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Presentation at Ireland, Europe, and the Global Information Society: A Conference for Social Scientists, Dublin, April 24-25, 1997
Based on "Telecommunication regulation in the information age," in Telecom reform: Principles, policies and regulatory practices, ed. W. H. Melody (pp. 421-39). Lyngby, Denmark: Den Private Ingeniorfond.
Rohan Samarajiva, Associate Professor & Graduate Studies, Chair School of Journalism & Communication, The Ohio State University, 3016 Derby Hall, 154 N. Oval Mall, Columbus OH 43210. T: 614 292 3713; F: 614 292 2055; E-mail: rohan+@osu.edu
This summary version is provided with the permission of Professor W. H. Melody, the editor of Telecom reform: Principles, policies and regulatory practices. Please do not quote or cite this document. Refer to the original text.
Advanced telecommunication networks, also known as public information infrastructures are to be built, in the United States and in most other countries, by private sector companies and not as public-works projects (Canadian Information Highway Advisory Council, 1995; US Secretary of Commerce, 1994). What this means is that the enormous investments that are being, or will be, made in public telecommunication networks must be recovered with a return considered adequate by the investors. The big question, therefore, is not what can or cannot be done with the technologies, existing and to be designed, but what technological configurations will allow investors to recover their money. Unless significant numbers of people use the services provided over the upgraded public networks, it is unlikely that investors will earn returns.
There has been much discussion of “killer applications” that will ensure significant use of the upgraded public telecommunication networks, and thereby their economic viability. At this stage, it is only possible to state that the hypothesis of video on demand being the “killer app” has fallen out of favor (Hough, 1995; Markoff, 1994). Instead of speculating on an alternative “killer app,” it may be more realistic to approach the problem of use of upgraded public networks by recognizing that they are virtual public spaces and analyzing the principal activities that take place in public spaces (Samarajiva, 1994; Samarajiva, forthcoming). The prototypical public space was the Roman Forum. Every civilization had its own form of proximate public space, but the Roman Forum is discussed because it is among the best known (e.g., Huelson, 1909; Romanelli, 1929).
The Forum had specific architectural features and changed over time. It served four principal functions.
1. Being a location where large numbers of people congregated, the Forum was a natural place to meet others and initiate face-to-face communication. It had a meeting-place function. This included pre-planned meetings between earlier acquainted persons and serendipitous meetings between hitherto unacquainted persons. Though initiated in public, the actual interactions could be private.
2. From the beginning, the Forum was a place to buy and sell. It had a market function. Markets occupied parts of the Forum, generally separate, but proximate to the politically and symbolically important sites. Vendors were attracted to the Forum because of access to large numbers of potential buyers or audiences. Buyers included those who came specifically for that purpose and those who came for other reasons but were attracted by the presence of the vendors.
3. The Forum was a site for political discourse. This best known function may be described as the expression function. Orators spoke at the Forum because it concentrated audiences. Those who wished to obtain political information went there because it was known as a site of political discourse. The political functions were concentrated in a part of the Forum known as the Comitium. Access to political power afforded by this space was contested.
4. Over time, the Forum became a location for religious and state symbols and monuments. This may be described as a legitimizing function. The state, which built and maintained the Forum, exploited the concentrated attention of the multitude coming to the Forum through this symbolic activity.
Key issues affecting use of advanced telecommunication networks may fruitfully be examined in terms of the first three of the above functions. For the sake of brevity, the discussion excludes the fourth function and is illustrated with US examples only.
Public telecommunication and computer networks of the mid 1990s constitute, among other things, virtual meeting places. These networks enable a person to initiate dyadic or small group communication with others among millions of connected persons, and one or more among these millions to initiate communication with that person. The “publicness” of a space depends on openness to initiation of communication among inhabitants rather than the terms and conditions of access to that space. The existence of use fees for accessing a network does not, therefore, vitiate the publicness of a virtual space. The moment of “entering” virtual space by lifting the telephone handset or logging on to a computer network is similar to entering a proximate public space. Contact may be initiated with a person or persons in that space at that moment, for example, a chatline or the “talk” mode in the internet; or later when the person or persons log on; or by initiating contact with those in physical private and public environments abutting the virtual public space, such as a telephone user at home or in a pub with a telephone.
