(Prepared for a presentation at Infotech '95, Kuala Lumpur, Malaysia, Nov. 1995.)
Introduction
The vast worldwide network of linked computers that we call the Internet is the antithesis of much of what we value in business and in society. It does not appear to be orderly, predictable or stable, nor does it always function within the traditions and laws of our own cultures and countries. In reality, the Internet has no distinct ownership, it transcends sovereign boundaries, and it may be beyond our ability to regulate. Moreover, as diverse communications media, such as telecommunications, broadcasting, cable television, and publishing, continue to move towards digital convergence, the laws that we created for each medium, and the beliefs that we hold about their unique qualities, will come into direct conflict.
When we speak of the National Information Infrastructure (NII), we are referring mostly to an idea rather than a real entity. The NII, in the US and elsewhere, is primarily a government initiative to support a set of "applications, activities, and relationships"[2] on the Internet, such as the Worldwide Web. We don't yet have a clear idea about what the eventual form of the NII will be. This paper discusses some of the issues surrounding the proposed regulation of the US NII.
The key issues debated in the past two years are, briefly:
Electronic commerce: How can we nurture the growth of international electronic commerce and also protect legitimate interests in transaction security, data integrity and safety, information privacy, and reliability of communications?
Content regulation: How can we protect our children and our local community standards, while still providing an enlightened electronic environment which respects the diverse values of all users?
Intellectual property protection: How can we create acceptable intellectual property regulations that will encourage creation, compensate the creators, and provide adequate, enforceable remedies for infringement in a multi-cultural global network system?
Privacy: How can we protect individuals from illegitimate monitoring, access or use of personal information on the NII, while still maintaining government's ability to enforce laws?
Security: What steps must we take at both the national and international levels to prevent sabotage, whether in the form of viruses, criminal activities, or terrorist actions against vital systems, and what plans need to be made to recover from disasters (either man-made or natural)?
Universal access: Will the American concept of universal telephone service for all US citizens be extended to their connection to the NII, and what implications would that decision have?
Antitrust: Who will own and control the access points and infrastructure of the NII, and what should government's role be in regulating that ownership?
All of these issues are complex and worthy of an extended discussion not possible in the context of this paper. Thus, we will focus instead on a few debates all related to the problem of regulating new, poorly-understood technologies, namely content regulation, liability for regulatory compliance, and intellectual property protection. With regard to the last issue, intellectual property, we will also examine whether historically conflicting national traditions might actually find a satisfactory resolution in the context of the NII.
Content Regulation: the Message, Not the Medium
In the US, freedom of expression is protected by the First Amendment to the Constitution. This protection is focused fundamentally on the content of the expression, such that an individual's expression of an idea, whether spoken or written, would have broad protection from censorship or persecution. The underlying motivation for the American concept of freedom of speech has little to do with the medium of communication. Rather it was developed to ensure citizens' access to a diversity of viewpoints and ideas, with the anticipation that the soundest ideas would be most likely to prevail. Yet, while the press was immediately accorded this protection, movies were not similarly covered for several decades after their invention.[3] The unfamiliarity of the technology impeded the understanding that films were fundamentally analogous to books.
With the advent of radio, television and other communications media, the premature haste to regulate these new industries caused the government to stray from the original intentions of the Constitution and focus instead on the technology of the medium itself. The result has been that expressions explicitly protected in the print media may be regulated or banned in other media. Lawmakers and courts attribute this disparate result to limitations or unique characteristics of these new media of communication. [4] While many of these limitations disappear as the technologies mature, the outmoded legislation remains intact to potentially inhibit growth or innovation.
For example, because of the perceived scarcity of broadcast frequencies, the government claimed the right to regulate radio and television broadcasters to ensure adequate diversity of views.[5] These regulations, however, go beyond what is necessary to ensure diversity, such as requiring broadcasters to curtail "indecent" speech and to offer certain types of programming. Not only do they introduce a disparity in the protection of speech according to the medium, but these regulations are built upon an obsolete model of the relevant technologies. In truth, continuous technological innovations have increased the availability of the broadcast frequencies to such an extent that the scarcity argument is now clearly inapplicable.
The courts have ruled that cable television is analogous to television broadcasting except for the means of transmission. Thus, all "paid access" television has been regulated similarly to commercial broadcasting[6] under the scarcity rationale, in spite of the abundance of channels technically possible, and the availability of alternate means of signal delivery, such as satellite.
