriented scholars may also find ways to turn differences in national experiences to an advantage by looking to the experience of other regions or countries for possible solutions to the problems with their own systems. We are not certain, but this might prove helpful relative to the significant problems in the American articulation of public regulation and private standards identified by many of the commentators. This could be especially important because those problems may, in fact, be increasing over time as Cary Coglianese’s clear analysis and striking graph would seem to suggest.

To conclude, we very much hope that Engineering Rules does prove helpful to legal scholars.  Certainly, the readings and reactions to the book that members of the symposium have given us have been very helpful in our understanding of the issues raised by the book, and of the research questions that need to be addressed next.

This post concludes a symposium reviewing JoAnne Yates and Craig N. Murphy‘s Engineering Rules: Global Standard Setting since 1880 (John Hopkins University Press). Previous posts in the symposium can be viewed here.

[1] JoAnne Yates, Structuring the Information Age: Life Insurance and Technology in the Twentieth Century (Baltimore: Johns Hopkins University Press, 2005); Craig N. Murphy, Global Institutions, Marginalization, and Development (London: Routledge, 2005).

[2] Ruth Roemer, Allyn Taylor, Jean Lariviere, “Origins of the WHO Framework Convention on Tobacco Control”, American Journal of Public Health 95, no. 6 (June 1, 2005): 936-38.

[3] In the book we point to Beatrice and Sidney Webb on the left of the political spectrum, Robert Brady and Mary Parker Follett in the center, and Herbert Hoover on the right.

[4] And on two other cases we studied that didn’t make it into the book, at least in a comprehensive way: the OSI committees on which Murray Freeman served and the set of committees that established and maintain the ISBN standards.

[5] See Jürg Steiner, The Foundations of Deliberative Democracy: Empirical Research and Normative Implications. (Cambridge: Cambridge University Press, 2012).

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