Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1994 The National Information Infrastructure: Policymaking and Policymakers Fred H. Cate Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Communications Law Commons, National Security Law Commons, and the Policy Design, Analysis, and Evaluation Commons Recommended Citation Cate, Fred H., "The National Information Infrastructure: Policymaking and Policymakers" (1994). Articles by Maurer Faculty. 738. https://www.repository.law.indiana.edu/facpub/738 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. The National Information Infrastructure: Policymaking and Policymakers by Fred H. Cate Information policymaking needs to INTRODUCTION rc 1.ul&tuL V mation policymaking-the vital hite House role played by information in Communications policy- from the I, I modem society, the diversity of making in the United States is and mon from the issues that information products complex and unfocused. It is de- and services present, and the pro- scribedby its acolytes as "an often issues at,dexperts liferation of information-related paralyzing task," "an endless pol- invo lv d in the policymakers-and the extent to 2 3anda icy loop," a "tangled web," which the Administratibn has re- "regulatory round robin."4 po licymak !ngprocess sponded by narrowing and cen- Yet the extension from com- tralizing its policymaking inqui- munications to information poli- ry. The article concludes by rec- eymaking poses even greater challenges. The creation, ommending a broader, more comprehensive approach to manipulation, storage, transmission, and use of information information policymaking, one that takes its direction less constitute both avital componentofthe U.S. economy and an from the White House and more from the issues and experts essential underpinning of other critical sectors. These activ- involved in the policymaking process. As Henry Geller, a ities pose a wide range of serious issues that may only be former General Counsel of the Federal Communications exceeded in number and diversity by the policymakers re- Commission (FCC) and the first Administrator of the Nation- sponsible for dealing with them. al Telecommunications and Information Administration This article examines three intertwined features ofinfor- (NTIA),5 has written: "The Information Age, with its global competition, demands that we put ourpolicy housein order.' 6 J.D., Stanford Law School; A.B., Stanford University. Associate ProfessorofLaw and FacultyAdvisor to the FederalCommunica- THE ROLE OF INFORMATION tionsLaw Journal,Indiana UniversitySchoolofLaw-Bloomington; SeniorFellow, The Annenberg Washington Programin Communi- cations Policy Studies. The "information superhighway" is all the rage today. VOLUME 6:1 1994 FRED H. CATE According to the Clinton Administration's Agenda for Ac- the world market for financial services. 7 What is a global tion, the potential benefits of the National Information financial system but a "network of information"? 8 As a Infrastructure (NII)are "immense": result, banks in the United States and elsewhere are investing heavily in information technologies. 9 The NII will enable U.S. firms to compete and win in Information is equally significant for the activities of the global economy, generating good jobs for the government. According to the Clinton Administration's American people and economic growth for the na- National PerformanceReview, the "[flederal government tion. As importantly, the NII promises to transform lacks appropriate access to most effective, cost-efficient, the lives of the American people. It can ameliorate information technology products and services."2n These the constraints of geography and economic status, services, the report predicts, can overcome "the barriers of and give allAmericans a fair opportunity to go as far time and distance to perform the business of government and 7 as their talents and ambitions will take them. give people public information when and where they want [it]."2'l The importance of information is not limited to Vice PresidentAl Gore and Secretary of Commerce Ron telephone and computercompanies; itis indeed the lifeblood Brown have canvassed the country claiming the NII will of modem society. "bring an era of unprecedented prosperity to America."' "In the future," according to one White House briefing paper, Whether an advanced "the NII will enable all Americans to get the information information infrastructure isthe they need, when they need it and where they need it, for an affordable price."9 key to the Promised Land remains Whether an advanced information infrastructure is the to be seen. But information is a key to the Promised Land remains to be seen. But informa- key component of the U.S. and tion is nevertheless a key component of the U.S. (as well as the global) economy. Although figures vary, information global economies services and products are either the first or second largest sectorofthe U.S. economy, accounting forbetween 10% and INFORMATION POLICYMAKERS AND 12% of Gross Domestic Product.'0 Taken together, tele- POLICY MAKING phone companies, information service providers, communi- cations equipment manufacturers, and computer hardware Policy Objectives and software companies account for more than 4.5 million During the 1992 presidential campaign, Bill Clinton U.S. jobs." The Commerce Department predicted in No- and Al Gore pledged to make deployment of a "national vember 1993 that information sector revenues that year information network" a priority of their Administration. would reach $610 billion, up 8% from 1992.12 The impetus for this commitment apparently came from Even these figures do not represent the real importance Gore, who, as a Member of the House of Representatives, of information and, therefore, the real significance of the proposed a "nationwide network of fiber optic 'data high- information infrastructure in the United States. "Informa- ways"' in 1979.22 As a Senator and Chair of the Senate tion," writes Anne Branscomb, legal scholar-in-residence at Subcommittee on Science, Technology and Space, Gore Harvard University's Program on Information Resources introduced proposals for a National Research and Educa- Policy, "is the lifeblood that sustains political, social, and tion Network as the "Department of Energy High-Perfor- business decisions."' 3 Non-communications businesses mance Computing Act" (S.1976) in 198921 and the "High- rely as much on information services and products as do Performance Computing Act" (S.272) in 1991.24 Gore telephone companies and computer manufacturers. During found a like-minded "fellow traveller" in Bill Clinton. the 1980s, U.S. business alone invested $1 trillion in infor- Together, they campaigned on a promise to create a network mation technology. 4 Between one-half and two-thirds of that would "link every home, business, lab, classroom and the U.S. workforce is in information-based jobs. 5 library by the year 2015."21 Consider, for example, the growing market for financial Once in office, the President and Vice President moved services-banking, securities and commodities trading, let- quickly. On February 22, 1993, just 28 days after the ters of credit, currency conversions, and loan guarantees. inauguration, they unveiled a five-part strategy for building Approximately 5% of U.S. services exports are financial the "National Information Infrastructure," described in sub- services; 6 as of mid-1992, the United States held 66.3% of sequent releases as consisting of: STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS $26 million in matching grants to support NII application (1) thousands of interconnected, interoperable tele- pilot projects by not-for-profit organizations; the Adminis- communications networks, (2) computer systems, tration has pledged to seek$100 million forthese grants next 30 televisions, fax machines, telephones, and other "in- year. formation appliances", (3) software, information The Office of Management and Budget issued a circular services, and information databases (e.g. "digital in June 1993 to encourage agencies to increase citizen 3 libraries"), and (4) trained people who can build, access to public information. ' The NationalPerformance maintain, and operate these systems.2 Review report, released in September 1993, contains eleven recommendations for the improved use of information tech- The Clinton/Gore strategy, Technology for America's nology, including the creation of a Government Information Economic Growth: A New Direction to Build Economic Technology Services Group to develop a "strategic vision" Strength, included the following goals: for the federal government's use of information technolo- gies.32 TheAdministration has launched a series of inquiries (1) Implement the High-Performance Computing into electronic dissemination of government information and Communications Program, to help develop the and the use of networks for intra- and inter-government basic technology needed for the NI. communications.33 While it awaits the final outcome of (2) Through the Information Infrastructure Tech- those inquiries, the Administration