3. Beyond the Telecom Bill: Other Policies of Great Public Significance

Amazingly, the telecom-related policies that will affect citizens, consumers, nonprofits and others extend far beyond the FCC docket. Some of the larger, most pressing concerns:

The Future of Intellectual Property Law
Will computer users lose the right to copy and retransmit electronic information while "fair use" and the "public domain" are radically curtailed, to the detriment of research, robust public dialogue and economic growth?

The rights of consumers in using networked information may be radically circumscribed if the various copyright industries (film studios, record companies, book publishers, and others) succeed in imposing traditional intellectual property norms on digital technologies. Led by Assistant Secretary of Commerce Bruce Lehman, the copyright industries are proposing a comprehensive intellectual property scheme to govern the electronic universe. It would curb traditional user rights to browse, share or make private noncommercial copies in digital media (acts that are now permissible in print media). Many activities that are commonplace on the Internet would be illegal or subject to new pay-per-use pricing schemes. Online service providers, furthermore, would be responsible for prohibiting dissemination of unlicensed material and reporting violations to enforcement authorities. What may be most alarming is how the copyright industries want to greatly diminish fair-use rights and shrink the public domain. This would invert the core purpose of copyright law, contend critics, because it would allow knowledge to be more readily suppressed rather than more easily disseminated. Copyright law would instead function as a kind of trade secret law.

This copyright scenario is set forth in a White Paper released by the Intellectual Property Working Group of the National Information Infrastructure Task Force in 1995, and was promoted at the recent World Intellectual Property Organization gathering in Switzerland. Despite its vast implications, this issue has received remarkably little attention, chiefly because of its arcane legal nature. Yet a concerted response from users is vitally important. Two of the leading copyright experts leading the charge are law professors Pamela Samuelson of Cornell University and Peter Jaszi of American University, both of whom, with Mitch Kapor, have helped organize the Digital Future Coalition, a new group to fight the NII White Paper and legislation. James Love, the Nader-backed advocate at the Center for Study of Responsive Law, is another leading advocate.

The First Amendment
What will be the contours of First Amendment rights for citizens using online media?

The constitutional rights of citizens in cyberspace is largely virgin territory. The most significant arena for forging new constitutional definitions of free expression involves obscene communications on the Internet. Although the challenge to the CDA may be over, other First Amendment controversies about online speech are likely to erupt in the future, with attempts to define legal standards for online libel, commercial free speech, and the use of anonymous reposters that can shield users' real-life identities. While it is important to defend the libertarian side of the First Amendment, I believe it is also important that nonprofits pro-actively develop new online forums and editorial venues for democratic deliberation. A libertarian dystopia of the sort envisioned by Vartan Gregorian could indeed emerge if there are no "common spaces" to forge and foster shared mainstream values.

Privacy/Security in Electronic Communications
What legal and technological protections shall exist to protect the privacy of individuals?

This, too, is an enormous and complex issue. As more commercial vendors go online, pools of data that were once separate and compartmentalized are likely to be pooled. This poses serious new threats to individual privacy. Everything from medical records to buying preferences to travel itineraries could be accessible to government, businesses and prying individuals. Some Internet search engines are even capable of compiling listings of individuals' newsgroup postings. In short, processes and transactions that have traditionally "disappeared" (because no technology could capture and aggregate them) are now being recorded and manipulated. The Clinton Administration formed a Working Group on Privacy composed of representatives from various federal agencies. But its work has resulted in little progress in forging new privacy protection policies.

A related issue is what kinds of encryption of data will be permissible. To conduct commerce, businesses want to develop utterly reliable cryptographic technologies. But for national security purposes, the federal government wants to retain the right to intercept electronic communications, with court authorization, in order to apprehend terrorists, drug dealers, and other criminals. Civil libertarians understandably fear abuses of this authority, and have so far, with business support, succeeded in fending off the Clinton Administration's encryption policies.

Citizen Access to Government Information
Will citizens have free and convenient online access to government documents and databases? Or will these resources be inaccessible because government by default takes no concerted action or gives information resources to private vendors who charge high prices?

If "information is the currency of democracy," as the adage goes, then government policy with respect to its electronic information resources is a vital issue for American democracy. History has shown how such tools as the Freedom of Information Act, the Toxics Release Inventory, and other government data/information-disclosure systems are invaluable tools of accountability. Yet when push comes to shove, government information disclosure invariably entails a fight. We saw this in the SEC's great resistance to making its EDGAR database (containing corporate 10-K filings and other data) accessible over the Internet for free; it wanted to give the data to "value-added" private vendors. The Congressional Record, Federal Register, and various federal databases (the Agriculture Department's AGRICOLA) came very close to a similar fate. Even now, while there is a federal government Web site to help small businesses in their dealings with the government (OSHA, SBA, etc.), there is no user-friendly government Web site to help citizens interact with the government. And West Publishing still struggles to maintain its monopoly over publishing federal court decisions, even though there is no justification in today's online world for privatizing taxpayer information in this way.

