The National Information Infrastructure: Policymaking and Policymakers

Maurer School of Law: Indiana University Digital Repository @ Maurer Law

Articles by Maurer Faculty Faculty Scholarship

1994

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.

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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, communications 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 technologies.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 is making widespread nology and Applications program, work with indus- use of electronic bulletin boards (available through Internet, try, universities, and federal government labs to commercial services, and direct telephone links) to dissem- develop technologies needed to support NII applica- inate speeches, press briefings, executive orders, and key tions. Administration documents. As of February 10, 1994, the (3) Provide matching grants through the National Administration had published electronically more than 1600 Telecommunications and Information Administra- documents and had processed more than 220,000 electronic tion to assist states, local governments, universities requests for information since September 1, 1993.M The and school systems, hospitals and other health care FY1995 budget includes $18 million for a new system to providers, and other non-profit entities in NII pilot electronically distribute government information.35 projects. The fifth strategy-reforming telecommunications pol- (4) Promote dissemination of Federal information icy-is taking longer to achieve and involves the Clinton through consistent Federal information policies de- Administration's most visible information-related activi- signed to ensure that Federal information is made ties. The Administration released its Agenda forAction on available at a fair price to as many users as possible September 15, 1993. Although ostensibly the product of an while encouraging the growth of the information Information Infrastructure Task Force, the AgendaforAc- industry. tion was aWhite House initiative, led by Vice President Gore (5) Reformtelecommunications policies to afford a and Secretary Brown. The AgendaforAction sets forth the consistent, stable regulatory environment necessary Administration's vision for the NIl. While stressing that the to encouraging private sectorinvestment in the NII21 private sector will "predominate" in developing, deploying and paying for the nation's information infrastructure, the The Administration has energetically pursued the first AgendaforAction notes that "the government has an essen- four strategies, with little fanfare and with perhaps even less tial role to play."36 The Agenda for Action identifies nine consultation with relevant government agencies. The Ad- "principles and goals" to guide the government's NII poli- ministration sought $1 billion for the High-Performance cies: Computing and Communications Program and an additional $96 million to focus specifically on Information Infra- (1) Promote private sector investment .... structureTechnologies andApplications.u TheAdministra- (2) Extend the "universal service" concept to en- tion has requested $40 million for research by the Depart- sure that information resources are available to all at ment of Energy's National Labs on the Information Infra- affordable prices .... structure and $600 million fortheTechnology Reinvestment (3) Act as a catalyst to promote technological inno- Project, which funds technological development of Nil vation and new applications... [through] important applications in health care, manufacturing, electronic com- government research programs and grants .... merce, and education and training.2 9 NTIA has announced (4) Promote seamless, interactive, user-driven op-

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eration of the NII... [to] ensure that users can with other nations... to avoid unnecessary obstacles transfer information across networks easily and effi- and to prevent unfair policies that handicap U.S. ciently. industry. (5) Ensure information security and network reli- (9) Provide access to government information and ability .... improve government procurement. 37 (6) Improve management of the radio frequency spectrum .... By the time of the Vice President's remarks at the (7) Protect intellectual property rights .... National Press Club on December21,1993-the first public (8) Coordinate with other levels of government and statement on the NII by the Vice President since announce-

Information Infrastructure Task Force (chaired by Ronald H. Brown, Secretary of Commerce)

APPLICATIONS AND TECHNOLOGY TELECOMMUNICATIONS POLICY COMMITTEE COMMITTEE Arati Prabhakar,Director, National Institute of Larry Irving, Assistant Secretary of Commerce for Standardsand Technology, Departmentof Commerce Communication and Information and NTIA Adminis- trator " Government Information Technology Services Working Group ° o Universal Service Working Group James Flyzik, Director,Office of Telecommuni- LarryIrving cations Management,Department of the -Reliability and Vulnerability Working Group o Treasury David Signori,Associate Director,Defense " Technology Policy Working Group Information Systems Agency DuaneAdams, Deputy Director,Advanced o International Telecommunications Policy Working Research ProjectsAgency Group o o Health Information and Applications Working Carol Darr,Deputy General Counsel, Depart- Group * ment of Commerce John Silva, ProgramManager, Advanced oLegislative Drafting Task Force• Research ProjectsAgency Larry Irving

INFORMATION POLICY COMMITTEE Sally Katzen, Administrator,Office of Information and Regulatory Affairs, OMB

Intellectual Property Rights Working Group Bruce Lehman, Assistant Secretary of Commercefor Patentsand Trademarks o Privacy Working Group ° Jerry Gates, Programand Policy Development Office, Census Bureau ° Government Information Working Group Bruce McConnell, Chief of OMB's Information Policy Branch, Office of Information and RegulatoryAffairs

Figure 1

STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS ment of theAgendaforAction in September-theAdminis- INFORMATION POLICYMAKERS tration had narrowed these essential principles guiding NII policy to five: Executive Branch and IndependentAgencies Given the importance of information, it is not surpris- First, encourage private investment .... ing that it falls within the purview of multiple government Second, promote and protect competition... [and] agencies. What is surprising is the sheer number of govern- preventunfair cross-subsidies and actto avoid infor- ment entities with jurisdiction over some facet of informa- mationbottlenecksthatwouldlimitconsumerchoice, tion creation, storage, transmission, manipulation, and use. or limit the ability of new information providers to No single agency is vested with primary jurisdiction or reach their customers. responsibility for coordinating information policymaking. Third, provide open access to the network .... We Kimberly Patch, writing in PC Week magazine, observed need to ensure the NII, just like the PC, is open and that the development of the NII is being guided by a"virtual accessible to everyone with a good idea who has a alphabet soup of government agencies." 4' Her reference to product they want to sell .... "more than a dozen government entities," however, under- Fourth, we want to avoid creating a society of infor- estimates the number of regulators involved. Admittedly, mation "haves" and "have nots."... The less fortu- the prospect of the NII has rapidly organized the efforts of at nate sectors of the population must have access to a least some of these entities, particularly the many executive minimum level of information services through sub- branch and independent agencies involved. It has helped to sidies or other forms of a public interest tithe. coordinate their often disparate, even contradictory, poli- Fifth and finally: we want to encourage flexibility. cies, while at the same time bringing them more into line ... Technology is advancing so rapidly, the structure with theAdministration's focus on managing competition in of the industry is changing so quickly, that we must the information marketplace, assuring regulatory flexibility, have policies broad enoughto accommodate change. 8 and guaranteeing universal service.

