Our Stake in Cyberspace

The Future of the Internet and Communication As We Know It

Part I:

The Many Networks

Years ago, the U.S. research community began development of the Internet. Designed as an open-architecture network, the Internet was capable of operating with many different technologies-including, but not limited to, familiar telephone lines. From the early 1980s, the Internet grew from its infancy in military research into today's global user network, carrying broad social and commercial activities.

The Internet has now become almost a "commodity" service, and much of the latest attention has been on the use of this global information infrastructure for support of other commercial services. This has been tremendously accelerated by the widespread and rapid adoption of browsers and the World Wide Web technology, allowing users easy access to information linked throughout the globe. Products are available to facilitate the provisioning of that information and many of the latest developments in technology have been aimed at providing increasingly sophisticated information services on top of the basic Internet data communications.[1]

The Internet continues to run on a wide range of interconnected networks, including telephone and cable lines, ethernet cables, radio waves, wireless modems and routers, satellites, and more. The Internet is considered an open-architecture infrastructure-meaning it was designed to be flexible and not limiting as to its uses. It is sometimes referred to as "dumb" or "stupid[2]," in that the network is merely a transport mechanism and not necessarily customized for a specific kind of content. (Unlike, for instance, the voice-specific nature of the telephone network.) The tools we have come to know and use-email, Web browsing, instant messaging, streaming media, file downloads, and much more–were developed to be used on this open network.

The Internet and connected devices

This is in stark contrast to some of the networks used within the Internet. Specifically, the telephone and cable networks are two significant parts of the public's Internet access. Unfortunately, the proprietary controls, or "intelligence," inherent in the telephone and cable networks are a hindrance rather than a help to the larger interconnected network. For example, separate modems are required to interface with each of these networks. These modems are unique to each kind of network and do not work with others.

The phone company. The cable company.

The Marketplace

Our technology-based world revolves around two concepts: content and access. These concepts also represent and are controlled by two legal worlds: one of intellectual-property laws, and the other of telecom and common-carrier laws. As industry observer Kevin Werbach puts it, the two worlds are described from different perspectives, causing a "language barrier" between Hollywood and the technology industry:

One sees content as the critical resource, and data networks as simply another mechanism to deliver it. The other sees connectivity as the essential factor, with movies being one of many resources that can travel along those connections. Hollywood sees a moral dimension in protecting its property and the creative works of its artists, as well as a nobility in bringing entertainment to the masses. The tech industry thinks bits are bits, and the only moral value that really matters is freedom.[3]

Content: The Things We See, The Words You Say

These days, the word "content" is used to represent the expression of our global cultures: the news, ads, songs, pictures, movies, reference material, thoughts, stories, and manifestations of life made available in a digital form. To a corporation, content is what goes into the "distribution channel." To an artist, it's the art. To users, it's the information and entertainment they find on their computers, on the Web, and on other parts of the Internet. Members of the public don't often think of their conversations and interests as content (though marketers often do).

Content is largely controlled through laws and technology. Laws govern intellectual property and copyright restrictions. Technology offers control via mechanisms or protocols such as the functionality of a "set-top box" (cable TV) or personal wireless devices (through cellular or satellite networks). On the Web, the browser and various applications vastly-but not infinitely-expand the kind and quantity of information available to people over the Internet because they impose very few controls on information designed to be widely shared.

An abundance of content can be overwhelming. We often decide to control it in some way that results in manageable, relevant information. Management involves trade-offs and decisions about who is in charge of which controls.

One example of this overabundance of information is the unsolicited commercial e-mail (UCE, often called "spam") in your e-mail box-too much of the wrong kind of information! Senders often argue free speech, but many recipients are calling for governmental regulation. Do we let the government decide what kind of e-mail we receive, or is the burden entirely on individuals to recognize and delete 30 percent or more[4] of their unwanted incoming e-mail?

Another common example is pornography. The government has expressed a desire to regulate access, for example, by means of imposing filtering technology on computer terminals in public libraries. The filters, however, do a lousy job of distinguishing between "porn" and legitimate sites that have information relative to "job, studies, health, and other needs."[5]

A third example is a battle currently igniting the courts-and in many homes that have VCRs and Personal Video Recorders (such as TiVo® and ReplayTV®). These devices allow people to fast-forward through commercials. The television broadcast industry is not happy about this, calling it "theft" when viewers don't watch the entire program-with commercials-as broadcasters have intended it to be seen.[6]

It's only in abundance that we have choice. Not everything known to us is represented or offered on the Internet, but more information about goods, services, and conditions or circumstances is available now than has ever been offered in the past.

On this matter, the First Amendment of our Constitution[7] is relevant. It says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Freedom of speech and assembly assures that we can find and contribute commentary and resources to read, talk about with our friends and colleagues, analyze, criticize, debate, and develop. We affect our world in this way.

Access: How Control of your Words is Control of your World

Information is useless unless we have access to it. When we seek information, or content, we gain it by way of a network (from calling friends to researching information using the Internet, for example), or going to a library, or through another resource. As discussed above, the Internet is generally open to a wide variety of access methods including dialing into an Internet Service Provider (ISP) using a modem and phone line, or connecting by a broadband (DSL or cable) service to an ISP, or using a high-speed network connection at work.

There are many ways to control or encourage access to certain or all information by using proprietary or open networks. Proprietary networks include the telephone system (optimized for transmitting voice signals as opposed to data, which "sounds" very different), cable TV networks (designed to send signals one-way), or simply having rules for computer use or limiting access to certain files at a workplace.

