The Emergent Global Information Policy Regime Sandra Braman

2 The Emergent Global Information Policy Regime Sandra Braman

Though international telecommunications regulation, launched mid- 19th century in response to the telegraph, is often cited as a model of a classical regulatory regime (Zacher and Sutton, 1996), regime theory has only recently been taken up for analysis of international policy for the information infrastructure and the content it carries (Cowhey, 1990). Regime theory was, however, one of the first types of theory used to address informational issues once they came to be viewed as 'high' rather than 'low' policy (Gassmann, 1981; Nye, 1999; Oettinger, 1980), a shift in salience that resulted from the informatisation of society. Just as diverse strands of economics came together in the economics of information over the last couple of decades (Lamberton, 1998), so his torically distinct policy matters pertaining to global flows of information, communication, and culture are now also coming together into a single emergent global information policy regime. This regime is 'global' because it involves non-state as well as state actors, and 'emergent' - a concept drawn from complex adaptive systems theory - because both the subject of the regime and its features are still evolving. Nation-states and global regimes can be thought of as complex adaptive systems because at each level there are behaviors that cannot be inferred from those of constituent entities, and because any change in one entity or relationship alters other entities and/or relationships. Political systems in turn unfold within a broad legal field comprised of a wide variety of practices, institutions, and discourses involving multi ple actors and sub-systems in constantly shifting formal and informal relationships. From this perspective, a regime is an equilibrious but still dynamic condition of a political system as it takes shape within the legal field. Even the nation-state can then be seen for what it is, the Sandra Braman 13

'state of a system at a particular point in time' (Kwinter, 1992, p. 59). Thus regimes involve:

• government (the formal institutions, rules, and practices of histori cally based geopolitical entities); • governance (the formal and informal institutions, rules, agreements, and practices of state and non-state actors the dedsions and behaviours of which have a constitutive effect on society); and • govemmentality (the cultural and social context out of which modes of governance arise and by which they are sustained).

Regime theory complements and contextualises analyses of global information policy that rely upon and are limited by legacy law (see, for example, Branscomb, 1983, 1986; Bruce etal., 1986). In sum, it provides a framework for understanding the processes by which the complex adaptive systems of geopolitical entities undergo transformation within the legal · field as manifested within a specific issue area; here, information policy. The regime approach to global information policy has utility because it offers a heuristic that helps identify common trends in phenomena and processes scattered across policy arenas historically treated as analytically distinct. It provides a foundation for constructive analysis of new institutions, policy tools, behaviors, and relations as opposed to viewing transformations as merely the deterioration of long-existing systems. It addresses one of the key problems facing information policy makers- the dispersal of decision-making across numerous venues and players -by envisioning a common universe. It offers a position from which analysts and policy-makers absorbed in the 'new' can return to legacy legal systems to mine what can most usefully be brought for ward. Finally, the use of regime theory to frame other types of analyses of the impact of information technologies on international relations, such as those by Deibert (1997) and Der Derian (1990), increases the analytical utility of that work. Thinking of global information policy in these terms in turn forces further development of regime theory because it highlights the importance of epistemic communities, emphasizes the multiplicity of formal and informal processes involved, and draws attention to the parameters within which regime features operate.

THE POLICY FIELD

Neither the concept of the field nor complex adaptive systems theory originated in political thought, but both have been taken up in policy 14 The Emergent Global Information Policy Regime analysis. The theoretical translations and extensions have deepened and broadened our understanding of the nature of power.

The concept of the field Bourdieu's conceptualisation of the field as a grid of relations that governs specific areas of life has been the most influential, but was neither the first, nor is it the G>nly, approach (Bourdieu, 1991; Lash, 1993; Lash and Urry, 1987; Palumbio-Lio and Gumbrecht, 1993). The concept follows quite naturally from structural theories of society, but differs from them in viewing social relations as dynamic rather than static, flexible rather than fixed, engaged in struggle over positions within the field rather than treating those positions as inevitable, and resulting from agency that is as likely to be an indirect predisposition as it is a conscious act. A field is a structure of possibility and probability that constrains and encourages certain types of choices, though a degree of indeterminacy always remains. Every field is historically specific, dynamic, and affected by both internal and external factors. Structure and interaction are mutually constituted and constituting. Fields vary in the degree to which they exhibit awareness of boundaries, levels of interaction and order from those that are low in these dimensions to those that have well-recognised boundaries, intense interaction, and are highly ordered; relations in fields at the low end of the spectrum are described as 'loosely coupled', and those at the high end 'tightly coupled'. They also vary in the extent to which positions within the field are specialised, level of administrative and technical coherence, and, as is explored by Kahin in this volume, degree of codification (Poole etal., 1986). A central axis of variation of fields is their autonomy. The digital information technologies that are a key subject of the global informa tion policy regime affect the autonomy of fields and the actors within them because they vastly multiply the degrees of freedom available; as explored in more detail elsewhere (Braman, 2002, 2004), it is this feature of digital technologies that identifies them as meta-technologies rather than industrial technologies. With an increase in degrees of freedom relations become more loosely coupled, non-linear causal relations rise in importance, and the very site of agency can become not only decentred but distributed. Because both agency and structure are ambiguous and filled with possibility, they are also sites of conflict, responsive to the exercise of multiple forms of power. The field in which information policy appears is further complicated because with digital information technologies it has become clear that agency is structure and structure, agency. Sandra Braman 1 5