As noted by Secretary Brown,39 three of the Vice Pres- What is surprising is the sheer ident's five goals address one issue: managing competition. Thus, theAgendaforAction's original list of nine objectives number of government entities is now reduced to three over-arching goals for the Clinton with jurisdiction over some facet Administration's information policymaking: manage com- of information creation, storage, petition between and among competing information product and service providers; assure regulatory flexibility; and transmission, manipulation, and provide for universal service-however defined-for all use. Americans. Virtually all Administration speeches and testi- mony concerning the NI have repeated these goals.4° Much of the leadership on NII-related issues comes Such consistency is noteworthy in itself. On the one from the Department of Commerce. Secretary Brown chairs hand, thebroadvariety ofinformationpolicymakers singing the Information Infrastructure Task Force, created by the in harmony reflects the Administration's success in impos- Clinton Administration on September 15, 1993, to guide ing some order on the policymaking process. On the other development of the NIL. (See Figure 1.) Larry Irving, hand, such diverse policymakers all singing with one voice, Assistant Secretary of Commerce for Communication in unison with the Vice President, raises concerns about the and Information and NTIAAdministrator, chairs the Task likely effectiveness ofthatprocess in identifying andresolv- Force's Telecommunications Policy Committee and its Uni- ing critical and difficult information policy issues. In addi- versal Service Working Group and Legislative DraftingTask tion, the government's narrowed focus has eclipsed other Force. NTIA performs a number of important functions important issues originally identified in the Agenda for regarding communications and information. The agency Action, such as the application of intellectualproperty rights serves as the President's principal advisor on telecommuni- to information networks. Both the centralization of the cations policies. It also coordinates telecommunications policymaking process and the exclusion of relevant issues activities and policies within the Administration, conducts from the Administration's agenda are discussed in greater studies and makes recommendations on a wide range of detail below. telecommunications and information technology issues, 42 and funds research into telecommunications applications.

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Further, it coordinates federal government use of the broad- may prove especially troublesome when, and if, it comes cast spectrum; participates in representing the Administra- time to implement Task Force recommendations. tion on communication issues before Congress, state regula- The FCC, however, does participate in deliberations of tors, and the FCC; and develops policies and programs the Task Force, along with many other federal agencies, regarding the regulation of domestic telecommunications including the Departments of Agriculture, Education, Ener- industries, and the representation and promotion of U.S. gy, Housing and Urban Development, Interior, Justice, telecommunications industries and interests in multination- State, and VeteransAffairs, the Central IntelligenceAgency, al conferences and negotiations. The bulk of NII-related Environmental Protection Agency, Federal Trade Commis- executive actions falls within the purview of the NIl. sion, General Services Administration, National Economic Department of Commerce officials fill other key NII Council, National Science Foundation, White House Office posts. Carol Darr, Deputy General Counsel of the Depart- of Science and Technology Policy, and the Vice President ment of Commerce, chairs the International Telecommuni- himself. The General Accounting Office also plays a signif- cations Policy Working Group. Arati Prabhakar, Director of the National Institute of Standards and Technology in the Department ofCommerce, chairs theApplications and Tech- It issurprising that no nology Committee. Bruce Lehman, Assistant Secretary of Commissioner or senior FCC Commerce for Patents and Trademarks, chairs the Intellec- tual Property Working Group. Jerry Gates, from the Depart- staff member with primary ment of Commerce Census Bureau, chairs the Privacy communications Working Group. (See Figure 1.) The Department of Com- policymaking responsibility merce also serves as Secretariat to the National Information was given a leadership role Infrastructure Advisory Council, a 37-member group advis- ing the Task Force. (See Figure 2.) Also represented among on the Task Force. the NII Task Force leadership are the Office of Management and Budget, Department of the Treasury, Advanced Re- icant role, in large part through its reports and studies of search Projects Agency, and the Department of Health and information technologies. 4 Human Services. Other Executive Branch and independent agencies, Notably absent from the list of NII Task Force leaders while unrepresented on the NII Task Force, exercise sub- is anyone from the FCC, the independent regulatory agency stantial responsibility for information policy. TheAntitrust created by the Communications Act of 1934 and responsible Division of the Department of Justice advises the U.S. for regulating all interstate and foreign communication by District Court overseeing the Modified Final Judgment'- wire, radio, television, satellite, and cable.43 This omission which broke up AT&T's telephone-service monopoly- may be due in part to the fact that, as an independent agency, regarding applications for waivers from the decree's restric- the Commission is not part of the Executive Branch. When tions on AT&T and local telephone-service providers. The the NII Task Force was formed in September 1993, the Antitrust Division also develops competition policy, moni- Senate had not yet confirmed Commission Chairman Reed tors compliance, and enforces antitrust laws. The Copyright Hundt. It is nonetheless surprising that no other Commis- Office in the Library of Congress and, as noted, theAssistant sioner or senior FCC staff member with primary communi- Secretary of Commerce for Patents and Trademarks, re- cations policymaking responsibility was given a leadership spond to the intellectual property challenges presented by role on the Task Force. digital information and enforce existing intellectual proper- The FCC has extensive, although not always successful, ty laws. experience promoting and regulating competition among The U.S. Trade Representative oversees international telecommunications industries and assuring universal ser- trade in information services and products and its impact on vice in both telephone and over-the-air television service- U.S. foreign relations. Information is inherently global and the points of the Administration's current NII initiative. It of such economic importance that it frequently is at the heart is also the only federal agency with statutory jurisdiction of international trade disputes. The United States has ap- over those responsibilities." Although Chairman Hundt has plied a variety of trade statutes-including the Omnibus close ties to the Vice President and although they appear to Trade and Competition Act of 1988, 4' the Telecommunica- share common ground on many information-related issues, tions Trade Act of 1988,48 the Export Administration Act of the absence of the FCC from the NII Task Force leadership 1979,4 and the International Security Assistance and Arms

STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS

Export Control Act of 1976 0--to information services and ion in the Department of Commerce. products. U.S. Trade Representative Mickey Kantor has threatened action against the European Community"' and OtherFederal and State Policymakers Japan 2 for alleged unfair trading practices related to infor- Congress affects information policymaking through a mation products. Other officials involved in U.S. interna- number of committees and advisory bodies. In addition to tional information trade policy include the U.S. Coordinator the traditional oversight exercised through appropriations for International Communications and Information Policy and Senate confirmation proceedings, Congress has created in the Department of State, who is aided by an industry a wide range of specialized committees and subcommittees Advisory Committee onIntemational Communications and dealing with telecommunications, intellectual property, con- Information Policy, and the International TradeAdministra- stitutional (particularly FirstAmendment) issues, technical

