Compliance: A Baseline, Not A Goal

by Chris McGivern, Helen Turvey, Karien Bezuidenhout, Shannon Dosemagen and Delphine Halgand-Mishra, 7 April 2022

Featured Image
Created by Diverse Stock Photos CC-BY-NC
https://flickr.com/photos/192004829@N02/51141504622/

Discussing compliance will not make you a popular guest at parties, but perhaps it’s a subject more deserving of an audience. It is a vital part of the plumbing of functioning societies, impacting and influencing everyone. Organisations must comply with industry and government regulations to avoid censure and investigation. Employees must comply with codes of conduct to keep their jobs. Social compliance keeps us all in line with the behavioural expectations of our peers, neighbours, communities, industries and governments.

Broadly, this is a good thing. Without rules, there is chaos, and without shared values and common goals, there is no glue to hold us together. But that glue starts to melt when regulations and laws enable injustice.

Today, we see compliance allow corporations with revenues equivalent to the GDP of a small country to pay no taxes. We hear of individuals hiding their immense wealth of dubious origin in offshore hideaways while millions of citizens cannot afford healthcare. We read about cost-cutting, profit-chasing multinationals allowed to poison our rivers, lands, and people or exploit cheap labour abroad.

Compliance is meant to protect people and the planet, but it’s also a shield for the perpetrators of injustice. When challenged on harmful and morally, ethically questionable practices, they hide behind it, shrug their shoulders, and say, ‘well, we followed the rules.’ But these are often rules they helped design in the first place.

Big business has a long history of camouflaging the risks of everything from alcohol and asbestos to sugar and cigarettes. The ‘tobacco playbook’ of yesteryear is still widespread today, sowing doubt and undermining the consensus with questionable science. Industry representatives are unknown to the public but familiar faces in government lobbies, where whispers of light touches and cutting red tape echo loudly and are influential in diluting the potency of new regulations. Citizens and activists call for change but are rarely invited to the table when decisions are made; industry, of course, enjoys permanent, cosy seats. And it wields such influence that regulations are often timid in design and application. This is administrative injustice, with hugely damaging outcomes.

As funders, we have seen this influence first-hand with many of our Fellows working at the regulatory level. Ugo Vallauri is co-founder of The Restart Project and a leading figure in the Right to Repair movement, a coalition of organisations championing the rights of consumers and ensuring everyone has the right to fix the products they own. After successfully petitioning the UK government and the EU to introduce new legislation, the right to repair is now a part of the legal landscape. But the new regulations are significantly watered down after lobbying from the technology industry and will only make a small dent in the vast mountains of electronic waste we produce every year. Ugo and the Right to Repair movement will continue to push for more responsible action, but it will take time, resources, and tremendous energy to deliver the regulations our environment urgently needs.

Shannon Dosemagen also sees the need to move beyond compliance. She is working on the Open Environmental Data Project to develop an open data repository and improve data interoperability for the public good. Access to essential, open data could inform communities of local public health issues and industry polluters. But despite the US government’s shift to publishing data openly, much of it is unfindable and unusable. Important information is buried on obscure pages of a website and exists in a multitude of formats that cannot be integrated with anything else. The combination of data segregation and asymmetric information infrastructure means no one can identify simple problems, let alone solve them. In this case, compliance does not create the value, justice, or innovation it was meant to bring about.

“We create intentional or unintentional boundaries that make things really difficult for people,” explains Shannon. “A decade ago, we made a case for governments and agencies to publish their data openly - and won. But now we have open data sets that are unfindable, inaccessible, and unusable - or usable beyond the original intent, which I think is vital for innovation.

“The onus is on citizens and residents to fit into these totally opaque and complicated systems of law, regulation, enforcement and compliance in the environmental world. It is an impossible system to wade through because it doesn’t have a singular framework. The complexity means people are unwilling or unable to engage with or question those systems, which results in a lack of political will or compulsion to go beyond that baseline. It is an injustice and a complete disservice to the people who are supposedly being protected.

“We have to start thinking more about how things could be better. People want to access environmental data or contribute data that would give us different angles and insights. But agencies can say they can’t, won’t or don’t need to change because they follow the rules. And in some cases, industry is allowed to self regulate, so it’s unlikely we will see the introduction of rule changes beneficial to the environment if they are not in the industry’s immediate interests.

