The decision by the Federal Election Commission to defer action on new rules to constrain the activities of so-called 527 political organizations is being portrayed as an utter collapse of the new McCain-Feingold campaign finance law. In fact, nothing could be further from reality.

The dispute over whether several new Democratic-leaning independent political groups should be required to register with the FEC and abide by contribution limits is a legitimate one, and there is merit in the regulatory proposal — rejected by the full commission — that was offered by Commissioners Scott Thomas and Michael Toner. But this argument largely concerns unresolved questions stemming from judicial and FEC interpretations of the 1974 law that governs federal election law — not McCain-Feingold.

Had the Thomas-Toner proposal been adopted, the Media Fund and America Coming Together would have faced tougher requirements on the sources and amounts of contributions they receive. But supporters of the Media Fund and ACT still would have had legal options to continue their campaign activities. ACT would have had to raise more hard money to match its soft-money contributions, but it had already been moving in that direction, as had Moveon.org, which is now focusing its campaign activities on hard-money fundraising and expenditures.

Millionaire contributors to the Media Fund could have separately made independent expenditures in the form of television ads that expressly advocated the defeat of President Bush. Unions could have financed their own "issue ads" supporting Sen. John Kerry (D-Mass.) and attacking Bush until 30 days before the party convention or 60 days before the general election. Corporations would have retained the option to sponsor similar ads. Thereafter, even without FEC action, a key provision of McCain-Feingold kicks in. As the election nears, no 527 organization can use corporate or union money to finance broadcast ads that feature federal candidates.

McCain-Feingold was not written to bring every source of unregulated federal campaign funding within the scope of the law. Rather, it was designed to end the corrupting nexus of soft money that ties together officeholders, party officials and large donors. The law's principal goal was to prohibit elected officials and party leaders from extracting unregulated gifts from corporations, unions and individual donors in exchange for access to and influence with policymakers.

Indeed, the law has accomplished this objective. Members of Congress and national party officials are no longer soliciting unlimited contributions for the party committees, nor are they involved in the independent fundraising efforts of the leading 527 groups. The FEC's decision to defer action, therefore, does not pose the same risk of corruption as did the soft-money decisions of the past.

One of the fundamental concerns raised by the activities of 527s is that these groups, with their ability to receive unlimited contributions, would overshadow the candidates and weaken the role of parties in the electoral process. The new law, however, increased contribution limits to candidates and parties, to offset the effects of inflation and to ensure that parties remain major players in federal elections. Here, the evidence is overwhelming that the law's objective is being realized.

Bush and Kerry have both registered extraordinary fundraising success. Kerry has already raised more than $110 million, while the president has raised more than $200 million. In raising these sums, the presidential nominees have attracted the support of more than 500,000 donors who did not give money during the 2000 campaign. Congressional candidates, too, are also reaching out to new donors, with fundraising up 35 percent over the last cycle.

And in the first 15 months of this cycle, the national party committees have raised more than $430 million in hard money alone — $60 million more than they had raised in hard and soft money combined at the comparable point in the previous presidential cycle. This financial strength reflects the parties' success at adding more than 2 million new donors to their party rolls. For all the attention they are garnering, these 527 groups — both Democratic-leaning and Republican-leaning — pale when compared to the activities of the parties and candidates.

The 2004 elections have enormously high stakes. Supporters of Bush and Kerry are highly motivated to boost the election prospects of their favored candidate. All signs point to a vibrant get-out-the-vote effort by both parties and a rough equality in funding by and on behalf of the two major presidential campaigns. This reflects the 50/50 partisan division in the country and suggests that a disparity in resources is unlikely to determine the outcome of the presidential election.

The FEC has cheered some and disappointed others with its decision to defer new rulemaking on independent political organizations. While we empathize with the critics' concerns, we nonetheless take satisfaction that the major objectives of the new campaign-finance law are being realized.

      

       

       

Wouldn’t it be great if complex social problems could be solved by technology? Alvin Weinberg suggested in 1967 that technical engineering could work better than social engineering; the argument advocated quick fixes to the most urgent problems of humanity at least to alleviate pain while more complete solutions were worked out. However controversial was this idea, our reliance on technology has only increased since then. Still, over the same period, we have also come to appreciate better the unanticipated consequences of technological advancement. In light of our experience leaping forward as well as our tripping and tumbling along the way, we should make two considerations in designing a technological fix.

Consideration 1: Serious attention to unwanted consequences

A consideration of first-order is the study of unwanted effects and tradeoffs introduced by the technology. Take for instance nanoparticles—particles in the range of one to a hundred nanometers—that enable new properties in materials in which they are mixed; for instance, maintaining permeability in fine-particle filtration to make available inexpensive water purification devices for vulnerable populations. Once these nano-enabled filters reach the end of their usable life and are discarded, those minuscule particles could be released in the environment and exponentially increase the toxicity of the resulting waste.

No less important than health and environmental effects are social, economic, and cultural consequences. Natural and social sciences are thus partners in the design of this kind of technological solution and transdisciplinary research is needed to improve our understanding of the various dimensions relevant to these projects. What is more, the incremental choices that set a particularly technology along a developmental pathway demand a different kind of knowledge because those choices are not merely technical, they involve values and preferences.

Consideration 2: Stakeholder engagement

But whose values and preferences matter? Surely everyone with a stake in the problem the fix is trying to solve will want to answer that question. If tech fixes are meant to address a specific social problem, those who will live with the consequences must have a say in the development of that solution. This prescription does not imply doing away with the current division of labor in technological development completely. Scientists and engineers need a degree of autonomy to work productively. Yet, input from and participation by stakeholders must occur far in advance of the completion of the development process because along the way a host of questions arise as to what trade-offs are acceptable. Non-experts are perfectly capable of answering questions about their values and preferences.

The market system provides to some extent this kind of check for technologies advancing incrementally. In an ideal market scenario, one of high competition, the stakeholders on the demand side vote with their wallets, and companies refine their products to gain market share. But the development of a technological fix is neither incremental nor distributed in that manner. It is generally concentrated in a few hands and it is, by design, disruptive and revolutionary. That’s why stakeholders must have a say in key developmental decisions so as to calibrate carefully those technologies to the values and preferences of the very people they intend to help.

Translating these considerations into policy

The federal government first funded in 1989 a program for the analysis of Ethical, Legal, Social implications (ELSI) within the Human Genome Project. The influence this program had in the direction and key decisions of the HGP was at best modest; rather, it practically institutionalized a separation between the hard science and the understanding of human and social dimensions of the science.[i]  By the time the National Nanotechnology Initiative was launched in 1999, some ELSI-type programs sought to breach the separation. With grants from the National Science Foundation, two centers for the study of nanotechnology in society were established at the University of California Santa Barbara and Arizona State University. CNS-UCSB and CNS-ASU have become hubs for research on the governance of technological development that integrate the technical, social, and human dimensions. One such effort is a pilot program of real-time technology assessment (RTTA) that achieved a more robust engagement with the various stakeholders of emerging nanotechnologies (see citizens tech-forum) and tested interventions at several points in the research and development of nanotechnologies to integrate concerns from the social sciences and humanities (see socio-technical integration). Building upon those experiences, the future of federal funding of technological fixes must include ELSI analyses more like the aforementioned RTTA program, that contrary to being an addendum to technical programs are fully integrated in the decision structure of research and development efforts.

Whenever emerging technologies such as additive manufacturing, synthetic biology, big data, or climate engineering are considered as the kernel of a technological fix, developers must understand that engineering the artifact itself does not suffice. An effective solution requires also the careful analysis of unwanted effects and a serious effort for stakeholder engagement, lest the solution be worse than the problem.

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Innovation is the driver of long-term economic growth and a key ingredient for improvements in healthcare, safety, and security, not to mention those little comforts and conveniences to which we have grown so accustomed. But innovation is not an unqualified good; it taxes society with costs.

The market system internalizes only a portion of the total costs of innovation. Other costs, however, are not included in market prices. Among the most important sources for those unaccounted costs are creative destruction, externalities, and weak safeguards for unwanted consequences.

Creative Destruction and Innovation

Schumpeter described creative destruction as the process by which innovative entrepreneurs outcompete older firms who unable to adapt to a new productive platform go out of business, laying off their employees and writing off their productive assets. Innovation, thus, also produces job loss and wealth destruction. Externalities are side effects with costs not priced in the marketplace such as environmental degradation and pollution. While externalities are largely invisible in the accounting books, they levy very real costs to society in terms of human health and increased vulnerability to environmental shocks. In addition, new technologies are bound to have unwanted deleterious effects, some of which are harmful to workers and consumers, and often, even to third parties not participating in those markets. Yet, there are little financial or cultural incentives for innovators to design new technologies with safeguards against those effects.

Indeed, innovation imposes unaccounted costs and those costs are not allocated in proportion of the benefits. Nothing in the market system obligates the winners of creative destruction to compensate the unemployed of phased-out industries, nor mandates producers to compensate those shouldering the costs of externalities, nor places incentives to invest in preventing unwanted effects in new production processes and new products. It is the role of policy to create the appropriate incentives for a fair distribution of those social costs. As a matter of national policy we must continue every effort to foster innovation, but we must do so recognizing the trade-offs.

Strengthening the Social Safety Net

Society as a whole benefits from creative destruction; society as a whole must then strengthen the safety net for the unemployed and double up efforts to help workers retrain and find employment in emerging industries. Regulators and industry will always disagree on many things but they could agree to collaborate on a system of regulatory incentives to ease transition to productive platforms with low externality costs. Fostering innovation should also mean promoting a culture of anticipation to better manage unwanted consequences.

Let’s invest in innovation with optimism, but let’s be pragmatic about it. To reap the most net social benefit from innovation, we must work on two fronts, to maximize benefits and to minimize the social costs, particularly those costs not traditionally accounted. The challenge for policymakers is to do it fairly and smartly, creating a correspondence of benefits and costs, and not unnecessarily encumbering innovative activity.

Commentary published in The International Economy magazine, Spring 2014 issue, as part of a symposium of experts responding to the question: Does Innovation Lead to prosperity for all?

      

A review essay of “Governance of Socio-technical Systems: Explaining Change”, edited by Susana Borrás and Jakob Edler (Edward Elgar, 2014, 207 pages).

Phasing-out a useful and profitable technology

I own a Nokia 2330; it’s a small brick phone that fits comfortably in the palm of my hand. People have feelings about this: mostly, they marvel at my ability to survive without a smart-phone. Concerns go beyond my wellbeing; once a friend protested that I should be aware of the costs I impose onto my friends, for instance, by asking them for precise directions to their houses. Another suggested that I cease trying to be smarter than my phone. But my reason is simple: I don’t need a smart phone. Most of the time, I don’t even need a mobile phone. I can take and place calls from my home or my office. And who really needs a phone during their commute? Still, my device will meet an untimely end. My service provider has informed me via text message that it will phase out all 2G service and explicitly encouraged me to acquire a 3G or newer model. 

There is a correct if simplistic explanation for this announcement: my provider is not making enough money with my account and should I switch to a newer device, they will be able to sell me a data plan. The more accurate and more complex explanation is that my mobile device is part of a communications system that is integrated to other economic and social systems. As those other systems evolve, my device is becoming incompatible with them; my carrier has determined that I should be integrated.

The system integration is easy to understand from a business perspective. My carrier may very well be able to make a profit keeping my account as is, and the accounts of the legion of elderly and low-income customers who use similar devices, and still they may not find it advantageous in the long run to allow 2G devices in their network. To understand this business strategy, we need to go back no farther than the introduction of the iPhone, which in addition to being the most marketable mobile phone set a new standard platform for mobile devices. Its introduction accelerated a trend underway in the core business of carriers: the shift from voice communication to data streaming because smart phones can support layers of overlapping services that depend on fast and reliable data transfer. These services include sophisticated log capabilities, web search, geo-location, connectivity to other devices, and more recently added bio-monitoring. All those services are part of systems of their own, so it makes perfect business sense for carriers to seamlessly integrate mobile communications with all those other systems. Still, the economic rationale explains only a fraction of the systems integration underway.

The communication system of mobile telephony is also integrated with regulatory, social, and cultural systems. Consider the most mundane examples: It’s hard to imagine anyone who, having shifted from paper-and-pencil to an electronic agenda, decided to switch back afterwards. We are increasingly dependent of GPS services; while it may have once served tourists who did not wish to learn how to navigate a new city, it is now a necessity for many people who without it are lost in their home town. Not needing to remember phone numbers, the time of our next appointment, or how to go back to that restaurant we really liked, is a clear example of the integration of mobile devices into our value systems.

There are coordination efforts and mutual accommodation taking place: tech designers seek to adapt to changing values and we update our values to the new conveniences of slick gadgets. Government officials are engaged in the same mutual accommodation. They are asking how many phone booths must be left in public places, how to reach more people with public service announcements, and how to provide transit information in real-time when commuters need it. At the same time, tech designers are considering all existing regulations so their devices are compliant. Communication and regulatory systems are constantly being re-integrated.

The will behind systems integration

The integration of technical and social systems that results from innovation demands an enormous amount of planning, effort, and conflict resolution. The people involved in this process come from all quarters of the innovation ecology, including inventors, entrepreneurs, financiers, and government officials. Each of these agents may not be able to contemplate the totality of the system integration problem but they more or less understand how their respective system must evolve so as to be compatible with interrelated systems that are themselves evolving.  There is a visible willfulness in the integration task that scholars of innovation call the governance of socio-technical systems.

Introducing the term governance, I should emphasize that I do not mean merely the actions of governments or the actions of entrepreneurs. Rather, I mean the effort of all agents involved in the integration and re-integration of systems triggered by innovation; I mean all the coordination and mutual accommodation of agents from interrelated systems. And there is no single vehicle to transport all the relevant information for these agents. A classic representation of markets suggests that prices carry all the relevant information agents need to make optimal decisions. But it is impossible to project this model onto innovation because, as I suggested above, it does not adhere exclusively to economic logic; cultural and political values are also at stake. The governance task is therefore fragmented into pieces and assigned to each of the participants of the socio-technical systems involved, and they cannot resolve it as a profit-maximization problem. 

Instead, the participants must approach governance as a problem of design where the goal could be characterized as reflexive adaptation. By adaptation I mean seeking to achieve inter-system compatibility. By reflexive I mean that each actor must realize that their actions trigger adaption measures in other systems. Thus, they cannot passively adapt but rather they must anticipate the sequence of accommodations in the interaction with other agents. This is one of the most important aspects of the governance problem, because all too often neither technical nor economic criteria will suffice; quite regularly coordination must be negotiated, which is to say, innovation entails politics.

The idea of governance of socio-technical systems is daunting. How do we even begin to understand it? What kinds of modes of governance exist? What are the key dimensions to understand the integration of socio-technical systems? And perhaps more pressing, who prevails in disputes about coordination and accommodation? Fortunately, Susana Borrás, from the Copenhagen Business School, and Jakob Edler, from the University of Manchester, both distinguished professors of innovation, have collected a set of case studies that shed light on these problems in an edited volume entitled Governance of Socio-technical Change: Explaining Change. What is more, they offer a very useful conceptual framework of governance that is worth reviewing here. While this volume will be of great interest to scholars of innovation—and it is written in scholarly language—I think it has great value for policymakers, entrepreneurs, and all agents involved in a practical manner in the work of innovation.

Organizing our thinking on the governance of change

The first question that Borrás and Edler tackle is how to characterize the different modes of governance. They start out with a heuristic typology across the two central categories: what kinds of agents drive innovation and how the actions of these agents are coordinated. Agents can represent the state or civil society, and actions can be coordinated via dominant or non-dominant hierarchies.

	Change led by state actors	Change led by societal actors
Coordination by dominant hierarchies	Traditional deference to technocratic competence: command and control.	Monopolistic or oligopolistic industrial organization.
Coordination by non-dominant hierarchies	State agents as primus inter pares.	More competitive industries with little government oversight.

Source: Adapted from Borrás and Adler (2015), Table 1.2, p. 13.

This typology is very useful to understand why different innovative industries have different dynamics; they are governed differently. For instance, we can readily understand why consumer software and pharmaceuticals are so at odds regarding patent law. The strict (and very necessary) regulation of drug production and commercialization coupled with the oligopolistic structure of that industry creates the need and opportunity to advocate for patent protection; which is equivalent to a government subsidy. In turn, the highly competitive environment of consumer software development and its low level of regulation foster an environment where patents hinder innovation. Government intervention is neither needed nor wanted; the industry wishes to regulate itself.

This typology is also useful to understand why open source applications have gained currency much faster in the consumer segment than the contractor segment of software producers. Examples of the latter is industry specific software (e.g. to operate machinery, the stock exchange, and ATMs) or software to support national security agencies. These contractors demand proprietary software and depend on the secrecy of the source code. The software industry is not monolithic, and while highly innovative in all its segments, the innovation taking place varies greatly by its mode of governance.

Furthermore, we can understand the inherent conflicts in the governance of science. In principle, scientists are led by curiosity and organize their work in a decentralized and organic fashion. In practice, most of science is driven by mission-oriented governmental agencies and is organized in a rigid hierarchical system. Consider the centrality of prestige in science and how it is awarded by peer-review; a system controlled by the top brass of each discipline. There is nearly an irreconcilable contrast between the self-image of science and its actual governance. Using the Borrás-Edler typology, we could say that scientists imagine themselves as citizens of the south-east quadrant while they really inhabit the north-west quadrant.

There are practical lessons from the application of this typology to current controversies. For instance, no policy instrument such as patents can have the same effect on all innovation sectors because the effect will depend on the mode of governance of the sector. This corollary may sound intuitive, yet it really is at variance with the current terms of the debate on patent protection, where assertions of its effect on innovation, in either direction, are rarely qualified.

The second question Borrás and Edler address is that of the key analytical dimensions to examine socio-technical change. To this end, they draw from an ample selection of social theories of change. First, economists and sociologists fruitfully debate the advantage of social inquiry focused on agency versus institutions. Here, the synthesis offered is reminiscent of Herbert Simon’s “bounded rationality”, where the focus turns to agent decisions constrained by institutions. Second, policy scholars as well as sociologists emphasize the engineering of change. Change can be accomplished with discreet instruments such as laws and regulations, or diffused instruments such as deliberation, political participation, and techniques of conflict resolution. Third, political scientists underscore the centrality of power in the adjudication of disputes produced by systems’ change and integration. Borrás and Edler have condensed these perspectives in an analytical framework that boils down to three clean questions: who drives change? (focus on agents bounded by institutions), how is change engineered? (focus on instrumentation), and why it is accepted by society? (focus on legitimacy). The case studies contained in this edited volume illustrate the deployment of this framework with empirical research.

Standards, sustainability, incremental innovation

Arthur Daemmrich (Chapter 3) tells the story of how the German chemical company BASF succeeded marketing the biodegradable polymer Ecoflex. It is worth noting the dependence of BASF on government funding to develop Ecoflex, and on the German Institute for Standardization (DIN), making a market by setting standards. With this technology, BASF capitalized on the growing demand in Germany for biodegradables, and with its intense cooperation with DIN helped establish a standard that differentiate Ecoflex from the competition. By focusing on the enterprise (the innovation agent) and its role in engineering the market for its product by setting standards that would favor them, this story reveals the process of legitimation of this new technology. In effect, the certification of DIN was accepted by agribusinesses that sought to utilize biodegradable products.