The proposition that public telecommunication and electronic mail networks are virtual public spaces may be challenged by the apparent lack of temporal co-presence between inhabitants of virtual public space. The frequency of “telephone tag” may be used to question the claim of co-presence. Nevertheless, the claim is defensible insofar as social space is constituted when one party believes the other is potentially co-present. Discovery of the other's absence terminates a private space. In a public space, the expectation is not one of certain communication with a particular person, but of potential communication with some person. The absence of a particular individual does not negate the public space.
Generally, actors do not establish interpersonal contact with totally unknown persons in virtual or proximate public space. It is more common for persons to navigate public space to establish contact with a known person or persons, at which point the dyad or larger group effects a complete or partial withdrawal from the public space into a private space. In both kinds of public space, the possibilities of unintentional collision exist in the forms of physically bumping into bystanders and dialing wrong numbers (for detail, see Samarajiva & Shields, forthcoming).
2.1 Privacy
A definition of privacy may be developed from research on face-to-face human interactions in public spaces. Human interactions in "proximate" public spaces such as sidewalks are governed by mutually accepted ground rules rather than formal rights (Goffman, 1963, 1971). Ground rules regulate dealings between those who share hardly any common organizational or family affiliations, the classic examples being people navigating busy streets, signaling directional changes and rights of way to total strangers. Goffman (1971, p. 198) identified one important ground rule as:
"...in Western society, as probably in all others, there is the 'right and duty of partial display.' Two or more individuals present together have the right and duty to make some information generally available concerning the their relationship and the right and duty to leave unsignaled other information about their relationship."
Drawing on Goffman's work and subsequent scholarship (Altman, 1975; Petronio, 1991, Ruggles, 1993), privacy may be defined as the capability to implicitly or explicitly negotiate boundary conditions of social relations (Samarajiva, 1994, p. 92). This definition does not posit privacy as a state of solitude.
Privacy violations would lead to the avoidance of the network as a meeting place (if alternatives exist) or the use of various defensive measures driven by mistrust (if there are no alternatives). Trusting interaction in a public place requires that individuals can control release of their access information and that certain forms of eavesdropping, in relation to content of conversations and the interaction, can be avoided. Access information has been defined as “information disclosed in public that can be used to locate an individual at some future time.” In addition to a person's home address or place of work, knowledge of one's full name, phone number, neighborhood, habitual routes, and hangouts can serve as access information (Gardner, 1988, p. 384). A certain degree of random eavesdropping is acceptable in public spaces. However, eavesdropping in the form of systematic surveillance is not. All forms of eavesdropping are unacceptable for interaction in private spaces. The ongoing redesign of public telecommunication networks to systematically track communicative interactions and, in some cases, make it possible for government agencies to eavesdrop on private conversations (Hoffman, 1995), poses a serious threat to the meeting-place function of telecommunication networks.
Surveys (e.g., Katz, 1991) indicate the existence of significant public concern about wiretapping in the US. In addition, the current confused state of law regarding eavesdropping on non-wireline conversations in the United States (cordless/PCS appears to be unprotected, while cellular/PCN may be protected in law, but not in practice), is likely to aggravate public concern over time. In addition, the national security concerns that legitimized US encryption policy for many decades have lost legitimacy in the post-cold war era. Contemporary encryption debates in the US have crystallized around “key escrow” legislative proposals, whereby cryptographic systems will have legally mandated “back doors” that can be accessed without the knowledge of the users under certain specified conditions. The extent and nature of technical and legal wire-tapping capabilities on the one hand and the consumer use of encryption on the other affect privacy in relation to content of communication.
2.2 Addressability
The network's meeting-place function rests on addressability. In order to interact with a person in proximate space, awareness of co-presence is a minimum condition. The ability to initiate an interaction with one person requires some form of “address” in the form of a name, or even eye-contact, singling out and communication of the wish to initiate contact, in the absence of a name. These minimum conditions must be met in virtual space too. One of the greatest assets of the conventional telephone network is its addressing system in the form of different sequences of numbers, originally reflecting spatial location but increasingly disconnected from it. Technological and economic change are increasingly threatening the old established practices pertaining to addressing, making it necessary for regulators to pay attention to this hitherto “taken-for-granted” aspect of the network.
