Laura Stein & Nikhil Sinha. Handbook of New Media: Social Shaping and Consequences of ICTs. Editor: Leah A Lievrouw & Sonia Livingstone. Sage Publications. 2002.
Global information and communication technologies (ICTs) could precipitate extraordinary political, cultural and economic transformations over the twenty-first century. Carey (1998: 28) predicts that global communication systems such as the Internet will alter physical and symbolic environments worldwide just as the telegraph, telephones and railroads altered national and international landscapes throughout the nineteenth and early twentieth centuries. While most scholars agree that global media can effect change on a global scale, they differ sharply over the nature of these changes. Will these new media facilitate freedom of expression and access to knowledge and information, or will they deepen and intensify the control and commodification of information on a national and transnational scale? What values and principles will global communication systems serve and what role can or should national governments play in determining the structure and use of these media?
Indeed, regulation of information and communication systems is critical to nation-states for several reasons. First, communication systems are central to political processes. Democracies and non-democracies alike recognize the role of communication systems in conveying information to their citizens. In addition, democracies depend on communication systems to generate the social knowledge necessary to collective decision-making processes (Barber, 1984: 197; Dewey, 1954: 155; Entman, 1989; Enzensberger, 1974; Rucinski, 1991) and to ensure citizens’ communication rights (Melody, 1990: 19; Zhao, 2000: 43). At the same time, global media and other global phenomena have worldwide effects that are in the interests of all nations to regulate. Yet, the mechanisms for representing, discussing, evaluating and collectively responding to these phenomena among affected populations are insufficient or lacking altogether. In this sense, global ICTs, as well as globalization generally, create a crisis of representation for political institutions and processes worldwide (Carey, 1998: 34). Second, ICTs are enmeshed in the social and cultural fabric of nations. Information and communication are part of the shared national symbolic environment, as well as the environment of other social or communal formations (Babe, 1995: 40). Consequently, many nations are concerned with how ICTs may impact their social and cultural life. For example, many nations fear that the availability of obscene, racist or blasphemous speech on the Internet will have a corrupting influence on their societies. A third and related reason why effective regulation of global media has relevance to nation-states is the ultimate inseparability of real and virtual spaces. Although global ICTs host virtual transborder activities, virtual activities are experienced by real citizens rooted in real places. As such, nation-states have an interest in regulating these activities (Lessig, 1999: 190). Research which insists that virtual activities exist in ‘cyberspace’, rather than in real space, reifies network activity and prematurely dismisses the power and jurisdiction of nation-states to regulate them.
This chapter addresses some of the challenges faced by nation-states in devising communication policies for the new global ICTs. Since a comprehensive discussion of global ICT policy would be too vast and unwieldy, we focus exclusively on computer networks, a prominent and growing sector of ICTs that have a potentially global reach. Computer networks are sets of computers that are linked at physical and logical levels (Schiller, 1999: xv). Computer networks, including the Internet, constitute new media in that they enable the convergence of formerly separate media forms onto a common delivery platform (Melody, 1990: 16; Schiller, 1999: 74). Drawing on aspects of other media, including print, audio, video and voice-based communications, computer networks allow for the creation of new media forms with new characteristics. These networks, along with the practices and policies that surround them, are a good observation point from which to view the challenges new media pose to national regulators.
We begin by examining three key areas of legal and policy conflict over computer networks; namely, intellectual property, privacy and freedom of expression. Legal and regulatory trends and developments in these areas reveal how new technologies are destabilizing existing policy regimes and demanding a rethinking of communication policy on the part of national governments. The chapter concludes by examining some policy principles and new models of regulation proposed by scholars to adapt national governance mechanisms for the effective regulation of global media. The discussion will be structured by the recognition that national policies are the outcome of a complex interplay of domestic and international forces. The nature and character of the state, the strengths of its institutional framework and its relationship to domestic and international forces will largely determine the form and content of such policies.
Three Areas of Policy Development: Intellectual Property, Privacy and Freedom of Expression
Global computer networks raise challenging questions for law and policy on intellectual property, privacy and freedom of expression. A comprehensive analysis of these questions is beyond the scope of this chapter. Nevertheless, a broad sketch of central policy dilemmas in each of these areas, as well as the options open to national regulators, can situate otherwise abstract policy discussions in concrete social conflicts and choices currently facing many nations. Not only are many social conflicts around computer networks clustered around these key areas of policy development, but perhaps more importantly law and policy in these areas shape the contours of the public use and exchange of information and communication. Though law and policy in each of these areas is in a state of flux worldwide, it is possible to discern patterns and trends that constitute the roots of policy dilemmas which are likely to play themselves out over the next couple of decades.
As they currently exist, computer networks possess a number of features that represent uncharted territory for governments wishing to implement and enforce policy and regulation. These features include the ability of computer networks to collect, store, process and retrieve vast quantities of information (Branscomb, 1994: 3; The Economist, 1999 21; Johnson, 1994; OECD, 1997: 13; Peterson, 1995: 164); to copy information quickly and easily (Alleyne, 1995: 140; Halbert, 1999: 26); to allow direct and interactive communication between individuals and small groups (Morris and Ogan, 1996: 44); to bypass governmental and non-governmental media gatekeepers (Human Rights Watch, 1999: 12; Taubman, 1998: 261); to send information along decentralized and unpredictable pathways (Froomkin, 1997: 131; Lessig, 1999: 166); to allow network users to communicate anonymously (Froomkin, 1997: 129; Lessig, 1999: 14); and to permit interactions between persons located in different legal and political jurisdictions (Kahin and Nesson, 1997: x; Lessig, 1999: 192; Reidenberg, 1997: 86; Robinson, 1989: 44). These features have considerable impact on the abilities of governments to regulate and enforce policies applying to computer networks.
Conflicts in the areas of intellectual property and privacy have arisen largely because of the increasing commodification of information. Information has become a valuable asset, and the ability of governments, organizations and individuals to monitor, control and trade information requires laws and policies that clearly delineate the property rights of all actors in the information exchange process. In the absence of supranational property rights regimes, the role of defining property rights within networked environments necessarily falls upon national governments. In the case of freedom of expression, tensions have arisen because governments themselves have implemented laws or policies designed to protect national political and normative goals, often to the detriment of the speech rights of their own citizenry. The next three sections examine these conflicts, the ways governments are attempting to address them, and the options available for them to do so.
Computer networks intensify the conflict, ever present in intellectual property law, between expression as a commodity and as a collective good. Intellectual property law grants copyright holders exclusive rights to control copying and other uses of creative works for a limited period of time. In this sense, intellectual property is not analogous to material property. Intellectual property law presumes that creativity is encouraged when copyright holders can benefit financially from their labour, but that the exclusive control of these works eventually becomes a detriment to society (Bettig, 1992: 149). Ultimately, the collective good requires that information, knowledge and creative expression become freely and widely accessible to all. The collective good aspect of intellectual property is also captured in the notion of fair use. Fair use permits non-copyright holders to copy works for the purpose of comment, criticism and other activities which are understood to further the advancement of knowledge. By creating new opportunities both to control information and expression and to evade that control, computer networks invite challenges to both the copyright holder’s right to control their work and the public’s right to access this work.
Computer network technology can facilitate the extension of copyright controls or the free exchange of information and communication. Scholars are split on whether computer networks will under-protect or overprotect intellectual property. Many scholars note that computer networks enable non-copyright holders to engage in the widespread duplication and dissemination of copyrighted material. The ease with which computer networks permit such activities works to undermine copyright holders’ control over intellectual property products (Thurow, 1997: 98-9). This underprotection of property rights results in a loss of domestic and international profits; a decline in the research, development and creation of new products; and a reluctance to engage in global trade among nations that export information-based products and services (Alleyne, 1995: 140; Jussawalla, 1992: 3, 43-4). Those who worry that new technology will under-protect copyrights focus on the need to develop law, policy and new technologies which promote the rights of intellectual property holders on computer networks (Thurow, 1997).