If BASF is an example of innovation by standards, Allison Loconto and Marc Barbier (Chapter 4) show the strategies of governing by standards. They take the case of the International Social and Environmental Accreditation and Labelling alliance (ISEAL). ISEAL, an advocate of sustainability, positions itself as a coordinating broker among standard developing organizations by offering “credibility tools” such as codes of conduct, best practices, impact assessment methods, and assurance codes. The organization advocates what is known as the tripartite system regime (TSR) around standards. TSR is a system of checks and balances to increase the credibility of producers complying with standards. The TSR regime assigns standard-setting, certification, and accreditation of the certifiers, to separate and independent bodies. The case illustrates how producers, their associations, and broker organizations work to bestow upon standards their most valuable attribute: credibility. The authors are cautious not to conflate credibility with legitimacy, but there is no question that credibility is part of the process of legitimizing technical change. In constructing credibility, these authors focus on the third question of the framework –legitimizing innovation—and from that vantage point, they illuminate the role of actors and instruments that will guide innovations in sustainability markets.

While standards are instruments of non-dominant hierarchies, the classical instrument of dominant hierarchies is regulation. David Barberá-Tomás and Jordi Molas-Gallart tell the tragic consequences of an innovation in hip-replacement prosthesis that went terribly wrong. It is estimated that about 30 thousand replaced hips failed. The FDA, under the 1976 Medical Device Act, allows incremental improvements in medical devices to go into the market after only laboratory trials, assuming that any substantive innovations have already being tested in regular clinical trials. This policy was designed as an incentive for innovation, a relief from high regulatory costs. However, the authors argue, when products have been constantly improved for a number of years after an original release, any marginal improvement comes at a higher cost or higher risk—a point they refer to as the late stage of the product life-cycle. This has tilted the balance in favor of risky improvements, as illustrated by the hip prosthesis case. The story speaks to the integration of technical and cultural systems: the policy that encourages incremental innovation may alter the way medical device companies assess the relative risk of their innovations, precisely because they focus on incremental improvements over radical ones. Returning to the analytical framework, the vantage point of regulation—instrumentation—elucidates the particular complexities and biases in agents’ decisions.

Two additional case studies discuss the discontinuation of the incandescent light bulb (ILB) and the emergence of translational research, both in Western Europe. The first study, authored by Peter Stegmaier, Stefan Kuhlmann and Vincent R. Visser (Chapter 6), focuses on a relatively smooth transition. There was wide support for replacing ILBs that translated in political will and a market willing to purchase new energy efficient bulbs. In effect, the new technical system was relatively easy to re-integrate to a social system in change—public values had shifted in Europe to favor sustainable consumption—and the authors are thus able to emphasize how agents make sense of the transition. Socio-technical change does not have a unique meaning: for citizens it means living in congruence with their values; for policy makers it means accruing political capital; for entrepreneurs it means new business opportunities. The case by Etienne Vignola-Gagné, Peter Biegelbauer and Daniel Lehner (Chapter 7) offers a similar lesson about governance. My reading of their multi-site study of the implementation of translational research—a management movement that seeks to bridge laboratory and clinical work in medical research—reveals how the different agents involved make sense of this organizational innovation. Entrepreneurs see a new market niche, researchers strive for increasing the impact of their work, and public officials align their advocacy for translation with the now regular calls for rendering publicly funded research more productive. Both chapters illuminate a lesson that is as old as it is useful to remember: technological innovation is interpreted in as many ways as the number of agents that participate in it.

Innovation for whom?

The framework and illustrations of this book are useful for those of us interested in the governance of system integration. The typology of different modes of governance and the three vantage points from which empirical analysis can be deployed are very useful indeed. Further development of this framework should include the question of how political power is redistributed by effect of innovation and the system integration and re-integration that it triggers. The question is pressing because the outcomes of innovation vary as power structures are reinforced or debilitated by the emergence of new technologies—not to mention ongoing destabilizing forces such as social movements. Put another way, the framework should be expanded to explain in which circumstances innovation exacerbates inequality. The expanded framework should probe whether the mutual accommodation is asymmetric across socio-economic groups, which is the same as asking: are poor people asked to do more adapting to new technologies? These questions have great relevance in contemporary debates about economic and political inequality. 

I believe that Borrás and Edler and their colleagues have done us a great service organizing a broad but dispersed literature and offering an intuitive and comprehensive framework to study the governance of innovation. The conceptual and empirical parts of the book are instructive and I look forward to the papers that will follow testing this framework. We need to better understand the governance of socio-technical change and the dynamics of systems integration. Without a unified framework of comparison, the ongoing efforts in various disciplines will not amount to a greater understanding of the big picture. 

I also have a selfish reason to like this book: it helps me make sense of my carrier’s push for integrating my value system to their technical system. If I decide to adapt to a newer phone, I could readily do so because I have time and other resources. But that may not be the case for many customers of 2G devices who have neither the resources nor the inclination to learn to use more complex devices. For that reason alone, I’d argue that this sort of innovation-led systems integration could be done more democratically. Still, I could meet the decision of my carrier with indifference: when the service is disconnected, I could simply try to get by without the darn toy.

Note: Thanks to Joseph Schuman for an engaging discussion of this book with me.

       

Will McCants: ISIS-claimed attacks in Paris, Beirut, and Egypt indicate the organization wants to take the fight to its enemies abroad. One reason might be that all is not well in ISIS-land. The nascent state in Syria and Iraq has lost around 25 percent of its territory and tens of thousands of fighters in the year since America and its allies began to their campaign to defeat it. While the state still endures for now, it's under tremendous pressure because of the costs of ceaseless war.

To explain the troubles ISIS faces at home, we have invited a group of scholars to comment on its governance over the past years and speculate on what they might face in the year ahead. First was Mara Revkin, who examined how opinions towards ISIS have changed since it captured Mosul more than a year ago.

Next up is Aymenn al-Tamimi, a Jihad-Intel research fellow at the Middle East Forum, who argues that internal documents show increasing challenges for the Islamic State. 

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Aymenn al-Tamimi: There are a variety of ways to assess Islamic State (or ISIS) governance over its territories. One angle involves trying to talk to residents living within ISIS-controlled lands, and indeed this is the primary line of evidence Mara Revkin relies on in her piece assessing ISIS administration.

While oral testimony may produce some interesting observations on ISIS governance, it is also beset with difficulties in reliability and corroboration. The ISIS system of rule is a totalitarian dictatorship, on the lookout for anyone who could be deemed to be collaborating with the outside world. As such, residents may be reluctant to criticize, out of fear that they could be accused of leaking information harmful to ISIS. That can get a person disappeared or publicly executed. 

Last year, when I was speaking with a friend living in the western Anbar town of Rawa, he initially said that most residents preferred life under ISIS: 

“We are not content like before but I and most of the people here prefer living under the shade of the Islamic State, as no soldier comes upon our lands, and now I assure you that all the people of Rawa will fight in one rank against the [Iraqi] army if it tries to advance an inch because the army won’t have mercy on anyone…and this is the truth…and I give you knowledge of the sentiment among most of the people who were persecuted by the army but had committed no crime or fault, but we only lack [national grid] electricity.” 

At first glance, his sentiments seem quite understandable. Harassment, mass arrests, and disappearances in prisons of Iraqi Sunnis by the Baghdad government’s security forces were common grievances—maybe they have more weight than loss of access to public services like the national electricity grid, from which most areas under IS control have now been cut off. 

Yet in a subsequent conversation, in which I inquired about any publications ISIS had distributed in his area, the fear of ISIS became very apparent: 

“Brother, you know why I am cautious in giving you information: because the Internet is being monitored. And I want to know what you will do with it and whether this thing will harm the Dawla [ISIS], because after God Almighty and Exalted is He, we don’t have anything besides the Islamic State, and I fear having a [negative] effect on them.” 

Another resident of Rawa refused to discuss anything about life in the town, with the same concern about Internet communication being monitored by ISIS. 

These examples offer a glimpse into the challenges of understanding ISIS administration through local testimony. How can we be sure the testimony is not compromised on account of fear? It is of course possible to find people critical of ISIS living within its territories: for instance, a relative in Mosul told me a year ago that 90 percent of the city’s inhabitants prefer life before ISIS, but said fear prevents them from expressing their true feelings. But how does one even verify that claim? 

Cracks in the system

With clear shortcomings in oral testimony, I prefer to focus instead on internal ISIS documents to understand the evolution in governance—as well as problems facing ISIS that we don’t see in the endless streams of propaganda. To be sure, this method also has limitations: though I have managed to compile hundreds of documents so far, they likely constitute only a small fraction of the whole cache. Only if the ISIS project collapses with loss of major strongholds like Raqqa and Mosul—and hopefully the capture of tens of thousands of documents—will we get a fuller picture. 

Even so, the documents unearthed so far yield a number of important insights. The ISIS bureaucracy is ostensibly comprehensive and impressive, but it is clear that as time progresses, the state project is facing challenges due to pressure from its enemies. 

Only if the ISIS project collapses with loss of major strongholds like Raqqa and Mosul—and hopefully the capture of tens of thousands of documents—will we get a fuller picture.

For example, in mid-2015, the agricultural department issued a general notification urging people to conserve grain stocks on account of the “economic war” being waged by the coalition against ISIS, indicating that agricultural output in ISIS territories was in trouble. In addition, while ISIS makes no secret of its appeals for medical personnel to come to the caliphate, internal documents show that brain-drain is also a problem: multiple ultimatums have been issued, calling for medical professionals to return to ISIS lands or risk having their property confiscated. 

While ISIS would like to cultivate a new generation of professionals, the only real existing institution is Mosul University, which practically remains open only to Iraqi students. ISIS closed some departments on the grounds of contravening its ideology, and even those that remain open cannot function, likely owing to the wider issue of brain drain.

Documents also show great concern about the anti-ISIS coalition’s ability to launch airstrikes on high-profile targets. Worried about data security, the ISIS leadership increasingly attempts to restrict all broadcasting of information to its own channels. It has warned fighters and commanders not to open social media accounts or use mobiles, and recently banned satellite television.

Cash rules everything

Finally, for all the criticisms of the anti-ISIS coalition’s strategies, it is clear that they have significantly dented the group’s financial revenues. The Iraqi government no longer pays salaries of workers living under ISIS rule, airstrikes have hit ISIS-owned assets in the oil industry, Kurdish People's Protection Units (YPG) have taken the key Syria-Turkey border point of Tel Abyad, and Turkey has tightened security on remaining border areas under ISIS control. 

As a result, ISIS has reduced expenditures and increased taxation on its populations. In Mosul, for instance, ISIS imposed all costs for printing textbooks on school students. From Raqqa province, a memo dating to November/December 2015 established a 50 percent pay cut for all fighters, regardless of rank. The latter pointed to “the exceptional circumstances” ISIS is facing (referring, no doubt, to financial troubles). This is particularly significant as a financial budget I obtained from Deir az-Zor province shows that military upkeep—primarily in the form of fighters’ salaries—can be reasonably estimated to account for two-thirds of ISIS expenditures. These pay cuts may exacerbate problems of military cohesion in ISIS’s ranks—evidenced by a month-long general amnesty issued in October 2015 for deserters, and the failures of mobilization efforts to stop the Assad regime and Iran from breaking the ISIS siege of Kweiris airbase in Aleppo province.

Bring the fight home

For all of these insights into internal challenges for the ISIS project, I deem the prospect of collapse from an internal revolt unlikely. It is evident that internal opponents of ISIS face a stifling environment, and no one to date has offered them an alternative model of governance. Any internal uprisings that do occur—such as the Sha’itat revolt in Deir az-Zor province back in 2014—have been put down with ruthless efficiency. From the economic side, the group’s financial difficulties are unlikely to translate into total collapse, as it’s impossible to completely seal off cash flow between ISIS and the outside world. 

All of this shows that it will be up to outside forces to take the fight against ISIS to its heartlands.

      

Will McCants: ISIS-claimed attacks in Paris, Beirut, and Egypt indicate the organization wants to take the fight to its enemies abroad. One reason might be that all is not well in ISIS-land. The nascent state in Syria and Iraq has lost around 25 percent of its territory and tens of thousands of fighters in the year since America and its allies began to their campaign to defeat it. While the state still endures for now, it's under tremendous pressure because of the costs of ceaseless war.

To explain the troubles ISIS faces at home, we have invited a group of scholars to comment on its governance over the past years and speculate on what they might face in the year ahead. First was Mara Revkin, who examined how opinions towards ISIS have changed since it captured Mosul more than a year ago.

Next up was Aymenn al-Tamimi, a Jihad-Intel research fellow at the Middle East Forum, who argued that internal documents show increasing challenges for the Islamic State. 

This time, we’ve asked Aaron Zelin, the Richard Borow Fellow at the Washington Institute for Near East Policy, to weigh in with a historical perspective.

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Aaron Zelin: Attempts by salafi-jihadis to create states or govern territory are not a new phenomenon. Even for the Islamic State (IS), this is its second attempt at establishing a state and governing territories it controls. What sets it apart this time is the level of planning, sophistication, and capabilities compared to ten years ago.

Unlike the prior pieces in this series, I hope to present a historical perspective on IS governance, since I do not think one can be separate from the other.

The first state

In October 2006—when the Islamic State of Iraq (ISI) was declared—the leader of al-Qaida in the Land of Two Rivers (better known as AQI), Abu Ayyub al-Masri (Abu Hamza al-Muhajir) pledged allegiance to the new self-declared leader of the faithful, Abu ‘Umar al-Baghdadi. In a January 2007 book, ISI’s Shaykh ‘Uthman ‘Abd al-Rahman al-Tamimi explains the rationale for declaring the state. In it, he also outlines the state’s responsibilities for areas it controls: prosecuting criminals and sinners, implementation of the hudud (fixed punishments in the Qur’an and Hadith), mediating and resolving conflicts, providing security, distributing food and relief, and selling oil and gas. 

Although it called itself a state, the Islamic State of Iraq controlled only small amounts of territory, for limited periods of time—in no small part because of the American military occupation, but also due to insurgent and tribal competition for power. It attempted to show a veneer of legitimacy by establishing a cabinet of ministries in April 2007 and September 2009. Because of ISI’s limitations, it was nearly impossible to resolve conflicts, provide security, distribute food and relief, or sell oil and gas. Instead, it fell back on mostly only instituting hisba (moral policing) activities and targeting enemies as murtadin (apostates) and therefore legitimate to target and kill. Ten years ago, therefore, ISI did not live up to its own standards of governance excellence.

Ten years ago, therefore, ISI did not live up to its own standards of governance excellence.

ISI killed and kidnapped leaders from prior allies—such as the Islamic Army of Iraq, Ansar al-Sunnah, and other insurgent factions—because they were unwilling to pledge allegiance to al-Baghdadi. It required female residents to wear the niqab, burned down beauty salons and stores selling music, flogged individuals for drinking alcohol or smoking cigarettes, and banned barbers’ use of electric razors. ISI also banned positioning certain fruits next to one another at markets out of concerns over sexual innuendo, as well as banned the local bread (samun) and the use of ice. In town after town, this precipitated what eventually became known as the tribal sahwa, or awakening. That, along with the U.S. military surge in Iraq, tactically defeated ISI by 2009.

Towards a second state

Since ISI was only tactically and not strategically defeated, it used the American drawdown of troops that ended in December 2011, Sunni grievances with the Nouri al-Maliki regime in Baghdad, and most importantly the battlefield next door in Syria to rebuild its infrastructure and capabilities. As I noted in March 2013, a month before it changed its name to the Islamic State of Iraq and al-Sham (ISIS): “Through sectarian rhetoric, [ISI] will use the Syrian fight to try and gain more recruits in Iraq and redeem itself for its lost opportunity last decade.” Indeed it did. This time proved much different than a decade earlier. It also had a provisional position paper that outlined how it sought to take over territory and govern.

Prior to the infighting that began in January 2014 between ISIS and revolutionary, Islamist, and other jihadi factions in Syria, there was an understanding among the different insurgent forces against the Assad regime. As a consequence, ISIS was able to embed itself within the broader anti-Assad coalition even if other factions were wary of it—unlike now, when IS has pariah status. From April 2013 to January 2014, ISIS’s main focus was to present itself in a positive light to the Syrian population through da’wa (missionary) forums and by providing services. It also conducted softer moral policing, such as burning cigarettes or confiscating alcohol. But similar to a decade ago, it also killed other leaders from Syrian insurgent factions, prompting backlash. ISIS was pushed out of Latakia, Idlib, and parts of Aleppo governorates between January and March 2014. 

This led to ISIS’s independent consolidation of territory farther to the east in the Raqqa governorate and parts of Dair al-Zour governorate. It is also when more harsh punishments began to appear, such as cutting off hands for robbery or crucifying alleged apostates. In this period, ISIS also sought to appear as a state-like entity, showing off its various administrative departments including its da’wa offices, shariah courts, religious schools, police stations, and local municipalities, among others. It was an uneven process across its proto-wilayat (provinces) until its June 2014 declaration of the Caliphate, when ISIS changed its name again—to IS.

The second state

Since then, based on my review of thousands of IS media releases, a pattern emerged in IS attempts to expand, take over new territory, and consolidate its control. IS’s systematizing, bureaucratizing, and formalizing its governance structures allow it to operate consistently and in parallel across its various wilayat. This governance model can equally be applied in its core territory of Iraq and Syria as well as various other provinces. It is far more advanced than its prior incarnations, let alone al-Qaida branches (the closest instance being al-Shabab in Somalia).

IS’s systematizing, bureaucratizing, and formalizing its governance structures allow it to operate consistently and in parallel across its various wilayat.

My research demonstrates that IS state-building exhibits two stages: pre- or partial territorial control and full territorial control. Within these two categories are five phases of establishing control: intelligence, military, da’wa, hisba (consumer protection and moral policing), and governance. Although hisba would generally be considered part of IS’s governance apparatus, I separated the two—this helps distinguish the level of advancement and sophistication associated with meting out justice, versus that associated with actual services, administration, and economic activity, since the former is easier to implement than the latter. More details with specifics and case studies can be found here.

When compared with its first state as ISI and its building toward a second state as ISIS, the post-June 2014 IS structures, plans, and implementation are far superior.

When compared with its first state as ISI and its building toward a second state as ISIS, the post-June 2014 IS structures, plans, and implementation are far superior. Further, depending on the date and the particular province, IS did live up to its own standards of governance. That’s not to legitimize it, but rather to understand it on its own terms. This increased efficacy illustrates the organization’s ability to learn from past experiences. It also suggests that IS may apply lessons learned as more of its governance plays out in areas outside of Iraq and Syria—especially in Libya, but possibly even in Yemen or Afghanistan in the future. New knowledge will sharpen IS’s thinking and continue its growth and evolution as well as shorten its learning curve.

Therefore, aspects of the IS model could shift in the future. Moreover, since the American-led airstrikes began, its capabilities have been slowly diminished. As a result, it is currently difficult to determine whether IS is living up to its standards anymore.

Moreover, since the American-led airstrikes began, its capabilities have been slowly diminished. As a result, it is currently difficult to determine whether IS is living up to its standards anymore.

Watch and learn

Similar to IS, al-Qaida is in the process of learning lessons from the governance experience of the ISI in the mid-2000s. It is also looking back on its first attempted cases of governance activities by its own branches in the past several years in Somalia, Yemen, Mali, and Syria. Unlike IS, al-Qaida is attempting to root itself into local insurgencies in Libya, Syria, Yemen, and Mali, and not play a monopolizing role (at least for now). The second governance attempt by al-Qaeda in the Arabian Peninsula (AQAP) is still in its infancy, but its performance will provide more answers about the evolution in al-Qaida’s thinking on governance and how it differs from IS’s second governance attempt. 