Primarily due to profligate use, such as the allocation of generally underutilized blocks of numbers to suppliers of services such as paging and cellular services, but also due to growth of access points to public telecommunication networks, shortages of telephone numbers have begun to appear. The problems are being exacerbated by the transitions from calling locations to calling persons, and from monopoly to competition in local-exchange service.
The emerging customized mass production economy places great weight on relationships--within the production chain, and between producers and customers. Reliance on one-time transactions is being increasingly superseded by ongoing customer relationships. Transactions are defined as interactions that result in exchange of value. Relationships are defined as iterated interactions or transactions between the same parties. Maintaining relationships with spatially separated customers requires use of telecommunication networks. It is likely that the bulk of telecommunication network revenues will come from the provision of facilities for the maintenance of customer relationships, in the same way that a major part of US Postal Service revenues are derived from the provision of bulk mailing services to corporations.
The efficacy of telecommunication networks as media for the building and maintenance of customer relationships, including persuasive and information seeking activities prior to transactions, the completion of actual transactions, including payment, and in some cases the actual delivery of the purchased item, depends on customers' willingness to change from old, established ways of doing business and to adopt new ways. As the mixed success of new communication services indicates, this is not an easy task. There is considerable uncertainty on the factors determining the take-up of new communication services. It is possible to identify trust and privacy as necessary conditions for the success of interactive systems as markets (for a fuller discussion, Samarajiva, forthcoming).
3.1 Relationships and Trust
Relationships require both parties to know about each other. When small-scale supply of services predominated, proprietors and/or employees of service firms knew individual customers and their preferences regarding a particular service. Indeed, many service-provision activities necessitate relationships with customers. As supply expanded in scale and numbers of customers and employees grew large, relationships weakened. However, with increasing use of information-communication technologies, it has again become feasible to “know” customers and their preferences. It is of course debatable whether this constitutes knowing, in the sense of one human dialogically engaging with another. Further, this knowing is asymmetrical in two ways. First, the firm knows about the customer, but the customer does not have equivalent information about the firm. Second, the firm in most cases extracts transaction-generated information (TGI) from the customer more or less involuntarily, while the customer has, for the most part, to rely on advertising and other persuasive information disseminated by the firm. The degree of involuntariness ranges from the high end of TGI extraction by franchised monopoly firms (e.g., most local-exchange telephone companies) (Samarajiva, 1994, p. 92) to the low end of competitive firms extracting TGI through point-of-sale routines that require customers to actively resist the extraction of personal information (e.g., collection of telephone numbers for cash transactions by Radio Shack). The value of customer information, particularly TGI, leads firms to combine goods and services (e.g., cars with warranties and service contracts) and convert discrete service transactions into relationships (e.g., frequent-travel programs), in both cases, generating continuing streams of TGI for company databases and consolidating relationships (David Shepard Associates, Inc., 1995).
Arrow's (1975, p. 24) assertion that “virtually every commercial transaction has within itself an element of trust, certainly any transaction conducted over a period of time” suggests that trust is an essential ingredient of a commercial relationship. Giddens (1990, p. 121), in a discussion of trust in interpersonal contexts, states that “relationships are ties based upon trust, where trust is not pre-given but worked upon, and where the work involved means a mutual process of self-disclosure . .” (author's emphasis). Both appear to imply that a relationship could not exist without a modicum of trust. It is true that trust-related attitudes are crucial elements of relationships and that trust is the foundation of stable, productive relationships. However, it is misleading to infer that all relationships are based upon trust. The corollary to Giddens' claim that trust has to be worked upon is that the work may not be undertaken or may fail; that instead of trust, mistrust or angst may result (Giddens, 1990, pp. 99-100). While Arrow's claim may hold in an idealized competitive environment, customer relationships marked by mistrust and angst cannot be ruled out in the presence of information asymmetries, spatial monopolies and barriers to exit faced by parties, particularly consumers.