Others argue that computer technology may increase copyright holder control over intellectual property and override collective fair use principles for the sake of private profits (Halbert, 1999; Hunter and Herbeck, 1999; Lessig, 1999: 127). Copyright holders can use software to track and control the uses of a creative work, including how many times a work is viewed and how it can be altered or manipulated. Such software effectively allows copyright holders to disaggregate and charge for every aspect of information use (Halbert, 1999: 128; Lessig, 1999: 136). Copyright holders can also make access to creative works contingent upon private contracts, such as click-wrap or shrink-wrap agreements, which consumers tacitly accept when they view online information or open a software product package. These ‘agreements’ specify the terms and conditions of access and often demand that consumers relinquish their rights to fair use and collective good protections associated with intellectual property law (Feemster, 2000; Halbert, 1999: 62; Lessig, 1999: 135). In addition, copyright holders can limit the circulation of creative works online to trusted systems that agree to abide by their terms and conditions and that interact exclusively with other systems that agree to do so (Lessig, 1999: 129). Those who believe that computer technology will overprotect copyright argue that new developments in intellectual property law or practice must maintain the public’s rights to access products and ideas.
Global computer networks, and the growing global trade in intellectual property goods, are also sites of tension between developed and developing countries. While there are no ‘international copyrights’ that enable individuals to protect work throughout the world, most countries are members of the Berne Union for the Protection of Literary and Artistic Property (Berne Convention) and the Universal Copyright Convention, which allow producers of intellectual property to protect their works in countries of which they are not a citizen or national. Fearing information piracy on a global scale, developed nations argue that strong enforcement of intellectual property rights and internationally harmonized legal regimes are necessary to facilitate a global trade in information products (Burk, 1997: 221; Jussawalla, 1992: 4; OECD, 1997: 11-12; White House, 1997: 12). Nations with strong intellectual property regimes have exerted political and economic pressure, often in the form of international treaties and agreements, on countries that fail to enforce copyright (Alleyne, 1995: 34, 133; Bettig, 1997: 150; Boyle, 1997: 121-3; Burk, 1997: 221; Halbert, 1999: 77). For example, bilateral trade agreements have enabled the US to enact copyright laws in Singapore, Malaysia, Indonesia and South Korea (Jussawalla, 1992: 67). The international intellectual property rights regime has been strengthened through the World Intellectual Property Organization (May, 1998: 256) and the US succeeded in pushing through strong protections for intellectual property in the Trade Related Intellectual Property (TRIPS) agreement under the auspices of the World Trade Organization (Goldstein, 1994: 195; May, 1998: 256; Sell, 1995). The TRIPS agreement requires member states to comply with certain standards of protection for copyright, trademarks, industrial designs, patents, etc. (Jackson, 1998: 473).
Yet many developing countries are reluctant to uphold intellectual property laws or agreements that make access to information more costly, impede technology transfer and increase the monopoly power of multinational corporations (Alleyne, 1995: 133; Jussawalla, 1992: 39-40, 58). Countries who view intellectual creativity as a collective rather than an individual creation, who themselves hold few copyrights, or who seek to further national and economic development through the cheap and widespread dissemination of intellectual products, see little reason to enforce restrictive copyright laws (Alleyne, 1995: 124; Burk, 1997: 213; Halbert, 1999: 78). However, many developing countries find themselves in a dilemma. While less stringent enforcement of international intellectual property regimes may provide developing countries with greater access to information resources from the more advanced industrial economies, the same rules may allow multinational corporations to extract and exploit economic and commercial information about national industrial and agricultural resources within developing counties. As Thurow (1997: 100, 103) notes, rather than conform to the intellectual property regimes of developed countries, developing countries should ensure that any copyright regime they adopt addresses their particular needs.
As we have earlier stated, computer networks can be used to alter the balance that different countries have achieved between information as a commodity and as a social good. Tensions over intellectual property law both within and between countries revolve largely around where to draw the line between information control and the free flow of information. As trade in online information, products and services grows, copyright holders seek out ways to charge for every use of information, to prevent unauthorized uses, and to assert and extend their ownership over information, ideas and artifacts (Bettig, 1997: 140, 147; Halbert, 1999: 49; Mosco, 1989). Such behaviour is in keeping with the logic of the marketplace and constitutes a modern enclosure movement (similar to that of the enclosure of public lands in England during the first half of the nineteenth century) in which ideas and information are being converted from common goods into private property (Bettig, 1992: 138; 1997: 138; Thurow, 1997: 101). The more cultural artifacts and assets are privately controlled and monopolized, the fewer opportunities the public has to participate in the iterative creation and recreation of social and cultural life (Bettig, 1992: 152; Halbert, 1999: 147). While the commercialization of computer networks and information may be inevitable, as Abrahamson (1998: 14) argues, many fear that unchecked commercialization and commodification will impede information’s widespread distribution and the social benefits that come from sharing information (Besser, 1999; Halbert, 1999; Thurow, 1997: 101). From this perspective, too much control over information discourages creativity, commentary and criticism. On an international level, excessive control over intellectual property inhibits the free flow of information between developed and developing countries and leads to a loss in social and economic welfare (Jussawalla, 1992: 86, 110-11). As private parties reach to extend copyright protections locally and globally, societies must ask themselves at what point information control and ownership exceed adequate incentives and rewards for the creation and trade of intellectual artifacts and begin to harm the collective good.
Precisely where to strike this balance is a matter of both law and policy. Governments must decide the extent to which copyright will be protected on computer networks and which rights will be upheld against the technology’s ability to negate them. Many nations have been quick to devise laws and legislation that bolster intellectual property protections for copyright holders and strengthen the global trade in information (Bettig, 1997: 150; Halbert, 1999: 37, 43-4). Law and policy will also decide the extent to which private computer code and practices will be allowed to override the collective good aspects of intellectual property law, and what Lessig (1999: 126-7) calls the copy duties of copyright holders. Governments must also consider whether, and under what conditions, information and knowledge should be publicly available and accessible (Branscomb, 1994: 3; Demac, 1994: 63; Lessig, 1999; Thurow, 1997: 103) and to what extent they will adhere to international agreements, like the TRIPS, in their struggle to access and disseminate global information while protecting potentially valuable local intellectual and information resources. The ability of governments to effectively address these issues varies widely and, as we shall discuss later, is dependent on a variety of international and domestic factors not all of which are subject to governmental control.
The ability of computers to collect, search and exchange data feeds a growing market for personal information and harbours the potential to erode personal privacy. Personal information can be collected any time someone writes a cheque, uses a credit or debit card, engages in a financial transaction, views World Wide Web pages, or does anything else that generates a data trail (The Economist, 1999Peterson, 1995: 167), and it includes names, telephone numbers, marital status, education level, job history, credit history, medical records, and any other information that can be linked to specific persons or data subjects (Branscomb, 1994: 4). Often, individuals have little choice but to reveal this information, which is collected without their consent or knowledge, or is a byproduct of a sale or service transaction (1994: 4; Gandy, 1993: 78, 82; Peterson, 1995: 164). Furthermore, personal information can become the basis for decisions made about an individual by others, such as whether someone is offered a job, targeted for government surveillance or eligible for medical insurance (Branscomb, 1994: 4). As Gandy (1993: 83-4) notes, personal information derives its market value from the signals it gives organizations about the desirability of forming relationships with individuals as consumers, employees or political agents.
The growing trade in personal information has many nations concerned about the privacy rights of their citizens. Though conceptions of privacy vary from country to country, privacy is frequently linked to the rights of individuals to enjoy autonomy, to be left alone, and to determine whether and how information about one’s self is revealed to others (Branscomb, 1994: 28; Johnson, 1994: 225; Peterson, 1995: 171; Westin, 1967: 7). A useful definition of privacy is provided by Westin: ‘privacy is the claim of individuals, groups and institutions to determine for themselves, when, how and to what extent information about them is communicated to others’ (1967: 158). A central privacy concern of many nations, and one which we will focus on here, involves the ability of individuals to access and control how their personal information is used by others (Gellman, 1997: 278; Global Internet Liberty Campaign, 1998: 1; Peterson, 1995: 164). As computer networks provoke more and more privacy conflicts between information subjects and information users, the question of who controls personal information takes on increasing importance. Surveillance of individuals by businesses and governments, the dissemination of personal data across national borders, and the use of information for purposes other than that for which it was originally collected, as well as other uses and abuses of personal information, are prodding many governments to rethink their privacy policies. Governments must determine whether privacy policies are necessary to limit the collection and use of personal information by both governmental and private parties, and, if such policies are necessary, how best to formulate them.