“This is what we are trying to change with the Beyond Compliance Network. We want to enable greater data sharing across public and private boundaries and bring more U.S.environmental data up to FAIR standards - Findable, Accessible, Interoperable, and Reusable. I’ve experienced ten years of agencies saying they don’t have the capacity to take community data or the data from sensor readings that exist outside of their standards. It is reactive behaviour that doesn’t allow dialogue or conversations or different approaches to a community’s environmental problems. So, we want to break down those barriers around data accessibility and introduce a diversity of experiences and approaches around environmental governance to unlock new insights and innovations.”

Shuttleworth Fellow Delphine Halgand-Mishra is also shifting our thinking about compliance. As founder of The Signals Network, she supports whistleblowers and helps coordinate and disseminate international media investigations into wrongdoing. Whistleblowers do not comply. They refuse to follow orders and break gagging orders to expose corruption and abuses of power. And they do so at significant risk: they are often destroyed by persecution, prosecution, and punishing psychological and economic consequences.

“I do not encourage anyone to break the law,” says Delphine. “But we must accept that if the law can be used to silence people, it must be changed. And when regulations are changed for the better, it is often initiated by someone breaking the law or a contract.

“My work is necessary because legal frameworks do not protect whistleblowers wherever they are in the world. If you’re a whistleblower, you are fragile. Your employer has many ways to punish you for breaking an NDA for defamation. Your government can put you in prison for exposing its corruption. Even if you are the source for breaking a huge story with huge public support, you have little protection because what you are doing is illegal.

“We need compliance to work as a society, but we also need to change our mindsets. I would encourage people to focus less on the limits of compliance and more on questioning its boundaries. Laws and regulations are not static and are subject to trends. We all have limited time and busy lives, but if we just stepped back and took a moment to think or even dream of a different approach, we can change those unfair laws and regulations and start moving in a better direction.”

Compliance also poses an issue for philanthropy. It creates enormous burdens for grantees, especially those who cannot access funds in countries identified as high-risk by financial institutions. It encourages funders to avoid risk and play safe; in a field where playing safe rarely delivers real progress. Compliance makes philanthropy more controlling and less trusting. And it encourages conformity: funding strategies are informed by a top-down insistence to meet regulatory requirements rather than a bottom-up desire to make a good idea work.

Our drive to make philanthropy better started with a deep antagonism for the ever-present, unnecessary box-ticking exercises in the funding world. Years ago, we hired a monitoring and evaluation firm to give insight into the effectiveness of our projects, but there was an immediate problem: they could not measure what we were looking for with their own methodologies. So, we changed the metrics to adapt to their needs, and when the results came back, we had hit them successfully. This was surprising. We could see our projects were not leading to dynamic, positive outcomes at scale and were failing to make real change in the world.

It became crystal clear that when metrics - or regulations, laws, statistics - are employed, they inevitably become the goal. And this is how most people in society think about compliance. Meeting regulation requirements is seen as an end-of-game achievement rather than a platform to build upon, test, or explore further.

We should not be surprised. In business, regulations are a burden and an imposition. In governments, compliance is part of the bureaucratic machinery and the cause of delays to decision-making. The average citizen does not have the time or inclination to navigate and engage with the complicated, dry, multifaceted nature and minute detail of compliance, even when the rules are so obviously stacked against their interests.

Instead, it falls on activists, whistleblowers, and rebels with vision and tenacity to stand up against injustice. They do not comply. They perform ethical disobedience on everyone’s behalf. They are often belittled, harassed, surveilled, targeted, and imprisoned - or worse - by those with power and resources. It is philanthropy’s responsibility to support them.

So, for funders, it is not enough to just comply. Compliance is a representation of the status quo - or, more accurately, the status quo’s terms, conditions, and expectations - designed to maintain the systems we rely on to serve us. But if those systems create inequity, then it is our role to help change them. And that means thinking differently about compliance and how it affects our grantees and shapes our strategies, whether subconsciously or deliberately. The history of social movements, after all, tells us you can’t change the world by following the rules.

Posted in philanthropy