Giddens (1990, p. 34), who distinguishes between interpersonal and system trust, defines trust as “confidence in the reliability of a person or system, regarding a given set of outcomes or events, where that confidence expresses faith in the probity or love of another, or in the correctness of abstract principles (technical knowledge).” Trust derives from faith in the reliability of a person or system in the face of contingent outcomes. The primary condition that creates a need for trust, according to Giddens, is lack of full information, generally associated with a person who is separated in time and space or a system whose workings are not fully known and understood (p. 33). Present perfect information, faith and trust would be superfluous. Lacking complete information about a system, a person who has to use it has to develop a trust-related attitude toward the system. This can range from complete trust through mistrust to angst (pp. 99-100). Individuals who interact and transact with complex business organizations lack full information about their workings and have to rely on trust. When such interactions and transactions are mediated by interactive systems, trust is even more important. Given the documented importance of proximity, co-presence and talk, particularly for contextualizing interactions and building relationships, interactive systems that minimize or eliminate these factors heighten the need for trust (Boden & Molotch, 1994; Giddens, pp. 83-111). Individuals lack information both about the business organization and about the mediating interactive system. Businesses lacking information about their current or prospective customers can rely on trust or obtain more information through coercive surveillance, overt or covert.
Trust is dynamically generated. It has to be “worked on.” Trust, both in persons and systems, has strong aspects of mutuality. In interpersonal relationships, one party's actions, particularly self-disclosure or lack thereof, can reinforce, diminish or destroy the other party's trust (Giddens, 1990, p. 121). This claim can be extended with care to customer relationships. While the symmetry suggested by “opening out of the individual to the other” and “mutual process of self-disclosure” would be unrealistic in customer relationships, some aspects of trust-building behavior such as absence of coercion in making and receiving disclosures, non-release of customer information to third parties without explicit permission, and a degree of disclosure, albeit non-symmetrical, may be expected from a commercial organization.
These aspects overlap with the above stated definition of privacy as “the capability to explicitly or implicitly negotiate boundary conditions of social relations.” Privacy is situational and relation-specific. In some contexts, a person will voluntarily yield highly personal information and will not consider that release, by itself, a diminution of privacy. In other contexts, the most mundane information will be guarded with great care. The same applies to the reception of information. Privacy is a precondition for trust--an attitude developed on the basis of situational or experiential factors. Trust affects privacy. A user's trust about the information practices of a system is likely to enable consensual surveillance, which can further enhance trust. The resultant spiral will lead to stable and productive customer relationships.
Conversely, where a system engages in coercive surveillance, mistrust and angst are likely to result. Customer mistrust or angst about the information practices of a system is likely to lead to reduced release of information, tolerance of misinformation, release of disinformation and greater resistance to receipt of information from the system. In the face of the resultant information problems, the system can either increase reliance on trust or on coercive surveillance. The former action is likely to be counterproductive in the short-term unless the underlying mistrust or angst on the part of the customer is removed. The latter action, if known to the consumer, will further decrease trust, giving rise to a spiral of mistrust. If the consumer cannot exit the system, the result will be a pathological customer relationship. Alienated customers and ex-customers can communicate their experiences to current and potential customers, decreasing their trust in turn--a decidedly undesirable outcome for a business organization.
Outcomes can range from stable, productive relationships to pathological relationships. Actual outcomes are likely to have greater or lesser affinities to the two ideal types. The mere fact of mediation by telecommunication systems does not change the outcome. Telecommunication systems can be used for consensual as well as coercive surveillance. The conditions under which a commercial organization will choose to create a trust-conducive environment or take the path of coercive surveillance require independent explanation.
Commercial organizations' knowledge of the benefits of stable, productive customer relationships and of the costs of pathological relationships, or lack thereof, may provide a partial explanation. Contemporary commercial practices, which are heavily biased toward coercive surveillance, may be the outcome of ignorance about the results of coercive surveillance and trust-conducive treatment of customers. If this is true, corporate behavior may be expected to change over time in the direction of fostering trust and privacy. However, if commercial organizations mask coercive surveillance through telecommunication systems, the current bias toward coercive surveillance may persist. If customers are unaware of surveillance, the destructive spiral leading to pathological customer relationships may be arrested. Long-term and pervasive patterns of coercive surveillance may become entrenched in people's minds and erode current expectations of privacy and trustworthy behaviors.