The concept of the field is used in policy analysis both explicitly and implicitly. A theoretical ground for doing so appeared in political thought when it turned away from the nation-state as a unitary and autonomous actor comprised of formal institutions and towards an emphasis on governance as practices of power. Diverse intellectual influences contributed to this shift, including neo-Marxist thought (particularly that of Poulantzas [197 4]) (Carnoy, 1984), the 'rhetorical turn' in political theory (Schon and Rein, 1994; Simons, 1990), and scrutiny of the very nature of power itself (e.g., Olsen and Marger, 1993), so long taken as a given. While Foucault declined to offer a theory of the state itself- 'in the sense that one abstains from an indigestible meal' (Foucault etal., 1991, p. 4)- his notion of governmentality as the means by which the possible field of actions is structured also had great impact. Many differences of course remain among political theorists, but this sea-change writ large shared features that stimulated attention to the politics of culture (e.g., Pal, 1993), theories of postcolonialism (Ahmad, 1995), and historical work on practice-based differences among nation states that appear in formal terms to be similar (Greenfeld, 1992; Held, 1989). Conceiving of the state as a field rather than an entity widens the analytical lens to include, for example, the longue duree within which any given political structure is embedded (Flew, 1997), discourses of power (Fischer and Forester, 1993), epistemic communities (Fox and Miller, 1995), contributions to the episteme of the social sciences (Brooks and Gagnon, 1990; Wagner etal., 1991), and the practices of everyday life (Pal, 1990). Boulding (1971) was the first to explicitly apply the concept of the field to policy. Dezalay and Garth (1996) suggest it may be easiest to see the legal field in the international context because in that environment there are structures but no specific legal order, although the concept is useful in the domestic context as well - particularly as the very nature of the law and its relations to other structural forces undergoes change. The concept is sufficiently open and systematic (Dezalay, 1989, 1990) to enable examination of both the features of emergent regulatory structures such as those of global information policy and the processes by which regime formation takes place.

Complex adaptive systems and the policy field The concept of the legal field establishes the context within which regimes appear, but the looseness of the construct makes it difficult to rely upon it alone to identify the boundaries of specific fields, the 16 The Emergent Global Information Policy Regime nature of causality (and therefore of change) within them, and the processes through which agents and fields cohere. Complex adaptive systems theory offers a framework through which to understand these additional facets of the structuration processes that are the stuff of policy. Born in the natural sciences, systems theory has been applied in the social sciences for decades. Theories that examine complex adaptive systems go under a number of different names, depending on the disci pline in which they were developed and/or the stage of transformation processes of focal interest; they include theories of chaos, dissipative structures, punctuated equilibria, second-order cybernetics, and catas trophe. Elsewhere, I have offered a more detailed synthesis of the implications of such theories for analysis of political phenomena and processes (Braman, 1994). References to systems theory have been trendy since the mid-20th century but must be carefully unpacked in the 21st because there has been significant theoretical development since the popularly known ideas of the 1950s. Early weaknesses, such as the concern that it is overly functionalist (Giddens, 1984), have been overcome. In its first incarnation, systems theory started from the assumptions that individual systems could be studied in isolation, were most successful when they were equilibrious, and responded only to negative feedback. Contem porary versions of complex adaptive systems theory, on the other hand, assume systems are constantly interacting with other systems at the same, supra- and infra-levels; healthiest when undergoing transformation; and respond to positive as well as negative feedback as triggers to self amplifying causal deviations. Theoretical development has been aided by the results of empirical research as well as the ability to use advanced mathematics in ways only recently made possible by increased computing speed and capacity. As technological innovation further expands com putational capacity, the ability to analyse the multiple variables involved in social systems is expected to further improve (Metropolis and Rota, 1993). System change of course involves both destruction and creation of form. It is most successful when the systems involved are self-conscious about the process of change, or morphogenetic, heterogeneous inter nally, and symbiotic with other systems in their environments. Because system change is nonrandom and multiple change processes both within and outside of a single system are interrelated, change is not always statistically predictable. Decisions at either the individual or collective level affect the evolution of the system and everyone in it and are thus collective in impact, irrespective of intention. Morphogenesis Sandra Braman 17 driven by the elements of which the system is comprised rather than mandated from the top or initiated by external forces is described as 'autopoietic'; in political systems those elements are the citizens. Several conditions with information policy implications are supportive of morphogenesis and autopoiesis, including the ability of citizens 'to act autonomously, encouragement of experimentation and self-examination, and citizen knowledge about the system and its environment. Disturbances to a system that provoke change vary in their intensity and severity. Distinctions are thus drawn between fluctuations (sudden, spontaneous, and often unexpected departures from the norm), perturb ations (change in a system's structure or behavior that respond to envir onmental impacts and a weakening of linkages between subsystems), noise (small, constant, random variations), and catastrophes (abrupt change, often wrought by a continuous but changing force) (DeGreene, 1982). Within political thought these distinctions are captured by use of the term 'sensitivity' to refer to change within a system, and the term 'vulnerability' to change in the parameters of the system itself. Concern about the latter has been one of the drivers of global information policy since a report to the Swedish government in the late 19 70s (Tengelin, 1981) introduced the notion that new types of nation-state vulnerabilities result from the use of new information technologies. As systems appear and evolve, feedback between macroscopic and microscopic structures lead to the development of parameters- in political environments, policy- that reduce the number of degrees of freedom in a system as stability increases (DeGreene, 1993). Collective structures at the macroscopic level, such as the law, damp fluctuation. But if such structures are too tightly coupled to their subsystems the life of existing structures may be considerably prolonged even though functionality decreases (Jantsch, 1989), as Singh suggests may be the case with con tinued adherence to the industrial era policy principles of territoriality and exclusion in his chapter in this volume. When all rules and resources are transformative -as is the case when digital meta-technologies are involved- actors may exhibit what Archer (1982) calls 'hyperactive' agency. Since the 1980s scholars of international relations have been pointing to the 'cascading interdependence' (Rosenau, 1984) among nation states as fundamental to understanding global affairs. From a systems perspective this is an increase in interactions among systems at the same, infra-, and supra-levels of analysis. Fluctuations in each can initi ate self-amplifying causal loops that can ultimately cause significant changes to other systems, even at other levels of the social structure, 18 The Emergent Global Information Policy Regime in what has become famously known as the butterfly effect. Healthy exchanges among systems have characteristics in dimensions that are the subject of information policy: adequate modes of information collection and processing, internal processes for incorporating and responding to what has been learned from the environment, and a sufficient level of complexity. When all three conditions are met, evolutionary developments within one system serve as stimuli for developments within other systems; and when these evolutionary cycles become coordinated among systems, there is coevolution. The process of system evolution, too, entails degrees of freedom and involves the dynamics of self-organisation, so that evolution is open not only with respect to its products, but also to the rules of the game it develops. The result, as ]antsch (1989) puts it, is the self-transcendence of evolution in 'meta evolution', or the evolution of evolutionary mechanisms and principles. It is just such a change that is being experienced with the informatisation of society. Systems evolve through a series of transformations in which instability and turbulence generate a disequilibrium that will deteriorate into chaos or ultimately resolve into a new equilibrium or an oscillation between equilibria. As the new form gradually appears, it is known as emergent because it exists only at the system level. Emergence is behaviour 'which cannot be predicted through analysis at any level simpler than that of the system as a whole' (Dyson, 1998, p. 9)- or, more colloquially, what's left when everything else has been explained away. Systems theory found an early welcome in social theory because the intellectual ground had already been prepared by Alfred North White head's early 20th century process philosophy and Max Weber's still influential work on the bureaucratic structures of the nation-state. German theorists first explicitly described the nation-state as a system to oppose organic theories of the 1920s, though the notion first gained real traction when it was introduced in the 1950s in the US by Easton (1953, 1981) in an effo.rt to turn analytical attention away from the state and towards the forces that generate and constrain state activities. During the same decade Gunnar Myrdal proposed an 'autocatalytic' model of regional development that shares much with today's self organising systems theories, and scholars at the University of Chicago began to look at common problems that arose in the application of systems ideas across the social sciences (Archer, 1982). By the 1960s, it was common for those theorists of the nation-state who focused on its bureaucratic nature to view it as a form of organisation, and both organisational sociologists and political scientists commonly Sandra Braman 19 referred to shared characteristics. This parallel became important when it became clear in the 1970s that traditional ways of analysing organisa tions - whether corporate or political - were inadequate to the task of explaining growth in the rate of complexity and change .. By the late 1980s, organisations were understood to be fundamentally paradoxical, complex, and turbulent. The systems model of an alternation between periods of reorientation (marked by shifts in strategy, redistributions of power, and changes in the nature and pervasiveness of control systems) and periods of stability seemed to apply (Tushman and Romanelli, 1985). The insight that organisations, such as the nation-state, also move from order to chaos and back, gained force in political theory in the influential book Bringing the State Back In edited by Evans, Rueschemeyer, and Skocpol (1985). Luhmann (1985) presents an abstract approach to the role of law in producing and reproducing the nation-state as a system that treats the law largely as a text rather than the outcome of social processes. More pragmatic approaches to the use of complex adaptive systems theory for policy analysis, however, are now in use at the domestic level (DeGreene, 1.993; Kiel, 1994; T'veld etal., 1991; Innes and Booher, 1999), applied to analysis of issues as diverse as waste management and taxes. The attention of those in international relations has also been drawn to this body of theory by the need to cope with complexity (Axelrod, 1997; Guzzini, 2001), turbulence (Jervis, 1996) and cascading interdependence (Rosenau, 1984). The political role of information from a systems perspective was first examined in the abstract by Krippendorff (1993), who importantly noted that not all systems are in fact autopoietic and that information policy can be used to subordinate parts of a system to the whole, isolate a system, or maintain an equilibrium whether healthy or not, as well as to enable morphogenesis. Complex adaptive systems theory was first used in actual analysis of information policy in Kuwahara's (2000) study of the bottom-up decision-making approach that characterised the design and building of the internet. Singh in this volume provides an example of its utility for understanding the strategic choices of businesses faced with an uncertain and turbulent environment.