The establishment of jihadi governance projects are a new normal. For now, it’s clear that IS has set a higher standard when compared to its earlier attempt a decade ago and to al-Qaida’s present governance. But the question going forward is whether either IS’s or al-Qaida’s models (or both) will be able to self-sustain in the long-term as they continue to incorporate lessons learned.

      

Will McCants: ISIS-claimed attacks in Paris, Beirut, and Egypt indicate the organization wants to take the fight to its enemies abroad. One reason might be that all is not well in ISIS-land. The nascent state in Syria and Iraq has lost around 25 percent of its territory and tens of thousands of fighters in the year since America and its allies began to their campaign to defeat it. While the state still endures for now, it's under tremendous pressure because of the costs of ceaseless war.

To explain the troubles ISIS faces at home, we have invited a group of scholars to comment on its governance over the past years and speculate on what they might face in the year ahead. First was Mara Revkin, who examined how opinions towards ISIS have changed since it captured Mosul more than a year ago. Then Aymenn al-Tamimi argued that internal documents show increasing challenges for the Islamic State. Next, Aaron Zelin weighed in with a historical perspective, analyzing the extent to which ISIS has lived up to its own standards of governance.

Now, we have Kamran Bokhari, a fellow with George Washington University's Program on Extremism, to argue that security—namely defending territory—is the foremost governance objective of ISIS in the short term.

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Kamran Bokhari: Ascertaining the extent to which ISIS excels at governing requires, among other things, an understanding of its imperatives and capabilities. The most fundamental act of governance for any state is protecting its territory. With many of the world’s most powerful militaries now dedicating significant resources towards the Islamic State’s destruction, the group has its work cut out for it in this regard. Defending its current territorial holdings in Syria and Iraq (and expanding if and where possible) is the single most critical imperative for ISIS.

This is not to say that other aspects of governance, including those detailed by Mara Revkin, Aymenn al-Tamimi, and Aaron Zelin, are not priorities for ISIS. The polity erected by the transnational jihadist movement cannot hope to survive—much less expand—without the provision of essential services such as sanitation, utilities, healthcare, and education to its citizenry. However, ISIS can only focus so much on these functions when the areas it controls are under attack on multiple fronts. In the last few months, it has lost ground in certain areas—largely in Iraq—but its core turf in Syria remains intact. 

This resilience should sharpen the focus of U.S. and Western military and intelligence institutions. At present, analysts and policymakers focus too much on ISIS’s ideology and too little on its war-making tradecraft. Radicalization is necessary but not sufficient to produce violence—definitely not on the scale that ISIS has demonstrated. The geopolitical real estate directly under ISIS control in Syria and Iraq is about the size of the state of New York; if we include the swathes of land where it enjoys relative freedom of operation, it’s approximately as big as Great Britain. 

Defending such a wide expanse against ground assaults, airstrikes, special operations forces missions, as well as human and signals intelligence probes requires elaborate institutionalization. Aaron Zelin details how ISIS systematized bureaucratic structures between the fall of its first attempt at statehood (2006 to 2009) and its second incarnation (2011 to the present). During these periods, it crucially developed a multi-divisional conventional military and counter-intelligence. In addition to its primary need to defend its nascent state, the jihadist movement has spent most of its existence developing military and intelligence capabilities, which played a key role in its emergence as the most potent rebel force in post-Arab spring Syria. 

Where did ISIS leaders pick up their self-defense strategies? One answer is al-Qaida, though many analysts over-emphasize that linkage. ISIS leadership has also likely studied the rise and fall of the Islamic Emirate of Afghanistan. Run by the Afghan Taliban, the Emirate was the first and only contemporary jihadist movement to have established a state of any significance before ISIS. There are differences, of course. The Taliban emirate was based within the confines of the Afghan nation-state, and enjoyed active backing from Pakistan and other Gulf Arab states. Furthermore, ISIS leader Abu Bakr al-Baghdadi has denounced the movement founded by Mullah Mohammed Omar as a “deviant” entity. However, the experiences of the Afghan Taliban from 1996 to 2001 offer very valuable lessons for ISIS—all the more since the latter’s caliphate rejects national boundaries and lacks state sponsorship. 

Security first

ISIS leaders fear losing their nascent state in the face of growing economic and military pressures. They seek to avoid, in particular, the circumstances that allowed for the collapse of the Taliban regime following the September 11 attacks. Many have asked why ISIS would engage in transcontinental attacks in the West if its primary aim is the preservation of its polity. As Shadi Hamid has discussed, ISIS likely does not view its terrorist attacks like the one in Paris as undermining its state. I would actually argue that ISIS sees a U.S. ground intervention as only helping its cause. What it fears is a more complex approach from the Americans involving Syrian boots on the ground. 

Thus in many ways, ISIS’s caliphate today faces circumstances similar to the ones that the Taliban emirate did in late 2001. The U.S.-led coalition against the Taliban launched airstrikes, while intelligence and special operations forces supported an anti-Taliban militia coalition, the proverbial “boots on the ground.” Fast-forward 15 years, and the battlespace that ISIS finds itself in—though much more complex—has the same basic configuration. The ISIS leadership is now vigorously searching for ways to endure airstrikes, block intelligence efforts, and thwart special operations missions designed to take out critical leadership and infrastructure. 

Perhaps most pressing is the need to prevent the emergence of a critical mass of Kurdish and/or rival jihadist militias to whom ISIS could potentially lose significant tracts of land. In Afghanistan, anti-Taliban militiamen with U.S. support were able to stage a comeback from their bases in northern Afghanistan near the Tajikistan border, sweeping through Kabul and even seizing the Taliban’s home turf of Kandahar. ISIS does not want to experience something similar to that, with Syrian rebel forces turning toward its territory in eastern Syria, especially now that they have run into serious problems in western parts of the county. There, regime forces backed by Russian aircraft are gaining the upper hand in critical places in Aleppo and Idlib provinces. U.S. strategy, for its part, seems to be focused not on the collapse of the Assad regime but rather in equipping rebel forces to take on ISIS. Some rebels may do so in the hope of garnering greater Western support. 

For these reasons, ISIS needs to ensure that both those in its own ranks as well as the people over whom it rules have little incentive to desert or rebel. Coercion helps, but only to a certain extent. The Afghan Taliban learned this lesson the hard way, when the very same population that had initially welcomed it as protectors against anarchy turned against the movement and were instrumental in the implosion of its state. This is why the ISIS regime will try to balance coercion and the provision of quality services (which Mara Revkin highlights). But as Aymenn al-Tamimi notes, financial constraints seriously limit the organization’s ability to sustain public support by providing essential services without having to resort to tax increases. 

Civilian administration is a relatively new activity for ISIS, and it therefore will take time to improve its performance. In the short term, ISIS will focus more heavily on the security aspects of governance. It is better equipped and experienced in this sphere, given its own prior experience as non-state jihadist force. ISIS is likely to continue to focus on what it knows best, as doing so offers it a better chance of holding hard-fought ground against its opponents.

       

Will McCants: ISIS-claimed attacks in Paris, Beirut, and Egypt indicate the organization wants to take the fight to its enemies abroad. One reason might be that all is not well in ISIS-land. The nascent state in Syria and Iraq has lost around 25 percent of its territory and tens of thousands of fighters in the year since America and its allies began to their campaign to defeat it. While the state still endures for now, it's under tremendous pressure because of the costs of ceaseless war.

To explain the troubles ISIS faces at home, we have invited a group of scholars to comment on its governance over the past years and speculate on what they might face in the year ahead. First was Mara Revkin, who examined how opinions towards ISIS have changed since it captured Mosul more than a year ago. Then Aymenn al-Tamimi argued that internal documents show increasing challenges for the Islamic State. Next, Aaron Zelin weighed in with a historical perspective, analyzing the extent to which ISIS has lived up to its own standards of governance. And Kamran Bokhari argued that security—namely defending territory—is the foremost governance objective of ISIS in the short term.

Below is an analysis from Quinn Mecham, Assistant Professor of Political Science at Brigham Young University. He focuses on the need to provide alternative, positive models of governance for the populations living under ISIS control.

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Quinn Mecham: The Islamic State group (ISIS), despite clear pretentions to statehood in the form of the “caliphate” it declared in June 2014, does not preside over a particularly successful “state.” It faces numerous challenges from both within and without, challenges that accelerated in 2015 with increasingly systematic airstrikes on ISIS fighters and facilities by numerous external actors. 

However, the governing institutions over which the Islamic State presides currently represent the best approximation of institutionalized governance for the millions of people in Iraq and Syria under its rule. Though international actors unanimously refuse to acknowledge the Islamic State as a legitimate state in the international system, it nevertheless provides many of the functions of a state for those living within its territory. The fulfillment of these state functions is critical to the lives and livelihoods of those governed in territory controlled by the Islamic State. An effective policy to challenge the Islamic State must take the group’s governance agenda into account by constructing appealing alternatives to Islamic State governance rather than simply seeking to undermine it. 

The Islamic State’s ambitious state-building efforts present a challenging policy problem for the array of states now fighting the Islamic State group. France, Britain, Russia, and the United States, among others, regularly articulate the urgent need to destroy the group and they have increasingly acted to do so. Airstrikes that accelerated in the later half of 2015 have put substantial pressure on the Islamic State’s institutions, killing off thousands of Islamic State fighters and destroying a substantial amount of military and economic infrastructure, most notably the capacity to refine and distribute oil resources. Ground operations, such as the one that retook the Iraqi city of Ramadi in December, have also ratcheted up the pressure. 

[I]n addition to degrading the organization, the attacks on ISIS are also degrading the only current form of effective governance for civilians.

While these efforts help fulfill the primary goal of degrading or destroying ISIS by targeting the group’s military and operational infrastructure, they also harm the coalition’s ultimate goal of creating regional stability. This is because, in addition to degrading the organization, the attacks on ISIS are also degrading the only current form of effective governance for civilians, leading to very negative consequences for the populations living under Islamic State rule. As governing capacity is degraded without providing an effective substitute for ISIS governance, many of the coalition’s objectives in the region will become more elusive in the medium term. Additionally, certain aspects of the Islamic State’s state-building goals, which outside groups would like to prevent, may actually be enhanced as a result of the conflict. 

War, what is it good for?

As military pressure mounts on the Islamic State, significant parts of its project are in danger, including its financing, military success, and leadership capacity. However, it is not certain that all aspects of its state capacity will decline. Scholarship on state-building makes it clear that although war can destroy states, it can also help to build them. Although the Islamic State is often viewed externally simply as a rebel group, its domestic state-building agenda follows the historical path of many developing states in that it has benefitted from some of the effects of being at war.

[A]lthough war can destroy states, it can also help to build them.

War helps to build states in a number of ways. First, it creates an environment where the state can much more efficiently extract resources from the population in the form of taxation, military conscription, or extortion. When security is at stake, people are more willing to give up other goods for protection; a state at war also has a high degree of readiness for violence, which can be applied to extract resources from its own people. 

Second, state survival during war requires a high degree of institutional efficiency, including the creation of new bureaucratic structures such as taxation systems, governance mechanisms, information networks, and other institutions designed to control and manage conquered territory. Finally, the pressures of constant warfare for those under threat and on the front lines can also solidify group commitments and strengthen aspects of the military culture, bureaucracy, and ideology that have contributed to the group’s success.

Scaling back

Certainly warfare also can degrade state capacity, and it has done so across Islamic State territory over the past year. Much of that degraded capacity is military in nature, but the process has also reduced state capacity on which civilians directly depend. There is substantial evidence now to suggest that military pressure on the Islamic State group has negatively impacted a variety of core state functions for civilians. While most coalition airstrikes to date have sought to avoid dominantly civilian targets, economic infrastructure has been actively targeted, leading to a significant decline in the resources devoted to civilian concerns.

Compared with only a year ago, the group is now a less effective distributor of resources and has also become more dependent on resource extraction from the populations that it controls. For example, as the group’s revenues from oil and the initial spoils from captured territory have declined, both its social service provision and its ability to pay salaries have severely deteriorated. This is harmful not just because of concerns over civilian protection, but also because it reduces social stability and plays into the group’s narrative that its enemies are making people’s lives much worse. While it is difficult to measure the extent to which civilians blame the group for these new difficulties, a current media crackdown in ISIS territory means that the dominant ISIS narrative of blaming external aggressors is the only one disseminated and likely has significant impact on public opinion.

After airstrikes accelerated in the autumn, an internal Islamic State memo revealed that due to a loss of revenue, the salaries of Islamic State fighters were being cut by a dramatic 50 percent from the original promised payments. These cuts have also affected non-military employees of the Islamic State, spreading to all civil servants. At the same time, the prices for basic goods have been dramatically increasing. Financial infrastructure has also been targeted, making basic economic transactions much harder, while declining soldier salaries make it more likely that those with guns will look to civilian resources to supplement their incomes. Popular policies such as subsidies for bread have been difficult to finance and in some areas under external pressure, essentials such as wheat have become very scarce. This pressure on the food supply impacts civilians in unpredictable ways because the Islamic State has tightly regulated agricultural markets and has failed to allow free market mechanisms to efficiently distribute food resources. 

In the realm of health and education, student registration fees have gone up dramatically while subsidies have declined, scaling back access to a key service designed to systematically socialize students into the ideology of the Islamic State. Professionals are also fleeing Islamic State territory, as exemplified by physicians who have been leaving the Islamic State in large numbers. Despite apparently having significant physical resources for basic medical care, such as vaccinations, the new labor shortage of physicians has made it impossible to keep up regular vaccination schedules within the civilian population. More recently, pressure on obtaining key medical supplies has also increased. 

Two sides of the coin

Attacks on the Islamic State have therefore both strengthened and degraded different components of state capacity. Some aspects of state capacity have actually increased under conditions of war, such as taxation, extortion, conscription, and coercive institutions that control civilians. Military attacks have degraded other aspects of the state, however, such as the resources of ISIS fighters and civil servants, resource distribution capacity, and institutions that support economic development. 

It is not yet clear what these changes in military and state capacity will have on the overall trajectory of Islamic State survival and the stated goal to destroy the Islamic State. While the Islamic State could ultimately be destroyed by a coalition military campaign that proactively takes and governs territory, under the present strategy it is much more likely that the Islamic State will persist and continue to preside over a fragile and increasingly marginal system of governance that is neither good for the group, for the people that live within its territory, or for long-term stability in the Middle East. 

Costs and benefits of a military campaign

This creates a set of difficult policy choices because there are also many good reasons for the military campaign against the Islamic State. The group has demonstrated its capacity and will continue to launch violent attacks on a range of international targets, providing external actors with clear justification to destroy the group’s military capacity in an effort to maintain global security. Likewise, the group’s military success and territorial control are central to its attractiveness to foreign fighters. The ideology that drives the Islamic State depends in part on its continued ability to challenge the current international system. Delivering sustained military defeats is therefore critical to puncturing the group’s apocalyptic narrative of ever greater success and expansion. 

Much of the Islamic State’s domestic control is also maintained through fear, and military defeats confirm in the public imagination that the group can be beaten, from without and potentially from within. Although significant local challenges have not yet materialized, as the Islamic State’s coercive capacity becomes weaker, defections to other groups may occur, and domestic opponents may begin to recalculate their odds of a successful challenge. 

[U]nder the present strategy it is much more likely that the Islamic State will persist and continue to preside over a fragile and increasingly marginal system of governance.

The clear need for military action must, however, be weighed against the serious costs to both civilian populations and to the long-term war effort of harming existing state capacity on which civilians depend. The largely aerial campaign against the Islamic State group has had painful effects on the populations it controls. The reduction of fuel availability, the collapse in salaries, the removal of food and educational subsidies, and the deep insecurity that comes from a constant fear of bombardment has likely done very little to endear civilian populations to the cause of the coalition’s military activity, which is often seen as supporting the Syrian regime. 

Degrading state capacity through military action also feeds into the group’s narrative that both the West and Arab leaders have no concern for Muslim civilians, and that the group is the only possible one that can act as a protector against external enemies. Dozens of recent Islamic State videos paint the anti-ISIS coalition as a Russian, Syrian, Jewish, or U.S. conspiracy designed to harm civilians. While it is difficult to determine the extent of civilian casualties as a result of the campaign to date, the heightened deprivation resulting from the coalition military campaign, coupled with a glaring lack of alternative models of good governance, is unlikely to break the dependence of civilians on the Islamic State. 

Wanted: Alternatives

When one takes the Islamic State’s substantive role in governance into account in formulating a strategy to destroy the group, it becomes increasingly clear that an effective military strategy must be coupled with a much more robust agenda to build alternative governance mechanisms if it is to be successful at permanently displacing the group from its territory. 

Challenging civilian dependence on the Islamic State requires alternative forms of governance that are more appealing to the populations currently governed by the group. Even if the quality of Islamic State governance declines in relative terms, a substantively more appealing option must be available if those currently under the Islamic State’s control will be willing to support it. The great current challenge is to formulate a policy that can meet or exceed the Islamic State’s ability to build governing institutions, not just tear them down. At this point in the tragic narrative, those craving good governance are likely to be much less interested in regime type than in institutions that can provide consistent levels of security, economic growth, and the rule of law.

The great current challenge is to formulate a policy that can meet or exceed the Islamic State’s ability to build governing institutions, not just tear them down.

While the Islamic State adeptly uses theatrical violence and fear to exercise control within its territory, a large portion of its success in maintaining control should also be attributed to the poor alternative options for the populations that reside within it. For many Sunnis in Iraq and Syria, the imaginable alternative models of governance are currently deeply unappealing. These include:

• re-absorption into the repressive cruelties of the Syrian state, 
• control by violent and corrupt Syrian rebel groups without a track record of effective governance, 
• governance by a deeply sectarian, Shiite-dominated Iraqi government that is dependent on ideological sectarian militias to maintain security, or 
• rule by ethnic Kurdish militias that have a poor reputation for their treatment of Arab communities. 

When compared with these options, the Islamic State group often comes across as more authentic, less corrupt, more committed to the rule of law, and a better provider of state services. Its current basic governance failures, while many, are also increasingly attributable to the effects of the military campaign waged by its enemies. 

Let's build

Despite its deep, persistent flaws, an alternative, better system of governance is more likely to come from the Iraqi state (in the case of large population centers such as Mosul), or from existing informal tribal governance (in Syria and more rural areas) than it is to come from other sources. The key actions that currently need to be taken are thus two-fold:

1. First, in territory already reclaimed from the group—such as in the devastated city of Ramadi—the anti-ISIS coalition should extend every effort to distribute needed resources, infuse the economy with ready employment options, reaffirm property rights and judicial institutions, and severely punish those pursuing violent retribution. Unfortunately, little in this direction has been accomplished in the months since the capture of Ramadi, as the rebuilding of civilian infrastructure has been treated as secondary to lingering security concerns. A clear investment of institutional and economic resources that helps to demonstrate the ability to maintain security and equal treatment under the rule of law will send a more powerful signal of the Islamic State’s weakness than the results of an aerial bombing campaign. 
2. Second, a greater external commitment to support the best in existing institutions within the Iraqi state as well as in areas with the potential for effective non-state tribal governance is a critical investment in the long-term stability of Islamic State territory. In other words, external resources should increasingly focus not just on training and equipping local military allies, but also in supporting high quality civilian institutions of local and regional governance. 

Unfortunately, it takes much longer to build effective state institutions than to destroy them.

Aggressively pursuing a governance strategy will be much more difficult than pursuing an air war against a proto-state without anti-air defenses, but it is a necessary one if the persistent appeal of the group’s state-building project is to be overcome. Because the Islamic State has powerfully distinguished itself from other jihadist competitors through its governance agenda, its support cannot be eliminated through a strategy solely dependent on destroying the governance upon which local populations depend. 