In addition, little is known about how to create a trust-conducive environment based on telecommunication systems. Trust in abstract systems depends on the “access points” or interfaces of the systems. Assuming that most contact with abstract systems occur in the form of interactions with experts or their representatives at the access points, Giddens (1990, pp. 84-85) argues that system trust depends on the demeanor of system representatives such as doctors or airline cabin crews. By their very nature, telecommunication systems minimize routine co-present interactions with humans representing the system. The public’s non-volatile and growing concern about privacy, particularly in relation to corporations and telecommunication systems (Fèdèation nationale des associations de consommateurs du Quèvec, 1995; Louis Harris & Associates, 1994), appears to suggest that business organizations are failing to gain trust, and indeed are engaging in practices that lead to mistrust and angst among consumers.
3.2 Telecommunication Networks as Meta-audiences
Attention has always been scarce. However, the scarcity and value of attention are highlighted because of expansion of electronically mediated forms of communication accelerated by rapid technological and economic changes. Herbert Simon has stated that “a wealth of information creates poverty of attention and a need to allocate that attention efficiently among the overabundance of information resources that might consume it” (Varian, 1995, p. 200). Attention is a precondition for the constitution of interactions or transactions, and, thereby, of relationships. Attention, once obtained, can be utilized for different forms of persuasion. If the persuasion is effective, transactions and relationships can occur.
In a complex economy, attention must be produced and reproduced on an industrial scale. Production of the attention of multiple individuals, not necessarily gathered in one proximate space or at one time, is described as an audience in relation to books, radio and television. An audience may be conceptualized in two primary ways. First, it may be seen as an object that is measured, bartered and sold. Political economists of all persuasions tend to favor this conception (Melody, 1973; Smythe, 1977; Owen & Wildman, 1992). Second, it can be seen as a collectivity of agents who create meaning from media content. Cultural-studies scholars tend to favor this conception. This chapter uses the politico-economic conceptualization, while acknowledging the volition of audience members and the relative openness of the meaning-making process.
Technological forms of storing and retrieving information underlie production and reproduction of modern audiences that go beyond the root meaning of an auditory collective. Different technological forms yield different structures within which agents make meaning. Given the proliferation of technologically retrievable messages and channels and the emergence of advanced telecommunication capabilities, it is useful to differentiate among three meanings hitherto included in the term, audience.
1. An audience is defined as the persons attending to a specific message. This is the core meaning of audience, but previous scholarly and lay usage has been broader. Those attending to a message need not reach a common understanding, nor does attention have to be efficacious from the communicator’s perspective.
2. A meso-audience is defined as persons likely to attend to a class of messages. A “daypart” such as the sports audience, is an example. There is no presumption that all those within a meso-audience will end up in the audiences intended by those who produced the meso-audience. The more effective the meso-audience production process is, the greater the probability of that outcome. However, the inherent indeterminacy of meaning making precludes complete success.
3. A meta-audience is defined as that from which meso-audiences and audiences may be produced. Usages such as “the audience for Channel Six” or the “television audience” would fall within this definition. Persons connected to the internet would be another example.
The threefold distinction allows the different institutions and incentives associated with each to be identified and analyzed. Meta-audiences, meso-audiences and audiences are produced and reproduced with effort. They are fluid and ephemeral. Network operators such as telephone companies are primarily engaged in the assembly of meta-audiences. When AT&T prepares and markets directories of its subscribers organized according to their 800 number use, it is engaged in the assembly of meso-audiences. When a direct-marketing company utilizes such directories in its marketing campaigns, it is engaged in the assembly of audiences. Incentives in terms of attention gaining, surveillance, and relationship building and maintenance differ at each level.
Producing and reproducing media audiences has never been easy. In addition to attention consuming activities such as work, interpersonal relations and leisure, a television-audience producer had to compete with a handful of other networks/stations in pre-cable United States (and with fewer rivals in other countries). The difficulty increased with the entry of cable and direct-broadcast satellite channels, and by an order of magnitude with the wide range of information and activities available on interactive systems such as the internet. On one hand, producers of audiences struggle to assemble and hold audiences. On the other, audience members struggle to cope with the plethora of objects competing for their attention. This chapter focuses on the former given its focus on the structures within which network operators act.