REGIME THEORY

Though regime theory was developed by political scientists without reference to social theories of the field or to complex adaptive systems theory, it gains in richness, utility, and persuasiveness by being placed 20 The Emergent Global Information Policy Regime within this expanded theoretical context. Regime formation, then, is the process by which new policy forms emerge out of the policy field. It occurs when factors internal or external to the issue area require trans formations in law and regulation; in the case of information policy, as the authors of this book explore in more detail, technological innovation and the consequent processes of globalisation have been particularly important factors in stimulating the transformation of the global information policy regime. Regime theory of course has its own history. The effort to understand international and global decision-making in specific issue areas forced scholars of international relations to widen their conceptual toolkit beyond ideas used to examine the traditional geopolitical entity of the nation-state (Clark, 1999). In doing so, they turned to less formal elements of the legal field such as discourses and norms. Because inter national and global decision-making are relatively recent and in most issue areas have rarely been static, it was necessary to emphasise trans formational processes. Regime theory is thus the development within political thought of an approach to understanding the emergence and transformation of complex adaptive systems as they operate within a broad legal field in a specific policy area. The concept of a regime developed in response to the same develop ments that produced the notion of globalisation as the very subject of political theory was changing (Cerny, 1995). Though many were initially skeptical, its utility has come to be widely acknowledged. This section examines what has happened to the 'subject' of international relations, the appearance and development of regime theory, characteristics of regimes, and critiques of regime theory. The next examines the emergence of the global information policy regime.

The 'subject' of international relations The subject of international relations became problematic beginning in the 1970s as the costs of the post-World War II global economic struc ture became evident to the then-new states of the developing world and to non-state actors. Formal diplomatic habits came under threat as new political actors began to operate quite outside of established rules. Gaps between the intentions and the effects of international organisations needed explanation, with reactions to international law and the actual ities of its implementation differing by issue area. Technological change began to make geopolitical borders permeable, flexible, or irrelevant altogether. Sandra Braman 21

The long-dominant realist approach to international relations started from the position that agency- what DerDerian (1990) refers to as its 'reality principle' - lay with the nation-state. Alternatively, it can be argued that agency lies with society at large (Mouritzen, 1988; Rosenau, 1992). Bringing the two positions together suggests the state/society complex as the locus of agency, responding to social forces generated by interactions among material capabilities, institutions, and ideas (Comor, 1996; Cox, 199 7). Regime theory focuses on the interstitial tissues of the agreements, norms, and behavioural habits through which the state/ society complex is enacted (Kratochwil and Ruggie, 2001).