National Information Infrastructure Advisory Council

Delano Lewis Susan Herman Co-chair, President and CEO, National Public Radio Gen'l ManagerTelecom. Dep't, City of Los Angeles Edward P. McCracken James Houghton Co-chair, President and CEO, Silicon Graphics Chairman and CEO, Coming Inc. Morton Bahr Stanley S. Hubbard President, Communications Workers ofnAmerica Chairman and CEO, Hubbard Broadcasting Dr.Toni Carbo Bearman Robert L. Johnson Dean, School of Library and Info. Sciences, University of President, Black Entertainment Television Pittsburgh Dr. Robert E. Kahn Marilyn Bergman President, Corporation for National Research Initiatives President, ASCAP Deborah Kaplan Bonnie Bracey Vice President, World Institute on Disability Teacher, Ashlawn Elementary School Mitchell Kapor John F Cooke Chairman of the Board, Electronic Frontier Foundation President, The Disney Channel Alex J. Mandl Esther Dyson ExecutiveVice President, AT&T; CEO, Communications President, EDventure Holdings, Inc. Services Group William C. Ferguson Dr.Nathan Myhrvold Chairman & CEO, NYNEX Corp. Senior Vice President, Advanced Tech., Microsoft Corp. Dr.Craig Fields N.M. (Mac) Norton, Jr. President &CEO, Microelectronics &ComputerTechnol- Wright, Lindsey & Jennings ogy Corp. Vance K. Opperman R. Jack Fishman President, West Publishing Company President, Lakeway Publishers, Inc.; Editor/Publisher, Jane Smith Patterson Citizen-Tribune Advisor to the Governor of North Carolina Lynn Forester Frances W. Preston President and CEO, FirstMark Holdings, Inc. Chairman and CEO, BMI The Hon. Carol Fukunaga Bert C. Roberts, Jr. Hawaii State Senator Chairman and CEO, MCI Communications Corp. Jack Golodner John Sculley President, Dept. of Professional Employees, AFL-CIO CEO, Sculley Communications, Inc. Eduardo L. Gomez Joan H. Smith President and General Manager, KABQ Radio Chair, Oregon Public Utility Commission Haynes G. Griffin Al Teller President and CEO, Vanguard Cellular Systems Inc. Executive Vice President, MCA, Inc.; Chair, MCAMusic LaDonna Harris Laurence Tisch President and Founder, Americans for Indian Opportunity President and CEO, CBS, Inc. Dr. George H. Heilmeier Jack Valenti President and CEO, Bellcore CEO and President, Motion Picture Assoc. of America

Figure 2

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standards, government information, competition, and inter- tive Branch and independent agencies, two dozen Congres- national trade in information products and services. (See sional committees, subcommittees and expert advisory bod- Figure 3.) The Congressional Budget Office evaluates the ies, the federal courts, 51 state utilities commissions, and financial impact of proposed information policies and Con- literally thousands of local regulators. These figures include gress' Office of Technology Assessment issues a wide vari- none of the international policymaking institutions (e.g., ety of influential reports on the impact and regulation of International Telecommunications Union, World Intellectu- 5 3 information. al Property Organization), domestic standard-setting bodies Although often overlooked, federal-and, to a lesser (e.g., American National Standards Institute, Institute of degree, state-courts play a substantial role in both develop- Electrical & Electronics Engineers), public interest groups ing and enforcing U.S. information policy. Not only may (e.g., Action forChildren'sTelevision, MediaAccess Project), interested parties appeal adverse agency decisions, civil research centers (e.g., The Annenberg Washington Program litigation between and among interested parties and the in Communications Policy Studies, Columbia Institute for federal government has laid much of the de facto regulatory Tele-Information), or the many private industry associations groundwork. For example, the U.S. Supreme Court's deci- (e.g., Information Industry Association, Telecommunica- sions in Sony Corp. ofAm. v. Universal City Studios, Inc.'s tions Industry Association), which all seek to influence the and FeistPublications, Inc. v. RuralTel. Serv. Co.55 did more shape of the government's information policy. to establish the parameters of "fair use" 56 and the copyright- The number and variety of information policymakers ability of databases, respectively, than any administrative and organizations seeking to affect the policymaking pro- pronouncement. Also consider U.S. District Court Judge cess have always challenged the ability of government to Harold Greene's role in the case brought by the Department identify and pursue rational, consistent, and effective infor- of Justice against AT&T.57 Though Judge Greene rendered mation policies. President Johnson's Task Force on Com- his decision approving the Modified Final Judgment in munications Policy recognized 26 years ago the serious 1982, he has retained jurisdiction under the consent decree problems created by the absence of a single source of to control the operations of both AT&T and the Regional "coordinated and comprehensive policy advice" in the more 5 Holding Companies (RHCs). 1 The court's control overU.S. limited realm of communications policymaking.1 The telecommunications is so great that the RHCs have spent breadth of issues and players involved in information poli- more than a decade litigating and lobbying to be freed from cymaking only makes the situation worse. To its credit, the restrictions imposed by the decree.5 9 Most recently, the Clinton Administration has recognized the need for greater RHCs have applied to Judge Greene to remove the decree coordination and, through its NII Task Force, has taken the altogether.60 The breadth of that decree and the substantial first steps towards achieving it. Those steps, however, have discretion given judges to interpret antitrust laws, 61 "proba- not come without costs. The Administration's efforts have bly makes him the single most powerful decisionmaker in centralized and politicized the policymaking process and U.S. communications policy today." 62 It is little wonder excluded other important issues from the Administration's Judge Greene is often referred to as the "telecom czar."'63 agenda. State and local governments also regulate telecommunications service providers, particularly local telephone and EXPANDING THE SCOPE OF INFORMATION cable operators. Every state has a regulatory agency (i.e., POLICYMAKING Public Utility Commission or Public Service Commission) The government has responded to the extraordinary responsible for overseeing intrastate telecommunications 64 breadth of issues and entities involved in information poli- These state organizations not only exercise considerable cymakingby narrowing the scope of inquiry. SeniorAdmin- power over telephone service within their respective states, istration officials promote only three of the original nine they also act collectively through the National Association policy principles listed in theAgendaforAction: encourage of Regulatory Utility Commissioners and with the FCC on competition between and among information product and Federal-State Joint Boards. In addition, many cities exer- service providers; assure regulatory flexibility; and provide cise some continuing control over cable television through for universal service. The Administration has deferred, local franchising authority. These cities may act collectively dismissed, or relegated the remaining principles to the on issues of common concern through the National League bottom of its policymaking agenda. Given the central role of Cities.6s the NII initiative and the Task Force play in coordinating and In short, information policymaking in the United States orienting the information policymaking efforts of many involves every cabinet department, more than 100 Execu- agencies, the focus on three issues to the exclusion of others,

STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS

Congressional Committees with Information Policy Oversight (as of January23, 1995)

SENATE HOUSE OF REPRESENTATIVES Commerce, Science and Transportation Larry Pressler(R-S.D.), Chair, Ernest F Commerce Hollings (D-S. C.), Ranking Minority Mem- Thomas J. Bliley, Jr (R-Va.), John D. ber Dingell (D-Mich.) * Communications' 'Telecommunications and Finance- Bob Packwood (R-Or), Ernest F Hollings Jack Fields (R-Tex.), Edward J. Mar- (D-S.C.) key (D-Mass.) * Science, Technology and Space' ConradBurns (R-Mont.), not an- Government Reform and Oversight nounced William E Clinger,Jr (R-Pa.), Cardiss Collins (D-Ill.) Governmental Affairs William V Roth, Jr (R-Del.), John Glenn ' Government Management, Information (D-Ohio) and Technology . Stephen Horn (R-Calif.), Carolyn B. * Federal Services, Post Office and Civil Maloney (D-N.Y) Service ' ' Postal Service ' Not announced John M. McHugh (R-N.Y), Barbara • Regulation and Government Information' Rose Collins (D-Mich.) Not announced Judiciary Judiciary Henry J. Hyde (R-Ill.), John Conyers, Jr Orrin G. Hatch (R-Utah), Joseph R. Biden, (D-Mich.) Jr (D-Del.) ' Constitution' ' Antitrust, Business Rights and Competi- Charles T Canady (R-Fla.), Patricia tion ' Schroeder (D-Colo.) Strom Thurmond (R-S. C.), PatrickJ. ' Commercial and Administrative Law' Leahy (D-Ver) George W. Gekas (R-Pa.), Jerrold ' Constitution, Federalism and Property Nadler (D-N.Y) Rights ' ' Courts and Intellectual Property' Hank Brown (R-Colo.), Paul Simon (D- CarlosJ. Moorhead (R-Calif.), John ill.) Conyers, Jr (D-Mich.) ' Terrorism, Technology and Government Information ' Science, Space and Technology Arlen Specter (R-Pa.), HerbertKohl Robert S. Walker (R-Pa.), George E. Brown, (D-Wis.) Jr (D-Calif.)