Opponents of government regulation of privacy argue that privacy rights are bad for commerce, technologically unenforceable, and antithetical to free speech. This view, typified by an issue of The Economist (1999)(focusing on privacy, holds that privacy rights impede the free flow of information by putting constraints on the trafficking of personal information and that the inability to control technology makes the decline of privacy as a value inevitable. The ability of privacy rights to inhibit unfettered trade in personal information is also seen as interfering with free speech, though Peterson (1995: 173) points out that the equation of free trade with free speech comes primarily from businesses who sell personal information and marketing firms who use it to sell products. For many opponents of government privacy regulations, voluntary self-regulation on the part of industries and organizations who control personal information is the best means of addressing privacy concerns. From this perspective, personal information belongs to those who collect it (Branscomb, 1994: 13), and ownership confers the right to determine how it is used. On this view, the only way for governments to balance privacy concerns against free speech and the free flow of information is to allow private companies to self-regulate (Cochran, 1996).
Proponents of government privacy regulation argue that privacy is a social value that governments must affirmatively protect. In their view, personal information is a type of asset or property that is rightly controlled by the person who generates it, rather than those who collect it (Branscomb, 1994; Gandy, 1993; Lessig, 1999: 156; Westin, 1967). Indeed, those who collect this information surreptitiously or without fair compensation can be seen as engaging in a type of theft (Gandy, 1993: 82). According to Peterson (1995: 186) and Branscomb (1994: 30), the taking of this asset warrants some form of compensation. However, while Branscomb (1994: 28) believes that responsible companies could offer consumers sufficient incentives to release their personal information, Gandy (1993: 91) maintains that fair or equitable compensation is impossible because individuals have no way of estimating the true value of their information. From this perspective, industry self-regulation is an inadequate means of protecting privacy rights. Self-regulation generates conflicting and complex rules among different industries and sectors which increase the costs of business compliance and which undermine consumer confidence (Green et al., 2000). Government regulation, on the other hand, allows for consistent privacy policies which facilitate the flow of legitimately traded information, bolster electronic commerce and protect human rights (Araki, 1989: 193; Global Internet Liberty Campaign, 1998; Green et al., 2000; OECD, 1997: 15, 18).
The privacy policies of the United States and the European Union (EU) draw on the two approaches to privacy rights outlined above and illustrate two contrasting ways in which governments can respond to privacy concerns. In its 1995 Data Protection Directive, the EU explicitly affirms the right to privacy of EU citizens, and defines a comprehensive set of principles and provisions that adhere to that right. The Directive accords specific rights and responsibilities to data subjects and data processors, protects data subjects’ rights to control the collection and use of personal information by both governments and private companies, and harmonizes data protection rules among member countries. Among its many provisions, the Directive requires that companies or agencies wanting to process personal information first gain the unambiguous consent of the data subject.3 Since data subjects must ‘opt into’ personal data transactions by granting their free and informed consent, the burden of initiating this process falls on the would-be information processor and non-consenting data subjects are spared the task of tracking and halting objectionable uses of their information (Peterson, 1995: 180). Another provision, perhaps the most controversial in the Directive, prevents personal data from being exported to countries that do not provide comparable levels of protection. Some view this rule as an impediment to the development of electronic commerce in EU countries and to trade with outside countries, such as the United States, which lack significant privacy protections (The Economist, 1999 23; Mitchener, 2000: 32). At the very least, the Directive creates pressure on countries who want to trade with European Union members to develop comparable data protection rules (Global Internet Liberty Campaign, 1998).
Governments around the world have started to tackle the difficult issue of devising laws and policies to protect the data privacy of their citizens. These positions range from the strong protections offered by the EU to the self-regulation model adopted by the US. However, this remains a constantly shifting legal and policy terrain, and most national positions are still in a state of flux. Instead of describing the state of national policies as they relate to specific countries, we offer a broad schema that allows for the assessment and analysis of national policies and, consequently, the condition of privacy protections offered by national policies. Broadly, governmental attempts to regulate data privacy can be assessed according to the degree of protection offered to citizens in four general categories: consent, disclosure, security and accuracy, and enforcement. Consent deals with the right of individuals to decide when, how and what kinds of information about them is collected over a computer network. It also includes the activities for which that information is collected and the clarity with which an individual is made aware that consent is required and being asked for. Disclosure deals with the terms, conditions and circumstances under which an agency collecting information is permitted to disclose that information to other agencies, including the kinds of organizations and activities for which disclosure may be permissible. Security and accuracy involve the obligation of information collecting agencies to ensure that the collected information is securely stored and accurately maintained. The obligation to maintain accurate information contains the implicit right of individuals to have access to the information about themselves to ensure its accuracy and demand correction in case of errors. Finally, the effectiveness of privacy and data protection laws depends on their mechanisms for enforcement.
Persistent questions about who should control personal information suggest that governments will eventually have to clarify ownership rights and responsibilities. Information has become a major asset and commodity, necessitating the protection and definition of ownership rights (Branscomb, 1994: 1). Property rights in information, like property rights in traditional and tangible property, must ultimately be defined through law and legislation (Mensch, 1990: 13, 23; Michelman, 1987: 1319, 1335-6; Streeter, 1996: 207). Streeter (1996: 207) and Boyle (1997: 27) point out that all property rights and entitlements are socially constructed artifacts of governments who must allocate specific legal powers to some and withhold them from others. In the case of information assets, this allocation of rights is by no means straightforward. As Gandy (1993: 75) argues, personal information is created when someone observes the behaviour of another, and property rights in that information are highly debatable. Whether personal information belongs to those who generate it or those who collect it, and whether anyone has the right to traffic in this information, are political questions that must be determined through the development and application of legislative, policy and regulatory mechanisms.
Freedom of Expression
Freedom of expression is a value that numerous nations endorse as a political or social right. While countries, such as India, the US, Canada and others, protect speech rights in their national constitutions, many others acknowledge this right in international human rights agreements. For instance, both the International Covenant on Civil and Political Rights (1966) and the Universal Declaration of Human Rights (1948) guarantee people ‘freedom to seek, receive and impart information and ideas’ in all media regardless of geographical frontiers. While it may be true that many nations support freedom of expression in theory rather than practice (Human Rights Watch, 1999: 3), speech rights nevertheless remain an expressed value and goal of many nations.
Computer networks open up new and significant opportunities to engage in expression. Computer networks allow groups within civil society to forge direct connections with one another through electronic mail, web pages, file transfers, real-time messaging, and online newsletters and discussion groups. In this sense, computer networks fill a communicative gap between interpersonal media, like telephones, and mass media, like television (Human Rights Watch, 1999: 14; Kavanaugh, 1998). These networks also enable communication which bypasses media gatekeepers and resists government controls on speech. People around the world can utilize these networks to circulate political and cultural content that is censored or suppressed offline, such as sexually explicit works, politically dissident information and ideologies, hate speech, banned texts, and other materials deemed subversive. Computer networks make it possible, as Taubman (1998: 261) argues, to establish social networks outside official government channels. One reason they can do so is that current computer network technology makes government control of speech in this medium a complex proposition (Froomkin, 1997: 129; Lessig, 1999: 166). The ability to communicate anonymously, to encrypt messages so that only specified senders and receivers can read them, and to distribute data over decentralized routes all make computer network communication difficult to monitor or block. For those with access to them, these networks enable a range of practices conducive to freedom of expression.
The ability to circulate what some governments deem objectionable content has provoked social conflict, and in some cases swift policy responses, in numerous countries. Both the United States and Australia have made bids, successfully in the case of the latter and unsuccessfully in that of the former, to criminalize the distribution of sexually explicit material on the Internet on the grounds that it could be available to children (Murphy, 1999). In China, the government requires Internet service providers (ISPs) to block objectionable pornographic or political sites. Included among these sites are those carrying American news media, news and commentary from Taiwan, appeals to free Tibet, and other content which threatens to disrupt ‘public order’ (Froomkin, 1997: 145; McCarthy, 2000: 22; Rosenthal, 2000: A1; Smith, 2000: C2; Taubman, 1998: 264-5). In Kuwait, Israel and Saudi Arabia, the Internet has been perceived as a threat to local religious and moral sensibilities (Human Rights Watch, 1999: 21, 24; Wheeler, 1998: 362, 365). Scholars have suggested that government regulation of content may occur for political and ideological reasons or as a response to societal pressures to repress ‘immoral’ or ‘unethical’ communication (Rogerson and Thomas, 1998; Taubman, 1998). Although each country has a different definition of what constitutes objectionable content, these definitions are grounded in the cultural values, political beliefs and historical circumstances of each.