Access is truly a two-edged sword. Having all information available to us is not the same as having our personal details available to everyone else. Yet this is what's happening now as we are "profiled" into large databases created from our every transaction: health, finance, behavior, and more. Our liberty and our security are challenged by the very act of leaving our house, really or virtually, to interact with any group or business that wants to track our interests and movements.

Conflict of Laws

Laws provide guidance and priorities for our society. They have evolved over time through legislative and municipal action, judicial interpretation, and social practices. For a creative and vibrant society to develop, "laws should serve as guidelines for the proper use of human initiative, creativity, and ability."[8] When laws conflict with each other, the courts or legislature are often called upon to resolve the conflicts.

Intellectual Property Laws

Intellectual property (IP) laws were established in the United States as one of the enumerated powers in Article I Section 8 (Powers of Congress) of the U.S. Constitution[7]:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

There is considerable debate about the notion of "securing for limited times" as it relates to works being protected or entering the public domain. Some people believe that securing (protecting authors' and inventors' proprietary rights) is the key idea, while others argue that promotion of science and useful arts is the foremost priority.

IP laws cover work that is intangible–manifested commonly as a patented invention, a copyrighted work, or a registered trademark. There are four general types of intellectual property: 1) copyrights, 2) patents, 3) trade secrets, and 4) trademarks and trade dress. Protection under different laws varies in type of coverage and length of time. For example, design patents are good for 14 years (non-renewable), while copyright limits use of works for 70 years beyond the life of the author, or 120 years from the year of anonymous or pseudonymous creation. In addition to the ethical safeguards for individuals, many people think that the ability to recognize and protect intellectual property is critical to the well-being of certain companies and industries, especially in our increasingly networked digital world.

Legislative history supports expanding intellectual property rights, including copyright; and more recently the need to harmonize U.S. rights with the European Union. Expansion of protection is:

...part of an unbroken chain of similar congressional enactments spanning more than two centuries from 1790 to 1998. As the Supreme Court held..., this history not only is entitled to "very great weight," but is "almost conclusive" with respect to the constitutionality of extending the terms of existing as well as future copyrights.[9]

The idea of promoting science and the useful arts (arguably encompassing the artistry in crafts and professions) implies that, after having been secured for a limited time, works enter the public domain where they can be used to encourage broader interpretation and new ideas. "The public domain is simply whatever remains after all methods of protection are taken into account."[10] However, "because we've always done it that way" is not always a compelling reason to continue the course. "The primary objective of copyright is not the right of the author or publisher to gain a profit."[11] Others point to the Constitution's wording: to promote science and the useful arts. Here, public domain works have a unique right of existence in supporting science and the arts:

Creativity and innovation rely on a rich heritage of prior intellectual endeavor. We stand on the shoulders of giants by revisiting, reusing, and transforming the ideas and works of our peers and predecessors. Digital communications promise a new explosion of this kind of collaborative creative activity. But, at the same time, expanding intellectual property protection leaves fewer and fewer creative works in the "public domain"–the body of creative material unfettered by law and, to quote Supreme Court Justice Louis Brandeis, "free as the air to common use."[12]

The Supreme Court on October 9, 2002 heard a case (Eldred v. Ashcroft[13]) in which current and retroactive extensions on authors' and publishers' rights to protections and profits were considered. The decision is eagerly awaited by nearly all commercial and private interests–nationally and internationally–as the outcome will most certainly have an affect on the future.

Common Carrier Laws

Common carrier laws came into effect in order to balance the interests of providing certain common, public services on a non-discriminatory basis (as to use and user) with cost efficiencies inherent in a large service provider. Public interest is more clearly a goal in these laws, first articulated in the Radio Act of 1927: "...[T]he plan was to give away the spectrum and, in exchange for the privilege of using federal spectrum resources, the licensee was required to 'serve the public interest.'"[14]

This traditional theory granted, for example, a telephone company the status of "natural monopoly" with technological and market efficiencies characteristic of a single firm providing general phone service. In trade for the monopoly status came close government regulation. As legislation was amended over time, including the Communications Act of 1934 (the 1934 Act) and the Telecommunications Act of 1996 (the 1996 Act), governance became compartmentalized under the Federal Communications Commission (FCC) for the separate regulation of landline telephone, wireless telecommunications, broadcast (radio and TV), and cable systems.

Compartmentalization is no longer working.

Because of "technological convergence," the distinctions between services based on the delivery technology used are breaking down. Today there are some firms that act like broadcasters, mostly, but transmit by wire, e.g., cable television, and there are companies that act like common carriers, but transmit on radio, e.g., cellular and PCS [personal communications services] carriers. This convergence has begun to undermine any coherence that ever existed in the FCC's regulatory structure.[15]

The FCC also has jurisdictional problems that cause tension between federal and state regulatory powers. Technological evolution, including the move from circuit-switched to packet-switched systems, complicates the work of defining services–and thus governance–even further.

While telephone (landline and wireless) companies are considered and regulated as common carriers, broadcasters and the cable network are not. All are subject to certain public interest requirements, but telephone companies are subject to additional "must carry" requirements–public, leased, and local government access. As the services offered by the phone and cable companies increasingly overlap, the battle cries become louder for a more equal regulatory field and as well, more predictable protections for customers.

Recently, FCC Commissioner Michael Powell took bold steps to cross common-carrier lines in favor of strengthening re-monopolization and consolidation in the telecom market–as well as reducing the benefits of regulation, including state or local enforcement of customer service standards. Powell declared both the incumbent local telephone exchange carriers (ILECs) and the cable companies to be providing "information services." This significant legal move places telephone- and cable-based broadband services beyond regulatory restriction in areas of pending access to competing service providers, and regulating costs and services to customers.[16]

Next: Part II: Four Scenarios | Footnotes