The near ubiquity of the Internet makes the scarcity rationale irrelevant in cyberspace. Yet, the US is still embroiled in an extended debate as to whether the NII should receive the protection of the press, or whether it is analogous to some other regulated communication medium, such as telephone, cable television or broadcasting, and thus also requires content-based regulation. The debate is especially contentious because of the diversity of beliefs about what kind of medium the NII is and what it will become. If we believe that the NII makes every user a "publisher" because their views or information can be disseminated so widely, then clearly the concept of freedom of the press should be prevail in the US over calls to regulate it. However, it is also true that many users currently use the network to communicate with each other in a one-to-one communication (more like telephone, fax or mail), or to receive information passively (like television, radio, cable, etc.) from relatively few people or groups.
Regardless of the metaphors adopted for the NII, if the mechanisms for regulating it are focused on the unique qualities of the current forms of network-based communication, then those regulations will surely become outdated or unenforceable in very short order. As Laurence Tribe pointed out in his 1991 talk at the First Conference on Computers, Freedom & Privacy, the US judiciary has acted "as if the Constitution had to be reinvented with the birth of each new technology."[7] He maintains that constitutional principles "must be invariant under merely technological transformations."
It is obvious that Tribe's point applies to the proposed regulation of the Internet. As all information becomes digital, and travels over similar networks, there will be no practical difference among newspaper publishing, radio and television programming, telephone calls, or transmissions of data. Lawmakers need to concentrate on the information content itself, not the transmission or storage medium, in deciding what to protect and what to regulate.
Liability for Regulatory Compliance
If content-based regulation of the NII is adopted, who will have the liability for compliance? One particularly thorny debate in the US is whether network service providers function as "common carriers" such as telecommunications companies, or whether they should be held liable for the content of their customers' transmissions. In one recent court case, an on-line service provider, Prodigy, was sued by a company that was slandered in an electronic discussion group by a Prodigy subscriber. Prodigy's claim that it was a common carrier was rejected since it admitted to actively censoring content it judged to be undesirable in these same discussion groups.[8] While the appeal to this judgment was ultimately dropped when the case settled out of court,[9] other court cases will no doubt force this issue further.
If on-line service providers are held to be responsible for the content of their customers' transmissions, the market for monitoring, blocking and filtering technologies would be likely to flourish. Yet, the task of content regulation of a vast network would not only be ineffective and costly, but most likely would seriously impede the flow of all vital information in order to weed out an infinitesimally few objectionable bits. Eli Noam says that "common carriage is not only a free speech matter. The reason for common carriage, ... is generally to reduce transaction costs in the use of the infrastructure and hence to benefit its development. ... If each of these networks set their own rules about which information is carried and which is not, information cannot flow easily." [10]
Even where the service users, rather than their access providers, have been found liable for transmitting indecent material, a difficult problem exists. That problem is one that the US calls "community standards." In 1993, two California bulletin board operators began selling subscribers electronic access to their collection of pornographic images. California state officials examined the pictures and found them legal. In another, more conservative state, Tennessee, the access provided to Tennessee subscribers was found to be in violation of local standards of decency. The operators were extradited to Tennessee, tried in federal court, and convicted for actions not considered a crime in their own jurisdiction.[11] If this court decision is not overturned on appeal, it will be a troublesome precedent in the US and elsewhere. Discussions on any controversial subject, from health matters to politics, is considered unacceptable somewhere in the world. In a global network, whose standards should we be forced to apply?
Intellectual Property
The issue of freedom of expression is not the only issue for which we must concentrate on the "message, not the medium." Intellectual property protection has long based its protection and compensation of creative efforts on the medium of expression. In the US, for example, copyright and patent laws were devised to encourage innovation by rewarding creators with legal exclusivity, to allow them to obtain economic benefits from their creation for some limited period of time. The key distinction between a new idea that anyone in the public domain could use, and an expression that could be protected by law, was that the latter was embodied in a physical manifestation, such as a book or device. Now that books, software, data, and everything else are created, stored and distributed electronically, it is somehow much less clear that these same ideas have a physical existence that can or should be protected.[12] We will discuss a subsequent section some new proposals for thinking about intellectual property protection in a global digital environment.