Government attempts to control political and cultural content on computer networks raise questions of how speech rights will be configured in these forums and what content government can legitimately regulate. While some scholars would prefer that computer networks be free from any government regulation which affects content (Cate, 1995: 1; Labunski, 1997: 191-2), others find it unrealistic to expect governments to refrain from content regulation (Mayer-Schönberger and Foster, 1997). For many countries, content regulation is an extension of social and cultural norms and standards. Rules that apply offline, such as restricting access to pornography or discouraging speech that insults or degrades racial, ethnic or other social groups, become applicable online. As Wheeler (1998) argues, the cultural values and frameworks of a nation will affect the practices and policies surrounding computer networks.
Scholarship on speech rights and computer networks focuses on three primary concerns that relate to the conditions prohibiting or promoting freedom of expression. First, analysts identify potential methods of government control of information. Although scholars unanimously acknowledge that total control is difficult to achieve, they nevertheless catalogue numerous methods whereby governments can effectively (if not completely) control speech. Second, scholars examine the efforts of authoritarian or non-democratic governments to control political speech. This research scrutinizes the popular assumption that computer networks are inherently democratic and able to deflect government control. Third, scholars examine the jurisdictional questions raised when the social and cultural restrictions on speech in one country clash with those of another. The ability of citizens to access materials that are banned or restricted in their own countries raises the question of whether international cooperation and agreement will be necessary to enforce content regulations or whether such regulations will become increasingly untenable.
The openness of computer network architecture has not prevented governments from pursuing numerous strategies to control or contain access to objectionable content within their borders. As Mayer-Schönberger and Foster (1997: 235) note, national restrictions on freedom of expression are common around the world. Although specific content regulations may change from year to year, most regulations exhibit commonalities that are likely to persist over time. Regulatory restrictions and content containment strategies can be divided into those that attempt to control gateways to content and those that attempt to control the users themselves. Governments have multiple means of controlling or creating content gateways. Many governments require ISPs to filter or block objectionable content on their systems. By limiting the number of ISPs available, licensing them, or managing them outright, governments can keep a close watch on ISP activities. Governments can also establish proxy servers that act as gateways through which users must pass to gain access to global networks. Both ISPs and proxy servers can utilize software that filters content based on criteria such as the e-mail addresses of senders and recipients, Internet protocol addresses which identify message origins or destinations, or characters that appear in the body of a message (Human Rights Watch, 1999: 36; Kavanaugh, 1998: 37). Kuwait, Saudi Arabia, Yemen, the United Arab Emirates, Tunisia, Algeria and China are among the countries who have used these methods to constrain access (Human Rights Watch, 1999: 24; Kavanaugh, 1998: 82, 84; McCarthy, 2000: 21-2; Taubman, 1998: 265; Wheeler, 1998: 362-3). In China, Singapore and the United Arab Emirates, governments also mandate the blocking of some of the more well-known anonymous remailer sites which could help citizens circumvent content regulation (Human Rights Watch, 1999: 39). Measures like these counteract the decentralized architecture of computer networks by utilizing or creating centralized access points that are amenable to control. Governments may also monitor or restrict user access to the network. For example, in Jordan the government restricts user access by keeping the price of Internet service artificially high (Human Rights Watch, 1999), while in Myanmar only those who are close to the ruling party are authorized to use e-mail (Barron, 2000). Other nations, such as Iraq, Libya, Syria and Saudi Arabia, have chosen to deny their citizens access altogether (Human Rights Watch, 1999: 27; Schneider, 2000: A1). Finally, Chinese Internet users and publishers risk criminal penalties if they fail to register with the government (Taubman, 1998: 264).
Several studies, including Human Rights Watch’s (1999) study on the Middle East and North Africa, Kavanaugh’s (1998) study on North Africa, and Taubman’s (1998) study on China, suggest that non-democratic governments can project their political and cultural will onto computer networks. These studies collectively argue that non-democratic governments are able to increase access to the medium while simultaneously militating against the potential unintended effects of exposing citizens to what Taubman (1998: 257-8) terms ‘ideational pluralism’. Ideational pluralism, or multiple sources of ideas and information, threatens the ability of non-democratic governments to maintain hegemony over information and ideology within their borders. It also offers politically discontent groups access to viewpoints and perspectives that could help foment opposition movements. Cognizant of the threats to centralized power posed by computer networks, many non-democratic governments attempt to strike a balance between the control of information and the diffusion of technology seen as promoting economic and social advancement. While these strategies help to maintain the primacy of state-controlled information in the short term, whether they will be able to successfully control content in the long run remains to be seen. Nevertheless, all of these studies presume that network technology will be the Trojan horse that foils government control of content. There is already some evidence of the successful use of the Internet to ‘subvert’ the political control governments have sought to exercise over dissenting movements. During the Tiananmen Square uprising in 1989 and the attempted coup in the Soviet Union in 1990, phone, fax and computer networks provided alternative sources of information to the outside world (Fredrick, 1993, 293; Quarterman, 1990: xxiii-xxiv). In Mexico, a representative for the Zapatista movement, Subcommandante Marcos, was able to use the Internet to communicate with his supporters and the rest of the world (Ford and Gil, 2001). Similarly, during the Kosovo war, the dissident radio station B92 was able to continue broadcasting by using the Internet even after the station was closed down by Serbian police (Hibbert, 1999: 401).
Diverse and contradictory content regulations also raise questions about whether a nation’s rules have jurisdiction over content that originates elsewhere. Examples of jurisdictional conflict over content include a 1995 attempt by the German government to force the global access provider CompuServe to block German users’ access to 200 sexually explicit computer discussion groups and a subsequent effort on the part of the French government to pressure the search engine Yahoo! into preventing French citizens from viewing Nazi memorabilia on its English-language auction sites (Associated Press, 2000; Delaney, 2000: B10; Rogerson and Thomas, 1998: 247). Both cases raised, but have yet to answer, the question of exactly whose laws should apply to communication that regularly crosses national borders. At present, global computer networks are governed by contradictory national laws (Mayer-Schönberger and Foster, 1997). Such laws are a concern of companies who worry about their liability for data that regularly travel through multiple countries with diverse policies (White House, 1997). Contradictory laws and unclear jurisdictions are also a concern of countries who seek to protect national norms and values.
Unlike the dilemmas new technologies have precipitated in intellectual property and privacy policies, tensions over political and cultural content are the result not of conflicts over information ownership but over the social, cultural and political environment of different countries. Ultimately, these conflicts beg the question of whether governments can or should regulate content over computer networks in order to protect national values, given the political and cultural diversity both among and within nations. For many countries, the ability of citizens to communicate over computer networks destabilizes existing balances between the free flow of information and information control. While some analysts argue that computer networks are ultimately incompatible with government controls and authoritarian rule (Froomkin, 1997: 141; Wriston, 1994), others are less certain that governments will fail to assert control over these networks (Kavanaugh, 1998: xiii). Research in this area must continue to ask whether and under what conditions regulations affecting freedom of expression are appropriate and sustainable, and whether the current openness of computer networks engenders freedom of expression, or whether social and cultural practices and values will instead reshape the architecture of computer networks.
Policy Principles and Models of Global Media Regulation
Computer networks have already precipitated serious social conflicts in the areas of intellectual property, privacy and speech rights. Although computer technology and services are constantly evolving, many of the conflicts they engender will persist through successive incarnations of the technology. For this reason, governments must define the purposes, principles and values that should animate their communication systems. Making these social choices now will allow these decisions to be incorporated into technology and industry as they develop, rather than forcing costly and inefficient changes later. Thoughtful policy choices should also ensure that valued rights are respected and protected throughout this period of technological innovation and change brought on by global computer networks. This section explores models of regulation and policy principles that can be applied to computer networks. Several policy models exist for managing and resolving conflicts over computer networks, including marketplace and private sector regulation, national government regulation, and international or multinational regulatory regimes. None of these options are mutually exclusive; they can be used in combination to supplement and counterbalance each other’s protections. Nevertheless, we will discuss these models separately in order to highlight the distinctions between them and to examine their respective advantages and disadvantages. After reviewing these models, we go on to consider the principles and guidelines that might successfully steer future developments in intellectual property, privacy, and speech rights law and policy.