igure 3

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such as privacy and intellectual property, has a trickle-down service and the number ofunserved residents is increasing- effect in and outside the government. As a result, key more than 6% between 1984 and 1992 74-- as it is in other substantive issues go unresolved. More importantly, the parts of the country.7 The Administration should be cau- process of information policymaking-the very means tious about trying to emulate this "success." through which the substantive issues can be addressed-is Universal service has always been linked to monopo- thwarted in two ways. First, theAdministration's top-down, lies and extensive government regulation. Prior to its break- focused approach unintentionally skews the debate and up, AT&T could be counted on to provide universal service overestimates the importance of its objectives. Second, this as part of its monopoly over U.S. telephone service. In fact, approach obscures the significance of the principles either it was Theodore Vail, President of AT&T, who first coined identified but not addressed publicly, or those omitted alto- the phrase "universal service" in 1910.76 After the break-up gether. of AT&T, the Regional Holding Companies, which provide local telephone service on a monopoly basis, continued THE Focus ON UNIVERSAL SERVICE universal service partly because they were and are heavily The ramifications of narrowing the policymaking in- regulated near-monopolists. In television, the government's quiry are nowhere clearer than in the focus on universal extensive regulation of the industry facilitated its commit- service, one of the three objectives the Administration ment to over-the-air television without direct charge. That champions. TheAdministration has widely touted universal commitment has created an intricate system of expensive service as an essential principle guiding its information indirect charges, for example, in prices paid for products policymaking efforts. Universal service is certainly an advertised on television. important goal, but the Administration's singular commit- It is far more difficult to define universal service in an ment raises a number of questions, both about universal environment with as many information services and provid- service itself and its impact on the policymaking process. ers as the NIl. Does universal service mean free access or Universal service has historically been a minimalist low-cost access to some basic tier of services or to all commitment to providing a single, basic service-what is services? Such distinctions will matter far more in the NII sometimes called Plain Old Telephone Service (POTS). than they do today in telephone service (e.g., whether POTS means no advanced information services, no unlimit- telephone access comes with call-waiting or without). An ed calling, not even a telephone itself-just a single line NII universal service commitment that does not go beyond connecting each house to the telephone network. 7 Univer- the information equivalent of POTS will greatly divide the sal service did not occur overnight. The telephone was information "haves" and "have-nots," despite the Adminis- developed in the late 1870s and was commercially available tration's populist rhetoric. Yet amore sweeping definition of for more than 50 years before passage of the Communica- universal service will impose high costs and threatens to tions Act of 1934,68 which required universal service. Had delay widespread deployment of the NIl. universal service been an obligation from the outset, it would Unfortunately, the focus on universal service has thus likely have stymied early expansion of the telephone net- far obscured, rather than clarified, these issues, and, as a work. Robert W. Lucky, Vice President ofApplied Research result, the process and players seem to be taking their cues at Bellcore, asked at a recent NII conference: "Would Inter- from above. Rather than drawing on their expertise, expe- net have ever gotten started if people had presumed from the rience, and ability to collect information from within indus- start that you have to have universal access? It is a great tries or markets, these policymakers often seem to be impos- simplification to talk about some of these things as absolutes ing on these resources an agenda that originated in the White and not talk about the costs and timetable for those things House or elsewhere among senior officials. The phrase 69 happening." Even after more than a century of experience "universal service" has become a mantra. The Vice Presi- with the telephone, the United States has still achieved only dent says it; the Secretary of Commerce says it; theAssistant 7 a 94% national penetration rate," leaving 5.7 million homes Secretary says it; soon, people both in government and out 7 without telephone service. ' Approximately 12% ofAfrican are chanting it, especially when looking for preferment or American and Hispanic homes have no telephone service; grants in the NII process. 17%, or one in six families, lack telephone service in the In addition to distorting the debate about its definition, 72 rural south and urban centers of America's largest cities. merits, and costs, the focus on universal service distracts More than 20% of African American, Asian American, and senior Administration officials from other policy goals. 7 Hispanic homes in California have no telephones. Even in Assistant Secretary of Commerce Larry Irving, sounding a the nation's capital, 12% of homes have no telephone familiarAdministration theme, recently said: "If 1992 was

STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS the year of the woman, 1994 promises to be the year of expression. The Supreme Court held in Feist" that a compi- universal service." n As important as universal service may lation, such as a database, can be copyrighted only "if it be, the Administration's intense focus on it clouds the full features an original selection or arrangement of facts," and range of objectives necessary if the government's informa- the copyright protection is "limited to the particular selection policy is to effectively guide the rapid, cost-effective tion or arrangement."' Computerized databases, which can deployment of a technologically advanced, digital infra- be searched by text strings or key words, rarely feature structure offering a wide range of information, communica- "original" organization. Under Feist,no matter how many tion and entertainment services. resources were invested in creating a complex database, it would not be protected by copyright law. As a result, data- THE MISSING PmcInE base creators today protect their investment through con- Among the objectives the Administration is overlook- tracts and high user fees--disfavored by Nil proponents' ing are intellectual property and theFirst Amendment. emphasis on open access. Although theAgendaforAction stressed the importance of Inability to resolve these issues threatens the success of protecting intellectual property rights efficiently and effec- the NII. Protecting intellectual property and responding to tively in a digital environment, subsequent Administration the challenges of digital technology are more than just moral actions have largely ignored this goal. The First Amend- or legal imperatives. Copyright is, according to the United ment has been ignored from the beginning. Whether this is States Supreme Court, "the engine of free expression. By a result of the focus on universal service (and ensuring establishing a marketplace right to the use of one's expres- competition while providing for regulatory flexibility), or sion, copyright supplies the economic incentive to create the understandable desire to avoid controversial issues, is and disseminate ideas."'" Failure to protect copyrights, pat- unclear. What is clear is that the failure to address both ents, and trademarks will undermine the incentive to create. intellectual property and free-expression issues not only The Agenda forAction stressed that the Task Force should threatens the success of the NII,but also reflects a failure of "[e]xamine the adequacy of copyright laws" and "explore the policymaking process itself. ways to identify and reimburse copyright owners" through either alternative market structures or new technologies. IntellectualProperty These are important inquiries that theAdministration should According to the AgendaforAction: not ignore or defer. Yet intellectual property issues have apparently slipped The broad public interest in promoting the dissemi- from senior Administration officials' fields of view. These nation of information to our citizens must be bal- issues receive nowhere near the same attention from theVice anced with the need to ensure the integrity of intel- President and Task Force leaders as, for example, universal lectual property rights and copyrights in information service does. A Task Force working group is examining and entertainment products. This protection is cru- these issues; perhaps its preliminary draft report, Intellectu- cial if these products-whether in the form of text, aI Propertyand the NationalInformation Infrastructure,u images, computer programs, databases, video or will generate more interest from the Administration, Con- sound recordings, or multimedia formats-are to gress, and the public. Certainly the communities that create move in commerce using the full capability of the and disseminate programming are concerned. But the lack Nil7 8 of overt attention from senior officials, and the vague, shadowy impression that the Administration might eventu- Protecting the integrity of digital works is likely to ally take some action in this area, combine to dissipate the require revision of U.S. intellectual property laws, designed pressure for action and the incentive for attention. The for a world in which copying was difficult, economically identification of intellectual property issues in the Agenda impractical, and relatively easy to regulate by focusing on for Action, followed by their subsequent disappearance the physical manifestation of the work and the actual inci- from high-level discussion, has createda wait-and-see atmo- dent of copying (e.g., photocopying a book). As more sphere. The Copyright Office and the Intellectual Property information becomes available in digital format, and tech- Working Group toil on, but the Nil leadership's attention is nologies fordigital copying are increasingly widespread and focused elsewhere. As a result, their efforts go largely affordable, U.S. intellectual property law will become more unnoticed, exceptby concerned outsiders who are persuaded and more outmoded. to wait. In addition, U.S. copyright law protects only original