There is also great need to pressure the federal government to make its information resources accessible and user-friendly. It is vital, for example, that the Clinton Administration adopt citizen-accessible technical protocols for the Government Information Locator System, or GILS, an electronic system for locating (but not providing seamless access to) diverse government data systems. Currently, the architecture of GILS is being debated by government technical experts, with virtually no input from the public. Without citizen intervention, GILS is likely to become a narrow catalog system that is not interoperable with either other government agencies or commercial networks -- and therefore not a cheap, efficient platform for public access, such as a Web site. One need only consider how RTK Net (a "right to know" database of toxic pollutants) engendered a whole new domain of policy advocacy to realize how a poorly designed GILS could squander untold new opportunities for achieving policy reforms. A well-designed GILS, on the other hand, could be as catalytic a tool as the Freedom of Information Act.

Children, Television and the New Media
How well will television, the Internet, CD-ROMs and other technologies serve children?

If it is sometimes hard to talk about how the new media marketplaces and technologies will affect the culture, it is much easier to do so when the focus is children -- a distinct and vulnerable segment of the population which naturally elicits our sympathies. Children provide a useful prism for bringing many larger, diffuse issues into focus. The FCC deadlock has now been broken on whether to require broadcasters to air three hours a week of "educational" programming. But the implementation of that rule and auxiliary issues remain. So do emerging children-related issues on electronic networks, such as marketing to children on web sites and invasions of their privacy.

Open Architecture of the Internet
Will the Internet remain an open, accessible system with affordable pricing, or will a pay-per-byte proprietary scheme evolve that features "bottlenecks" for excluding competitors?

Many public interest advocates have an abiding worry that telephone companies or cable systems will contrive new ways to "fence off" the Internet by creating new proprietary systems. This could happen through a number of different strategies. TCI, the cable giant, and Kleiner Perkins Caufield and Byers, are currently developing @Home, a new interactive video and data system that would try to impose a "cable model" of bottleneck control over content. @Home would charge about $35 a month and offer a three-tier pricing strategy offering content providers a directory listing, interactivity with subscribers, and customer billing and usage tracking services. Because @Home will use ultra-fast cable modems (allowing the transmission of moving images and very quick downloads, for example), the new system could set the deluxe standard for interactive communications, siphoning away talent and prestige from the Internet and marginalizing it. (For more, see Convergence magazine, February 1996.) Many public interest advocates fear that such attempts to make the "last mile" connection to the home a closed, proprietary system (such as set-top boxes) is an attempt to kill the Web as an open platform.

Thus, finding ways to ensure high-bandwidth connections for the "last mile" of wire to the home has great importance, especially if companies cannot find ways to make money through the open-architecture structure of the World Wide Web. That is one reason why some citizen advocates are trying to ensure that ISDN, or Integrated Services Data Networks, will be widely accessible and affordable to consumers. ISDN telephone lines offer roughly twice the speed of conventional modem lines, and could provide a valuable new platform for enhanced networking services. But many telephone companies have deliberately dragged their feet in making ISDN available or affordable, with some charging wildly exorbitant prices. Under pressure from advocates, a number of telephone companies are reassessing their policies and, often, actually lowering their rates.

Digital Technologies, Jobs and Economic Vitality
What are the long-term social and economic consequences of digital technologies on American communities?

Social policy has not begun to catch up with the disturbing fallout of the digital revolution. As mentioned earlier, Richard Sclove of the Loka Institute believes that the technologies could hollow out many local economies by consolidating those services into major national businesses. The massive job layoffs made by major media corporations following their mergers also suggests the rise of "a new kind of macroeconomic Moore's Law," in the words of Daniel Burstein and David Kline, authors of Road Warriors: Dreams and Nightmares Along the Information Highway: "As the rate of new wealth creation fueled by digital technology rises, the number of people required to produce it is decreasing." This thesis has also been explored by Jeremy Rifkin in The End of Work: The Decline of the Global Labor Force and the Dawn of the Post-Market Era. These macroeconomic and social implications of digital technologies deserve a more focused, rigorous review, and they need to be made a part of the ongoing policy debate.


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