Given that computer networks can and will be regulated, nation-states must determine what methods of regulation to employ, whether these are public or market-oriented, based on national laws and normative systems, or subject to international agreements and covenants. To be effective, regulations must be enforceable and achieve collectively desired outcomes. Yet, global communication systems challenge the ability of nation-states to effectively regulate and to exercise their sovereignty. Sovereignty refers to a ruling body’s power to make and enforce policies that affect people or territories within its jurisdiction. One challenge comes from market institutions that increasingly assert their claim to privately regulate transactions over these networks. Another comes from the ability of communication and information to regularly cross national borders, thereby calling the jurisdictional limits of nation-states into question. Furthermore, the increasing ability of individuals and organizations to communicate globally begs the question of whether international instruments would be more effective agents of regulation than nation-states. These factors put pressure on nation-states to redefine their role in formulating and enforcing communication policy.
Whether future communication policies are market-driven or the product of national or international regulatory regimes, scholarship suggests that these policies require a socially agreed set of principles at their core. Principles are general rules or propositions on which subsequent actions can be based. In addition, they are a jargon-free way of expressing policy goals (Proceedings of the Annenberg Washington Program Panel Two, 1995: 84-5). Defining the core principles of national and international communication policy has several advantages. First, principles can underscore the values that nations wish to privilege with regards to privacy, intellectual property, speech rights and other policy areas. Principles can help nations protect access to communication systems and content, set minimum standards of conduct among data processors and collectors, and delineate spheres of public knowledge and information. Defining principles at the outset of technological development allows governments to shape communication systems before special interests become entrenched and change becomes more difficult (Kirby, 1983: 13). Principles also provide a firm foundation on which to build coordinated and comprehensive legislation. For Branscomb (1994: 84), principles are a superior basis for legislation to their alternative – narrowly conceived laws formulated in response to narrowly framed problems. Principles can also foster the linkages necessary to coordinate between national and international policy, law and technological development. Socially sanctioned principles can facilitate the harmonization of domestic laws among nations (OECD, 1997: 11), treaty negotiations among countries (Kirby, 1983: 14), and the overall development of global communication systems (OECD, 1997: 4). Finally, nations that have an express commitment to communication policy principles possess clearer benchmarks for assessing whether specific regulations achieve their desired goals.9 Without larger principles or goals in mind, any policy becomes its own end.
Principles are a critical step towards setting national and international policy goals. Yet, they are only the first step. Once principles are determined, nations must decide how to apply them. Principles must be incorporated into national and international law and legislation if they are to have any force or effect. Meshing international and other guidelines, which do not have the force of law, with legal traditions and practices in individual countries will be challenging (Kirby, 1983: 17-18). Nations will also have to decide the domains in which to apply these principles. For example, while EU privacy principles apply across all information processing, marketplace policies focus on specific industries, technologies and other sectoral divisions. In the area of speech rights, scholars disagree over whether access principles should be applied according to the specific technology involved (Cate, 1995; Labunski, 1997), the functions of the medium (Melody, 1990; Plotkin, 1996: 238), or the classification of an entity as a content provider or transmission facility (OECD, 1997: 4). Despite these difficulties, the process of harmonizing and coordinating national and international policy cannot succeed without attention to the fundamental principles that will guide these policies and shape global communication systems.
Marketplace regulation of computer networks, through code and contracts, threatens to significantly narrow the sovereign powers of many nations. The use of competitive markets to allocate communication resources is favoured by many scholars and policy-makers. According to supporters of marketplace regulation, markets are responsive to fluctuating demands for products and services, can measure the value individuals assign to various communication services, and ‘depoliticize’ decision-making by allowing private actors within the marketplace to determine resource allocation (de Sola Pool, 1983; Kahn, 1988: Preface). The primary goal of market systems is economic efficiency, and the ability of economic efficiency to maximize the wealth of nations is equated with the overall public interest and beneficial social outcomes (Office of Technology Assessment, 1990: 21-2). From this perspective, marketplace regulation is preferred to government regulation which is seen as hindering the efficient allocation of resources, as well as improvements in products and services (Hilton, 1972; Kahn, 1988; MacAvoy, 1979).
Market regulation, also referred to as private sector or self-regulation, allows private actors operating within competitive markets to settle social conflicts over communication (Mosco, 1988). Under a market model, businesses can develop their own rules, standards and practices (Glickman and Carney, 2000: 196), and consumers are free to patronize those businesses whose rules and practices they favour. The legitimacy of this model rests on the assumption that consumers can choose at any time to ‘exit’ a relationship that involves one set of rules in order to form a new relationship under another rule set (Johnson and Post, 1997: 32). In this model, the role of government is limited to establishing a legal framework that facilitates commerce, provides industries with incentives to regulate themselves, and maintains marketplace competition and consumer choice. Extending the argument to the international arena, market theorists maintain that an international market economy, institutionalized in international economic regimes characterized by self-regulating norms and rules, would constitute a public good for all nations in the system because it would ensure the greatest economic benefit for the greatest number (Gilpin, 1987; Kindleberger, 1978; Krasner, 1991; Waltz 1979). This is the preferred model of the US, which would like the private sector to build and control computer networks (Bettig, 1997: 146; White House, 1997: 18-19).
Johnson and Post (1997), Reidenberg (1997: 100) and others argue that computer networks are good candidates for private sector self-regulation. In their view, computer networks constitute distinct spaces, clearly demarcated from the real world, with their own unique problems. They argue that computer network providers and infrastructure organizations can take on their own sovereign powers by creating their own borders and rules of order. Network users and system operators could devise their own rules for controlling behaviour in these spaces, and system operators could ban users who didn’t follow their rules. Banned or discontented users would be able to establish new relationships with other system operators, presumably under better conditions and terms of service. Johnson and Post suggest that, excepting cases where network activities affect the vital interests of nation-states, national governments could defer their authority over behaviour in these spaces to network self-regulation. While Reidenberg (1997: 96) believes that governments must continue to protect the public interest over computer networks, he also suggests that they reallocate some of their authority to the virtual world. On a similar note, Louveaux et al. (1999) suggest that ‘cyber-tribunals’ or ‘virtual magistrates’ be set up online to provide non-judicial dispute resolution for conflicts that occur over computer networks.
Private sector regulations may be implemented through voluntary standards and codes, contracts between service or access providers and consumers, and the conscious design of network architecture. While private sector regulations allow businesses to determine the methods and values behind network regulation, they risk short-changing the public good aspects of communication law and policy. Voluntary standards and codes allow businesses maximum flexibility in regulating their own behaviour over computer networks. However, voluntary rules can easily result in overlapping and conflicting guidelines, especially since these rules can apply variously to individual companies, industry sectors, particular corporate functions, professional associations or the technology itself (Gellman, 1997: 256, 260). Poorly structured private sector regulations can also leave significant gaps in the areas and practices they cover. Furthermore, since there are no penalties for failing to enforce voluntary rules, incentives to adhere to them may be weak.
Regulation of behaviour over computer networks can also be achieved through the use of private contracts. Access or service providers can subject network users to contractual arrangements as part of their terms of service (Bing et al., 1983: 114; Proceedings of the Annenberg Washington Program Panel One, 1995: 26). These contracts effectively establish private law and policy on computer networks. For example, those who control intellectual property increasingly employ contracts to lay out conditions and terms of service. These contracts may specify acceptable uses of their products and require consumers to waive their rights under intellectual property law, such as the right of fair use or first sale (Lessig, 1999: 135). Thus, while contracts can be used to resolve conflicts surrounding information flows over computer networks, they can also be used to displace or circumvent rights established under public law.
Finally, the private sector can use technology to solve problems associated with intellectual property, privacy and freedom of expression. Lessig (1999: 7) argues that, without government intervention, computer networks will be regulated by code, or the software and hardware that makes up these systems. There are many examples of regulation through network technology. Technological means, such as filtering or age verification systems, can be used to control access to objectionable expression over computer networks (1999: 175-6; White House, 1997: 25). Software programs can be used to protect privacy by determining a user’s privacy preferences and alerting the user when computer sites don’t meet their standards (Global Internet Liberty Campaign, 1998; Green et al., 2000: 94; Lessig, 1999: 160). Technology can also be used to extend the control of copyright holders over intellectual property by tracking and controlling copies of materials or by designing technology in a way that limits its potential uses. For example, digital audiotape (DAT) is designed to degrade in quality with successive copies, even though DAT is technically capable of producing an infinite number of perfect copies (Lessig, 1999: 128). While technology can solve problems brought on by computer networks, it will solve these problems according to who has power in the marketplace and who controls or owns the technology (Lessig, 1999: 7). In some cases, consumers may be able to use technology to protect their rights and preferences. Privacy software or filtering programs implemented by the end user exhibit this capability. Conversely, technology may be used to strip consumers and citizens of rights they hold under public law, as in the case of some intellectual property technologies or content filters imposed by companies, service providers or governments. In the case of content filters, network users may be unaware that regulations are being applied and, therefore, be incapable of challenging them. Given the potential of technology to override public values, many analysts believe that governments must have a role in monitoring and penalizing network practices which fail to conform to accepted rights and standards (Global Internet Liberty Campaign, 1998; Green et al., 2000: 94; Lessig, 1999: 160).