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The FirstAmendment abridging freedom of speech or of the press"I--erects a None of the Administration's NII pronouncements very high barrier to government intrusion into communica- mention the First Amendment. It does not appear in the tions. Under the First Amendment, governmental regula- Agenda for Action or in a single speech by Vice President tions based on the content of expression are generally Gore, Secretary Brown, Assistant Secretary Irving, or any subject to "strict scrutiny" by courts.16 In the context of other senior Administration official. Free expression is not over-the-air broadcasting, however, the Court requires only the subject of any NII committee or working group. that broadcasting regulation be "narrowly tailored" to The omission of the FirstAmendment from information achieve a "substantial government interest."'' That lower policy is all the more significant in light of the substantial standard is premised upon the physical scarcity of the regulatory role that the Administration anticipates the gov- electromagnetic spectrum, which permits the operation of ernment should play. In his December 21, 1993, address at only a finite number of broadcast stations and therefore, the National Press Club, the Vice President analogized the according to the Court, permits greater regulation of broad- current information marketplace to the environment that, in cast programming.88 his view, permitted the sinking of the Ttanic: The developing information infrastructure has little to do with over-the-air broadcasting. Instead of scarce electro- Why did the ship that couldn't be sunk steam full magnetic spectrum, the infrastructure utilizes the abundant speed into an ice field? For in the last few hours capacity of fiber optics. As a result, proposed regulations before the itaniccollided, other ships were sending dealing with the content of information provided via the NII messages like this one from the Mesaba: "Lat42N to would likely be subject to "strict scrutiny" by courts. This 41.25 Long 49W to Long 50.30W. Saw much heavy conclusion is supported by the Supreme Court's recent pack ice and great number large icebergs also field decision in Turner BroadcastingSys., Inc. v. FCC. 9 In that ice." case, eight Justices supported the proposition that "the And why, when the itanic operators sent distress rationale for applying a less rigorous standard of First signal after distress signal did so few ships respond? Amendment scrutiny to broadcast regulation... does not The answer is that-as the investigations proved- apply in the context of cable regulation."" The abundant the wireless business then was just that, a business. capacity of the cables that deliver television to the home is Operators had no obligation to remain on duty. They multiplied many times in the networks that form today's were to do what was profitable. When the day's work Internet and tomorrow's NIl. But even if treated under the was done--often the lucrative transmissions from less restrictive test reserved for over-the-air broadcasting, wealthy passengers--operators shut off their sets such regulations would still have to meet the "substantial and went to sleep .... government interest" test. And that less restrictive test is Ironically, that tragedy resulted in the first efforts to under fire as the proliferation of media technologies under- regulate the airwaves. mines the scarcityjustification forpermitting some content- Why did government get involved? Because there based regulation of broadcast programming.9' are certain public needs that outweigh private inter- The First Amendment is vital to the NII because it ests. 3 reflects a constitutional commitment not only to free expression, but also to reaping the benefits of free expression The Vice President's vision of the proper role of the without government interference. "[A] cardinal tenet of the government's information policy, to judge from the itanic First Amendment is that governmental intervention in the example, is to regulate the information infrastructure, to marketplace of ideas.., is not acceptable and should not be restrain those "private interests" that are outweighed by tolerated." 92 The FirstAmendment also serves as a positive unspecified "public needs." It is no wonder that the First barrier to impermissible restrictions on information. No Amendment is not mentioned, because it would pose a clear matter how desirable such restrictions may be in the eyes of obstacle to such regulation. The provision of information the Vice President, theTask Force, the Congress, or anybody products and services is a profitable business. To lament else, the First Amendment forbids policies that abridge the that fact both undermines the government's reliance on freedom of speech. private investment to deploy the NII84 and raises important Information policymaking that ignores the FirstAmend- First Amendment issues. ment wastes time and resources; it fundamentally disserves The Supreme Court has found that the First Amend- the public interest. The absence of the First Amendment ment's simple command- Congress shall make no law... from the policymaking debate calls into question the debate

STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS itself. How serious is the commitment to the Nil and to inquiry, while restricting discussion of other important is- assuring access for everyone, if the policymaking process sues. Amore comprehensive and balanced approach, incor- ignores the principles and limits of the First Amendment? porating the broad array of issues identified in the September One is reminded of the politically popular but constitution- 1993 Agenda forAction and critical First Amendment con- ally deficient actions of a unanimous U.S. Senate in banning cerns, is necessary. Such an agenda, addressed by the wide indecent telephone calls93 and flag-burning4--the latter range of policymakers with expertise in, and responsibility only three months after the Supreme Court had found that for, information policy, should be driving the information flag-burning was constitutionally protected 9 -- only to have policymaking process. both provisions struck down by the Supreme Court.9 Such actions undermine policymakers' commitment and their NOTES wisdom. Given Congress' renewed interestin regulating the ' Mark S. Nadel, U.S. CommunicationsPolicymaking: Who content of broadcast television, cable television, and video & Where, 13 HASTINGS COMM. & ENT. L.J. 273, 275 (1991). games,9 the First Amendment fills a more crucial role than 2 Stuart N. Brotman, The Curious Case of the Mus't-Carry ever in information policymaking. Ithiel de Sola Pool wrote Rules: Breaking the Endless Policy Loop Through Negoti- more than a decade ago about the ironic tendency of policy- atedRulemaking, 40 FED. COMM. L.J. 399, 405 (1988). makers to seek to regulate new information technologies: 3 COUNCIL ON COMPETITIVENESS, COMPETITION POLICY: UN- LOCKING THE NATIONAL INFORMATION INFRASTRUCTURE 3 (1993). The easy access, low cost, and distributed intelli- gence of modem means of communication are a 4 Fred H. Cate, Communications Policymaking, Competi- prime reason for hope. The democratic impulse to tion and the PublicInterest: the New Dialogue, 68 IND. L.J. regulate evils, as Tocqueville warned, is ironically a 665, 669 (1993). reason for worry. Lack of technical grasp by policy 5President Carter established the NTIA in 1978 to replace makers and their propensity to solve problems of the White House Office of Telecommunications Policy as conflict, privacy, intellectual property, and monopo- the principal advisor to the Administration on telecpmmu- ly by accustomed bureaucratic routines are the main nications issues. reasons for concern. But as long as the FirstAmend- 6 HENRY GELLER, BENTON FOUNDATION, THE FEDERAL STRUC- ment stands, backed by courts which take it serious- TURE FOR TELECOMMUNICATIONS POLICY 26 (1989). ly, the loss of liberty is not foreordained. The