Evolution of the regime concept As the subject of international relations was reconsidered, regime theory became useful as a way of thinking about the changes that were taking place and of resolving anomalies that appeared when formal institutions and processes were the only subjects of study (Keohane, 1982; Keohane and Nye, 1977). The concept appeared to resolve both disciplinary and real-world problems. It was at first more popular in the United States than in Europe, perhaps because of the nationalist response to inter national affairs of the era in the US as opposed to the wider range of concerns of interest to Europeans (Keohane and Ostrom, 1995; Rittberger and Mayer etal., 1993). Interest remained low-key during the years of the Cold War focus on East-West relations (Crawford, 1996; Rittberger and Zurn, 1990). Indeed, many expected the notion of regimes to be only a passing fad (see, for example, Strange, 1982). By the 1990s, how ever, interest in, and theoretical supports for, regime theory multiplied. The concept helped divide the subject of international relations into smaller analytical pieces (Efinger and Zum, 1990). It explained cooperative behaviours, such as proposals for a 'common security blanket' across East and West, that were ever more evident even though not predicted by realist theory. Indeed, regime theory was the first approach that made it possible to address both conflict and cooperation in global power structures within the same theoretical framework. Regime theory also addressed the failures of realism to predict or explain significant changes within and among nation-states and the mutual interactions between inter national and domestic politics (see, for example, Goldstein, 1988). The reshaping of positions on various issues transformed some conflicts over values into conflicts over means, leading to the formation of regimes in a number of areas in which they had not been seen in the past. As nation-states became more involved in business competition, attention was drawn away from actors and towards the relationships that comprise 22 The Emergent Global Information Policy Regime regimes. The general need for more policy coordination and coherence in government raised the salience of resolving problems across issue areas. The Foucaultian approach to the nation-state itself as a regime com prised of multiple governmentalities also began to influence inter national relations (Keeley, 1990; Pal, 1990). Furthermore, though regime analysis has been viewed by some as a competitor to realist approaches to international relations (e.g., Jonsson, 1993; Jonsson and Aggestam, 1997), acceptance of theoretical pluralism had spread across the social sciences by the 1990s. This made it possible to add regime analysis to the conceptual toolkit without requiring abandonment of other ideas, enriching analysis and increasing its rigour as different analytical techniques serve as checks upon each other (Blommestein and Nijkamp, 1992).

Conceptualising regimes Regime concepts range from the very abstract and broad to the very specific and concrete. These are not necessarily mutually exclusive; as Krasner (1982) noted, regimes may relate to each other hierarchically, with micro-level regimes for specific narrowly-defined issues nesting within meso- and macro-level regimes with broader foci. Regimes at each level may operate differently, however; functionally specific regimes are often directed by technical specialists and mid-level administrators in participating governments while functionally diffuse regimes are more likely to be managed by diplomatic generalists arid higher-level political officers (Hopkins and Puchala, 1983). The regime concept is related to other notions that have become important in policy analysis. The policy network literature emphasises that policy-making takes place within a variety of networks that are more likely to be interpersonal than structural and which exist at the sectoral levels. Marsh (1998), for example, places policy communities and issue networks on a continuum. In this approach, the former are tight networks with few participants who share basic values and exchange resources, characterised by considerable continuity in membership, values, and outcomes, while the latter are loose networks with a large number of members with fluctuating access and significant disputes over values, characterised by little continuity in membership, values, and outcomes. Interdependence, so much of interest in the regime literature, is a key dimension along which policy networks vary. Similarly, regime theory is at home with constructivist approaches to international relations (Bauzon, 1992) and with those that emphasise identity and culture (Lapid and Kratochwil, 1996). Sandra Braman 23

Macro-level conceptualisations Abstract conceptions such as those of a 'technological regime' or a 'regime of accumulation' are still important in international relations. The former points to a frontier of technological capabilities econom ically achievable within certain material constraints. The latter, more widely used, is the view of the French Regulation School; as applied to international telecommunications, it is a set of economic regularities that enables a coherent process of capital accumulation (Kim and Hart, 2002). The notion of a regime has been applied to fundamental elements of international relations such as free trade and reliance upon the market (Goldstein, 1986). The term has also been used abstractly to describe a decision-making procedure around which actors' expectations converge (Stein, 1982).

Micro-level conceptualisations At the other end of the spectrum are concrete approaches that define regimes narrowly as spcial institutions governing actions of those inter ested in very specific types of activities (Young, 1982). Properties of issue areas differentiate opportunities and obstacles to collective action that derive from the detailed nature of the policies involved (Ikenberry, 1988; Lamborn, 1991). Industry-specific regimes may stand alone or be nested within issue-area umbrellas (Acheson and Maule, 1996). An issue area is a set of issues dealt with in common negotiations and by the same or closely coordinated bureaucracies, but the definition of specific issue areas depends on the perceptions of actors and on their behav iours rather than on the inherent qualities of the subject matter -thus their boundaries can change gradually over time (Efinger, 1990; Saksena, 2002). An issue is a single goal on a decision-making agenda and issue linkage, therefore, is bargaining that involves more than one issue (Haas, 1990). The case of information as an issue area in international relations presents an example of a domain of activity that has emerged as a result of just such a change in perceptions and behaviours, and that has expanded in part through the process of issue linkage.

Meso-level conceptualisations The dominant view of regimes is meso-level, referring to specific ways of shaping relationships among actors that. embody abstract principles but are operationalised in a multitude of diverse concrete institutions, agreements, and procedures. Krasner (1982) offered the definition of a regime that is most widely used: implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations 24 The Emergent Global Information Policy Regime converge in a particular issue area. Principles are beliefs of fact, caus ation, and rectitude; norms are standards of behavior defined in terms of rights and obligations; rules are specific prescriptions or proscriptions for action; and decision-making procedures are prevailing practices for making and implementing collective choice. Organisations are often (Haas, 1990), but not necessarily (Young, 1982), components of regimes. Regimes thus understood are a cooperative, sociological, mode of conflict management (Rittberger and Zurn, 1990; Young, 1999).

Characteristics of regimes The general concept of a regime can be further articulated in order to analyse regime features as they vary across formation processes, effects, and change.