Critics of marketplace regulation argue that allowing businesses to determine the social purposes of computer networks results in the erosion of public service values traditionally maintained by governments (Lessig, 1999: 59; Schiller, 1999: 59, 87). By defining economic efficiency as the end goal of communication systems, market regimes reduce information and communication to mere commodities, and fail to recognize the other roles they play within political, social and cultural life (Babe, 1995: 18). Regulating behaviour on computer networks through contract and code takes areas of regulation, including privacy, intellectual property and speech rights, out of the domain of public political processes and into that of private organizations. Rights that exist in the public realm of government will not necessarily find protection in the private realm of commerce. Governments’ role in regulating media is dramatically transformed. Whereas a public service model of government regulation expects governments to ensure access to and availability of services and technology, affordable prices for essential services, and the rights of media owners and users (Office of Technology Assessment, 1990: 23), the market model views governments as enforcers of market rules and requirements, such as property rights, contracts and information flows. Citizens who are dissatisfied with the terms of service can seek out another service provider, but they do not have the opportunity to change those terms by having a ‘voice’ in those systems (Hirschman, 1986: 77: Lessig, 1999: 201). Lessig (1999: 199) argues that governments which allow market regulation to control the architecture of the Internet will undoubtedly experience a loss of sovereignty.
Private sector regulation of computer networks is problematic in a number of other regards. As articulated by Johnson and Post (1997), network self-regulation presumes that online behaviour takes place in a unique space that is detached from the real world. This line of reasoning reifies computer networks and the activities that take place over them. In fact, as scholars such as Lessig (1999: 190) and Mayer-Schönberger and Foster (1997: 238) point out, these networks are not extraterritorial. Behaviour that takes place in online space simultaneously occurs in real geographic space. Consequently, both spaces have a degree of control over network actors. The marketplace model also characterizes network actors as consumers who are free to change rule sets whenever they become dissatisfied with conditions under a particular network service, access or content provider. Yet, for many network users, the label of consumer falls short of accurately characterizing their relationship to online spaces. As Lessig (1999: 201-3) points out, people become members of online communities; they spend time there, build relationships and establish social capital. Given these circumstances, moving to another rule set can constitute a significant burden, and human dignity may demand that people have some opportunity to shape these spaces (1999: 217). Finally, private sector regulation has certain disadvantages compared with government regulation. Unlike government regulations which are transparent in the sense that they are publicly known and scrutinized, private sector regulations are often non-transparent. Private regulators can be less forthcoming and less accountable than their public counterparts (1999: 178-1). Private sector regulations are also less likely to achieve the kind of coordinated and predictable network environment many business users seek. While these regulations may resolve some conflicts over information and communication, they may also work to achieve private goals, like the extension of control over information, that disregard public values. Even with private sector regulations in play, governments must be called on to resolve disputes that arise and to ensure that public values associated with law on intellectual property, privacy and speech rights are preserved.
National Government Regulation
National government regulation of communication policy can be set through national laws, legislation and rule-making bodies. Policy may be written into government constitutions, as is the case with speech rights protections in many countries. Newer constitutions may even include rights associated with data protection, such as the right to access and control personal information found in the constitutions of Hungary and South Africa. National legislation allows countries to systematically consider different policy options and to collectively choose the values animating their communication systems. National judiciaries can adjudicate conflicts that arise according to the legal traditions and customs of a given country.
National regulation allows for political choices to be made on a scale commensurate with citizen participation and with government accountability. National governments possess the tools to devise and enact policies that protect public values and interests (Reidenberg, 1997: 96). For example, as research on data protection shows, comprehensive national regulation is key to controlling abuses of information privacy (Lessig, 1999: 163; Peterson, 1995: 164; Reidenberg, 1997: 95). Governments also define the rules that govern communication markets and act as a line of defence against private actors who use contracts, technology or other methods to erode public rights in favour of private interests. Hence, Lessig (1999: 197-9) argues that governments must ultimately decide the degree of protection to give to values that are called into question by new technologies, as well as the appropriate balance between the rights and responsibilities of network users and network owners.
Notwithstanding the importance of the role governments can and in many cases should play in the governance of new communication technologies, of significant concern is their very ability to devise and enforce effective regulations. The main dilemma being faced by governments is how to respond to the growing technological and economic pressures brought about by global computer networks, while safeguarding important social and political goals and objectives. While there is no correct blueprint for what makes government oversight successful, there are certain themes and characteristics that will determine the effectiveness and credibility of national regulation. First, it is important to recognize that the development of national policies toward communication technologies is a political process, and the nature of the political system and the dominant political ideology will be key factors in determining the nature and substance of the policy process. Second, the strength of the legal system, including the nature of contractual laws and the property rights regime within a country, will be critical for providing stability and enforceability of national policies. Finally, the nature and effectiveness of safeguarding institutions like the judiciary and the regulatory agencies and instruments developed to oversee computer networks will be crucial to determining the effectiveness of the management of these new technologies. Many countries lack the institutional framework required to effectively develop and implement national policies and regulations.
Another challenge to national sovereignty stems from the ability of computer networks to facilitate interactions between people and organizations residing in different legal jurisdictions. Legal differences between jurisdictions cut across multiple areas of law, including privacy, freedom of expression and intellectual property, and are often related to the different culture, history and attitudes of specific countries (Kirby, 1983: 11-12). When communication crosses many jurisdictions and has effects in many places, including outside its country of origin, the authority of any one territorial sovereign to apply laws becomes questionable. The ability of computer network communication to regularly cross national borders makes it difficult for governments to determine whether an activity or actor falls within their jurisdiction (Rogerson and Thomas, 1998: 430). In addition, the architecture of global computer networks, with its possibilities of anonymity and decentralized communication, can frustrate governments’ attempts to identify and locate people engaged in illegal behaviour (Lessig, 1999: 19). In effect, these features of global communication systems weaken the relationship between sovereignty and geographical territory (Gellman, 1997: 271; Kirby, 1983: 12; Reidenberg, 1977: 85). Sovereign power has traditionally depended on the ability to regulate behaviour within a particular geographic territory and on the implicit or explicit consent of those governed (Johnson and Post, 1997: 5-6; Perritt, 1997). These aspects of sovereignty do not readily translate into a context in which behaviour involves multiple jurisdictions.
Such behaviour is increasingly being seen as part of the emergence of a global or transnational civil society (Braman and Sreberny-Mohammadi, 1996; Calabrese, 1999; Frederick, 1993; Hamelink, 1991). Defining civil society as that part of collective social life that is free from both the power of the state and the market, these scholars document the impact of computer networks on growing transborder cooperation between various types of citizens groups especially in the areas of human rights, consumer protection, peace, gender equality, racial justice, environmental activism, consumer protection and workers’ rights (Frederick, 1993: 285). These new social movements, non-governmental organizations (NGOs) and citizen advocacy groups have taken advantage of networks such as the Association for Progressive Communications (a network connecting dozens of smaller networks such as Econet, PeaceNet, ConflictNet, and WorkNet) to provide alternative mechanisms for citizens to support and participate in a variety of global activities. A number of scholars have documented the use of communication technologies in general and computer networks in particular to foster transnational progressive, alternative and radical social movements (Calabrese, 1999; Downing, 2001; Ford and Gil, 2001; Waterman, 1998). Though there is no doubt that computer networks have increased the scope for global civic engagement by citizens often in opposition to the positions taken by their own national governments, the long-term impact of both new technologies and new social movements on the overwhelming power of states and markets is as yet undetermined. It is important to note that though legal and jurisdictional conflicts may weaken the ability of nations to regulate, they do not render national regulation altogether ineffective. Nations can still assert control over network users, operators and infrastructures within their jurisdictions (Reidenberg, 1997: 99). For example, data havens, or countries which apply few or no rules to computer network communication, may not be able to shield computer network communication from the jurisdictional claims of other countries. Other nations may succeed in claiming jurisdiction over the network equipment and facilities which allow data havens to achieve connectivity outside their territory, or over the network users and operators who maintain citizenship outside the data haven (Garfinkel, 2000: 238-9).