commitment of American culture to pluralism and 7 INFORMATION INFRASTRUCTURE TASK FORCE, NATIONAL IN- individual rights is reason for optimism, as is the FORMATION INFRASTRUCTURE AGENDA FOR ACTION 12 (1993). pliancy and profusion of electronic technology.9 8 Ronald H. Brown, Remarks Before the Networked Economy CONCLUSION Conference (Oct. 20, 1993). Information policymaking today is dominated by the 9 The NationalInformation Infrastructure,'FrequentlyAsked number and diversity of issues and parties that it involves. Questions (available through Internet from the NTIA NII These two features vastly complicate the task of information bulletin board, iitf.doc.gov). policymaking and also substantially increase the cost of 10 Ronald H. Brown, Remarks at the Museum of Television delay or failure in achieving rational, effective information and Radio (Jan. 6, 1994); Al Gore, Remarks at the National policies. The Clinton Administration deserves enormous Press Club (Dec. 21, 1993). credit for both recognizing the widespread importance of information and seeking to address explicitly the complex- II Id. ities of information policymaking. Yet the most tangible 12 Technology: Information Technologies Growth Seen manifestations of the Administration's response in the pol- Strengthening,DAILY REP. FOR EXECS., Jan. 28, 1994, at 18, icymaking arena reflect neither the ambition nor the com- available in NEXIS, NEWS Library, DREXEC File. Spe- prehensiveness oftheAdministration's early moves to orga- cific predictions for the sector included: Computer soft- nize information policymaking. ware revenues would rise 12.8% to $60 billion in 1993; Faced with a dazzling array of difficult issues and often information services revenues would increase 12.4% to $136 billion; and electronic information services revenues, conflicting principles, the Administration has chosen to a subset of the information services market, would climb concentrate its most visible energies on only three. This almost 15% to $15.6 billion. Telecommunications ser- approach is skewing the policy debate about those areas of vices-local telephone, long distance, cellular, satellite,

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and data services-were predicted to have 1993 revenues 28 TECHNOLOGY FOR ECONOMIC GROWTH: A CHECKLIST OF exceeding $184 billion. Ivan H. Shefrin & Daniel W. CLINTON ADMINISTRATION KEY ACCOMPLISHMENTS (Nov. 4, Edwards, Telecommunications Services; Industry Over- 1993). view, U.S. INDUS. OUTLOOK, Jan. 1993, at 28. 2 9 AGENDA FOR ACTION, supra note 7, at 23. 13 Anne W. Branscomb, Global Governance of Global Networks: A Survey of TransborderData Flow in Transi- 30 Grant ProgramQuadrupled, COMM. DAILY, Feb. 8, 1994, tion, 36 VAND. L. REV. 985, 987 (1983). at 1.

14 Howard Gleckman, The Technology Payoff, Bus. WK., 31 OMB CIRCULAR A-130, JUNE 1993. June 14, 1993, at 57. 3 2 NATIONAL PERFORMANCE REVIEW, supra note 20, at 2. 15 Gore, supra note 10; AGENDA FOR ACTION, Supra note 7, at 5. 33 SEE, E.G., A UNIFIED FEDERAL GOVERNMENT ELECTRONIC MAIL USERS' SUPPORT ENVIRONMENT (MUSE), THE FINAL 16 U.S. Congress, Office of Technology Assessment, U.S. REPORT OF THE WORKING GROUP ON GOVERNMENT-WIDE ELEC- BANKS AND INTERNATIONAL TELECOMMUNICATIONS-BACK- TRONIC MAIL, INTEGRATED SERVICES PANEL (Nov. 1993); GROUND PAPER 4 (1992). REPORT OF WHITE HOUSE ELECTRONIC PUBLIC ACCESS (1994).

17 Peter Marsh, FinancialSector Wins 17% of Market, FIN. 31 Public Advisory Council of Clinton Administration's TIMES, Aug. 25, 1992, at 7. Information InfrastructureTask Force .... COMM. DAILY, Feb. 14, 1994, at 6. 1 8 CHARLES GOLDFINGER, LA GtOFINANCE 401 (1986). 35 Randolph E. Schmid, Funding IncreasesMake Technol- 19See, e.g., Pete Engardio, Global Banker, Bus. WK., May ogy a Big Winner, S.F. EXAMINER, Feb. 8, 1994, at A-10. 24, 1993, at 50 (describing an international bank's $1 billion information technology budget). 36 AGENDA FOR ACTION, supra note 7, at 6.

2 0 NATIONAL PERFORMANCE REVIEW, OFFICE OF THE VICE PRESI- 37 Id. at 6-7 (original emphasis deleted). DENT, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT 3 8 THAT WORKS BETTER AND COSTS LESS: RE-ENGINEERING Gore, supra note 10. THROUGH INFORMATION TECHNOLOGY 1 (1993). 3 9 Brown, supra note 10. 21 Id. at2. 40See, e.g., Al Gore, Remarks at UCLA (Jan. 11, 1994); 22 A1 Gore, Communications: Networking for the Future, Telecommunications Improvements: Hearings Before the WASH. POST, July 15, 1990, at B3. Senate Commerce Comm., 103d Cong., 2d Sess. (Feb. 23, 1994) (statement of Secretary of Commerce Ronald H. 23 135 CONG. REC. S16,681 (1989). Brown); Telecommunications Reform Legislation: Hear- ings Before the House Judiciary Comm., Subcomm. on 24 137 CONG. REC. S 17,894 (1991). Economic and CommercialLaw, 103d Cong., 2d Sess. (Jan. 26, 1994) (statement of Larry Irving, Assistant Secretary 25 Bill Clinton, Remarks to the National Association of of Commerce for Communication and Information); Tele- Radio Talk Show Hosts (June 21, 1992), transcriptavail- communicationsReform Legislation: HearingsBefore the able in NEXIS, NEWS Library, CURNWS File. The Li- House Energy and Commerce Comm., Subcomm. on Tele- brary of Congress plans to have the most important mate- communications and Finance, 103d Cong., 2d Sess. (Jan. rials in its collection converted to digital format by the year 27, 1994) (statement of Larry Irving, Assistant Secretary 2000. Peter H. Lewis, Library of Congress Offers to Feed of Commerce for Communication and Information). the Data Highway, N.Y. TIMES, Sept. 12, 1994, at B11. 41 Kimberly Patch, Government Sets NI! Rules, PC WEEK, 26 FrequentlyAsked Questions, supra note 9. Dec. 13, 1993, at 141. For an excellent summary of both government and nongovernmental players involved in com- 27 Information Infrastructure and H.R. 1757, The "High munications policymaking, see Nadel, supra note 1. Performance Computing and High Speed Networking Ap- plicationsAct of 1993": Hearingsbefore the House Com- 42 SEE, E.G., U.S. DEP'T OF COMMERCE, NAT'L TELECOM. & mittee on Science, Space, and Technology, 103d Cong., 1st INFO. ADMIN., GLOBALIZATION OF THE MASS MEDIA (1993); Sess. (Apr. 27, 1993) (statement of John H. Gibbons, TELECOM 2000: CHARTING THE COURSE FOR A NEW CENTURY Director, Office of Science and Technology Policy). (1988).