Regime formation A variety of factors trigger - and may interact in - regime formation. Cox (1997) divides these into functions, international power, and cognitive frameworks. All of these lead to an increased need for policy coordination to cope with what might otherwise be unresolvable conflicts (Efinger, 1990), dilemmas of common aversions (situations in which actors must coordinate their activities to avoid mutuaUy undesir able outcomes), or dilemmas of common interests (situations in which actors must coordinate their activities to avoid Pareto-deficient outcomes) (Krasner, 1991). Young (1982) distinguishes between spontaneous orders, in which there is neither conscious coordination nor explicit consent; negotiated orders, in which there are conscious efforts to agree on major provisions and explicit consent on the part of individual partici pants; and the imposed orders generated deliberately by hegemons or consortia of dominant players. Among the reasons the ultimate nature of the global information policy regime is still to some degree uncertain is that currently all three means of developing order are in play. The desire to reduce transaction costs and to manage technological change can drive regime formation (Cox, 1997; Lawton, 1997), and both have been important in the area of information policy. Commodifi cation of previously uncommodified areas of activity also can lead to regime formation, as happened with food at the close of the 19th century (Poitras, 1997). Commodification of previously uncommodi fied forms of information is one of the reasons it is argued that the industrial economy has been superseded by an information economy (Braman, 1999). Sandra Braman 25

The exercise of power by a hegemon in the international environ ment can also create a regime. Many argue that the active assertion of a regime framework by a hegemon is not just a potential factor, but is required (Keohane, 1980; Keohane and Nye, 1998). In some cases the choice may be between a regime proposed by a strong nation or nations, or none at all (Frankel, 1991). Certainly the need to enforce compliance suggests the utility of hegemonic leadership for regime sur vival (Yeutter, 1988), though superior power in bilateral relations on the part of a nation-state that is not globally hegemonic can also be effect ive (Kaempfer and Lowenberg, 1999). Other potential factors in regime formation related to the sheer exercise of power include the appearance of new actors with political weight (Cutler etal., 1999; Haufler, 1999) and failures of existing international organisations or legal systems (Gallarotti, 1991). Shifts in cognitive frameworks can lead to identification of new issue areas in which an agreement on operating principles must be achieved where there have been none before and/or change in an existing regime is required. Such shifts may alter the ways in which problems are defined, the. domain of possible solutions, and the norms according to which problems will be resolved (Cox, 1997; Nadelmann, 1990; Schon and Rein, 1994). Discursive factors distinguish contending actors and ideas, name and evaluate subjects of conflict, identify modes of argu ment and standards of judgment, and provide the grounds for agreeing upon objectives and mechanisms for dispute resolution (Keeley, 1990; Kim and Hart, 2002; Risse, 2000). Ideas themselves can enable regime formation (Corrales and Feinberg, 1999; Goldstein, 1986), and regimes are self-enforcing to the degree to which expectations converge and, thus, behaviours are coordinated (Lipson, 1991; Stein, 1982).

Regime effects The goal of a regime is to achieve specific effects, with reduction of uncertainty high on the list. This can be accomplished by coordinating domestic policies with common rules and dispute settlement proced ures. Doing so reduces transaction costs, increases the importance of reputation, and decreases the incentive to. cheat (Acheson and Maule, 1996). Regimes can also reduce conflict intensity by reshaping actors' interests and enabling shifts in position. The effects of regimes extend beyond the actors and issues directly involved, however, as has happened with nuclear non-proliferation (Cohen and Frankel, 1991) and is happening with information policy. Effects may be intended or unintended, with the latter including behaviours 26 The Emergent Global Information Policy Regime triggered by the desire to defect informally or to develop alternative, perhaps complementary, modes of action in support of state interests (Saksena, 2002). Regime effects are of course not unbounded. There may be limits to negotiability, or the encouragement of direct and indirect, overt and covert, resistance. Defiant behaviours can undermine achievement of regime goals by changing the context within which it operates, as is seen with the proliferation of non-tariff trade barriers in the face of international trade agreements. In the area of information policy, software techniques for getting around regulatory limits provide an example of indirect defiance, and continued use of peer to peer content exchange software an example of direct defiance.

Regime change A regime becomes transformed when there are 'significant alterations in ... rights and rules, the character of its social choice mechanisms, and the nature of its compliance mechanisms' (Young, 1982, p. 291)- that is, shifts in the nature of decision-making. Change can involve not only destruction of existing institutions and the creation of new ones but, as in the case of information policy, coordination of expectations and perceptions around new focal points. Regimes can start and stop, as has happened in the area of biotechnology (Wiegele, 1991) and in the case of efforts to achieve internationally acceptable norms for journalistic involvement in peace-making and -keeping (Nordenstrerig, 1989). Lindquist (1990) offers a typology of decisions that positions regime change relative to other political moves. Routine decisions occur when there is significant consensus on prevailing policy and relatively few are interested in the area; responsibility for such decisions is delegated to those few individuals who can use data to determine whether or not pre-established programmes are performing to expectations and, if not, what should be changed. Incremental decisions occur when a substantial consensus remains but selective issues merit the attention of interested policy-makers; here the method of successive limited comparisons is desirable. Fundamental decisions occur when a significant departure from a policy base is considered or occurs, and thus will affect a large number of policy-makers; for such decisions more information, including research, is often needed, the costs of calculation and prediction are higher, and more policy-makers must be persuaded of the advantages of various alternatives. Regime shifts, in this typology, occur when there are major failures under routine decisions, incremental decision-making is blocked, or when policy-makers refocus attention to new policy issues. Sandra Braman 2 7

A variety of factors can stimulate regime change. Material and psycho logical limits may rule out certain approaches while almost demand ing others (Appadurai, 1993). Technological change has recently had an impact in issue areas as diverse as security and agriculture, (Young, 1982) as well as in the area of information policy. Shifts in the relative power among nation-states can lead to regime change, both within existing parameters and to the parameters themselves (Krasner, 1985). Internal contradictions within a regime can also force change. Whatever the triggering factor, according to complex adaptive systems theory even when turbulence appears within a previously stable equilibrium, only those actions or ideas that exploit to their advantage the nonlinear relations that previously guaranteed stability will have effect (DeLanda, 1991). When a regime changes, it may extend itself vertically, from the nation-state to regions and/or the globe, or from the global and/or regional levels down to the nation-state. The European Union provides an example of the extension of the effects of regime change up (Caporaso, 2000), and the increasingly constitutional nature of interna tional trade 1aw an example of the extension of the effects of regime change down (Buzan, 1993; Petersmann, 1991). Change may result in creation of new rules or institutions, alteration of the criteria by which decisions are made, or transformation of the policy process itself (Fischer, 1993). All of these are at play as global information policy regime emerges.

Critiques of regime theory There are of course critiques of regime theory, ranging from concerns about conceptual clarity to difficulties with the unit of analysis.