Unfortunately, it takes much longer to build effective state institutions than to destroy them. The faster that a serious, resource-intensive commitment to building alternative governing institutions in areas bordering Islamic State territory begins, the more likely we are to see the group that calls itself the Islamic State lose control of its narrative, its territory, and the civilian support upon which it relies.

       

Will McCants: ISIS-claimed attacks in Paris, Beirut, and Egypt indicate the organization wants to take the fight to its enemies abroad. One reason might be that all is not well in ISIS-land. The nascent state in Syria and Iraq has lost around 25 percent of its territory and tens of thousands of fighters in the year since America and its allies began to their campaign to defeat it. While the state still endures for now, it's under tremendous pressure because of the costs of ceaseless war.

To explain the troubles ISIS faces at home, we have invited a group of scholars to comment on its governance over the past years and speculate on what they might face in the year ahead. First was Mara Revkin, who examined how opinions towards ISIS have changed since it captured Mosul more than a year ago. Then Aymenn al-Tamimi argued that internal documents show increasing challenges for the Islamic State. Next, Aaron Zelin weighed in with a historical perspective, analyzing the extent to which ISIS has lived up to its own standards of governance. Kamran Bokhari argued that security—namely defending territory—is the foremost governance objective of ISIS in the short term, while Quinn Mecham focused on the need to provide alternative, positive models of governance for the populations living under ISIS control.

Next up, Nelson Kasfir, Professor of Government Emeritus at Dartmouth College, and Zachariah Mampilly, Associate Professor of Political Science and Director of Africana Studies at Vassar College, compare ISIS’s governance choices with how other armed groups have governed civilian populations. 

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Nelson Kasfir and Zachariah Mampilly: Now that the Islamic State (ISIS) claims to be a state, any useful analysis of how it rules should rest on a systematic conception of governance by insurgents who hold populated territory, a surprisingly common phenomenon. If we are to understand what ISIS is doing, how long it is likely to stick around and indeed why some civilians in its domain prefer its government to what they had experienced from either Baghdad or Damascus, it would be a good idea to compare its choices of governance with other armed groups that have captured territory and governed civilian populations. All of them must administer territory without the advantages conferred by sovereignty—an important resource available to even the weakest internationally recognized states.

In our new book, Rebel Governance in Civil War, we offer a framework to explain how rebels govern. We bring together leading scholars to explore specific issues and cases from all over the globe. While single-factor hypotheses don't help much, there are broad patterns describing how and why armed groups govern that fit ISIS.

By rebel governance, we mean decision-making, the provision of services and the regulatory framework that armed groups establish to produce a social order within a specific territory they control. Rebel governance activities can be separated into those that concern how decisions are made, what social services are provided and how the production or taxation of economic rents is organized. Symbolic practices and ideologies, including religious creeds, have significant effects in supporting any system of rebel rule.

Armed groups differ widely in their approach to governance.

Armed groups differ widely in their approach to governance, as the case studies in our book demonstrate. Few armed groups that control territory can ignore civilian governance, short of expelling civilian populations altogether. The vast majority of insurgent organizations range from governing minimally, by assuming few regulatory functions, to maximally by ruling everything, including the provision of public goods.

For example, although the leaders of the National Patriotic Front (NPFL) in Liberia were primarily interested in personal profit, they still created the veneer of government to seek international recognition and to ensure the proceeds of commercial enterprises went into their pockets. Both types of insurgents were active during the Greek civil war, the conservatives limiting their governance activities, while the communists tried to regulate all aspects of social life.

Despite the many Western press accounts that dwell on ISIS’ penchant for flamboyant displays of callous cruelty, it would be a mistake to think that ISIS does not engage in civilian governance. As Charles Lister notes: "By perceiving and presenting itself as a state, IS [ISIS] has sought to control and govern territory and maintain a cabinet of ministers responsible for a broad range of 'ministries,' incorporating military, civil, political, and financial duties." As a caliphate, ISIS has opted primarily for a hierarchical top-down administration. It demands strict obedience, but it is also intent on building infrastructure and running it effectively. By basing governance on its revival of the "Caliphate according to the prophetic method," that is, re-establishing institutions on the basis of what it understands the Prophet Mohammed to have insisted, ISIS leaders appear to have demanded control over most facets of social and personal life.

As a caliphate, ISIS has opted primarily for a hierarchical top-down administration.

As early as 2007, ISIS published a booklet outlining its plans for governance. In 2013, it issued pamphlets that laid out the exact governance activities the organization would undertake once in control of specific territories. Immediately after capturing various towns in Syria and Iraq, ISIS set about taking control over key industries and services including the distribution of electricity, water, and fuel as well as the production and distribution of food. ISIS monopolized service provision and proved sophisticated in using it to balance its brutality. As a result, "Sunni civilians have been more likely to accept the imposition of harsh norms," as Lister has written.

Symbolic processes are powerful tools of governance that legitimate rebel groups or signal their coercive capability. These processes are often influenced by specific ideological concerns. Like nation-states, rebels create distinctive symbolic repertoires by producing their own flags, currencies, mausoleums and staging parades and rallies. The leaders of ISIS are well aware of the importance of symbols. "The Islamic State was signaling that its flag was not only the symbol of its government and the herald of a future caliphate; it was the harbinger of the final battle at the End of Days," writes Will McCants in The ISIS Apocalypse.

The leaders of ISIS are well aware of the importance of symbols.

Explaining varying approaches

What factors shape these different traits of rebel governance? In our book, we identify four clusters: causes arising before the rebellion; causes arising during the rebellion; those emanating from attributes or behavior of the rebels; and finally those developing from responses of civilians.

First, pre-conflict factors involving the relations between state and society shape subsequent patterns of rebel governance. History matters because insurgents mostly acquire their cultural values, education, and ideas about governance, while growing up in the society they later defy. These experiences shape them even as they rebel. How they resolve these contradictions will vary from case to case. Thus, the Forces Nouvelles that occupied northern Côte d'Ivoire after 2002 "adopted—or rather adapted—procedures from the former state administration." Since they did not hold unchallenged authority, they chose to share the maintenance of security with neo-traditional hunters' associations who were deeply trusted by local residents. In a different case, General Padiri's Mai-Mai militia in the Democratic Republic of the Congo adopted the administrative pattern of offices of the Congolese government while adding "Bureau Six" to incorporate commonly held autochthonous magico-religious beliefs that greatly deepened the legitimacy of the militia's leaders.

Because ISIS takes an uncompromisingly radical stance, it is difficult to identify its continuities with prior governance. Still, a closer examination of ISIS’ involvement in food distribution provides an illustrative example of its links with the practices of past regimes. As one recent academic study (by José Ciro Martínez and Brent Eng, in a still-unpublished manuscript) points out, food production has long been understood as a key element of the weak social contract binding pre-conflict regimes in Syria and Iraq to their people. In pre-conflict Syria, the Baath Party had long understood direct control over the bread market as an integral task of the social welfare pact it struck with the population. Recognizing the importance of bread distribution to the Syrian population, ISIS undertook numerous efforts to control and ensure the production of bread within its territories. In a 2013 pamphlet published in Aleppo that outlines ISIS’ governance strategy, a promise to ensure bread distribution stands out alongside more conventional governance activities. Importantly, considering the propagandistic nature of many ISIS communications, the group went far beyond rhetorical positions in their commitment to policies concerning bread. Instead of merely mandating the manner in which bread would be produced and distributed in ISIS-controlled areas of Aleppo and Raqqa, the group also “subsidized the cost of flour, accelerated the opening of bakeries and distributed bread itself when necessary,” as Martínez and Eng write.

[W]artime contextual factors...affect rebel governance.

Second, wartime contextual factors—those circumstances that emerge during rebellion— also affect rebel governance. As rebels fight and as they engage with civilians, they often change their practices of governance. The military threat of the incumbent and other military rivals as well as the broader wartime political economy often significantly impact insurgents’ approaches toward civilians. With regard to military capacity, Stathis Kalyvas shows that as the communist insurgents lost territory towards the end of the Greek civil war, they became more coercive. In Latin America as well, there have been many cases in which rebel governance decayed when insurgent groups failed to protect their civilian populations from either internal or external violence, or in response to expansion of electoral opportunities by the incumbent state.

Similarly, a comparison of ISIS’ governance in Raqqa and Mosul, the two largest cities under its control, suggests that external military pressure has made the government more intimidating and sometimes less willing to abide by its own rules. After ISIS took control of each city, it quickly imposed its authority and provided more efficient administration than its predecessors had. In Raqqa the regime acted on the basis of its posted rules until American-led air strikes caused its leaders to become somewhat “more paranoid and prone to kidnapping people randomly.” In Mosul, residents, who originally regarded ISIS as “liberators,” became more dissatisfied as their taxes greatly increased and their nonpayment was met with physical punishments and fines. The failure of ISIS to protect its citizens from collateral damage from air strikes is certain to have increased their discontent.

After ISIS took control of each city, it quickly imposed its authority and provided more efficient administration than its predecessors had.

Material rewards also affect rebel governance. Rebels often change their pattern of governance when they begin to accumulate significant rents through the exploitation of natural resources. The National Union for the Total Independence of Angola (UNITA) changed after it began to export diamonds and the Revolutionary Armed Forces of Columbia (FARC) stopped following some of its Marxist principles after it began to export cocaine.

Usually, rebels cannot defend oil wells from attacks by incumbent states. ISIS has been an exception, making a daily income of $3 million in September 2014. After the recent steep fall in crude oil prices and air strikes, internal taxation (or extortion) may have become a more significant source of revenue. ISIS has also profited from kidnapping and bank robberies. Its reliance on oil production has proven both a boon and curse as the value of ISIS-produced oil shifts dramatically due to both the challenge of ensuring production and fluctuations in oil prices globally. The income permitted ISIS to pay generous salaries to civilians to keep sanitation and utility services functioning.

Third, rebel attributes and behavior—organizational structure and ideological orientation—affect rebel governance. Ideologies often provide rebels with political identities, coherent frameworks for political and social action and a sense of disciplined commitment to an overriding purpose. The Greek communists learned their Marxism before they rebelled. Ethnic secessionists, such as the Naga in India, knew whom they were going to exclude from their imagined polity in advance of taking up arms.

Establishing a legal code is a social service that often demonstrates the influence of ideology on rebel governance.

Establishing a legal code is a social service that often demonstrates the influence of ideology on rebel governance. Rules that rebels create and civilians obey can help provide legitimate authority, whether out of trust (as in the case of the Shining Path in Peru) or out of fear (as inspired by the Taliban in Afghanistan).

ISIS bases not only its fundamental character, but also its plan of governance, almost entirely on its peculiar interpretation of Islamic doctrine. Abu Bakr al-Baghdadi, the ISIS leader, received both a masters and a doctorate in Islamic rhetoric from the University of Islamic Sciences in Baghdad. As the caliph, some of the Islamic rationales that have been supplied to justify specific ISIS regulations can be traced to his earlier education.

The influence of Islam on ISIS’ ideology is most evident in its attempts to establish a legal system. The rebellion "sees itself as creating a distinctive and authentic legal order for the here and now, one that is based not only on a literal (if selective) reading of early Islamic materials but also on a long-standing [Islamic] theory of statecraft and legal authority." Andrew March and Mara Revkin identify laws governing land, trade, taxation and treatment of prisoners and slaves, all derived from ISIS’ interpretation of scripture. In addition, they assert "the theory of the caliphate implies a law-based social contract with reciprocal obligations and rights between the caliph and the people." The extent to which this legal order actually results in enforceable rights that protect civilians is unclear. However, there is evidence that ISIS officials engaged in dispute resolution among civilians, even punishing its fighters when they took bribes or harmed civilians.

[C]ivilian responses to the insurgent group affect rebel governance.

Finally, civilian responses to the insurgent group affect rebel governance. We examine both individual reactions to armed groups as well as how varying social groups—such as traders, religious orders, ethnic groups, and civil society organizations—engage with or challenge an armed group’s governance efforts. ISIS is challenging to study since it is perceived as denying civilians’ agency completely. But even under the most autocratic governance arrangements, civilians have found ways to influence and even challenge armed groups. For example, during the war in Sri Lanka, the Liberation Tigers of Tamil Eelam had numerous methods for incorporating civilian feedback despite its deserved reputation as an autocratic and brutal organization. The education system in Tiger-ruled areas emerged as a result of civilian pressure and meaningfully incorporated civilians into its daily operations.

Indeed, a surprising number of rebel groups have shared decision-making with civilians. The African Party for the Independence of Guinea-Bissau and Cape Verde (PAIGC) created democratic village councils, as did the National Resistance Army during its war in Uganda. On the other hand, summary justice and brutal punishments can increase legitimacy among civilians when meted out to thieves and rapists. Residents gave strong support to rebels who took over neighborhoods in Medellín, Colombia and provided instant justice to those the community regarded as criminals.

It appears that ISIS does not share decision-making with civilians, similar to other rebels that take Islam as the doctrinal basis for their revolt such as the Taliban in Afghanistan or Boko Haram in Nigeria. But discerning whether civilian responses affect ISIS governance would require difficult (though not impossible) field visits to ISIS-controlled territory. The fact that the group frequently needs to rely on civilians in order to provide services suggests that there may be greater scope for civilian involvement than is commonly recognized.

[W]hile ISIS may appear unique, it is not an exception from the pressures that shape rebel governance patterns generally.

Taken together, the above discussion shows that while ISIS may appear unique, it is not an exception from the pressures that shape rebel governance patterns generally. Armed groups do not determine the outcome of their governance efforts in a vacuum. Rather, civilian governance outcomes are established by the behavior of a variety of actors each interacting in a shifting and complex environment. While ISIS may be distinctive in its commitment to implementing a form of civilian governance based on its understanding of Islamic modes of governance, it is still subject to these dynamics. Analyzing it through the four clusters of factors discussed above show how its governance of civilians compares with other rebel groups.

The sustainability question

What does this tell us about the future of civilian governance under ISIS? Because ISIS has established a caliphate, it is committed to governing the people in the territories it conquers. As discussed above, ISIS leaders have adopted an approach to law that creates room for some protections for civilians and an approach to social welfare that provides space for a limited social pact. Yet, these rulers have fashioned an uncompromising notion that civilians must be governed within their strict interpretation of Islamic doctrine. In addition, they depend on foreign military recruits to buttress their rule.

These factors create contradictions that may cause regime instability that might either increase regime brutality, if leaders remain constant to their principles, or result in regime decay, if they lose their sense of purpose. ISIS may eventually be “hamstrung by its radicalism.” During the short time that ISIS has ruled civilians, it has insisted that its decisions cannot be questioned. The relevant lesson from studying other rebellions is that groups better able to accommodate different political actors through a process of political negotiation are more likely to endure. If ISIS leaders remain obstinate, refusing to compromise in favor of a principled ideological stand, civilians will continue to suffer and either fight or flee if they can. Alternately, if the group’s leaders are tempted by the wealth the regime has accumulated, they may give in to corruption and fashion a more predatory regime.

ISIS has also become a magnet for foreign fighters. No one really knows how many there are, but an early (2014) estimate is 15,000 from 90 countries. Although the flow has decreased recently, cultural interactions and political disputes among these foreigners and civilians are certain to remain problematic. As the external military threats faced by ISIS grow, its leaders are likely to rely on the loyalty and morale of their foreign fighters at the expense of the civilian population. Civilian governance will probably decay, resulting in greater instability and perhaps sowing the seeds of ISIS' own demise.

       

Will McCants: ISIS-claimed attacks in Paris, Beirut, Egypt, and Brussels indicate the organization wants to take the fight to its enemies abroad. One reason might be that all is not well in ISIS-land. The nascent state in Syria and Iraq has lost around 25 percent of its territory and tens of thousands of fighters in the year since America and its allies began to their campaign to defeat it. While the state still endures for now, it's under tremendous pressure because of the costs of ceaseless war.

To explain the troubles ISIS faces at home, we have invited a group of scholars to comment on its governance over the past years and speculate on what they might face in the year ahead. First was Mara Revkin, who examined how opinions towards ISIS have changed since it captured Mosul more than a year ago. Then Aymenn al-Tamimi argued that internal documents show increasing challenges for the Islamic State. Next, Aaron Zelin weighed in with a historical perspective, analyzing the extent to which ISIS has lived up to its own standards of governance. And Kamran Bokhari argued that security—namely defending territory—is the foremost governance objective of ISIS in the short term. Quinn Mecham focused on the need to provide alternative, positive models of governance for the populations living under ISIS control, and most recently, Nelson Kasfir and Zachariah Mampilly compared ISIS’ governance choices with how other armed groups have governed civilian populations.

Next up is Hassan Hassan, a resident fellow at the Tahrir Institute for Middle East Policy and co-author of ISIS: Inside the Army of Terror. He assesses ISIS’ model of governance before and after coalition airstrikes against the group began. Before the strikes, he argues, ISIS had a freer hand to implement its policies, and has used savagery and governance to both deter and incentivize communities under its control.

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Hassan Hassan: Abu Sameh, a Syrian in his late twenties, joined the Syrian al-Qaida-affiliated Nusra Front as a fighter in early 2013. He fought for the group in Deir Ezzor and northeastern Syria until the Islamic State (ISIS) began to dominate there in the summer of 2014. That’s when he switched sides.

He was drawn to ISIS through one of his relatives, a commander of a small armed faction operating near the Iraqi border. With ISIS, battle-hardened Abu Sameh landed a job related to his undergraduate major for the first time since graduating college in 2009. He became an accountant working in the group’s oil industry.

As with many like Abu Sameh, ISIS benefited from local expertise to run its state-building enterprise in the areas it conquered in northwestern Iraq and northeastern Syria in 2013 and 2014. It also re-opened institutions that ceased to operate after the collapse of provisional governments—former employees, for instance, had continued to receive salaries from Baghdad and Damascus, but they typically sat at home and enjoyed the kickbacks, without being made to work by armed groups in control of the areas. When ISIS took over, many of them were forced back to work.

Enforcement of strict rules helped ISIS establish a semblance of order, which appealed to local communities plagued by kidnapping, highway robbery, theft, and warlordism. After ISIS took control, crime disappeared overnight and people could travel unarmed from Aleppo to Mosul. Through savagery and governance, ISIS both deterred and incentivized communities under its control.

Through savagery and governance, ISIS both deterred and incentivized communities under its control.

Local perception

Assessments of ISIS’ model of governance should distinguish between the periods before and after coalition airstrikes. Priority should be given to the period that preceded the airstrikes—between June and November 2014 in most areas—when the group had a freer hand to implement its policies. Assessments must also consider how ISIS fared in comparison to the armed groups and governments which preceded it. In some cases, ISIS appeared to have gone even further than previous governments in extending its writ to rural areas of Iraq and Syria. 

In this context, local perception is key to the evaluation of ISIS’ performance. According to weekly or sometimes daily conversations I have had with residents in eastern Syria—where I am originally from—people living under ISIS rule equally blame airstrikes or government bombings for the worsening economic situation in their areas, not just ISIS. The desire to link ISIS’ inability to deliver services with the failure of its model is understandable, it allows one to undermine its appeal and wholly blame it for the deteriorating situation in ISIS-held areas. But properly understanding the way ISIS ruled during this specific period with an emphasis on local perceptions is vital not only for academic objectivity but also to fully grasp the unintended consequences of the current coalition campaign against ISIS.