A limited set of devices is used in assembling an audience for a television program: the human attraction to stories, continuity of narratives doled out in installments, “hooks” at the end and at critical points of the installment, stars, scheduling to optimize flow from one audience to another, regular scheduling (daily or weekly), teasers and advertisements, creation of excitement in other media around issues such as “who shot J.R.?,” and so on. Only some of these devices pertain to a discrete message and its audience. Others have to do with the channel or network and daypart. Meta-audiences are produced by devices intended to draw people to the channel or network; meso-audiences by those for dayparts; and audiences proper by those for specific programs. To be precise, programs are devices for assembling second-level meso-audiences, that then allow the creation of audiences for advertisements. However, depending on the level of analysis, programs with embedded advertisements (overt or covert, as with product placements) can be taken to be the focus of audience attention.
Two ideal types may be identified within interactive systems. The first is designed to sell information and/or communication capabilities to subscribers. Here, the revenue stream is dominated by subscriber payments. Online information systems such as Lexis/Nexis and standard online services such as CompuServe are examples. An advanced telecommunication system designed to sell information to subscribers can adopt one of two main pricing schemes: it can sell on the basis of use or it can utilize some form of flat-rate pricing. The former requires fine-grained surveillance. The latter requires less use tracking, but subscribers may believe that surveillance takes place. Both modes take information, not attention, to be the scarce commodity. The intellectual-property and privacy implications of systems designed to sell information are discussed below.
In the second ideal type, a system operator sells access to a meta-audience, “universal” or otherwise. Universal is defined as inclusive of all or most households or persons in a spatially defined market. Vendors purchase access to the meta-audience as an input to the process of producing meso-audiences and audiences. Here, payments from vendors including advertisers dominate the revenue stream. The US model of commercial television broadcasting is a non-interactive example. The design of UBI, the Quèbec interactive system currently under construction, is an interactive exemplar (for details, see Samarajiva, forthcoming).
A system of the second type must attract and retain subscribers and induce them to use the services provided by vendors. In other words, the system operator must enable vendors to produce and reproduce meso-audiences and audiences from the meta-audience. Depending on the concrete conditions affecting consumers, the ways in which these objectives may be achieved differ. Where consumers have few alternatives in terms of allocating attention, the meta-audience producer's task is relatively easy. Where this is not the case, considerable effort, including measures to ensure privacy and build trust, is required.
Operators of advanced telecommunication systems of the second type do not necessarily have to produce universal meta-audiences. They can choose to produce niche meta audiences. Here, the dynamics of audience production are less favorable to trust and privacy than with universal meta-audiences. Moreover, niche meta-audiences and meso-audiences tend to be indistinguishable, in that the system operator must provide some reason for a sub-set of consumers to allocate their attention to one niche system instead of another. In addition, first-comer advantages and network externalities that are considerable in interactive systems (and associated services such as payment systems) (Arthur, 1994), make the universal-coverage meta-audiences more likely and more interesting.
A system operator seeking to produce a universal meta-audience is compelled to create a trust-conducive environment. Otherwise, it would not be possible to attract almost all the members of a potential meta-audience to the system, or to enable the production and reproduction of audiences and meso-audiences therefrom. A trust-conducive environment, by itself, will not yield a universal meta-audience. However, given the ability of even small groups of privacy- and trust-sensitive members of the potential meta-audience to prevent universality being achieved, such an environment is a necessary condition.
3.3 Intellectual Property
An advanced telecommunication network serves as a marketplace for the buying and selling of all kinds of goods and services, including, but not limited to information. However, with all goods and services, except information and a limited set of services such as access to computer games, the transaction cannot be completed on the network. Delivery of the purchased item has to take place off the network. Consequently, considerable attention is being paid to the development of intellectual property regimes enforceable on interactive networks.
At the technical level, efforts appear to be focused on methods such as “data metering,” described as follows:
"The concept is simple: instead of charging a flat fee for a software program, or an hourly fee for access to a database, data metering allows companies to charge per use. . . . Think of this metering device as an electric meter that keeps track of the flow of data into your computer and bills you accordingly. . . . With either system [referring to two commercial systems in development], a user can transfer money onto the meter by providing a credit card number . . .. When a user requests a program off a CD-ROM or an online database, the meter subtracts the appropriate amount . . . and downloads and decrypts the data. Downloaded programs may be set so that they live for only a few days or uses." (Steinberg, 1995)
These methods are unlikely to achieve easy success because they are based on extremely fine-grained surveillance that is inimical to trusting commercial relationships. For these mechanisms to take hold, the database providers would have to hold monopolies over certain kinds of information or have established trusting customer relations and consensual surveillance. At the legal level, it appears that national and international initiatives, the latter embedded in trade law, are being built on the shaky foundations of built-in and fine-grained surveillance and the assumption that information, not attention, is the scarce commodity (Samuelson, 1996).