4347 U.S.C. § 151 (1992).

STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS

(1990); TRADING AROUND THE CLOCK: GLOBAL SECURITIES 44Id. at § 1. MARKETS AND INFORMATION TECHNOLOGY-BACKGROUND PA- PER (1990); DEFENDING SECRETS, SHARING DATA: NEW LOCKS 45 See, e.g., the following General Accounting Office pub- AND KEYS FOR ELECTRONIC INFORMATION (1987); INTELLEC- lications: INFORMATION DISSEMINATION: CASE STUDIES ON TUAL PROPERTY RIGHTS IN AN AGE OF ELECTRONIC INFORMA- ELECTRONIC DISSEMINATION AT FOUR AGENCIES (1992); U.S. TION (1986); EFFECT OF INFORMATION TECHNOLOGY ON FINAN- COMMUNICATIONS POLICY: ISSUES FORTHE 1990s (1991); GLO- CIAL SERVICES SYSTEMS (1984). BAL FINANCIAL MARKETS: INTERNATIONAL COORDINATION CAN HELP ADDRESS AUTOMATION RISKS (1991); ELECTRONIC FUNDS 54464 U.S. 417 (1984) (recording of commercial television TRANSFER: OVERSIGHT OF CRITICAL BANKING SYSTEMS SHOULD broadcasts for later viewing fits within definition of "fair BE STRENGTHENED (1990); FINANCIAL MARKETS: OVERSIGHT use"). OF AUTOMATION USED TO CLEAR AND SETTLE TRADES IS UN- EVEN (1990); FINANCIAL MARKETS: TIGHTER COMPUTER SECU- 55499 U.S. 340, 350-51 (1991) (a compilation containing RITY NEEDED (1990); PUBLIC ACCESS: Two CASE STUDIES OF uncopyrightable facts can be copyrighted "if it features an FEDERAL ELECTRONIC DISSEMINATION (1990); COMPUTER original selection or arrangement of facts," but the copy- MATCHING: NEED FOR GUIDELINES ON DATA COLLECTION AND right protection is "limited to the particular selection or ANALYSIS (1990); ELECTRONIC FUNDS TRANSFER: INFORMA- arrangement. In no event may copyright extend to the facts TION ON THREE CRITICAL BANKING SYSTEMS (1989). themselves.").

46United States v. American Tel. & Tel. Co., 552 F. Supp. 5617 U.S.C. § 107 (1992). A use of a copyrighted work that 131 (D.D.C. 1982), aft'd sub nom. Maryland v. United is a "fair use" does not require the copyright holder's States, 460 U.S. 1001 (1983). The Modified Final Judg- permission. ment (MFJ) entered a consent decree that broke up AT&T's monopoly over telephone service in the United States. The 51 United States v. American Tel. & Tel. Co., 552 F. Supp. MFJ created seven Regional Holding Companies (RHCs) 131 (D.D.C. 1982), aff'd sub nom. Maryland v. United to provide local telephone service on a regulated, mo- States, 460 U.S. 1001 (1983). nopoly basis, and left AT&T free to compete in the long distance market. The MFJ, however, restricted AT&T and s See, e.g., United States v. Western Elec. Co., 767 F. the RHCs from entering certain lines of business where the Supp. 308 (D.D.C. 1991), aff'd, 993 F.2d 1572 (D.C. Cir. court believed AT&T could unfairly take advantage of its 1993), cert. denied, Consumer Fed'n v. United States, 114 former monopoly powers or that the RHCs could unfairly S. Ct. 487, 126 L. Ed. 2d 438 (1993); United States v. take advantage of their new monopoly powers within their Western Elec. Co., 673 F. Supp. 525 (D.D.C. 1987), aff'd geographic markets. in part and rev'd in part, 900 F.2d 283 (D.C. Cir. 1990) (per curiam), cert. denied, MCI Communications Corp. v. 4719 U.S.C. § 2411 (1992). United States, 498 U.S. 911 (1990).

48 19 U.S.C. §§ 3101 et seq. (1992). 59See, e.g., id.; US West, Inc. v. United States, 855 F. Supp. 1184 (D. W.D. Wash. 1994); Chesapeake & Potomac Tel. 4950 U.S.C. App. §§ 2401 et seq. (1991). Co. v. United States, 830 F. Supp. 909 (E.D. Va. 1993), appealpending,No. 932340 (4th Cir.); Ameritech Corp. v. 5022 U.S.C. §§ 2751 etseq. (1990). United States, 1994 U.S. Dist. LEXIS 4920 (N.D. Ill. 1994); Ameritech Corp. v. United States, 93 CV 74617 51 See Ana Puga, US to Slap EC With Trade Sanctions, (E.D. Mich. 1994); NYNEX Corp. v. FCC, 153 F.R.D. 1 (D. BOSTON GLOBE, Apr. 22, 1993, at 45; Last-Minute Deal Me. 1994). See also Frank W. Lloyd & Peter Kimm, The Cools Trade Dispute with EC, CHICAGO TRIB., Apr. 22, Cable/Telco Cross-Ownership Issue, N.Y. L.J., Apr. 15, 1993, at N1; Fred H. Cate, GlobalInformation Policymak- 1994, at 5; Bell Atlantic Leads Charge to Remove Cable ing and Domestic Law, 1 IND. J. GLOBAL LEG. STUD. 467 Cross-OwnershipBan, TELCO Bus. REP., Jan. 17, 1994, at 1. (1994). 60 Leslie Cauley, Four Baby Bells Begin Battle 52 to End See Leon Hadar, Kantor Sets in Motion Trade Sanction Consent Decree, PromisingLower Rates, WALL ST. J., July Proceedings,Bus. TIMES, Feb. 17, 1994, at 1. 7, 1994, at B5. 5 3See, e.g., the following U.S. Congress, Office of Tech- 61 Antitrust Procedures and Penalties Act, ch. 1, 15 U.S.C. nology Assessment publications: U.S. TELECOMMUNICA- §§ 16(b)-(h) (Supp. 1990). TIONS SERVICES IN EUROPEAN MARKETS (1993); FINDING A 62 BALANCE: COMPUTER SOFTWARE, INTELLECTUAL PROPERTY Nadel, supra note 1, at 289. AND THE CHALLENGE OF TECHNOLOGICAL CHANGE (1992); U.S. 63 BANKS AND INTERNATIONAL TELECOMMUNICATIONS-BACK- Telcom Showdown: Battle Lines Harden as Baby Bells GROUND PAPER, SUPRA NOTE 16; ELECTRONIC BULLS AND BEARS: Fight to Kill Restrictions,WALL ST. J., July 22, 1994, at Al. U.S. SECURITIES MARKETS AND INFORMATION TECHNOLOGY

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64 See generally Mark D. Director, THE ANNENBERG WASH- 79499 U.S. 340 (1991).