While national government regulation is both unavoidable and, in many cases, desirable, it also has significant weak points. If not kept in check by a strong conception of public rights, governments may go beyond maintaining the structures which protect rights and instead become a prime violator of these rights. As we have noted, authoritarian regimes continue to limit the range of information and ideas that they want circulating within their civil societies and view computer networks as real threats to their ability to control the nature and flow of information within their societies. Further, for governments who fail to set national policy in a comprehensive or coordinated way, conflicting rules can hinder electronic commerce and create uncertainty for network users (Gellman, 1997: 256-7). Finally, national regulation alone cannot solve problems that arise when communication crosses numerous jurisdictions with conflicting policies. Such cases call for international and multilateral policy responses. Nevertheless, the authority of nations to regulate across jurisdictions remains precarious, and national rules will be harder to assert over global computer networks absent an amenable network architecture and international cooperation.
International and Multinational Regimes
Effective regulation of global computer networks may require the development or refinement of international instruments and institutions for communication policy-making. Many scholars point out the growing links between national and international policy. Domestic policies in one country can easily have effects on other countries (Michalski, 1989: 15; OECD, 1995: 4). Transnational laws, such as the European Union Privacy Directive, have ramifications for countries both inside and outside their jurisdiction (Kirby, 1983: 52; OECD, 1995: 5). And global transactions raise transnational problems whose solutions require international cooperation and coordination (Kirby, 1989: 167; Lessig, 1999: 205-6; Mayer-Schönberger and Foster, 1997: 243; OECD, 1997: 5). Proponents of the global marketplace argue that international organizations should be used to harmonize conflicting commercial regulations and set the rules of the global market game (Bitterman, 1989: 308; Cate, 1994; Glickman and Carney, 2000). From this perspective, international ICT policy is necessary to rationalize and refine global competition. From another angle, Lessig (1999: 205) argues that global ICTs open up new communicative spaces in which citizens from around the world can participate. As activity in such spaces increases, more questions are raised about our legal status there (1999: 226). For Lessig, clarification of the rights and responsibilities that adhere to international spaces and international life is essential for the fair and humane treatment of all network users and participants.
Conflicting legal rules have created pressures to harmonize regulation across countries or to find some method of coordinating or cooperating among multiple jurisdictions (Glickman and Carney, 2000: 195; Hudson, 1994: 141; Lessig, 1999: 192). In other words, nations must accept laws that apply across multiple jurisdictions or agree on a way to determine, in cases of conflict, whose laws apply. International cooperation could come in many forms. Countries could mandate the regulability of network architecture, and mutually agree to enforce one another’s laws by instituting mandatory electronic identification and zoning (Lessig, 1999: 207). Nations could cede some of their sovereign powers to third parties, such as international regulatory agencies, arbitrators or courts (Johnson and Post, 1997) – though, in this case, national legal systems would be necessary to implement, enforce or interpret third-party decisions (Perritt, 1997). Whichever mechanisms or methods are chosen, cooperation and coordination will require the establishment of international policy principles which serve as a common denominator between countries and/or which indicate the circumstances in which sovereignty should be deferred. Establishing these principles requires that nations come to some agreement on the political and economic goals of international society and international life (Alleyne, 1995: 17).
Global information flows, along with the jurisdictional limitations of nation-states, necessitate the development of transnational regimes for communication law and policy. The majority of communication and legal scholars support the idea that the protection of legitimate rights and interests on global communication systems requires international cooperation (Bitterman, 1989: 308; Blumenthal, 1999: 550; Cate, 1994; Glickman and Carney, 2000; Kirby, 1989: 167; Lessig, 1999: 205-6; Mayer-Schönberger and Foster, 1997: 243; OECD, 1997: 14; Thurow, 1997: 100; White House, 1997: 12). What these scholars disagree on, as our earlier discussions on speech rights, intellectual property and privacy suggest, are the normative goals of international cooperation and how these goals are best achieved. Since these perspectives have already been covered at length in earlier sections, our purpose here will be to briefly survey the current landscape of transnational treaties, agreements and organizations, along with the promises and pitfalls they hold for global media regulation.
Transnational communication regimes are nearly as old as the earliest global media, the mails and the telegraph. In 1849, multinational agreements were forged to rationalize the transnational use of the telegraph, and in 1865 20 countries signed a multilateral treaty that created the International Telegraph Union (ITU), an organization designed to set the rules for international telegraphy. Later renamed the International Telecommunication Union and incorporated into the United Nations, the ITU makes binding decisions regarding the technical regulation of telecommunications, including the protocols used for modems. In the case of the mails, the formation of an organization in 1874 that would eventually become the Universal Postal Union (UPU) heralded the beginning of a multinational postal regime. The UPU today encourages worldwide international cooperation and standardization of postal services (Bing et al., 1983: 133). Intellectual property law has been subject to multilateral copyright agreements since 1886 when several countries, including Japan, Germany, France and the United Kingdom, adopted the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention sought to establish international norms for intellectual property protection by requiring member states to accord the same intellectual property protections to nationals from other member states as exist for their own citizens, a concept known as the national treatment standard (Berne Convention, 1886; Braunstein, 1989; Goldstein, 1994: 183-4). To date, international rule-makings and organizations have centred largely on the areas of mails, telecommunications and intellectual property (Alleyne, 1995: 21).
The preponderance of international intellectual property agreements and organizations is due largely to the desire of intellectual property holding countries to protect their goods against piracy and fraud. International agreements generally aim to establish international intellectual property principles and to harmonize intellectual property laws (Bing et al., 1983: 134; Jussawalla, 1992, 4). In addition to the Berne Convention, intellectual property protections have been part of numerous bilateral and multilateral agreements, including the Universal Copyright Convention (UCC), the World Trade Organization (WTO), the North American Free Trade Agreement (NAFTA), the US-Canada Free Trade Agreement, and many others. Since 1967, the Berne Convention has been administered by the World Intellectual Property Organization (WIPO).10 Another prominent international intellectual property agreement, the Universal Copyright Convention (UCC), was created in 1952 to impose minimum intellectual property requirements on the US, Latin America, Europe, Asia and Africa. Administered by the United Nations Educational, Scientific and Cultural Organization (UNESCO), the UCC acts as the smallest common denominator for intellectual property law at the international level (Bing et al., 1983: 79). In 1996, the Berne Convention was updated to include the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. These two treaties sought to strengthen intellectual property rules in relation to digital communication and to encourage online commerce (White House, 1997: 13). Another international intellectual property organization, the Internet Corporation for Assigned Names and Numbers (ICANN), was established in the late 1990s in order to administer Internet domain names and intellectual property addresses. Unlike all of the aforementioned organizations which are publicly funded and maintained, ICANN is a private, non-profit group.
Countries have been slower to forge transnational agreements on privacy issues and speech rights. Two transnational organizations, the Organization for Economic Cooperation and Development (OECD) and the Council of Europe, have devised privacy guidelines for transnational information flows based on fair information practices (Gellman, 1997: 265). OECD and Council of Europe guidelines have become the foundation for numerous countries’ privacy policies. In addition, the European Union leads the world in promoting international cooperation and harmonization of privacy policies. The EU Privacy Directive, like other EU Directives, formulates centralized policy objectives and standards at the European level and asks EU member states to implement these in their respective nations. Although Directives do not create transnational rights that citizens can draw on directly, they do allow member countries to implement uniform rules in such areas as data protection and intellectual property (Reidenberg, 1997: 94-5). In the case of the Privacy Directive, the EU has been able to coordinate information policy among its member nations and to pressure many nations outside the EU to conform to higher privacy standards. Finally, several international rights covenants exist which include speech rights clauses, convenants such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the (European) Convention for the Protection of Human Rights (Cate, 1994: 470). These agreements declare the intentions of their signatories to uphold the values of freedom of expression and information.