Referring to the destruction of Ramadi after the expulsion of ISIS in December, Col. Steven H. Warren, a Pentagon spokesman in Iraq, told The New York Times: “One hundred percent of this is on ISIL [another acronym for ISIS] because no one would be dropping any bombs if ISIL hadn’t gone in there.” In reality, however, many in those areas see the causes of destruction with a little more nuance than “no ISIS, no bombs.” First, ISIS entered most of those towns with little confrontation with civilians; it was political grievances and the failure of other armed groups that partly enabled ISIS to occupy certain areas to begin with. Moreover, the air campaign targeted bridges and oil facilities, which made life harder for civilians and disrupted a wartime economy that preceded ISIS rule.

Beyond violence 

ISIS is a manager and not a distributor of resources. In the Syrian context, nationalist, Islamist, and jihadist groups have generally sought to win hearts and minds primarily through the free or cheap provision of basic resources. ISIS, however, opts for managing what it has under its control. Even as it charges the population for services, the model remains more effective than the ones in southern and northern Syria for a simple reason. Because ISIS seeks to function as a state, local communities obtain essential benefits in return: safety and security, effective courts, and unified rule. Elsewhere, like in Eastern Ghouta outside Damascus or in Aleppo, provision of services is trumped by chaos, uncertainty, and ineffective courts, because local groups do not have exclusive or unchallenged control over territory.

Because ISIS seeks to function as a state, local communities obtain essential benefits in return: safety and security, effective courts, and unified rule.

Other forces that ruled in Syria prior to ISIS aimed to establish order based on consent. Even the Nusra Front, which was far more powerful and disciplined than other forces up until the rise of ISIS, retracted some of its decisions, seeking to avoid clashes with local families. The Nusra Front (and other Islamist groups as well) typically shied away from enforcing their rules to avoid alienating the population. In most court cases, for instance, whether a ruling would be enforced or not would hinge on whether the criminal or his family had voluntarily accepted the court’s judgment in the first place.

Conversely, under ISIS, courts have a high enforcement mechanism. This was true even when ISIS was a minor player operating from bases in rebel-controlled areas in early 2013. ISIS would encourage people to seek its help when they had a complaint about a person and would forcefully resolve the issue, even if that meant confrontation with powerful groups or individuals. This occurred numerous times ahead of ISIS’ rise to prominence in late 2013. This partly explains why many villagers either travelled outside their towns to fight for ISIS even after it was driven out of their areas in that period or accepted it when it returned later.

ISIS’ model was high-risk. The group was consistent and determined about enforcing its rules, and would not tolerate rivalry in its territory or recognize Sharia commissions other than its own. It demanded uniformity at any cost. One of the most claimed “advantages" of ISIS’ rule in its territories is that it “gets the job done.” Unlike the Free Syrian Army and other Islamist groups, ISIS would send a patrol to fetch someone if another person filed a complaint about him (these complaints typically involved financial fraud or unsettled commercial disputes). According to one resident who was involved in such a case, even if the complaint in question dated back to the years before the uprising, ISIS would settle the situation, provided that the complainant had proof.

ISIS...demanded uniformity at any cost.

“If you’re an FSA commander and you have a civilian relative, [FSA and other rebels] would accept mediation,” Hassan al-Salloum, a former rebel commander from Idlib, told me, referring to the time when ISIS was still a marginal player in 2013. “But with ISIS, if I complain about an FSA member, they go and bring him in for interrogation. They would not accept mediation. People then started to go to complain to ISIS, looking for help and asking them to intervene.”

Regulations and price controls are other areas in which ISIS’ governance proved successful. It banned fishermen from using dynamite and electricity to catch fish. It also prohibited residents from using the chaos of war to stake new land claims. This was especially true in the Syrian desert, where residents had attempted to build new homes or establish new businesses in public lands, much to the chagrin of their neighbors. ISIS also limited the profit margins on oil by-products, ice, flour, and other essential commodities. It also prohibited families from setting up refineries close to private residences, under the threat of confiscation, a policy that led some families to quit the oil business altogether, according to residents I interviewed.

A state—and more

In certain cases, ISIS governed areas more comprehensively than the governments of Baghdad and Damascus. Whether in delivery of services or management of people and resources under its control, ISIS makes it clear it is the only ruler in town, and once residents recognize that, they are often allowed to help govern their areas. There have been instances, according to tribal sources from Iraq and Syria I spoke to, of “deputization” whereby ISIS re-armed specific tribesmen to control their own area, though that process remained extremely limited.

Before, other groups and previous governments would use tribal leaders as intermediaries between them and local communities. ISIS, by contrast, acts as an intermediary between different tribes and even within the same tribe to resolve disputes, some of which date back to the 1970s and 1980s. Furthermore, it has systematically disarmed local communities that came under its rule in a way that previous governments failed to do over decades. 

The group is the only one in the two countries that employs an extensive network of staff exclusively dedicated to dealing with tribal affairs. The man in charge of tribal affairs is a Saudi national by the name of Daygham Abu Abdullah, locally known to be well-versed in tribal lineage and dynamics. He oversees a bureau that receives tribal delegations from across the self-styled caliphate that desire to resolve conflict or appeal for clemency. After ISIS asserts control over an area, tribal outreach helps it engage with local tribes and act as a social arbiter. Even though the organization carried out mass atrocities against certain tribes, the group often has other members of those same tribes fighting in its ranks, including members of Albu Nimr and Albu Fahad in Iraq, and Al Shaytat in Syria. ISIS employs a seemingly contradictory strategy of divide-and-rule. It first attempts infiltrate an area, and follows up with an outreach policy after consolidating control. The office that handles amending tribal disputes is known as Public Relations Bureau.

Whereas Islamic inheritance laws stipulate that women are to receive half of that received by a male sibling, tribal society often deprives women even of that half share. Unlike governments, which rarely enforce Sharia-based inheritance laws, ISIS sent out instructions to local communities to provide women with their due share and some women who complained to ISIS judges would receive their shares retroactively from their brothers.

These measures suggest that the group, in some instances, is more vigorous and micro-managerial than previous governments that ruled these predominantly rural areas in Iraq and Syria.

These measures suggest that the group, in some instances, is more vigorous and micro-managerial than previous governments that ruled these predominantly rural areas in Iraq and Syria. Lawlessness, kidnappings, arbitrary killings, and highway robbery are greater sources of grievance for people living outside regime areas than poor services, something that ISIS has dealt with by providing security based on brutal justice and policing. The semblance of order established by ISIS remains a strong advantage for the group, despite its diminished ability in other aspects of governance, and forces that will take over from ISIS will be judged accordingly.

Conclusion

There is little doubt that the group has lost the initial appeal it had when it conquered large swaths of territory in Iraq and Syria in the summer of 2014. The U.S.-led air campaign has blunted the group’s ability to generate income from oil and war spoils that usually come from rapid expansion. It has also reduced the group’s capacity to provide sufficient services for communities under its rule. The air campaign has also resulted in an interesting trend: it has strengthened the role of ISIS’ security and intelligence core in the towns, villages and cities the group controls, a development that has led to mounting complaints about their harsh and crude behavior.

ISIS associates, too, complain of the group’s security apparatus to the extent that it has become common to hear of clerics explaining to ISIS members that the state that Prophet Mohammed founded also included munafiqun, or “hypocrites,” and that this should not be a reason to abandon it, according to interviews I conducted, including with members. (Connoting someone who only feigns belief in public, the term munafiqun is a heavy accusation to levy at a fellow Muslims, and such people are condemned in the Quran.)

[T]argeting the economy of ISIS-controlled areas can make matters worse.

But all that will not translate into a rebellion against ISIS. Additionally—and more importantly—targeting the economy of ISIS-controlled areas can make matters worse. In some cases, airstrikes led families to send their children to join ISIS as the only way to generate income. Iraqi officials have warned that choking off ISIS’s economic routes might result in “collateral damage.” While they may see this as necessary evil, it also runs the risk of helping ISIS tighten its grip by driving residents closer to it as the only employer or provider in town.

The unintended consequences of the air campaign are a serious concern, especially if ISIS is to be defeated strategically. This is something I have discussed with everyone involved, from civilians to ISIS members to Western officials involved in the anti-ISIS campaign. Residents often complain that they are suffering collective punishment by inconsiderate foreign forces. ISIS, meanwhile, tells the communities under its rule that it would have brought more prosperity to their towns had it not been for the airstrikes. A high-level American official involved in the campaign acknowledged to me that officials were aware of the possibility of unintended consequences but insisted that airstrikes targeting the economy in eastern Syria and western Iraq will only intensify. 

       

       

Editors’ Note: One week after this post was originally published, President Benigno Aquino of the Philippines said that the United States must take action in the South China Sea if China takes steps towards reclaiming the Scarborough Shoal. Michael O’Hanlon updated this post on May 23 with a brief response, below. The original post appears in full after the break.

Predictably, some experts—as well as now the Philippines' leader, President Benigno Aquino—are arguing that the United States should militarily prevent China from seizing the Scarborough Shoal, a disputed but basically worthless land formation in the open waters between the Philippines and China. The formation is admittedly three times closer to the Philippines than to China, but it is not important—and it is definitely not worth fighting China over. Loose talk of red lines and of the supposed need for the United States to "take military action" makes the problem sound far too antiseptic and easily manageable. In fact, any direct use of military power that resulted in the deaths of Chinese (or American) military personnel would raise serious dangers of escalation. 

The United States does need to ensure access to the sea lanes of the South China Sea. And it should help protect the populated areas of any allied country, including the Philippines. It should not recognize Chinese territorial or economic claims to areas surrounding disputed (or reclaimed) land formations, even if China occupies some of these islets and other features. And it should consider proportionate responses in the economic realm to any Chinese aggression over the Scarborough Shoal, as well as the possibility of expanded and permanent U.S. military presence in the area. But it should not shoot at Chinese ships, planes, or troops over this issue. It's just not worth it, and we have more appropriate and measured options for response if needed.

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[Original post, from May 12]

President-elect Rodrigo Duterte of the Philippines, known for his Trump-like rhetoric and supra-legal methods of reducing crime while mayor of Davao City on the island of Mindanao, is already causing consternation in many parts of the world. His previous tolerance for vigilantes as a crime-fighting tool, for example, is cause for concern.

But in other cases, we should relax and keep an open mind. For example, while The Washington Post editorial page has lamented that he appears willing to do a deal with Beijing—accepting Chinese investment in the Philippines while allowing China to enforce its claims to the uninhabited Scarborough Shoal in the South China Sea—that particular outcome may actually be good for the United States. 

Provocateurs in Beijing

Let’s situate the Scarborough Shoal issue in broader context. In recent days, the United States sailed a major Navy vessel, the William P. Lawrence, within 12 miles of the Fiery Cross Reef, a land formation in the Spratly Islands of the South China Sea that China has transformed into a 700-acre artificial island. China objected strenuously. Meanwhile, everyone awaits the ruling of an international arbitration panel, expected later this spring, on whether China or the Philippines (or neither) is the rightful claimant to the Scarborough Shoal.

To be sure, the broad problem starts in Beijing; The Washington Post is not wrong on that basic point. Incredulously, invoking fishing histories from many centuries ago, China claims not only most of the shoals and sand bars and small islands of the South China Sea, and not only the surrounding fisheries and seabed resources, but the water itself. Its so-called nine-dash line, which encompasses almost all of the South China Sea—including areas much closer to the Philippines and Indonesia and other key countries than to China’s own territory—can be interpreted as a claim to sovereign ownership. Fears that it will declare an associated air defense identification zone further complicate the picture.

Map of the South China Sea locating China's nine-dash line claim on the South China Sea, and the Air Defense Identification Zone (ADIZ). Note: The Spratleys, Parcels, and other islands in the South China Sea are disputed to various degrees by different parties. Photo credit: Reuters.

America’s aims are far less disruptive to the status quo. But of course, for America, the region is also much further away. In Chinese eyes, we already have our Caribbean Sea, and Gulf of Mexico—not to mention our extensive east and west seacoasts and other maritime domains. By contrast, China is largely hemmed in by land on three sides and Japan together with the U.S. Navy on the fourth. For Washington to deny China even a modest version of its own special waters strikes many in Beijing as haughty and hegemonic. 

America’s aims are far less disruptive to the status quo.

Choosing our historical analogies wisely

Of course, the United States is making no claims of its own in the region. Nor is Washington trying to dictate outcomes on all disputes. Washington does not take a position on who owns the land features of the South China Sea. Nor does it oppose any plan for joint exploitation of the area’s resources that regional states can agree on. Nor can the United States, or any other country, be expected to let China restrict naval and commercial shipping maneuvers through this region, through which at least one-third of the world’s commerce traverses. Nor should Washington abandon treaty allies—most notably in this case, the Philippines—if they come under fire from Chinese warships (as has happened before). And in fairness to Filipinos, the Scarborough Shoal is much closer to their country than to China, by a distance factor of more than three to one.

Yet there is a problem in Washington’s thinking, too. Given the way rising powers have behaved throughout history, it is unrealistic to think that China wouldn’t seek to translate its greater economic and military strength into some type of strategic benefit. Yet Washington expects China to stop building artificial islands, to abstain from deploying military assets to the region, and to accept adjudication of disputes over territory by an international panel.

... it is unrealistic to think that China wouldn’t seek to translate its greater economic and military strength into some type of strategic benefit.

Many Americans would view any bending of the rules in Beijing’s favor as appeasement and thus an invitation to further imperialistic behavior by China. We have learned the lessons of World War II and the Cold War very well. 

But it is also important to bear in mind the lessons of World War I, when great powers competed over relatively minor issues and wound up in a terrible conflict. Just as Germany had been largely shut out of the colonialism competition prior to 1914, making its leaders anxious to right what they saw as historical wrongs in advancing their own interests once they had the capacity, it is possible that China will refuse to accept the status quo going forward. By this alternative reading of history, our job should be to persuade China to be content with very minor adjustments to the existing global order—and to remind Chinese that they have benefited greatly from that order—rather than to oppose each and every small act of Chinese assertiveness as if it portended the first of many dominoes to fall. The good news in this case is that China is not challenging existing state borders, threatening established population centers, or using lethal force as a default instrument of state power. Its behavior is worrying, to be sure—but not particularly surprising, and by the standards of history, relatively benign to date.

Walk the line

With this perspective in mind, the United States should continue to insist on freedom of navigation in the South China Sea, and sail its ships wherever it wants, including within 12 miles of reclaimed islands. It should punish China for any future, limited use of military violence against a country like the Philippines by shoring up alliances, increasing forward U.S. military deployments, and imposing economic sanctions in concert with allies. But it should not itself use lethal force to directly respond to most small possible Chinese provocations or to evict People’s Liberation Army forces from disputed islands and shoals. It should tolerate some modest degree of expanded Chinese military presence in the area. And it should encourage regional friends to accept deals on joint economic exploitation of the region’s resources in which China would in effect be first among equals—though of course the exact meaning of that phrase would require careful delineation. 

Its behavior is worrying, to be sure—but not particularly surprising, and by the standards of history, relatively benign to date.

Duterte’s willingness to do a deal with China would seem to fit with these criteria, without surrounding any substantial claims to Beijing, and without suggesting any weakening in its ties to the United States either. The Philippines shouldn’t concede meaningful economic resources in the waters and seabeds surrounding the Scarborough Shoal. But ownership and control of the land features themselves are a minor matter about which Manila might well usefully compromise.

The United States and China are likely to be jostling for position in the South China Sea for years. That is probably inevitable. It is also tolerable, if we keep our cool while also maintaining our resolve—and if we patiently look for an ultimate compromise on the issues that currently divide America and its regional friends from Beijing. Ironically, the strongman from Mindanao may help us along with this process.

      

Event Information

A conversation with French Minister of Defense Jean-Yves Le Drian

On July 20 and 21, defense ministers from several nations will gather in Washington, D.C. at the invitation of U.S. Secretary of Defense Ash Carter. The meeting will bring together representatives from countries working to confront and defeat the Islamic State (or ISIL). French Defense Minister Jean-Yves Le Drian will be among those at the summit discussing how to accelerate long-term efforts to fight ISIL in Iraq and Syria. The close relationship between France and the United States has provided a solid base for security cooperation for decades, and in recent years, France has become one of America’s strongest allies in fighting terrorism and a prominent member of the international coalition to defeat ISIL.

On July 20, the Foreign Policy program at Brookings hosted Minister Le Drian for a discussion on French and U.S. cooperation as the two countries face multiple transnational security threats. Since becoming France’s defense minister in 2012, Le Drian has had to address numerous new security crises emerging from Africa, the Middle East, and within Europe itself. France faced horrific terrorist attacks on its own soil in January and November 2015 and remains under a state of emergency with its armed forces playing an active role in maintaining security both at home and abroad. Le Drian recently authored “Qui est l’ennemi?” (“Who is the enemy?”, Editions du Cerf, May 2016), defining a comprehensive strategy to address numerous current threats.

Join the conversation on Twitter using #USFrance

Video

• Introduction and featured speaker
• Discussion
• Introduction et conférencier invité
• Débat

Transcript

• Uncorrected Transcript (.pdf)

Event Materials

• 20160720_france_defense_transcript

       

       

       

       

       

       

Event Information

Register for the Event

In 2015, 193 countries adopted the Sustainable Development Goals (SDGs), a new global agenda that is more ambitious than the preceding Millennium Development Goals and aims to make progress on some of the most pressing issues of our time. Goal 4, "To ensure inclusive and quality education for all, with relevant and effective learning outcomes," challenges the international education community to meet universal access plus learning by 2030. We know that access to primary schooling has scaled up rapidly over previous decades, but what can be learned from places where transformational changes in learning have occurred? What can governments, civil society, and the private sector do to more actively scale up quality learning?

On April 18-19, the Center for Universal Education (CUE) at Brookings launched "Millions Learning: Scaling Up Quality Education in Developing Countries," a comprehensive study that examines where learning has improved around the world and what factors have contributed to that process. This two-day event included two sessions. Monday, April 18 focused on the role of global actors in accelerating progress to meeting the SDGs. The second session on Tuesday, April 19 included a presentation of the Millions Learning report followed by panel discussions on the role of financing and technology in scaling education in developing countries.

 Join the conversation on Twitter #MillionsLearning

Video

• Getting millions to learn: What will it take to accelerate progress on meeting the Sustainable Development Goals?
• Scaling quality education: The launch of the Millions Learning report
• Do funders help or hinder scaling in education?
• What role can technology play in scaling education?

Audio

• Getting millions to learn: What will it take to accelerate progress on meeting the Sustainable Development Goals?

Transcript

• Uncorrected Transcript - Day 1 (.pdf)
• Uncorrected Transcript - Day 2 (.pdf)

Event Materials

• 20160418_millions_learning_transcript
• 20160419_millions_learning_transcript

       

To achieve the desired outcomes of the Sustainable Development Goals as well as the global targets from the Paris COP21 Climate Summit by 2030, governments will have to find ways to meet the top-down objectives with bottom-up approaches. A systematic focus on scaling up successful development interventions could serve to bridge this gap, or what’s been called the “missing middle.” However, the question remains how to actually address the challenge of scaling up.

When Arna Hartmann, adjunct professor of international development, and I first looked at the scaling up agenda in development work in the mid-2000s, we concluded that development agencies were insufficiently focused on supporting the scaling up of successful development interventions. The pervasive focus on one-off projects all too often resulted in what I’ve come to refer to as “pilots to nowhere.” As a first step to fix this, we recommended that each aid organization carry out a review to be sure to focus effectively on scaling up. 