INGTON PROGRAM, RESTRUCTURING AND EXPANDING NATIONAL 80 d. at 350. TELECOMMUNICATIONS MARKETS: A PRIMER ON COMPETITION, REGULATION AND DEVELOPMENT FOR EAST AND CENTRAL EU- 81 & Row Publishers, Inc. v. Nation Enters., 471 ROPEAN REGULATORS (1992). Harper U.S. 539 (1985). 65 See Nadel, supra note 1, at 289-93. 82 WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, IN- 66 Quoted in Stuart Brotman, Communications: Need for TELLECTUAL PROPERTY AND THE NATIONAL INFORMATION IN- One Policy, INT'L BUS., Mar. 1993. FRASTRUCTURE (Preliminary Draft) (1994). 8 67 Telecom 2000, supra note 42. 3 Gore, supra note 10.

68 See 47 U.S.C. § 201 (1992) (it is the "duty of every 84 Id. common carrier engaged in interstate or foreign communi- 85 cation by wire or radio to furnish such communication U.S. CONST. amend. I. service upon reasonable request therefor" and "[a]Ill charges, 86 See, e.g., Simon & Schuster, Inc. v. New York State practices, classifications, and regulations for and in con- nection with such communication service, shall be just and Crime Victims Board, 502 U.S. 105, 112 S. Ct. 501, 508 reasonable . . "). (1991) ("the Government's ability to impose content-based burdens on speech raises the specter that the Government 69 The National Information Infrastructure: Communica- may effectively drive certain ideas or viewpoints from the tions and Computing-Converging or Colliding, The An- marketplace. The First Amendment presumptively places nenberg Washington Program, Washington, D.C., Nov. 9, this sort of discrimination beyond the power of the Govern- 1993 (statement of Robert W. Lucky, Vice President of ment .... [To justify a content-based regulation] "'the Applied Research, Bellcore). State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve 70 Districtof Columbia Has Had LargestDecrease in Tele- that end."' (quoting Arkansas Writers' Project, Inc. v. phone Penetration in Country Since Divestiture: FCC Re- Ragland, 481 U.S. 221, 231 (1987)) (citation omitted)); ports on Telephone Service, COMM. DAILY, Nov. 1, 1993, at Regan v. Time, Inc., 468 U.S. 641,648-49 (1984) (plurality 4. opinion) ("Regulations which permit the Government to discriminate on the basis of the content of the message 71 Lack ofAccess to Technology Feared,CLEV. PLAIN DEALER, cannot be tolerated under the First Amendment."); Police May 29, 1994, at 1I. Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else, the First Amendment means that gov- 72 Id. ernment has no power to restrict expression because of its message, its ideas, its subject matter, or its content.... The 73 Greenlining Coalition Formed; Pacific Telesis to Set essence of ...forbidden censorship is content control."). Minority Groups' TelecommunicationsDeal, COMM. DAILY, See generally Susan H. Williams, Content Discrimination July 14, 1994, at 4. and the FirstAmendment, 139 U. PA. L. REV. 615 (1991).

74 87 COMM. DAILY, supra note 70, at 4. FCC v. League of Women Voters of Calif., 468 U.S. 364, 380 (1984). The lower, "substantial government interest" 75 COMMON CARRIER WK., Jan. 4, 1993, at 3 (between 1988 standard is traditionally reserved for content-neutral regu- and 1991 telephone penetration rates in Wisconsin dropped lation of the print media. from 98%-the nation's highest-to 95.8%, a drop of about 88 40,000 homes). See National Broadcasting Co. v. United States, 319 U.S. 190, 226-27 (1943); Red Lion Broadcasting Co., Inc. v. 76 Kenneth Gordon & John R. Haring, The Effects of Higher FCC, 395 U.S. 367 (1969). Telephone Priceson UniversalService, OFFICE OF PLANS & POLICY, FCC, WORKING PAPER No. 10, 2 (Mar. 1984). 89 1994 U.S. LEXIS 4831 (1994).

77 Federal-State-Local Agenda Planning Conference, NTIA 90 Id. at *27. and The Annenberg Washington Program, Washington, 91 See, e.g., Telecommunications Research & Action Ctr. v. D.C., Nov. 19, 1993 (statement of Larry Irving, Assistant Secretary of Commerce for Communications and Informa- FCC, 801 F.2d 501 (D.C. Cir. 1986), petitionfor reh'g en tion and NTIA Administrator). banc denied, 806 F.2d 1115 (D.C. Cir.) (per curiam), cert. denied, 482 U.S. 919 (1987); Branch v. FCC, 824 F.2d 37 78 AGENDA FOR ACTION, supra note 7, at 6. (D.C. Cir.), cert. denied, 485 U.S. 959 (1988); Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987); In re

STANFORD LAW & POLICY REVIEW POLICYMAKING & POLICYMAKERS

Complaint of Syracuse Peace Council against Television Station WTVH Syracuse, New York, 2 FCC Rcd. 5043, 5048 (1987) (mem. opinion and order); Mark S. Fowler & Daniel L. Brenner, A MarketplaceApproach to Broadcast Regulation, 60 TEX. L. REv. 207 (1982). 92 Syracuse Peace Council, 2 FCC Rcd. 5043, 5056, 63 Rad. Reg. 2d (P&F) 541, 583 (1987) (mem. opinion and order).

93 Child Protection and Obscenity Enforcement Act of 1988 (amending 47 U.S.C. § 223(b) to prohibit obscene and indecent telephone calls).

94Flag Preservation Act of 1989 (criminalizing desecration of the U.S. flag).

95 Texas v. Johnson, 491 U.S. 397 (1989) (striking down Texas flag-burning statute as unconstitutional). 96 Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989) (unanimous Court strikes down prohibition on indecent so-called "dial-a-porn" telephone calls); United States v. Eichman, 496 U.S. 310 (1990) (striking down Flag Preservation Act of 1989).

97 See, e.g., S. 1811, 103d Cong., 2d Sess., 140 CONG. REC. S430 (1994); S. 1556, 103d Cong., 1st Sess., 139 CONG. REC. S 13,833 (1993); S. 1383, 103d Cong., 1st Sess., 139 CONG. REC. S10,581 (1993); S. 973, 103d Cong., 1st Sess., 139 CONG. REC. S6017 (1993); S. 943, 103d Cong., 1st Sess., 139 CONG. REc. S5814 (1993); S. Res. 122, 103d Cong., 1st Sess., 139 CONG. REC. S7495 (1993); H.R. 2888, 103d Cong., 1st Sess., 139 CONG. REC. H6292 (1993); H.R. 2837, 103d Cong., 1st Sess., 139 CONG. REC. H5739 (1993); H.R. 2756, 103d Cong., 1st Sess., 139 CONG. REC. H5360 (1993); H.R. 2609, 103d Cong., 1st Sess., 139 CONG. REc. H4506 (1993); H.R. 2159, 103d Cong., 1st Sess., 139 CONG. REc. H2596 (1993).

98 ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM 251 (1983).

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