International and multinational agreements and organizations exist in various states of development in countries across the world, with intellectual property rights regimes tending to be more developed, speech rights less so, and privacy rights somewhere in between. While these efforts represent necessary first steps in ensuring global communication rights regimes that can keep pace with global communication processes, they also highlight several issues that will need to be addressed if nations are to pursue more equitable international policies. These issues include how such regimes will affect included and excluded countries, how representative they are of the world’s citizens and countries, and how their rules will be coordinated, monitored and enforced. First, multinational regimes are prone to inclusion and exclusion problems. As we saw with the EU data protection rules and some intellectual property rules, excluded countries that did not ascribe to an agreement’s norms and standards felt pressured to conform nevertheless. This issue is particularly pronounced for developing countries who are pressured to adhere to restrictive intellectual property rights that do little to promote the growth of knowledge and information in their home countries. Conversely, countries that are party to these agreements have difficulty protecting their rights in outside territories. Protecting rights globally may require some uniform standards that all countries can agree to, but which leave room for flexibility and experimentation. As Burk (1997: 226, 231) suggests, international agreements should create minimum standards of protection which at the same time permit innovation and variation. One example of such flexibility is the inclusion of a global ‘fair use’ clause in the Berne Convention and UCC. Supported by African, Asian and Latin American countries, this clause allows for the circulation of copyrighted works for the purposes of teaching, scholarship or research if member countries obtain licences and provide reasonable remuneration (Goldstein, 1994: 187-9).
A second issue, and one to which less attention has been paid, concerns the representative aspects of international regimes. Ideally, international regimes should allow participating countries to coordinate law and policy so as to further the common good for all involved and should be representative of, and accountable to, those who fall under their regulations. In practice, these regimes may be unduly affected by differentials in political and economic power so that the stronger powers dominate the rule-making and policy processes (Alleyne, 1995: 152). Representation may also turn out to be a problematic aspect of private, non-profit regulatory bodies, such as ICANN. ICANN is responsible for assigning name and address spaces on the Internet, essentially delegating property rights to specific individuals. While Glickman and Carney (2000: 196) laud ICANN as a new model of international regulation, Mueller (1999: 517, 519) argues that ICANN’s private status allowed it to avoid public input and scrutiny during its formation and led ultimately to public demands for procedural safeguards like those applying to government organizations. For Mueller (1999), the rhetoric of private regulation simply masks a policy process in which valuable rights and assets are allocated without adequate public representation and accountability. Lastly, international regimes may need to be consolidated, clarified or made more effective. At present, there are numerous organizations, treaties and agreements regulating various aspects of intellectual property, privacy and speech rights law. For example, in the area of intellectual property, Kirby (1983: 49) notes that there are a number of pre-existing organizations capable of dealing with intellectual property issues, and Jussawalla (1992: 56) sees a need to specify relations between TRIPS, WIPO and the UCC. In addition, regimes can only be effective to the extent that they monitor and enforce the principles and rules they set forth. Yet, the link between some regimes and mechanisms for monitoring or enforcing policy is weak. For example, while many international rights covenants protect speech rights, none sponsors organizations which monitor speech rights violations or enforce speech rights protections.
International Policy Principles
Arriving at internationally accepted principles will be a formidable task. One method might be for nations to examine the principles contained in existing policy agreements. Yet, while Bing et al. (1983: 81) review contemporary policy instruments for indications of global communications principles, they also suggest that relying on established principles is insufficient. Global communication systems raise new and unanswered questions. In some cases decision-makers may be able to apply old principles in a new context, but in others new principles will have to be developed in accord with social, cultural and political values. In this section, we briefly lay out some suggested policy principles for intellectual property, privacy and speech rights.
In the area of intellectual property, nations must determine what principles will define the public use and availability of information and knowledge. Will fair use and first-sale principles be extended into global communication systems, or will these principles be swept away by technological design, legal means or industry practices? What length of time should copyright holders enjoy monopoly rights over intellectual property, and at what point does this monopoly become a detriment to society? Scholars suggest that principles must protect the fundamental philosophical aim of intellectual property law, the promotion and dissemination of knowledge and creativity throughout society (Halbert, 1999; Lessig, 1999; Thurow, 1997). Halbert (1999: 158) argues that intellectual property rules should strike a balance between the public good and private gain; intellectual property holders should be able to profit from their work, but not at the expense of the greater common good. Lessig (1999: 141) and Thurow (1997: 102) maintain that intellectual property principles should effectively demarcate public from private knowledge and establish a public domain or intellectual commons in which knowledge and information are broadly accessible. This public domain might include basic scientific knowledge (Thurow, 1997: 102), computer software code which enacts basic functions or processes (Jussawalla, 1992: 112), and cultural symbols that have already duly profited their intellectual property holders (Halbert, 1999).
Speech rights principles cover access to communication systems, resources and content. Some scholars, such as Hudson (1994: 137) and Melody (1990: 30), argue that universal access must be a core principle of communication policy. Melody (1990) favours the application of universal service principles to all communication systems that constitute essential facilities. The concept of universal service mandates non-discriminatory access to, and pricing of, communication systems and services. This concept is also favoured by Human Rights Watch (1999: 5, 7) as a means of preventing system gatekeepers and owners from charging monopoly prices for their services, giving special treatment to favoured content and service providers, or discriminating among those who wish to interconnect with their systems. Analysts also suggest that centralized content censorship should be eschewed. For speech rights absolutists, the government is never justified in regulating speech. For others, such as the OECD (1997: 15), governments must promote the free flow of information in a way that respects both speech and privacy rights. One principle which seeks to contain unwelcome government content censorship, put forth by Samorski et al. (1997: 163) and Human Rights Watch (1999: 4), holds that control over content should, whenever possible, be delegated to end users. Receiver-based software allows individual users to set their own parameters for filtering unwanted content and could reduce pressures on service providers to act as content gatekeepers. Human Rights Watch (1999: 6) further suggests that government surveillance be subject to due process and judicial supervision so that it doesn’t unduly infringe on individuals’ privacy or civil rights. Additional speech rights principles have been set out in UNESCO’s new world information and communication order (NWICO) initiative, which advocates a plurality of information sources, freedom and responsibility of communication workers, and the rights of all citizens to participate in international information exchanges and communication processes (Alleyne, 1995: 123).
New media, and the practices and institutions surrounding them, pose significant challenges to regulatory regimes around the world. National control over communication systems is complicated by technologies whose reach and effect extends beyond the jurisdictional boundaries of nation-states. Many governments fear the loss of political and economic sovereignty, others the loss of cultural identity. New media highlight a gap that now exists between life and governance; people can interact in supranational or global arenas that as of yet have no definitive mode of governance. Global networks offer a vast array of options to people, corporations and organizations for the pursuit of political, economic and cultural activities. Nations who wish to determine the goals and values that animate global media systems must pursue effective legal and legislative frameworks both nationally and internationally. In addition to transgressing jurisdictional boundaries, new media also test the conceptual and definitional boundaries of policy regimes affecting intellectual property, privacy and speech rights. Social conflicts in each of these areas demand policy responses that demarcate public rights, set behavioural standards and curtail abusive practices. New global media raise fundamental questions and concerns about who will control communication systems and the terms and conditions of access to them. These questions and concerns cannot be addressed simply by turning to legal precedent or technological solutions. Rather, nations must declare the principles that will define or redefine the social values and purposes of media systems in today’s world.
Communication and legal scholars have been charting and surveying shifts in the regulatory landscape, assessing these shifts in normative terms, and seeking workable models of global media regulation. This scholarship tracks the tremors that occur as technologies, processes of commodification or private sector regulation collide with national norms, values and practices. Communication scholars identify the characteristics and practices accompanying new technologies, examine their social and political effects, and look for indications of whether these technologies will aid or abate social control. Legal scholars observe the conflicts new technologies are already creating in national and international life and explore various tools and mechanisms that might reconcile national policy goals with jurisdictional concerns.
Monitoring and assessing the changing landscape of communication systems is a critical task in this era of rapid technological and industrial change. Only by doing so can we determine how these systems interact with global political economic processes, how their structures are being configured and developed, and how national and international policy-makers can intervene to protect socially determined goals. Global media systems like the Internet raise a classic problem of political organization. As the effects and consequences of global technology extend beyond the mechanisms for governing them, we must investigate the terms under which national and international governance mechanisms can claim to legitimately represent the world’s nations and citizenry. Scholars of political communication and the philosophy of communication should investigate the institutional and communicative resources and requirements necessary for global governance. Scholars must also examine the real practices and effects of existing national and international policy instruments and institutions. Closer study of these areas will fill the gaps that currently exist in our knowledge of how new media are affecting the regulatory landscape and help point the way towards sensible, humane and representative global communications policy.