The institutional dimension is critical, given their role in developing and implementing scaling up pathways. Of course, individuals serve as champions, designers, and implementers, but experience illustrates that if individuals lack a strong link to a supportive institution, scaling up is most likely to be short-lived and unsustainable. “Institutions” include many different types of organizations, such as government ministries and departments, private firms and social enterprises, civil society organizations, and both public and private external donors and financiers.

The Brookings book “Getting to Scale: How to Bring Development Solutions to Millions of Poor People” explores the opportunities and challenges that such organizations face, on their own or, better yet, partnering with each other, in scaling up the development impact of their successful interventions.

Eight lessons in scaling up

Over the past decade I have worked with 10 foreign aid institutions—multilateral and bilateral agencies, as well as big global non-governmental organizations—helping them to focus systematically on scaling up operational work and developing approaches to do so. There are common lessons that apply across the board to these agencies, with one salutary example being the International Fund for Agricultural Development (IFAD) which has tackled the scaling up agenda systematically and persistently.

Following are eight takeaway lessons I gleaned from my work with IFAD:

1. Look into the “black box” of institutions. It is not enough to decide that an institution should focus on and support scaling up of successful development interventions. You actually need to look at how institutions function in terms of their mission statement and corporate strategy, their policies and processes, their operational instruments, their budgets, management and staff incentives, and their monitoring and evaluation practices. Check out the Brookings working paper that summarizes the results of a scaling up review of the IFAD.
2. Scaling needs to be pursued institution-wide. Tasking one unit in an organization with innovation and scaling up, or creating special outside entities (like the Global Innovation Fund set up jointly by a number of donor agencies) is a good first step. But ultimately, a comprehensive approach must be mainstreamed so that all operational activities are geared toward scaling up.
3. Scaling up must be championed from the top. The governing boards and leadership of the institutions need to commit to scaling up and persistently stay on message, since, like any fundamental institutional change, effectively scaling up takes time, perhaps a decade or more as with IFAD.
4. The scaling up process must be grown within the institution. External analysis and advice from consultants can play an important role in institutional reviews. But for lasting institutional change, the leadership must come from within and involve broad participation from managers and staff in developing operational policies and processes that are tailored to an institution’s specific culture, tasks, and organizational structure.
5. A well-articulated operational approach for scaling up needs to be put in place. For more on this, take a look at a recent paper by Larry Cooley and I that reviews two helpful operational approaches, which are also covered in Cooley’s blog. For the education sector, the Center for Universal Education at Brookings just published its report “Millions Learning,” which provides a useful scaling up approach specifically tailored to the education sector.
6. Operational staffs need to receive practical guidance and training. It is not enough to tell staff that they have to focus on scaling up and then give them a general framework. They also need practical guidance and training, ideally tailored to the specific business lines they are engaged in. IFAD, for example, developed overall operational guidelines for scaling up, as well as guidance notes for specific area of engagement, including livestock development, agricultural value chains, land tenure security, etc.  This guidance and training ideally should also be extended to consultants working with the agency on project preparation, implementation, and evaluation, as well as to the agency’s local counterpart organizations.
7. New approaches to monitoring and evaluation (M&E) have to be crafted. Typically the M&E for development projects is backward looking and focused on accountability, narrow issues of implementation, and short-term results. Scaling up requires continuous learning, structured experimentation, and innovation based on evidence, including whether the enabling conditions for scaling up are being established. And it is important to monitor and evaluate the institutional mainstreaming process of scaling up to ensure that it is effectively pursued. I’d recommend looking at how the German Agency for International Development (GIZ) carried out a corporate-wide evaluation of its scaling up experience.
8. Scaling up helps aid organizations mobilize financial resources. Scaling up leverages limited institutional resources in two ways: First, an organization can multiply the impact of its own financial capacity by linking up with public and private agencies and building multi-stakeholder coalitions in support of scaling up. Second, when an organization demonstrates that it is pursuing not only one-off results but also scaled up impact, funders or shareholders of the organization tend to be more motivated to support the organization. This certainly was one of the drivers of IFAD’s successful financial replenishment consultation rounds over the last decade.

By adopting these lessons, development organizations can actually begin to scale up to the level necessary to bridge the missing middle. The key will be to assure that a focus on scaling up is not the exception but instead becomes ingrained in the institutional DNA. Simply put, in designing and implementing development programs and projects, the question needs to be answered, “What’s next, if this intervention works?”

       

       

Editor's Note: On Thursday Brookings Visiting Fellow, Amb. Norm Eisen addressed the Italian Parliament to discuss ethics in government, highlighting efforts in the US to improve transparency and accountability. In the speech, Amb. Eisen argues that while ethics reform can be difficult, it is an absolutely essentially part of any democratic system.

As Prepared For Delivery

Signora Presidente Boldrini, Madam President Brasseur, honorevoli Parlamentari, fellow panelists and distinguished guests, buon pomerigo. Thanks for inviting me to address the urgent subject of ethical standards in political life. It is an honor to be here in the Italian Chamber of Deputies, in this beautiful and ancient city, to which we Americans owe so many elements of our system of government. And in my town of Washington, DC we also borrowed a lot of your architecture, so we owe you for that as well.

In exchange for all that, as a small form of repayment, I would like to offer some perspectives from the U.S. as you consider the adoption of a code of ethical conduct for the Italian Parliament.

Since we are in the Chamber of Deputies, the equivalent of our U.S. Congress’ House of Representatives, I will start with best practices in that body, based on years of my professional life—too many—spent addressing alleged violations of its codes of conduct, including as a defense lawyer and later as the co-founder of a government watchdog group.

And I think there are also important lessons to be drawn from the new, innovative code of conduct for White House officials we established while I served as the "Ethics Czar" of President Obama. At his direction I helped write that new code, the Obama "ethics pledge," and although I am biased I think it has been effective so far, knock wood, there have been no major White House scandals. So I will talk about the lessons of that code of conduct a bit as well. My reflections are those of a friend and partner nation with plenty of challenges of our own. So I approach the issue with genuine humility in sharing our successes and failures.

I. Government ethics while standing on one leg

So—what is our U.S. view of best practices for the contents of government codes of ethics? In the U.S. and dare I say internationally, there is a pretty well developed set of best practices. In our House of Representatives, for example, our equivalent of this Chamber of Deputies, Rule XXIII is the Code of Official Conduct. It provides rules in four core areas;

• one, for regulating conflicts of interest, that is, situations where personal interests or financial holdings may conflict with official parliamentary duties;
• two, for gifts, particularly those from lobbyists and other persons interested in parliamentary decisions;
• three, for outside employment of parliamentarians before, during and after government service, particularly with lobbyists, a situation which we call in the US the revolving door; and
• four, for parliamentarians’ proper use of official resources, that is, hiring, staff, budget, travel and such.

There is much more detail in our code of conduct, and a few other rules as well, but those four items—conflicts, gifts, employment and resources—are the key. These same four key areas are also at the center of our codes of conduct for employees of our executive branch, as codified in our statutes and regulations, as well as in the Obama ethics pledge.

I emphasize these four key items because, having helped draft one code of conduct, and having often delved into many other codes, I sometimes find that I lose the forest for the trees when working with these codes, that the priorities at least for me sometimes get lost in the detail. So I try to keep the core always in mind, though I should add that the content of any such code must of course be particularized for the circumstances of particular government bodies and jurisdictions. Thus our U.S. House code is five pages long, elaborating on those four core items, and the House Ethics Manual of official guidance for the code is 456 pages long. Our Obama ethics pledge we got onto one page, we were proud of that. And we made everyone read and sign that page. To be fair, we could do that because we built on and added to other rules which already existed, and we did have several pages of definitions and references attached to the pledge.

II. Enforcement and transparency

But a good code is only the beginning. In our U.S. experience, just as important as the code, maybe even more important, is its enforcement. And here is where I want to share some lessons drawn from U.S. challenges in recent years, and how we responded. I am going to add two more items to our check list: enforcement and transparency.

Candidly, even with our parliamentary code of conduct in the U.S., our enforcement has sometime lagged. That is in part because under our Constitution, the ultimate enforcers are the parliamentarians themselves, and so they can at times be understandably reluctant to sanction their colleagues and friends. It's human nature.

For example, from about 1998 to 2004, there was a seven-year truce in filing complaints in our House of Representatives. The government watchdog organization I co-founded helped end that in 2004 by writing a complaint together with a brave but lonely member of Congress who was willing to file it with the House Ethics Committee. The resulting investigation resulted in the discipline of the member investigated, and ultimately helped lead to his party losing majority control of the body.

Out of all of that came a new enforcement tool in 2008, in our House of Representatives, that I strongly recommend to you: the creation of a new, independent entity, the Office of Congressional Ethics (OCE). This is a nonpartisan fact-finding body that investigates allegations from any source, including whistleblowers who might otherwise be afraid to step forward. OCE then recommends action to the parliamentarians who constitutionally maintain the ultimate decision-making power. Most importantly, the OCE referrals become public, allowing press, civil society and voter accountability. As a result, I believe, since the creation of the OCE for our House in 2008, there have been a significantly higher number of meritorious investigations there than in our Senate, which does not have a comparable body. The total is about 46 OCE referrals and about 20 House disciplinary actions versus just four letters of admonition by our Senate in that period. To be fair the Senate is a smaller body—but not that much smaller!

That last aspect of OCE enforcement—transparency, and the accountability it brings from media, NGOs and the public—is the sixth and final point I want to emphasize. In our U.S. parliamentary ethics system we have many transparency mechanisms: asset disclosures that our parliamentarians file, disclosures that lobbyists must make about their activities, information in campaign finance filings, and more.

To explain the value of transparency, I would like to close by turning to one of our Obama White House ethics transparency innovations. Starting in 2009, we for the first time put on the Internet virtually all visitor records of those coming to the White House. It used to be that just to get a handful of these records you had to file litigation and wait for years to know who was coming to the White House, who they were meeting with and what the subject of the meeting was. Now millions of Obama White House visitor records are online, each with a dozen or so basic categories of information: the name of the visitor, the person visited, the subject of the meeting and so on.

Why is that important? I began by referencing the Obama White House's record in avoiding major scandal. I think there are a number of reasons for that, including the President's own integrity and the new code of conduct we put into place. But an important part of that success story has also been the fact that records of White House meetings go on the Internet for everyone to see. That transparency brings accountability from the press, civil society and the public. That transparency and accountability has in turn powerfully reinforced the code of conduct: it has discouraged people from having meetings they shouldn't have, and if you don't have the meeting, you can't get in trouble for it.

So the U.S. view in one sentence: regulate conflicts, gifts, employment, and resource use, with strong enforcement and above all transparency. Thanks again for inviting me to share the U.S. perspective. Grazie!

      

I had the pleasure earlier this month of welcoming my friend, Czech Republic Foreign Minister Lubomir Zaoralek, here to Brookings for a discussion of critical issues confronting the Europe-U.S. alliance. Foreign Minister Zaoralek was appointed to his current position in January 2014 after serving as a leading figure in the Czech Parliament for many years. He was accompanied by a distinguished delegation that included Dr. Petr Drulak of the Foreign Ministry, and Czech Ambassador Petr Gandalovic. I was fortunate enough to be joined in the discussion by colleagues from Brookings including Fiona Hill, Shadi Hamid, Steve Pifer, and others, as well as representatives of other D.C. think tanks. Our discussion spanned the globe, from how to respond to the Syrian conflict, to addressing Russia’s conduct in Ukraine, to the thaw in U.S.-Cuba relations, to dealing with the refugee crisis in Europe. The conversation was so fascinating that the sixty minutes we had allotted flew by and we ended up talking for two hours—and we still just scratched the surface.

Amb. Eisen and FM Zaoralek, October 2, 2015

Yesterday, we had a visit from Czech State Secretary Tomas Prouza, accompanied by Ambassador Martin Povejsil, the Czech Permanent Envoy to the EU. We also talked about world affairs. In this case, that included perhaps the most important governance matter now confronting the U.S.: the exceptionally entertaining (if not enlightening) presidential primary season. I expressed my opinion that Vice President Biden would not enter the race, only to have him prove me right in his Rose Garden remarks a few hours later. If only all my predictions came true (and as quickly). We at Brookings benefited greatly from the insights of both of these October delegations, and we look forward to welcoming many more from every part of the Czech political spectrum in the months ahead.

Prouza, Eisen, Povejsil, October 21, 2015

       

On June 20, I moderated a conversation on the future of the Department of Veterans Affairs with Secretary Robert McDonald. When he took office almost two years ago, Secretary McDonald inherited an organization in crisis: too many veterans faced shockingly long wait-times before they received care, VA officials had allegedly falsified records, and other allegations of mismanagement abounded.

Photo: Paul Morigi

Since he was sworn into office, Secretary McDonald has led the VA through a period of ambitious reform, anchored by the MyVA program. He and his team have embraced three core strategies that are securing meaningful change. They are important insights for all government leaders, and private sector ones as well.

1. Set bold goals

Secretary McDonald’s vision is for the VA to become the number one customer-service agency in the federal government. But he and his team know that words alone won’t make this happen. They developed twelve breakthrough priorities for 2016 that will directly improve service to veterans. These actionable short-term objectives support the VA’s longer term aim to deliver an exceptional experience for our veterans. By aiming high, and also drafting a concrete roadmap, the VA has put itself on a path to success.

2. Hybridize the best of public and private sectors

To accomplish their ambitious goal, VA leadership is applying the best practices of customer-service businesses around the nation. The Secretary and his colleagues are leveraging the goodwill, resources, and expertise of both the private and public sector. To do that, the VA has brought together diverse groups of business leaders, medical professionals, government executives, and veteran advocates under their umbrella MyVA Advisory Committee. Following the examples set by private sector leaders in service provision and innovation, the VA is developing user-friendly mobile apps for veterans, modernizing its website, and seeking to make hiring practices faster, more competitive, and more efficient. And so that no good idea is left unheard, the VA has created a "shark tank” to capture and enact suggestions and recommendations for improvement from the folks who best understand daily VA operations—VA employees themselves.

3. Data, data, data

The benefits of data-driven decision making in government are well known. As led by Secretary McDonald, the VA has continued to embrace the use of data to inform its policies and improve its performance. Already a leader in the collection and publication of data, the VA has recently taken even greater strides in sharing information between its healthcare delivery agencies. In addition to collecting administrative and health-outcomes information, the VA is gathering data from veterans about what they think . Automated kiosks allow veterans to check in for appointments, and to record their level of satisfaction with the services provided.

The results that the Secretary and his team have achieved speak for themselves:

• 5 million more appointments completed last fiscal year over the previous fiscal year
• 7 million additional hours of care for veterans in the last two years (based on an increase in the clinical workload of 11 percent over the last two years)
• 97 percent of appointments completed within 30 days of the veteran’s preferred date; 86 percent within 7 days; 22 percent the same day
• Average wait times of 5 days for primary care, 6 days for specialty care, and 2 days for mental health are
• 90 percent of veterans say they are satisfied or completely satisfied with when they got their appointment (less than 3 percent said they were dissatisfied or completely dissatisfied).
• The backlog for disability claims—once over 600,000 claims that were more than 125 days old—is down almost 90 percent.

Thanks to Secretary McDonald’s continued commitment to modernization, the VA has made significant progress. Problems, of course, remain at the VA and the Secretary has more work to do to ensure America honors the debt it owes its veterans, but the past two years of reform have moved the Department in the right direction. His strategies are instructive for managers of change everywhere.

Fred Dews and Andrew Kenealy contributed to this post.

       

This post continues a series begun in 2014 on implementing the Common Core State Standards (CCSS).  The first installment introduced an analytical scheme investigating CCSS implementation along four dimensions:  curriculum, instruction, assessment, and accountability.  Three posts focused on curriculum.  This post turns to instruction.  Although the impact of CCSS on how teachers teach is discussed, the post is also concerned with the inverse relationship, how decisions that teachers make about instruction shape the implementation of CCSS.

A couple of points before we get started.  The previous posts on curriculum led readers from the upper levels of the educational system—federal and state policies—down to curricular decisions made “in the trenches”—in districts, schools, and classrooms.  Standards emanate from the top of the system and are produced by politicians, policymakers, and experts.  Curricular decisions are shared across education’s systemic levels.  Instruction, on the other hand, is dominated by practitioners.  The daily decisions that teachers make about how to teach under CCSS—and not the idealizations of instruction embraced by upper-level authorities—will ultimately determine what “CCSS instruction” really means.

I ended the last post on CCSS by describing how curriculum and instruction can be so closely intertwined that the boundary between them is blurred.  Sometimes stating a precise curricular objective dictates, or at least constrains, the range of instructional strategies that teachers may consider.  That post focused on English-Language Arts.  The current post focuses on mathematics in the elementary grades and describes examples of how CCSS will shape math instruction.  As a former elementary school teacher, I offer my own personal opinion on these effects.

The Good

Certain aspects of the Common Core, when implemented, are likely to have a positive impact on the instruction of mathematics. For example, Common Core stresses that students recognize fractions as numbers on a number line.  The emphasis begins in third grade:

CCSS.MATH.CONTENT.3.NF.A.2
Understand a fraction as a number on the number line; represent fractions on a number line diagram.

CCSS.MATH.CONTENT.3.NF.A.2.A
Represent a fraction 1/b on a number line diagram by defining the interval from 0 to 1 as the whole and partitioning it into b equal parts. Recognize that each part has size 1/b and that the endpoint of the part based at 0 locates the number 1/b on the number line.

CCSS.MATH.CONTENT.3.NF.A.2.B
Represent a fraction a/b on a number line diagram by marking off a lengths 1/b from 0. Recognize that the resulting interval has size a/b and that its endpoint locates the number a/b on the number line.

When I first read this section of the Common Core standards, I stood up and cheered.  Berkeley mathematician Hung-Hsi Wu has been working with teachers for years to get them to understand the importance of using number lines in teaching fractions.^[1] American textbooks rely heavily on part-whole representations to introduce fractions.  Typically, students see pizzas and apples and other objects—typically other foods or money—that are divided up into equal parts.  Such models are limited.  They work okay with simple addition and subtraction.  Common denominators present a bit of a challenge, but ½ pizza can be shown to be also 2/4, a half dollar equal to two quarters, and so on. 

With multiplication and division, all the little tricks students learned with whole number arithmetic suddenly go haywire.  Students are accustomed to the fact that multiplying two whole numbers yields a product that is larger than either number being multiplied: 4 X 5 = 20 and 20 is larger than both 4 and 5.^[2]  How in the world can ¼ X 1/5 = 1/20, a number much smaller than either 1/4or 1/5?  The part-whole representation has convinced many students that fractions are not numbers.  Instead, they are seen as strange expressions comprising two numbers with a small horizontal bar separating them. 

I taught sixth grade but occasionally visited my colleagues’ classes in the lower grades.  I recall one exchange with second or third graders that went something like this:

“Give me a number between seven and nine.”  Giggles. 

“Eight!” they shouted. 

“Give me a number between two and three.”  Giggles.

“There isn’t one!” they shouted. 

“Really?” I’d ask and draw a number line.  After spending some time placing whole numbers on the number line, I’d observe,  “There’s a lot of space between two and three.  Is it just empty?” 

Silence.  Puzzled little faces.  Then a quiet voice.  “Two and a half?”

You have no idea how many children do not make the transition to understanding fractions as numbers and because of stumbling at this crucial stage, spend the rest of their careers as students of mathematics convinced that fractions are an impenetrable mystery.   And  that’s not true of just students.  California adopted a test for teachers in the 1980s, the California Basic Educational Skills Test (CBEST).  Beginning in 1982, even teachers already in the classroom had to pass it.   I made a nice after-school and summer income tutoring colleagues who didn’t know fractions from Fermat’s Last Theorem.  To be fair, primary teachers, teaching kindergarten or grades 1-2, would not teach fractions as part of their math curriculum and probably hadn’t worked with a fraction in decades.  So they are no different than non-literary types who think Hamlet is just a play about a young guy who can’t make up his mind, has a weird relationship with his mother, and winds up dying at the end.