Imprecision Strange (1982) found regime theory imprecise, and others have simi larly claimed it refers to so many different things, and so loosely, that it is little more than a synonym for an international organisation or for an issue area. It can be difficult to determine either where one regime ends and another begins, or to distinguish between a non-regime and a regime (Kratochwil and Ruggie, 2001). In some cases there are dis agreements as to whether or not a regime even exists- was arms control in the 1980s a new security regime, for example, or a piecemeal effort only? (Efinger, 1990; Frankel, 1991). Hard empirical indicators of a regime and its boundaries can be difficult to find, though growing appreciation of culture within political theory is making it easier to grasp cultural 28 The Emergent Global Information Policy Regime aspects of regimes empirically, as Cogburn and Singh do in their chapters here.

Overemphasis on order Strange (1982) was also concerned about an overemphasis upon order in regime theory, warning that it could lead to an insistence upon pattern where in fact there is none, blindness to those elements of the international system that remain in disorder, and an exaggerated sense of predictability that is not empirically based. The demand that various regime components should be coherent and stable may be inappropriate. Furthermore, the very use of regime theory may exacerbate the trend towards interdependence in and of itself. The concern that a model may restrict the analyst's vision to only those phenomena and processes that are describable by the model is of course endemic to the use of any heuristic, though it remains an important warning.

Topically limited Regime theory does not yet deal adequately with problems arising out of the rights and responsibilities of states toward individuals and other states, or those that deal with technological innovation and markets. Analysis of the emergent global information policy regime demon strates these problems, though the utility of regime theory in this domain makes clear that difficulties should not be equated with abso lute limits.

Over-reliance on the nation-state As a natural child of international relations, the study of the inter-state system comprised of formal relations among nation-states, it was inevitable that regime theory in its first incarnations should begin with reliance upon the nation-state. Even in its original formulations, how ever, regime theory included attention to informal processes and the cultural aspects of governmentality, easing the transition to analysis of global rather than international decision-making.

Inadequate attention to the roles of knowledge and epistemic communities Though regime theory acknowledges the roles of knowledge and epistemic communities, norms and values, some- such as Cogburn in this volume- feel this aspect of regime formation and sustenance has not been sufficiently developed. Sandra Braman 29

Complexity Emergent systems in the intemational environment often involve such a high degree of causal complexity that traditional modes of analysis may not be adequate. Thus some shy away from regime theory simply because it is difficult to operationalise (Jervis, 1996).

THE EMERGENCE OF THE INFORMATION POLICY REGIME

The emergence of the information policy regime reproduces at the international level some informational features of nation-states, them selves increasingly described in informational terms (Braman, 1995; Richards, 1993; Rosecrance, 1996). The change in status from viewing information policy as 'low' policy, of relatively little international importance, to 'high' policy of great political importance is significant to the nature of the regime because it moves responsibility for decision making from technical experts with no political responsibilities to top levels of political leadership. In turn, the emergence of a global informa tion policy regime shapes the empirical realities of the infrastructure and content being regulated. Several key features of regime theory are particularly apt when applied to the issue area of information, commu nication, and culture. Several features of regime theory make it particularly useful for analysis of the development of a global governance system for information creation, processing, flows, and use. The conceptual foundations of regime theory are pertinent. The regime concept's tolerance of changing definitions and boundaries for issue areas meets a necessary condition for analytical frameworks in the extremely dynamic terrain of information policy, as emphasised by Cogburn in his chapter in this volume. While many of the policy problems that must be addressed are· ancient, many are new and issues that once fell within other policy arenas are now informational. Simi larly, those who use regime theory generally assume that the subjects of their analysis are not static but should be expected to change over time, a characteristic not always found in other types of political or legal theory. (This dynamic aspect of the information policy regime is a theme in every chapter in this book.) The focus on relations between actors found in regime theory is valuable in the analysis of information policy because it brings the discursive, normative, and cultural elements of such importance into view (these are examined in particular by Cogburn, Heisenberg and Fandel, and Klein here). One feature of informational activity so troublesome to economists - the fact that often informational goods and services do not appear in tangible form 30 The Emergent Global Information Policy Regime but are instead embedded in relations -makes the relational sensitivity of regime theory important to information policy analysis. A number of the triggers to regime formation are found in the world of information policy. Clearly there is a high need to reduce transaction costs and uncertainty regarding the economic and legal treatment of informational goods and services during a period in which qualitatively new types of products are appearing and the conditions of the information environment are so different from those of the past. (Singh, Garcia, Mueller and Thompson, and Kahin in this volume all address this aspect of information policy regime formation.) The process of com modification as a trigger to regime formation is also key to the area of information policy: The commodification of types of information never before commodified includes such treatment of private information (e.g., personal data), formerly public information (e.g., information held in some databases created by governments for public purposes), and types of information unbundled from previously bundled packages (e.g., separately selling citation information, the table of contents, abstracts, and full texts of scholarly journal articles). (Garcia explores the impact of commodification on the processes by which the global information policy regime is forming in general in this volume, and Klein provides a case study of the same in his examination of treatment of newly commodified addresses in his chapter.) The theme of technological change as a trigger to regime formation runs throughout the book. Finally, thinking in terms of regime theory adds to our understanding of the self-reflexivity of information policy. Three aspects of such self reflexivity can be identified. First, information policy is always a reflexive matter of the nation-state or other system from which it emanates because it creates the conditions under which all other decision-making takes place. Second, regime theory draws attention to the role of information creation, processing, flows, and use as tools of power in international and global relations. Monitoring and verification systems, for example - whether in defense, agriculture, or environmental situ ations - are examples of the use of information policy as a tool in the service of other types of policy goals. And third, as analyses of a number of specific regimes often note, learning is critical to the ways in which regimes adapt to changing empirical realities as well as the results of experience. There are distinct signs of the emergence of a global policy regime in this domain. While in the past there was no single regime for global communications, regimes have been seen in a number of areas of infor mational and communicative activity in the past, notably in the areas Sandra Braman 31 of trade (Haus, 1991) and intellectual property (Band and Katoh, 1995; Branscomb, 1991; Drahos and Joseph, 1997). Telecommunications, which gave rise to the first and most enduring international organisa tion, the International Telecommunications Union (ITU), is identified by some as a classic example of a regulatory regime (Cowhey, 1990). There are three processes, however, by which information policy has emerged as a distinct issue area in which a regime is forming: via a shift in perception, via empirical change, and via a change in political status. A number of different types of issues dealing with information and communication that have historically been treated as distinct, from technical standard-setting to television content, are now understood as elements of a common policy domain. Interestingly, this occurred earliest within the developing world: Brazil was the first country- in the 1960s to link together previously disparate informational and communicative issues for common policy treatment. Calls for a New World Information Order in the 1970s similarly linked mass media and telecommunications issues in many of their manifestations. Developed countries of Europe began in the 1980s to examine such questions, while the US did not do so until the 1990s. This perceptual shift has been exacerbated- or stimulated- by empirical changes wrought by technological change. As Ithiel de Sola Pool (1983) so powerfully argued 2 decades ago, it was possible in the analogue environment to have different regulatory systems for different commu nication technologies, but with digitisation and the convergence of technologies the legal systems to deal with those technologies must themselves converge as well. Pool was making his point about law at the national level, but it is true at the international level as well. Though historically it was possible to treat technical matters of inter national news flow, entertainment programming, and telephone calls via different regulatory systems, in the internet environment they are empirically now all a. part of the same system. Thus today's realities demand common treatment via a common policy regime. As perceptions of information as power have shifted and experience in its use as a policy tool has grown, some types of informational activity have changed in status from regulatory techniques to issues for policy attention in themselves. Transparency is a premier example of this: While confidence- and security-building measures (CSBMs) in the secur ity arena were originally intended to merely provide supports for arms control agreements focused on the hardware of weapons, by the early 1990s 80 to 90 per cent of arms treaties dealt with information rather than weaponry, and by the early 21st century transparency itself 32 The Emergent Global Information Policy Regime has become a matter for international negotiations. Because transparency is now also fundamental to international trade law and other types of international agreements, the common use of this informational policy tool across issue areas itself constitutes an element of the global informa tion policy regime. Indeed, analysis of the history of decision-making in diverse arenas of international relations, from trade to defence to agriculture, reveals that often techniques attempted in one realm where they are blocked are then promoted in others where differences in the decision-making culture makes it easier to achieve those goals. Trans parency again provides an example of this, for a sharing of information about commercial activity that was long sought but rejected within international trade negotiations was then achieved relatively easily when incorporated into arms control agreements.