4.0 Expression Issues
Many observers have advocated the common-carrier doctrine as a sound basis for addressing the policy issues related to expression of ideas over public telecommunication networks (e.g., Pool, 1983). Over time, the basic tenets of common carriage--just and reasonable prices and no discrimination--have been supplemented by the separation of content from conduit (Clippinger, 1980) and the principle that communication common carriers cannot exercise editorial control of what they carry (National Association of Broadcasters v. FCC, 1984, p. 1203). The common-carriage doctrine appears attractive to telecommunication regulators because public network operators have historically been treated as common carriers and because it shields regulators from the messy business of regulating content.
With the emergence of audiotex and chatline services exemplifying the blurring of the distinction between point-to-point and point-to-multipoint communication, government regulation of pornography was extended to telecommunication, eroding the principle that common carriers have no control over, or liability for, content. The US Supreme Court in Sable v. FCC (1989) found unconstitutional an amendment to Section 223 of the Communication Act that banned all indecent commercial telephone messages within Washington, D.C. or in interstate or foreign communication, but upheld the ban on obscene commercial messages. The ban on commercial indecency was found to be overbroad. The decision affirmed the constitutionality of other means of preventing access by minors to indecent content including credit-card, access-code and scrambling rules (Samarajiva & Mukherjee, 1991). These principles have now been codified with broad applicability in the US Telecommunications Act of 1996 (Section 502).
The debate over obscene and indecent commercial telephone services prefigured policy debates regarding regulation of public networks including the internet (Hadley & Samarajiva, forthcoming). Sable was the first time the highest court accepted the principle that a telecommunication common carrier may be held accountable for content (subject to good-faith defenses, but nevertheless accountable). Given the large number of content providers on telecommunication networks, including online systems, carriers tend to be the most realistic targets of regulation and litigation. This liability causes carriers to reject or constrain information services based on judgments of content. In some cases, certain information services are denied access altogether. In others, they are denied billing services or are relegated to certain number prefixes (or regions of virtual public space), with attendant implications for audience production. The explosion of cross-border audiotex services has been among outcomes of efforts to regulate audiotex content.
Depending on the constitutionality of prior restraint on expression by government, different policy solutions may be devised. In the US, government has sought to create conditions wherein private entities operating public networks will regulate content, circumventing constitutional prohibitions. In other countries, government may seek to regulate content directly. US experience has shown the existence of a range of methods to regulate content on public networks (Hadley & Samarajiva, forthcoming; Samarajiva & Mukherjee, 1991), including:
1. Prior restraint of expression, by government or by network operators.
2. Criminalization of certain forms of expression, resulting in prosecution after publication.
3. Screening of users to ensure that certain services are not used by members of protected classes.
4. Segregation of information services through devices such as different prefixes and the regulation of access by protected classes of users to certain classes of services.
5. Labeling of messages and services in ways that enable users to make informed decisions regarding access, and enable persons in authority to prevent access to certain messages and services by members of protected classes.
Each of these methods has different strengths and weaknesses. Generally, solutions 1 and 2 are problematic in democratic societies and are difficult to enforce in the context of the existence of a multitude of information providers and the “borderless” nature of contemporary public telecommunication networks. Solution 3 poses serious privacy problems. If screening of users is to be effective, it is necessary to monitor information use behaviors of all users, combine those records with access and identification information and store at least a portion of the collected information. By elimination, only options 4 and 5 remain within the pale.
This brief survey has covered a range of novel policy issues likely to emerge as investments in advanced telecommunication networks, also described as public information infrastructures and information superhighways, accelerate. Conventional economic regulation relied on a theoretical framework, albeit on that was rarely made explicit and even more rarely justified at the level of fundamental assumptions. Whatever its faults, the economic framework focused attention on a limited number of aspects of the object of regulation. It is hoped that the theoretical frameworks of virtual public space, trusting relationships, and audiences will serve a similar function for use issues.
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