Division is the most difficult operation to grasp for those arrested at the part-whole stage of understanding fractions.  A problem that Liping Ma posed to teachers is now legendary.^[3]

She asked small groups of American and Chinese elementary teachers to divide 1 ¾ by ½ and to create a word problem that illustrates the calculation.  All 72 Chinese teachers gave the correct answer and 65 developed an appropriate word problem.  Only nine of the 23 American teachers solved the problem correctly.  A single American teacher was able to devise an appropriate word problem.  Granted, the American sample was not selected to be representative of American teachers as a whole, but the stark findings of the exercise did not shock anyone who has worked closely with elementary teachers in the U.S.  They are often weak at math.  Many of the teachers in Ma’s study had vague ideas of an “invert and multiply” rule but lacked a conceptual understanding of why it worked.

A linguistic convention exacerbates the difficulty.  Students may cling to the mistaken notion that “dividing in half” means “dividing by one-half.”  It does not.  Dividing in half means dividing by two.  The number line can help clear up such confusion.  Consider a basic, whole-number division problem for which third graders will already know the answer:  8 divided by 2 equals 4.   It is evident that a segment 8 units in length (measured from 0 to 8) is divided by a segment 2 units in length (measured from 0 to 2) exactly 4 times.  Modeling 12 divided by 2 and other basic facts with 2 as a divisor will convince students that whole number division works quite well on a number line. 

Now consider the number ½ as a divisor.  It will become clear to students that 8 divided by ½ equals 16, and they can illustrate that fact on a number line by showing how a segment ½ units in length divides a segment 8 units in length exactly 16 times; it divides a segment 12 units in length 24 times; and so on.  Students will be relieved to discover that on a number line division with fractions works the same as division with whole numbers.

Now, let’s return to Liping Ma’s problem: 1 ¾ divided by ½.   This problem would not be presented in third grade, but it might be in fifth or sixth grades.  Students who have been working with fractions on a number line for two or three years will have little trouble solving it.  They will see that the problem simply asks them to divide a line segment of 1 3/4 units by a segment of ½ units.  The answer is 3 ½ .  Some students might estimate that the solution is between 3 and 4 because 1 ¾ lies between 1 ½ and 2, which on the number line are the points at which the ½ unit segment, laid end on end, falls exactly three and four times.  Other students will have learned about reciprocals and that multiplication and division are inverse operations.  They will immediately grasp that dividing by ½ is the same as multiplying by 2—and since 1 ¾ x 2 = 3 ½, that is the answer.  Creating a word problem involving string or rope or some other linearly measured object is also surely within their grasp.

Conclusion

I applaud the CCSS for introducing number lines and fractions in third grade.  I believe it will instill in children an important idea: fractions are numbers.  That foundational understanding will aid them as they work with more abstract representations of fractions in later grades.   Fractions are a monumental barrier for kids who struggle with math, so the significance of this contribution should not be underestimated.

I mentioned above that instruction and curriculum are often intertwined.  I began this series of posts by defining curriculum as the “stuff” of learning—the content of what is taught in school, especially as embodied in the materials used in instruction.  Instruction refers to the “how” of teaching—how teachers organize, present, and explain those materials.  It’s each teacher’s repertoire of instructional strategies and techniques that differentiates one teacher from another even as they teach the same content.  Choosing to use a number line to teach fractions is obviously an instructional decision, but it also involves curriculum.  The number line is mathematical content, not just a teaching tool.

Guiding third grade teachers towards using a number line does not guarantee effective instruction.  In fact, it is reasonable to expect variation in how teachers will implement the CCSS standards listed above.  A small body of research exists to guide practice. One of the best resources for teachers to consult is a practice guide published by the What Works Clearinghouse: Developing Effective Fractions Instruction for Kindergarten Through Eighth Grade (see full disclosure below).^[4]  The guide recommends the use of number lines as its second recommendation, but it also states that the evidence supporting the effectiveness of number lines in teaching fractions is inferred from studies involving whole numbers and decimals.  We need much more research on how and when number lines should be used in teaching fractions.

Professor Wu states the following, “The shift of emphasis from models of a fraction in the initial stage to an almost exclusive model of a fraction as a point on the number line can be done gradually and gracefully beginning somewhere in grade four. This shift is implicit in the Common Core Standards.”^[5]  I agree, but the shift is also subtle.  CCSS standards include the use of other representations—fraction strips, fraction bars, rectangles (which are excellent for showing multiplication of two fractions) and other graphical means of modeling fractions.  Some teachers will manage the shift to number lines adroitly—and others will not.  As a consequence, the quality of implementation will vary from classroom to classroom based on the instructional decisions that teachers make.  

The current post has focused on what I believe to be a positive aspect of CCSS based on the implementation of the standards through instruction.  Future posts in the series—covering the “bad” and the “ugly”—will describe aspects of instruction on which I am less optimistic.

      

Hypocrisy is not scarce in the world of politics. But the current House and Senate budget resolutions set new lows. Each proposes to cut about $5 trillion from government spending over the next decade in pursuit of a balanced budget. Whatever one may think of putting the goal of reducing spending when the ratio of the debt-to-GDP is projected to be stable above investing in the nation’s future, you would think that deficit-reduction hawks wouldn’t cut spending that has been proven to lower the deficit.

Yes, there are expenditures that actually lower the deficit, typically by many dollars for each dollar spent. In this category are outlays on ‘program integrity’ to find and punish fraud, tax evasion, and plain old bureaucratic mistakes. You might suppose that those outlays would be spared. Guess again. Consider the following:

Medicare. Roughly 10% of Medicare’s $600 billion budget goes for what officials delicately call ‘improper payments, according to the 2014 financial report of the Department of Health and Human Services. Some are improper merely because providers ‘up-code’ legitimate services to boost their incomes. Some payments go for services that serve no valid purpose. And some go for phantom services that were never provided. Whatever the cause, approximately $60 billion of improper payments is not ‘chump change.’

Medicare tries to root out these improper payments, but it lacks sufficient staff to do the job. What it does spend on ‘program integrity’ yields an estimated $14.40? for each dollar spent, about $10 billion a year in total. That number counts only directly measurable savings, such as recoveries and claim denials. A full reckoning of savings would add in the hard-to-measure ‘policeman on the beat’ effect that discourages violations by would-be cheats.

Fat targets remain. A recent report from the Institute of Medicine presented findings that veritably scream ‘fraud.’ Per person spending on durable medical equipment and home health care is ten times higher in Miami-Dade County, Florida than the national average. Such equipment and home health accounts for nearly three-quarters of the geographical variation in per person Medicare spending. Yet, only 4% of current recoveries of improper payments come from audits of these two items and little from the highest spending locations.

Why doesn’t Medicare spend more and go after the remaining overpayments, you may wonder? The simple answer is that Congress gives Medicare too little money for administration. Direct overhead expenses of Medicare amount to only about 1.5% of program outlays—6% if one includes the internal administrative costs of private health plans that serve Medicare enrollees. Medicare doesn’t need to spend as much on administration as the average of 19% spent by private insurers, because for example, Medicare need not pay dividends to private shareholders or advertise.

But spending more on Medicare administration would both pay for itself—$2 for each added dollar spent, according to the conservative estimate in the President’s most recent budget—and improve the quality of care. With more staff, Medicare could stop more improper payments and reduce the use of approved therapies in unapproved ways that do no good and may cause harm.

Taxes. Compare two numbers: $540 billion and $468 billion. The first number is the amount of taxes owed but not paid. The second number is the projected federal budget deficit for 2015, according to the Congressional Budget Office.

Collecting all taxes legally owed but not paid is an impossibility. It just isn’t worth going after every violation. But current enforcement falls far short of practical limits. Expenditures on enforcement directly yields $4 to $6 for each dollar spent on enforcement. Indirect savings are many times larger—the cop-on-the-beat effect again. So, in an era of ostentatious concern about budget deficits, you would expect fiscal fretting in Congress to lead to increased efforts to collect what the law says people owe in taxes.

Wrong again. Between 2010 and 2014, the IRS budget was cut in real terms by 20%. At the same time, the agency had to shoulder new tasks under health reform, as well as process an avalanche of applications for tax exemptions unleashed by the 2010 Supreme Court decision in the Citizens United case. With less money to spend and more to do, enforcement staff dropped by 15% and inflation adjusted collections dropped 13%.

One should acknowledge that enforcement will not do away with most avoidance and evasion. Needlessly complex tax laws are the root cause of most tax underpayment. Tax reform would do even more than improved administration to increase the ratio of taxes paid to taxes due. But until that glorious day when Congress finds the wit and will to make the tax system simpler and fairer, it would behoove a nation trying to make ends meet to spend $2 billion to $3 billion more each year to directly collect $10 billion to 15 billion a year more of legally owed taxes and, almost certainly, raise far more than that by frightening borderline scoff-laws.

Disability Insurance. Thirteen million people with disabling conditions who are judged incapable of engaging in substantial gainful activity received $161 billion in disability insurance in 2013. If the disabling conditions improve enough so that beneficiaries can return to work, benefits are supposed to be stopped. Such improvement is rare. But when administrators believe that there is some chance, the law requires them to check. They may ask beneficiaries to fill out a questionnaire or, in some cases, undergo a new medical exam at government expense. Each dollar spent in these ways generated an estimated $16 in savings in 2013.

Still, the Social Security Administration is so understaffed that SSA has a backlog of 1.3 million disability reviews. Current estimates indicate that spending a little over $1 billion a year more on such reviews over the next decade would save $43 billion. Rather than giving Social Security the staff and spending authority to work down this backlog and realize those savings, Congress has been cutting the agency’s administrative budget and sequestration threatens further cuts.

Claiming that better administration will balance the budget would be wrong. But it would help. And it would stop some people from shirking their legal responsibilities and lighten the burdens of those who shoulder theirs. The failure of Congress to provide enough staff to run programs costing hundreds of billions of dollars a year as efficiently and honestly as possible is about as good a definition of criminal negligence as one can find.

      

       

       

Introduction

It was 2025 when Facebook decided to post live feeds from public and private surveillance cameras, so they could be searched online. The decision hardly came as a surprise. Ever since Facebook passed the 500 million-member mark in 2010, it found increasing consumer demand for applications that allowed users to access surveillance cameras with publicly accessible IP addresses. (Initially, live feeds to cameras on Mexican beaches were especially popular.) But in the mid-2020s, popular demand for live surveillance camera feeds were joined by demands from the U.S. government that an open circuit television network would be invaluable in tracking potential terrorists. As a result, Facebook decided to link the public and private camera networks, post them live online, and store the video feeds without restrictions on distributed servers in the digital cloud.

Once the new open circuit system went live, anyone in the world could log onto the Internet, select a particular street view on Facebook maps and zoom in on a particular individual. Anyone could then back click on that individual to retrace her steps since she left the house in the morning or forward click on her to see where she was headed in the future. Using Facebook’s integrated face recognition app, users could click on a stranger walking down any street in the world, plug her image into the Facebook database to identify her by name, and then follow her movements from door-to-door. Since cameras were virtually ubiquitous in public and commercial spaces, the result was the possibility of ubiquitous identification and surveillance of all citizens virtually anywhere in the world—and by anyone. In an enthusiastic launch, Mark Zuckerberg dubbed the new 24/7 ubiquitous surveillance system “Open Planet.”

Open Planet is not a technological fantasy. Most of the architecture for implementing it already exists, and it would be a simple enough task for Facebook or Google, if the companies chose, to get the system up and running: face recognition is already plausible, storage is increasing exponentially; and the only limitation is the coverage and scope of the existing cameras, which are growing by the day. Indeed, at a legal Futures Conference at Stanford in 2007, Andrew McLaughlin, then the head of public policy at Google, said he expected Google to get requests to put linked surveillance networks live and online within the decade. How, he, asked the audience of scholars and technologists, should Google respond?

If “Open Planet” went live, would it violate the Constitution? The answer is that it might not under Supreme Court doctrine as it now exists—at least not if it were a purely-private affair, run by private companies alone and without government involvement. Both the First Amendment, which protects free speech, and the Fourth Amendment, which prohibits unreasonable searches and seizures, only restrict actions by the government. On the other hand, if the government directed Open Planet’s creation or used it to track citizens on government-owned, as well as private-sector, cameras, perhaps Facebook might be viewed as the equivalent of a state actor, and therefore restricted by the Constitution.

At the time of the framing of the Constitution, a far less intrusive invasion of privacy – namely, the warrantless search of private homes and desk drawers for seditious papers – was considered the paradigmatic case of an unreasonable and unconstitutional invasion of privacy. The fact that 24/7 ubiquitous surveillance may not violate the Constitution today suggests the challenge of translating the framers’ values into a world in which Google and Facebook now have far more power over the privacy and free speech of most citizens than any King, president, or Supreme Court justice. In this essay, I will examine four different areas where the era of Facebook and Google will challenge our existing ideas about constitutional protections for free speech and privacy: ubiquitous surveillance with GPS devices and online surveillance cameras; airport body scanners; embarrassing Facebook photos and the problem of digital forgetting; and controversial YouTube videos. In each area, I will suggest, preserving constitutional values requires a different balance of legal and technological solutions, combined with political mobilization that leads to changes in social norms.

Let’s start with Open Planet, and imagine sufficient government involvement to make the courts plausibly consider Facebook’s program the equivalent of state action. Imagine also that the Supreme Court in 2025 were unsettled by Open Planet and inclined to strike it down. A series of other doctrines might bar judicial intervention. The Court has come close to saying that we have no legitimate expectations of privacy in public places, at least when the surveillance technologies in question are in general public use by ordinary members of the public.[1]  As mobile camera technology becomes ubiquitous, the Court might hold that the government is entitled to have access to the same linked camera system that ordinary members of the public have become accustomed to browsing. Moreover, the Court has said that we have no expectation of privacy in data that we voluntarily surrender to third parties.[2] In cases where digital images are captured on cameras owned by third parties and stored in the digital cloud—that is, on distributed third party servers--we have less privacy than citizens took for granted at the time of the American founding. And although the founders expected a degree of anonymity in public, that expectation would be defeated by the possibility of 24/7 surveillance on Facebook.

The doctrinal seeds of a judicial response to Open Planet, however, do exist. A Supreme Court inclined to strike down ubiquitous surveillance might draw on recent cases involving decisions by the police to place a GPS tracking device on the car of a suspect without a warrant, tracking his movements 24/7. The Supreme Court has not yet decided whether prolonged surveillance, in the form of “dragnet-type law enforcement practices” violates the Constitution.[3] Three federal circuits have held that the use of a GPS tracking device to monitor someone’s movements in a car over a prolonged period is not a search because we have no expectations of privacy in our public movements.[4] But in a visionary opinion in 2010, Judge Douglas Ginsburg of the U.S. Court of Appeals disagreed. Prolonged surveillance is a search, he recognized, because no reasonable person expects that his movements will be continuously monitored from door to door; all of us have a reasonable expectation of privacy in the “whole” of our movements in public. [5] Ginsburg and his colleagues struck down the warrantless GPS surveillance of a suspect that lasted 24 hours a day for nearly a month on the grounds that prolonged, ubiquitous tracking of citizen’s movements in public is constitutionally unreasonable. “Unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil,” Ginsburg wrote. Moreover, “That whole reveals more – sometimes a great deal more – than does the sum of its parts.”[6] Like the “mosaic theory” invoked by the government in national security cases, Ginsburg concluded that “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.  These types of information can each reveal more about a person than does any individual trip viewed in isolation.”[7] Ginsburg understood that 24/7 ubiquitous surveillance differs from more limited tracking not just in degree but in kind – it looks more like virtual stalking than a legitimate investigation – and therefore is an unreasonable search of the person.

Because prolonged surveillance on “Open Planet” potentially reveals far more about each of us than 24/7 GPS tracking does, providing real time images of all our actions, rather than simply tracking the movements of our cars, it could also be struck down as an unreasonable search of our persons. And if the Supreme Court struck down Open Planet on Fourth Amendment grounds, it might be influenced by the state regulations of GPS surveillance that Ginsburg found persuasive, or by Congressional attempts to regulate Facebook or other forms of 24/7 surveillance, such as the Geolocational Privacy and Surveillance Act proposed by Sen. Ron Wyden (D-OR) that would require officers to get a warrant before electronically tracking cell phones or cars.[8]

The Supreme Court in 2025 might also conceivably choose to strike down Open Planet on more expansive grounds, relying not just on the Fourth Amendment, but on the right to autonomy recognized in cases like Casey v. Planned Parenthood and Lawrence v. Texas. The right to privacy cases, beginning with Griswold v. Connecticut and culminating in Roe v. Wade and Lawrence, are often viewed as cases about sexual autonomy, but in Casey and Lawrence, Justice Anthony Kennedy recognized a far more sweeping principle of personal autonomy that might well protect individuals from totalizing forms of ubiquitous surveillance. Imagine an opinion written in 2025 by Justice Kennedy, still ruling the Court and the country at the age of 89. “In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence,” Kennedy wrote in Lawrence. “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[9] Kennedy’s vision of an “autonomy of self” that depends on preventing the state from becoming a “dominant presence” in public as well as private places might well be invoked to prevent the state from participating in a ubiquitous surveillance system that prevents citizens from defining themselves and expressing their individual identities. Just as citizens in the Soviet Union were inhibited from expressing and defining themselves by ubiquitous KGB surveillance, Kennedy might hold, the possibility of ubiquitous surveillance on “Open Planet” also violates the right to autonomy, even if the cameras in question are owned by the private sector, as well as the state, and a private corporation provides the platform for their monitoring.  Nevertheless, the fact that the system is administered by Facebook, rather than the Government, might be an obstacle to a constitutional ruling along these lines. And if Kennedy (or his successor) struck down “Open Planet” with a sweeping vision of personal autonomy that didn’t coincide with the actual values of a majority of citizens in 2025, the decision could be the Roe of virtual surveillance, provoking backlashes from those who don’t want the Supreme Court imposing its values on a divided nation.

Would the Supreme Court, in fact, strike down “Open Planet” in 2025? If the past is any guide, the answer may depend on whether the public, in 2025, views 24/7 ubiquitous surveillance as invasive and unreasonable, or whether citizens have become so used to ubiquitous surveillance on and off the web, in virtual space and real space, that the public demands “Open Planet” rather than protesting against it. I don’t mean to suggest that the Court actually reads the polls. But in the age of Google and Facebook, technologies that thoughtfully balance privacy with free expression and other values have tended to be adopted only when companies see their markets as demanding some kind of privacy protection, or when engaged constituencies have mobilized in protest against poorly designed architectures and demanded better ones, helping to create a social consensus that the invasive designs are unreasonable.

The paradigmatic case of the kind of political mobilization on behalf of constitutional values that I have in mind is presented by my second case: the choice between the naked machine and the blob machine in airport security screening. In 2002, officials at Orlando International airport first began testing the millimeter wave body scanners that are currently at the center of a national uproar. The designers of the scanners at Pacific Northwest Laboratories offered U.S. officials a choice: naked machines or blob machines? The same researchers had developed both technologies, and both were equally effective at identifying contraband. But, as their nicknames suggest, the former displays graphic images of the human body, while the latter scrambles the images into a non-humiliating blob.[10]

Since both versions of the scanners promise the same degree of security, any sane attempt to balance privacy and safety would seem to favor the blob machines over the naked machines. And that’s what European governments chose. Most European airport authorities have declined to adopt body scanners at all, because of persuasive evidence that they’re not effective at detecting low-density contraband such as the chemical powder PETN that the trouser bomber concealed in his underwear on Christmas day, 2009. But the handful of European airports that have adopted body scanners, such as Schiphol airport in Amsterdam, have opted for a version of the blob machine. This is in part due to the efforts of European privacy commissioners, such as Germany’s Peter Schaar, who have emphasized the importance of designing body scanners in ways that protect privacy.