FEATURES OF THE EMERGENT INFORMATION POLICY REGIME

A regime is mature· when its features are explicit and consensually accepted by all parties to the regime. In a regime's emergent phase, however, some features remain implicit and/or may still be contested. As Biegel (2001) notes, features of the emergent global information policy regime are being drawn not only from regulatory approaches historically applied to information,. communication, and culture, but also from regimes developed to apply to quite other matters - such as the ocean, and space - as well.

Explicit features Explicit features of the emergent global information policy regime that are consensually accepted include transparency as a policy goal, the addition of networks to markets and organisations as social structures needing regulation, and acceptance of shared responsibility for govern ance between the private and public sectors.

Transparency Transparency is a policy tool that is now the subject of the international information policy regime itself (Fiorini, 1998). It began as an element of the security regime, was taken up in trade, and is now used widely across the board. Transparency has replaced notions of the free flow of information in all of its variations as the ideal for international information flows and has now become a policy objective in its own right. This transformation in turn changes relations of individuals to society, and of societies to each other. Der Derian (1990) suggests that Sandra Braman 33 the new importance of transparency affects the behaviors of nation states vis-a-vis each other by inducing in them classic symptoms of what would in individuals be referred to as paranoia.

Networks as organising principles International regimes have historically dealt with two types of organisa tional forms: the market (as conceptualised in ideal form) and organisa tions (called hierarchies by economists) (Williamson and Winter, 1991). The emergent international information policy regime also takes into account - indeed, is most preoccupied by - a third type of organisa tional form of great importance in today's environment, the network. The emergent information policy regime must deal with all three types of social structures; the inability to clearly distinguish among them for the purposes of designing policies and policy tools is one of the problems confounding the regime formation process. Attention to networked forms of structure is particularly important to regime formation in light of the three different conceptualisations of the information economy that have developed over the past several decades. The earliest approach, which appeared in the 1960s and 1970s, defines the information economy in terms of its products: this is an information economy because the percentage of information goods and services exchanged is relatively higher proportionately than it was in the past. Beginning in the late 1970s and further developed in the 1980s, a perspective appeared that defined the information economy in terms of its domain: this is an information economy because the domain of the economy itself has expanded through commodification of types of information, both private and public, never before commodi fied. By the early 1990s, an approach had developed that defined the information economy in terms of its processes: this is an information economy because it operates in a qualitatively different way from how it had operated over the last several hundred years (Braman, 1999). As most clearly articulated by Cristiano Antonelli (1992), who based his analyses on years of detailed empirical study of transnational corpor ations, this approach emphasises the importance of cooperation and coordination as well as competition for economic success. This definition of the information economy also emphasises that it is the long-term project among multiply interdependent and networked organisations that is today more useful as a unit of analysis than the firm or industry. This 'network economy' approach is proving itself as more valid and useful for decision-making purposes than either of the other two. It has been taken up most quickly by the private sector, however - as indicated 34 The Emergent Global Information Policy Regime by the intellectual capital movement and other shifts in corporate oper ations. The emerging global information policy regime is beginning to manifest this approach in the policy arena, again ahead of most national governments.

Shared private and public sector responsibility for policy-making One manifestation of the acceptance of networks among organisational forms of political importance is the appearance of policy networks in which decision-making is shared by public and private entities. Policy networks are related to but different from forms of corporatism and nee-corporatism seen in the past and still in evidence, particularly in Europe, today. These networked forms of policy-making reflect not the influence of capital upon the nation-state but, rather, awareness that private sector decision-making has significant structural impact and a fundamental shift in power relations among types of players active on the international scene. The degree to which power is to be shared between the two sectors, however, remains a subject of contention; thus the tension between private sector decision-making and public law is the subject of several of the chapters that follow.