For the purposes of content-based regulation, liability for compliance, and intellectual property protection, lawmakers worldwide will have to be far more creative in designing regulations. Firstly, they will need to bring disparate laws and regulating agencies for different means of communication into harmony with one another, as all media - and media content - move towards one ubiquitous digital environment. They will also need to collaborate with each other to effectuate enforcement, even when content and transmission sources reside outside of their jurisdictions. Finally, they must ensure that steps taken to regulate one type of data will not adversely impact other access. For example, with regard to content censorship for children, regulation should be focused on content labeling (such as the rating system of the film industry) or software technologies that facilitate filtering of content, rather than laws that restrict the wiring or access of all citizens to the Internet. In the near future, countries that restrict access for censorship purposes may cause their citizens a far greater problem by artificially restricting their access to most of the world's commerce.
International Intellectual Property Protection:
Can the NII Provide a Solution?
One of the bigger problems in international commerce has to do with intellectual property. As we discussed earlier, the West values and protects the physical expression of new ideas and inventions. Other cultures consider ideas to be more of a sharable public resource, and their laws and traditions reflect this different view. When we witness the current US dispute with China over the latter's lack of enforcement of American-style intellectual property protections in the US-China trade agreements, we recognize how big the difference in attitudes are.[13] A few people in the US are offering alternative ideas about intellectual property. In her article, Intellectual Property on the Net, Esther Dyson[14] comments on the weakness of the Western view of intellectual property as a deeply valuable, unique and personal creation: "most information is not as unique as its creators would like to believe - if you can find the alternative." She then proposes a very different future (which we discuss later), where issues of intellectual property become secondary concerns in the global electronic marketplace of the NII.
A particularly interesting example of the international disagreement over intellectual property protection can be found in the context of packaged software products, or "shrink-wrapped software." In many countries, software is perceived as having little or no value apart from the computer used to run it. Software is therefore very likely to be copied and used or resold without payment to the creators. The Software Publishers Association (SPA) maintains that this "pirated" software deprives software publishers of more than US12 Billion in revenues yearly. The research of the Stanford Computer Industry Project shows, however, that more harm accrues to the pirates than to the software publishers; that is, in countries where intellectual property protection of software is not acceptable or enforced, piracy prevents the development of a viable domestic software industry. Thus, US publishers, the purveyors of 75% of the world's software, currently have little competition from countries with inadequate intellectual property protection.[15]
The good news is that both the US and China may find a solution to their problems on the NII. Esther Dyson suggests that packaged software products and other "content" will soon either be given away for free on the NII as a form of advertising for related paid services, or conversely, will be developed as custom systems for a few customers. She contends that it will be the value-added services surrounding information, such as support, filtering, certification, consulting, advertising and analysis, not the information itself, which will provide much of the compensation for content creators. Thus, disparate intellectual property traditions among trading partners may cease to be a major concern, and software developers and content developers worldwide will have an unprecedented opportunity to offer their advice and maintenance services in support of their "free" offerings.
In The Economy of Ideas, John Perry Barlow[16] proposes a similar framework for thinking about intellectual property in the Digital Age. His work can also be taken to predict a satisfactory convergence of views on the issue of intellectual property rights on the NII of the future. Barlow believes that the digital media of expression provide so little protection for the ideas contained within, that value will be placed on different aspects of the information exchange. Qualities such as timeliness, exclusivity, interactivity, and value-added, which have always been underlying reasons for our valuation of some information over others, will soon be explicitly acknowledged. In many contexts, we recognize these other qualities of information already:
Timeliness: Stock market investors are willing to pay for timely market information, regardless of the information's subsequent free propagation.
Value-added: Business people also pay for finding and interpreting information (even where the information is obtained from free sources), and for certifying its accuracy. These buyers recognize that they are paying for the value-added, the expertise implicitly sold along with the data.
Interactivity: The relationship with experts and advisors will become an even more important part of the information exchange rather than the information itself. Barlow predicts that "interactivity will be a billable commodity in the absence of authorship."[17]
Exclusivity: The value of a "secret" - information that few people know, is often tied in with the timeliness of it; that is, the holders has an important temporary advantage in the expeditious use of the secret for success or monetary gain. Subsequent propagation of the idea without compensation may not be of much consequence. Continual innovation of new ideas, and acting upon those new ideas, confer value, not indefinite or exclusive possession of the idea itself.