The U.S. Department of Homeland Security made a very different choice. It deployed the naked body scanners without any opportunity for public comment—then appeared surprised by the backlash. Remarkably, however, the backlash was effective. After a nationwide protest inspired by the Patrick Henry of the anti-Naked Machines movement, a traveler who memorably exclaimed “Don’t Touch my Junk,” President Obama called on the TSA to go back to the drawing board. And a few months after authorizing the intrusive pat downs, in February 2011, the TSA announced that it would begin testing, on a pilot basis, versions of the very same blob machines that the agency had rejected nearly a decade earlier. According to the latest version, to be tested in Las Vegas and Washington, D.C, the TSA will install software filters on its body scanner machines that detects potential threat items and indicates their location on a generic, blob like outline of each passenger that will appear on a monitor attached to the machine. Passengers without suspicious items will be cleared as “OK,” those with suspicious items will be taken aside for additional screening. The remote rooms in which TSA agents view images of the naked body will be eliminated. According to news reports, TSA began testing the filtering software in the fall of 2010 – precisely when the protests against the naked machines went viral. If the filtering software is implemented across the country, converting naked machines into blob machines, the political victory for privacy will be striking.

Of course, it’s possible that courts might strike down the naked machines as unreasonable and unconstitutional, even without the political protests. In a 1983 opinion upholding searches by drug-sniffing dogs, Justice Sandra Day O’Connor recognized that a search is most likely to be considered constitutionally reasonable if it is very effective at discovering contraband without revealing innocent but embarrassing information.[11] The backscatter machines seem, under O'Connor's view, to be the antithesis of a reasonable search: They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband.

It’s true that the government gets great deference in airports and at the borders, where routine border searches don’t require heightened suspicion. But the Court has held that non-routine border searches, such as body cavity or strip searches, do require a degree of individual suspicion.  And although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.'"[12]

It’s arguable that since the naked machines are neither effective nor minimally intrusive – that is, because they might be designed with blob machine like filters that promise just as much security while also protecting privacy – that courts might strike them down. As a practical matter, however, both lower courts and the Supreme Court seem far more likely to strike down strip searches that have inspired widespread public opposition – such as the strip search of a high school girl wrongly accused of carrying drugs, which the Supreme Court invalidated by a vote of 8-1,[13] then they are of searches that, despite the protests of a mobilized minority, the majority of the public appears to accept.

The tentative victory of the blob machines over the naked machines, if it materializes, provides a model for successful attempts to balance privacy and security: government can be pressured into striking a reasonable balance between privacy and security by a mobilized minority of the public when the privacy costs of a particular technology are dramatic, visible, widely distributed, and people experience the invasions personally as a kind of loss of control over the conditions of their own exposure.

But can we be mobilized to demand a similarly reasonable balance when the threats to privacy come not from the government but from private corporations and when those responsible for exposing too much personal information about us are none other than ourselves? When it comes to invasions of privacy by fellow citizens, rather than by the government, we are in the realm not of autonomy but of dignity and decency. (Autonomy preserves a sphere of immunity from government intrusion in our lives; dignity protects the norms of social respect that we accord to each other.) And since dignity is a socially constructed value, it’s unlikely to be preserved by judges--or by private corporations--in the face of the expressed preferences of citizens who are less concerned about dignity than exposure.

This is the subject of our third case, which involves a challenge that, in big and small ways, is confronting millions of people around the globe: how best to live our lives in a world where the Internet records everything and forgets nothing—where every online photo, status update, Twitter post and blog entry by and about us can be stored forever.[14] Consider the case of Stacy Snyder. Four years ago, Snyder, then a 25-year-old teacher in training at Conestoga Valley High School in Lancaster, Pa., posted a photo on her MySpace page that showed her at a party wearing a pirate hat and drinking from a plastic cup, with the caption “Drunken Pirate.” After discovering the page, her supervisor at the high school told her the photo was “unprofessional,” and the dean of Millersville University School of Education, where Snyder was enrolled, said she was promoting drinking in virtual view of her under-age students. As a result, days before Snyder’s scheduled graduation, the university denied her a teaching degree. Snyder sued, arguing that the university had violated her First Amendment rights by penalizing her for her (perfectly legal) after-hours behavior. But in 2008, a federal district judge rejected the claim, saying that because Snyder was a public employee whose photo didn’t relate to matters of public concern, her “Drunken Pirate” post was not protected speech.[15]

When historians of the future look back on the perils of the early digital age, Stacy Snyder may well be an icon. With Web sites like LOL Facebook Moments, which collects and shares embarrassing personal revelations from Facebook users, ill-advised photos and online chatter are coming back to haunt people months or years after the fact.

Technological advances, of course, have often presented new threats to privacy. In 1890, in perhaps the most famous article on privacy ever written, Samuel Warren and Louis Brandeis complained that because of new technology — like the Kodak camera and the tabloid press — “gossip is no longer the resource of the idle and of the vicious but has become a trade.”[16] But the mild society gossip of the Gilded Age pales before the volume of revelations contained in the photos, video and chatter on social-media sites and elsewhere across the Internet. Facebook, which surpassed MySpace in 2008 as the largest social-networking site, now has more than 500 million members, or 22 percent of all Internet users, who spend more than 500 billion minutes a month on the site. Facebook users share more than 25 billion pieces of content each month (including news stories, blog posts and photos), and the average user creates 70 pieces of content a month.

Today, as in Brandeis’s day, the value threatened by gossip on the Internet – whether posted by us our by others – is dignity. (Brandeis called it an offense against honor.) But American law has never been good at regulating offenses against dignity – especially when regulations would clash with other values, such as protections for free speech. And indeed, the most ambitious proposals in Europe to create new legal rights to escape your past on the Internet are very hard to reconcile with the American free speech tradition.

The cautionary tale here is Argentina, which has dramatically expanded the liability of search engines like Google and Yahoo for offensive photographs that harm someone’s reputation. Recently, an Argentinean judge held Google and Yahoo liable for causing “moral harm” and violating the privacy of Virginia Da Cunha, a pop star, by indexing pictures of her that were linked to erotic content. The ruling against Google and Yahoo was overturned on appeal in August, but there are at least 130 similar cases pending in Argentina to force search engines to remove or block offensive content. In the U.S., search engines are protected by the Communications Decency Act, which immunizes Internet service providers from hosting content posted by third parties. But as liability against search engines expands abroad, it will seriously curtain free speech:  Yahoo says that the only way to comply with injunctions about is to block all sites that refer to a particular plaintiff.[17]

In Europe, recent proposals to create a legally enforceable right to escape your past have come from the French. The French data commissioner, Alex Turc, who has proposed a right to oblivion – namely a right to escape your past on the Internet. The details are fuzzy, but it appears that the proposal would rely on an international body – say a commission of forgetfulness – to evaluate particular take down requests and order Google and Facebook to remove content that, in the view of commissioners, violated an individuals’ dignitary rights.

From an American perspective, the very intrusiveness of this proposal is enough to make it implausible: how could we rely on bureaucrats to protect our dignity in cases where we have failed to protect it on our own? Europeans, who have less of a free speech tradition and far more of a tradition of allowing people to remove photographs taken and posted against their will, will be more sympathetic to the proposal. But from the perspective of most American courts and companies, giving people the right selectively to delete their pasts from public discourse would pose unacceptably great threats to free speech.

A far more promising solution to the problem of forgetting on the Internet is technological. And there are already small-scale privacy apps that offer disappearing data. An app called TigerText allows text-message senders to set a time limit from one minute to 30 days, after which the text disappears from the company’s servers, on which it is stored, and therefore, from the senders’ and recipients’ phones. (The founder of TigerText, Jeffrey Evans, has said he chose the name before the scandal involving Tiger Woods’s supposed texts to a mistress.)[18]

Expiration dates could be implemented more broadly in various ways. Researchers at the University of Washington, for example, are developing a technology called Vanish that makes electronic data “self-destruct” after a specified period of time. Instead of relying on Google, Facebook or Hotmail to delete the data that is stored “in the cloud” — in other words, on their distributed servers — Vanish encrypts the data and then “shatters” the encryption key. To read the data, your computer has to put the pieces of the key back together, but they “erode” or “rust” as time passes, and after a certain point the document can no longer be read. The technology doesn’t promise perfect control — you can’t stop someone from copying your photos or Facebook chats during the period in which they are not encrypted. But as Vanish improves, it could bring us much closer to a world where our data don’t linger forever.

Facebook, if it wanted to, could implement expiration dates on its own platform, making our data disappear after, say, three days or three months unless a user specified that he wanted it to linger forever. It might be a more welcome option for Facebook to encourage the development of Vanish-style apps that would allow individual users who are concerned about privacy to make their own data disappear without imposing the default on all Facebook users.

So far, however, Zuckerberg, Facebook’s C.E.O., has been moving in the opposite direction — toward transparency, rather than privacy. In defending Facebook’s recent decision to make the default for profile information about friends and relationship status public, Zuckerberg told the founder of the publication TechCrunch that Facebook had an obligation to reflect “current social norms” that favored exposure over privacy. “People have really gotten comfortable not only sharing more information and different kinds but more openly and with more people, and that social norm is just something that has evolved over time,” [19] he said.

It’s true that a German company, X-Pire, recently announced the launch of a Facebook app that will allow users automatically to erase designated photos. Using electronic keys that expire after short periods of time, and obtained by solving a Captcha, or graphic that requires users to type in a fixed number combinations, the application ensures that once the time stamp on the photo has expired, the key disappears.[20] X-Pire is a model for a sensible, blob-machine-like solution to the problem of digital forgetting. But unless Facebook builds X-Pire-like apps into its platform – an unlikely outcome given its commercial interests – a majority of Facebook users are unlikely to seek out disappearing data options until it’s too late. X-Pire, therefore, may remain for the foreseeable future a technological solution to a grave privacy problem—but a solution that doesn’t have an obvious market.

The courts, in my view, are better equipped to regulate offenses against autonomy, such as 24/7 surveillance on Facebook, than offenses against dignity, such as drunken Facebook pictures that never go away. But that regulation in both cases will likely turn on evolving social norms whose contours in twenty years are hard to predict.

Finally, let’s consider one last example of the challenge of preserving constitutional values in the age of Facebook and Google, an example that concerns not privacy but free speech.[21]

At the moment, the person who arguably has more power than any other to determine who may speak and who may be heard around the globe isn’t a king, president or Supreme Court justice. She is Nicole Wong, the deputy general counsel of Google, and her colleagues call her “The Decider.” It is Wong who decides what controversial user-generated content goes down or stays up on YouTube and other applications owned by Google, including Blogger, the blog site; Picasa, the photo-sharing site; and Orkut, the social networking site. Wong and her colleagues also oversee Google’s search engine: they decide what controversial material does and doesn’t appear on the local search engines that Google maintains in many countries in the world, as well as on Google.com. As a result, Wong and her colleagues arguably have more influence over the contours of online expression than anyone else on the planet.

At the moment, Wong seems to be exercising that responsibility with sensitivity to the values of free speech. Google and Yahoo can be held liable outside the United States for indexing or directing users to content after having been notified that it was illegal in a foreign country. In the United States, by contrast, Internet service providers are protected from most lawsuits involving having hosted or linked to illegal user-generated content. As a consequence of these differing standards, Google has considerably less flexibility overseas than it does in the United States about content on its sites, and its “information must be free” ethos is being tested abroad.

For example, on the German and French default Google search engines, Google.de and Google.fr, you can’t find Holocaust-denial sites that can be found on Google.com, because Holocaust denial is illegal in Germany and France. Broadly, Google has decided to comply with governmental requests to take down links on its national search engines to material that clearly violates national laws. But not every overseas case presents a clear violation of national law. In 2006, for example, protesters at a Google office in India demanded the removal of content on Orkut, the social networking site, that criticized Shiv Sena, a hard-line Hindu political party popular in Mumbai. Wong eventually decided to take down an Orkut group dedicated to attacking Shivaji, revered as a deity by the Shiv Sena Party, because it violated Orkut terms of service by criticizing a religion, but she decided not to take down another group because it merely criticized a political party. “If stuff is clearly illegal, we take that down, but if it’s on the edge, you might push a country a little bit,” Wong told me. “Free-speech law is always built on the edge, and in each country, the question is: Can you define what the edge is?”

Over the past couple of years, Google and its various applications have been blocked, to different degrees, by 24 countries. Blogger is blocked in Pakistan, for example, and Orkut in Saudi Arabia. Meanwhile, governments are increasingly pressuring telecom companies like Comcast and Verizon to block controversial speech at the network level. Europe and the U.S. recently agreed to require Internet service providers to identify and block child pornography, and in Europe there are growing demands for network-wide blocking of terrorist-incitement videos. As a result, Wong and her colleagues worry that Google’s ability to make case-by-case decisions about what links and videos are accessible through Google’s sites may be slowly circumvented, as countries are requiring the companies that give us access to the Internet to build top-down censorship into the network pipes.

It is not only foreign countries that are eager to restrict speech on Google and YouTube. In May, 2006, Joseph Lieberman who has become the A. Mitchell Palmer of the digital age, had his staff contacted Google and demanded that the company remove from YouTube dozens of what he described as jihadist videos. After viewing the videos one by one, Wong and her colleagues removed some of the videos but refused to remove those that they decided didn’t violate YouTube guidelines. Lieberman wasn’t satisfied. In an angry follow-up letter to Eric Schmidt, the C.E.O. of Google, Lieberman demanded that all content he characterized as being “produced by Islamist terrorist organizations” be immediately removed from YouTube as a matter of corporate judgment — even videos that didn’t feature hate speech or violent content or violate U.S. law. Wong and her colleagues responded by saying, “YouTube encourages free speech and defends everyone’s right to express unpopular points of view.” Recently, Google and YouTube announced new guidelines prohibiting videos “intended to incite violence.”

That category scrupulously tracks the Supreme Court’s rigorous First Amendment doctrine, which says that speech can be banned only when it poses an imminent threat of producing serious lawless action. Unfortunately, Wong and her colleagues recently retreated from that bright line under further pressure from Lieberman. In November, 2010, YouTube added a new category that viewers can click to flag videos for removal: “promotes terrorism.” There are 24 hours of video uploaded on YouTube every minute, and a series of categories viewers can use to request removal, including “violent or repulsive content” or inappropriate sexual content. Although hailed by Senator Lieberman, the new “promotes terrorism category” is potentially troubling because it goes beyond the narrow test of incitement to violence that YouTube had previously used to flag terrorism related videos for removal. YouTube’s capitulation to Lieberman shows that a user generated system for enforcing community standards will never protect speech as scrupulously as unelected judges enforcing strict rules about when speech can be viewed as a form of dangerous conduct.

Google remains a better guardian for free speech than internet companies like Facebook and Twitter, which have refused to join the Global Network Initiative, an industry-wide coalition committed to upholding free speech and privacy. But the recent capitulation of YouTube shows that Google’s “trust us” model may not be a stable way of protecting free speech in the twenty-first century, even though the alternatives to trusting Google – such as authorizing national regulatory bodies around the globe to request the removal of controversial videos – might protect less speech than Google’s “Decider” model currently does.

I’d like to conclude by stressing the complexity of protecting constitutional values like privacy and free speech in the age of Google and Facebook, which are not formally constrained by the Constitution. In each of my examples – 24/7 Facebook surveillance, blob machines, escaping your Facebook past, and promoting free speech on YouTube and Google -- it’s possible to imagine a rule or technology that would protect free speech and privacy, while also preserving security—a blob-machine like solution. But in some areas, those blob-machine-like solutions are more likely, in practice, to be adopted then others. Engaged minorities may demand blob machines when they personally experience their own privacy being violated; but they may be less likely to rise up against the slow expansion of surveillance cameras, which transform expectations of privacy in public. Judges in the American system may be more likely to resist ubiquitous surveillance in the name of Roe v. Wade-style autonomy than they are to create a legal right to allow people to edit their Internet pasts, which relies on ideas of dignity that in turn require a social consensus that in America, at least, does not exist. As for free speech, it is being anxiously guarded for the moment by Google, but the tremendous pressures, from consumers and government are already making it hard to hold the line at removing only speech that threatens imminent lawless action.

In translating constitutional values in light of new technologies, it’s always useful to ask: What would Brandeis do? Brandeis would never have tolerated unpragmatic abstractions, which have the effect of giving citizens less privacy in the age of cloud computing than they had during the founding era. In translating the Constitution into the challenges of our time, Brandeis would have considered it a duty actively to engage in the project of constitutional translation in order to preserve the Framers’ values in a startlingly different technological world. But the task of translating constitutional values can’t be left to judges alone: it also falls to regulators, legislators, technologists, and, ultimately, to politically engaged citizens. As Brandeis put it, “If we would guide by the light of reason, we must let our minds be bold.”

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The Nile River is one of the most important resources in Africa and supports the livelihoods of millions of people. Recently, though, efficient and equitable utilization of the waters of the Nile River has become an increasingly contentious issue, with many of the riparian countries demanding a revision of what they believe is an inappropriate legal regime. Currently, allocation and utilization of the waters of the Nile River is governed by the colonial-era Nile Waters Agreements, which were negotiated and entered into with the help of Great Britain, but without the participation of most of the river’s riparian states. These agreements allocated most of the waters of the Nile River to the downstream riparians—Egypt and Sudan—largely ignoring the development needs of the upstream riparians, like Ethiopia, whose highlands provide most of the water that flows into the Nile River. The upstream riparians contend that they were not party to the Nile Waters Agreements and thus should not be bound by them. As such, they want these agreements set aside and a new, more equitable legal regime. Egypt, however, considers the existing legal regime binding on all the Nile River riparian states and, thus, is opposed to any changes that might interfere with or reduce its “historically acquired rights.” Already the decision by Addis Ababa to proceed with the construction of the Grand Ethiopian Renaissance Dam on the Blue Nile has caused significant deterioration in relations between Cairo and Addis Ababa.

With significant increases in population and pressure to deliver development, especially in the upstream riparian states, the demand for water has become a very important policy imperative in the region. In fact, earlier this year Egypt claimed that, in order to meet its growing water needs by 2050, it will need to add 21 billion cubic meters of water per year to its current water allocation of 55 billion cubic meters. Thus, there is a fear that if this issue is not fully resolved soon, it could morph into a military crisis.

In our new book, Governing the Nile River Basin: The Search for a New Legal Regime, we argue that the current legal regime governing the allocation and utilization of the waters of the Nile River is not tenable, and there is an urgent need for all the Nile River riparian states to enter into a mutually agreed upon legal regime. Issues pertaining to transboundary water resource management, the evolution of current agreements and the role and interests of colonial powers, theories of treaty succession, and the recent attempts by the riparian states to formulate a new legal agreement, are thoroughly examined. We conclude that the most effective way to deal with conflict arising from the allocation and utilization of the Nile River’s waters is for all the downstream and upstream riparians to engage in fresh negotiations to design and adopt a new legal regime. Through a fully consultative process, these countries can provide the Nile River Basin with a legal regime that enhances equitable allocation and utilization.