Informational power as the dominanat form ofpower The development of policy tools that take advantage of, and respond to, changes in the nature of power is among the implicit features of the emergent global information policy regime. The emergent international information policy regime is increasingly comprised of policy tools directed at the exercise of genetic power and power in its virtual states. Examples include regulation of software and information architecture design. Every regime focuses on specific forms of power; in some instances, the emergence of an international regime itself marks a shift from dominance by one form of power to another. There are four forms of power currently in use, sometimes concurrently and at other times in competition with each other: Instrumental power controls behaviours by controlling the material world; one party hits the other over the head, or sends tanks in. Structural power controls behaviours by shaping insti tutions and rules, and thus social processes. Symbolic power controls behaviors by shaping beliefs, perceptions, and ideas. Informational power controls behaviours by manipulating the informational bases of materials, institutions, and symbols. Though each of these has always been available, it is one of the consequences of the informatisation of society that informational power has recently become not only visible and particularly salient, but dominant. Sandra Braman 35

Each of these forms of power can appear in various states: Power in its actual state is power that is in ·use. Power in its potential state is that which is theoretically available, and/or which is claimed by the power holder. Power in its virtual state is power that can be conceptualised and brought into being with extant materials, knowledge, and skills, but does not yet exist. One of the effects of the dominance of informational power is a simultaneous increase in the relative importance of power of all kinds in its virtual states:

Contested features Several inter-related features of the emergent global information policy regime are yet to reach consensual resolution. In each of these areas, one position is dominant but there are strong counter-forces.

Information as a commodity vs. information as a constitutive force Treatment of information and the value added by its processing from an economic perspective dominates policy-making in the economic and trade realms as well as public perception. However, as the tortuous history of negotiations over trade in services under the General Agree ments on Tariffs and Trade (GATT) demonstrated, many within both the developed and developing worlds are also keenly aware of the cultural and constitutive importance of information and its processing, flows, and use. Those who take this position continue to believe that these alternative faces, or definitions, of information must be taken into account in policy-making processes. Interestingly, this position is rein forced by the emphasis upon transparency and other confidence- and security-building measures (CSBMs) within the defence arena, for these have come into use precisely because of their constitutive value. Resolution of this particular tension may require acceptance of multiple defin itional approaches, each to be used as appropriate at different points in policy-making processes; one version of such an approach is detailed elsewhere (Braman, 1989/1996). The chapter by Cogburn in this volume focuses on precisely this tension.

Information as a final good vs. information as a secondary good Economists distinguish between final goods (products and services sold to consuming individuals or organisations for use in the form acquired) and secondary goods (goods and services sold for use in the production of other goods and services). Despite the fact that many of the most powerful effects of the informatisation of society have derived from the use of informational products and services as secondary goods, policy 36 The Emergent Global Information Policy Regime discourse and public perception focus on those that are primary goods. This problem is related to the definitional issue, for some of the functions served by informational products and services as secondary goods are those that give information its constitutive nature. Clarifying the distinction between the two for differential treatment by policy analysts and in the development and use of policy tools may help resolve a number of current disputes.

Information as an agent vs. information as the subject of agency Though theorists across the social sciences who have dealt with information in the past have habitually treated it as the subject of agency, one of the most important but least understood aspects of our newly informatised environment is the way in which information itself can be a locus of agency. Hookway (1999) describes information flows as predatory, for they activate everything apprehended. What he is referring to is the way in which· the production of information and informational transactions today themselves often serve as the trigger for other social processes or events. The notion of information as an agent can be distinguished from information as a constitutive force because the latter refers to cumulative indirect effects while the former refers to single immediate direct effects. Indeed, the power of informa tional agents is now so great that they have in some cases supplanted or even superseded structural decision-making made by humans (Braman, 2002). Very little theoretical, conceptual, or methodological work has been done dealing with information as an agent, nor have its implications been addressed by policy-makers beyond some specialised topics within competition (antitrust) law.

Information as property vs. information as a commons One aspect of the emergent global information policy regime receiving attention in public discourse- and the only one for which civil society has played a significant role in offering up policy alternatives - is the question of whether or not information should be treated as a commons, availab~e to all, rather than as a form of property that can be appropriated. While details about the structuring of the intellectual property rights system that start from the assumption that information is property are the stuff of negotiations within traditional international policy-making venues, a proposal to alter the parameters of the regime structure has been forced onto the table by the work of scholars, activists, and members of the public. This is not a binary choice and as the conversation develops there is also experimentation with a number of techniques for a mixed Sandra Braman 3 7 system. Interestingly, as the chapter by Zittrain in this volume makes clear, property rights in themselves can be used as a govemance mechanism for non-economic purposes.

Information as private vs. information as public Another issue of great public concern - particularly since post-9/11 policy innovations have come into play - is the tension between the desire for personal and communal privacy in the face of extraordinary demands to relinquish any such expectations in order to serve the purported goals of national security. While Heisenberg and Fandel in this volume report on one relative success in protecting personal privacy via the global information policy regime, Klein and Zittrain provide detail on new means by which those protections may be abro gated and justifications for doing so.· Public attention to this tension should be expected to grow as individuals come to personally experience post-9 /11 policy innovations.

CONCLUSIONS

Though information policy at the global level has historically been made and implemented in multiple decision-making venues that are often at odds with each other in terms of operational definitions, value hierarchies, and modes of argument, these disparate but interdependent strands are today corning together. Examination of shared features across historically distinct arenas of international relations brings into view an emergent global information policy regime. Thinking in regime terms usefully enriches the ability to perceive important patterns and trends; understanding that the regime is still emergent provides insight into those areas in which the features of the regime are still unresolved and towards which analysis might most usefully be addressed. Further work must include detailed analyses of the features of the regime as they have developed in historically distinct domains such as defense, trade, and agriculture; examination of the manifestations of this regime in the diverse array of pertinent public and private sector decision-making arenas; exploration of the impacts of these trends in policy for information and information technologies; and a probing of those areas in which conflict remains, in order to elicit insights as to how best to move towards constructive consensus. Before this can be done, however, the very processes by which the emergence of the global information policy regime is taking place must be understood, and that is the subject of the work that follows in this volume. 38 The Emergent Global Information Policy Regime

Research- and theorisation- are particularly important during times of regime change. As examined in depth elsewhere (Braman, 2003), policy-makers are in fact likely to be particularly open to the input of researchers during such periods for they demand new ways of thinking and information upon which to base decisions. The test of this analytical approach will come in its application in actual policy processes.