Paying for high-quality data, for timely, exclusive information, and for expert advice are clearly not confined to Western traditions. To the extent that we come to understand what intellectual property really is in an electronic context, the more agreement we will have about how to compensate those who create value for the global community.
Conclusion
The NII is still a poorly understood phenomenon. Like the broadcasting regulations premised on the supposed scarcity of the electromagnetic spectrum, regulation of the NII at this early point in its evolution will surely embody similar misconceptions that could discourage positive uses of the medium. Thus, we should be cautious about the approach we take to extending existing laws or creating new ones for the NII.
Not only is the collection of technologies that we call the NII still a very immature system, but it is also unique in its global reach. Many of the issues which would be more effectively resolved in the international fora will have little chance of short-term settlement, because of deep differences in cultural traditions and legal systems. Instead, new regulations will first appear on the national or local level, where they may not be enforceable. These issues include technical standards for the NII infrastructure, encryption algorithms and control, content regulation, intellectual property protection, and privacy. We may be able to identify some issues, however, that are amenable to expeditious agreement, because they are of primary importance to all network users, regardless of their country of origin or the type of use they make of the NII. Security is one fundamental issue with universal appeal. The resolution of the international debates over intellectual property protection may prove to be another.
Bibliography
Anderson, G. Christopher. The Accidental Superhighway: a Survey of the Internet. The Economist. July 1, 1995.
Bangemann, Martin. Recommendations to the European Council: Europe and the global information society. May, 1994.
Barlow, John Perry. The Economy of Ideas: a Framework for Rethinking Patents and Copyrights in the Digital Age. Wired, 1994.
Barr, Avron and Tessler, Shirley. An Overview of the Software Industry Study. Working Paper, Stanford Computer Industry Project. June 1995.
CommerceNet Network Services Working Group. Toward Enabling Secure Electronic Commerce: The Need for a Revised US Cryptographic Policy. 1995.
Diamond, Edwin and Bates, Stephen. Law and Order Comes to Cyberspace.(MIT) Technology Review. October, 1995.
Dyson, Esther. Intellectual Property On The Net. Release 1.0. 1994.
Geller, Henry. 1995-2005: Regulatory Reform for Principal Electronic Media. The Annenberg Washington Program in Communications Policy Studies of Northwestern University. December, 1994.
Harvard Law Review Association. The Message is the Medium: the First Amendment on the Information Highway. Harvard Law Review. March, 1994.
Information Infrastructure Task Force. NII Security: The Federal Role. National Information Infrastructure Security Issues Forum. June 14, 1995.
Information Infrastructure Technology and Applications Task Group, National Coordination Office for High Performance Computing and Communications. Electronic Commerce and the NII. February, 1994.
Information Infrastructure Task Force. The Global Information Infrastructure: Agenda For Cooperation. 1994.
International Trade Administration. China: Key Bilateral Issues. 1995.
Magid, Lawrence J. The Debate About Decency. Los Angeles Times. June, 1995.
Noam, Eli M. Principles for the Communications Act of 2034: The Superstructure of Infrastructure. Federal Communications Law Journal. Vol. 47, No. 2, December 1994.
Organization of Economic Cooperation and Development. Guidelines For The Security Of Information Systems. November, 1992.
Radcliffe, Marc. The Law of Cyberspace for Non-Lawyers. June, 1995.
Rosenbloom, Joel. On the Sixtieth Anniversary of the Communications Act of 1934. Communications Law Journal. Vol. 47, No. 2, December 1994.
Samuelson, Pamela. Legally Speaking: The NII Intellectual Property Report. Communications of the ACM. December, 1994.
Shallit, Jeffrey. Session on Public Networks and Censorship. Talk at the Ontario Library Association. January, 1995.
Tribe, Laurence H. The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier. Keynote Address at the First Conference on Computers, Freedom & Privacy. March, 1991.
Working Group on Intellectual Property Rights. Intellectual Property and the National Information Infrastructure. September 1995.
A collection of pointers to research collections, government reports, academic journals, and popular articles relating primarily to NII issues under debate in the US can be found at:
http://www-leland.stanford.edu/group/www-cip/nii-research.html
These pointers are also referenced below: