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APPENDIX D Keynote Speech: Networked Communities and the Laws of Cyberspace Edward Markey Chairman, House Subcommittee on Telecommunications and Finance As many of you are aware, we are in a time of transition. As of last night, the Clinton administration has begun the political transition from 12 years of Republican economic policies, launching the nationally televised ''airwave" assault of Operation Shared Sacrifice with an address to Congress. The "ground war," wherein we get into the nitty, gritty details of legislation, will come later this spring. Although it is an ancient Chinese curse to live in interesting times, it's an exciting time to be here in Washington because of all the transition and the change. Everyone is throwing out the old speeches about gridlock and divided government, the misguided regulatory state, and the lack of vision. And you should see what the Democrats are doing. New material is being written all over town. Gone are the jokes about George Bush and grocery scanners. Tough to get a smile with a line about Dan Quayle or anything these days. If he were still around, somebody could crack a joke about Vice President Quayle, as head of the Space Council, proposing that the country build a "cyberspace NOTE: Speech delivered on February 18, 1993, for the CSTB strategic forum. The version here was transcribed from a tape of the speech, supplemented with the printed text of Mr. Markey's speech.
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station" before the Japanese do. But he's not around, so we won't use any of those jokes. It is a good time, instead, to talk of technological transition and the change it is spawning throughout industries and indeed, throughout American society. As all of you know, technologies are moving increasingly from analog to digital forms of communication, and whole industries are undergoing a transition being wrought by the convergence, or growing together, of digital technologies. This technological transition or convergence is leading inexorably toward the creation of a new mega-industry: the information industry. Comprising computer companies, software houses, telephone and cable companies, manufacturers of wireless gadgets, and others, the development of this mega-industry and its harmonization of what we more often think of as diverse technologies and distinct industries are taking place at a heady pace. A quick look around at what is happening out there can astound even those who follow such developments, as I do, rather closely. For instance: Hollywood is going digital. New computer-controlled special effects like "morphing," which allowed villainous characters in Terminator 2 to constantly change form, digitized movies, and computer-simulated prescreening, which saves producers thousands of dollars, are becoming commonplace. The "high-tech" efforts of today are allowing "digital actors" from yesteryear, like Humphrey Bogart or Groucho Marx, to come alive again on the screen, or to dance with Paula Abdul in soft-drink commercials. Columbia has talked about releasing its movies and interactive video using digital distribution over telephone lines and cable TV to homes and theaters. In health care, a recent study by Arthur D. Little concluded that advanced telecommunications could help cut the cost of health care delivery in this country by $36 billion annually through "telemedicine," remote video doctor-patient consultations, and electronic filing of claims. In education, the advent of digital communications in the classroom, from ISDN-based distance learning projects to interactive media as a new tool in teaching, could help make the telecommunications infrastructure of tomorrow the "great equalizer" in U.S. education by linking resources and students, rich and poor, urban and rural, and by giving everyone access to the Information Age. In manufacturing, the agile techniques that telecommunications-conversant CEOs employ could mean that the "virtual corporation" may help Bill Clinton achieve a "virtual economic recovery."
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In short, the rapid technological change and the new networks being created will increase efficiency and create thousands of jobs. All of this excites the imagination. And I'm excited to have a "front row seat" to it all as chairman of the House Subcommittee on Telecommunications and Finance, which oversees and legislates in the area of telecommunications. At its heart, it's the subcommittee of MTV and Hollywood, of telephone networks, cable companies, and computers. Historically, though, policymakers and regulators have tended to look at the telephone industry, the cable industry, or the television and broadcast industries as distinct entities defined by their technologies. We speak of wires and switches, antennas and cables, regulated services and tariffs. Often, policy debates revolve around intraindustry or interindustry tugs of war, with legislators and regulators feeling a little like the mythical creature of Dr. Doolittle—the "pushme-pullyou"—a llama with two heads facing in opposite directions. Policy stasis was frequently the result. In such scenarios, creating a national network and articulating overarching policy goals for the country can be an arduous task. I do feel, however, that this year we are on the cusp of dramatic change that will bring success. With Bill Clinton and Al Gore, along with Ron Brown at the Commerce Department, we have an administration that understands the nature of technology and the economic role it can play. Moreover, they are also people who understand the "small-D" democratic potential of these new information networks and place more importance, I believe, on some of the basic principles of personal privacy that we should all be vigilant in protecting. We've gone from a president who didn't know about grocery scanners to one who not only knows what a "PBX" is, but knows the capacity of the one in the White House and is unhappy with it! Tonight's forum, where we talk of the nature of "community" in a networked world and the rights and responsibilities of the members of that community, gets us beyond the wires and the switches to the electronic culture that exists on the ends of the line and between the wires—the amorphous, borderless world of "cyberspace." Although cyberspace existed before author William Gibson coined the term in his book Neuromancer, word of this new realm, this electronic frontier, has only begun to capture the imagination and attention of the general public recently. Of course, appearing on the cover of Time magazine helps to get the word out. (So, "cyberspace" does have newfound name recognition—although it would probably have to make some rounds at Manchester
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coffeehouses before it would be a top vote-getter in the New Hampshire primary.) What happens in cyberspace, and what its popular emergence portends for our society, is what I'd like to talk about tonight. I want to step back and highlight some of the tough issues that lurk just over the horizon of our electronic frontier. It is important to raise the issues now. This is a new arena for communications and law. Conferences like this one provide a great service by sharing information and perspectives and by trouble-shooting potential problems. In short, when we begin to address the rights and responsibilities of cyberspace, we will be boldly going where no policymakers have gone before. Before we can discuss "communities" in a networked world—before we get to the larger, national network—we must first look at an individual human being and that individual's relationship to the technology. When Harvard's Mark 1 computer and the Eniac computer were being brought on-line back in 1944 and 1945, the budding dream of many a computer scientist was to create ever more complex machines. The ultimate goal was to create a machine that could think like a human being, to move beyond the simple logic, the programmed syllogisms, the endless zeros and ones—to artificial intelligence and thought processes that would mimic and indeed rival humans. Science fiction novelists have long written of such machines and robots. The ambition was to have machines play an integral role in human society. The paradigm has changed in recent years. Ironically, today we talk of what role humans can play in an interconnected network of machines. The culture that develops in cyberspace will have both good and bad elements, analogous perhaps to the "thinking machines" dreamt of in science fiction, which sometimes acquired human qualities we ourselves would often like to forget. Think of "Hal," the on-board computer that took over control in the movie 2001: A Space Odyssey, and one is reminded that there can be less than benevolent consequences from technological advances. Ironically, after World War II, as computers began to evolve and become more sophisticated, a debate was also raging in the field of human psychology—the behavioralist school was maintaining that humans were actually more "computer-like," in the sense that human actions and behavior stemmed from predictable logic or conditioned behavior. Hungarian writer Arthur Koestler, more famous perhaps for writing the antitotalitarian classic Darkness at Noon in 1941, wrote another novel, Ghost in the Machine, in 1967 in reaction to behavioralist psychology.
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Koestler's almost visceral defense of distinctly human qualities of emotion and judgment foreshadow some of what we may encounter when trying to understand the dual nature of cyberspace—both the mechanical and human aspects of it. Because it is a human creation it will embody all of the eccentricities, judgment, reason, sense, and dreams we consist of ourselves along with our flaws, weaknesses, and prejudices. Almost 25 years ago, shortly after Koestler's novel was published, Robert Kennedy went to Detroit, a city that had recently been torn apart by a riot, and he spoke to how we measure the wealth of a community and the difficulty in quantifying intangible assets or values. He said, We cannot measure national spirit by the Dow Jones Average nor national achievement by the gross national product. For the gross national product includes air pollution and advertising for cigarettes, and ambulances to clear our highways of carnage. It counts special locks for our doors and jails for the people who break them. … The gross national product swells with equipment for the police to put down riots in our cities. And though it is not diminished by the damage these riots do, still it goes up as slums are rebuilt on their ashes. And if the gross national product includes all this, there is much that it does not comprehend. It does not allow for the health of our families, the quality of their education, or the joy of their play. … The gross national product measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to country. It measures everything, in short, except that which makes life worthwhile; and it can tell us everything about America—except whether we are proud to be Americans. Similarly, we can look at the speeds of our telecommunications networks, the millions of miles of cable, fiber, and copper, ascertain the processing power of advanced computers, and measure their memory capacities. We can look, too, at the profit margins of software providers, movie studios, and record companies. In the final analysis, we can tell people everything about the state and quality of our network except those things that make use of such a network worthwhile. Whether the "console community" that is developing in cyberspace is one of enjoyment and wonder or the potential domain of digital derelicts who may pillage our community with acts of "electronic wilding" is the question Robert Kennedy would ask today. We all have to remain cognizant of the fact that for all the glitter and gold out there on the frontier, there is, existing simultaneously, a
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sinister side to cyberspace. It is an aspect of life that every community, whether real or virtual, has to deal with. So even as we look to the network and to the first colonies on the electronic frontier to empower human beings with the tools of the Information Age, to improve people's lives, and to provide entertainment and enjoyment, the potential for harm in the networked community may become more than a "virtual reality"; it may become a real reality. In 1989, I requested a comprehensive report from the General Accounting Office (GAO) on how federal agencies use, obtain, verify, and protect personal information; how individuals are made aware of information collected about them; and what telecommunications and network facilities agencies' systems use to transmit data. The GAO reported that personal information at the federal level is maintained in about 2,000 program management, payroll, personnel, financial, and other types of systems. Data in these systems included social security numbers, names and addresses, and financial, health, education, demographic, and occupational information. The GAO reported that although data in about 91 percent of the systems were covered by the Privacy Act, many agencies still share the personal information they maintain with other federal, state, and local agencies, as well as with the private sector. The GAO study also indicated that the government obtains information electronically from third-party sources. Twenty percent of the agencies surveyed reported that they collected personal information electronically from third-party sources, such as credit bureaus, state divisions of motor vehicles, and insurance companies. This study raises two issues for us. One, How does the government continue to protect the integrity of information collected about us for legitimate purposes? and two, Is the government collecting only the needed information? The same GAO report noted that some of the government's largest databases of personal information are accessed remotely and electronically. Forty-five percent of the databases surveyed were accessed through the public switched network, such as through AT&T or MCI, or through easily accessed commercial networks. The security of such systems is an obvious concern we will need to address on an ongoing basis. A more recent GAO survey, one I requested just last year, had to deal with a proposal some of you may be aware of from the FBI to meet its future wiretapping needs. In requesting the GAO investigation, I wanted to ascertain what technological alternatives to making the entire telephone network—including computer equipment—"wiretap ready" for the FBI were available. I also wanted to find out what
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exactly the FBI's wiretapping needs were and what the estimated cost would be. The study concluded that in its April of 1992 legislative proposal, the FBI did not define its wiretapping needs adequately. No specifics and no cost estimates were available. I can't tell you what alternatives to making computers, PBX equipment, and the telephone network "wiretap ready" may be available to the FBI because the Bureau classified that portion of the GAO report as national security information. I will tell you, however, that it is my personal belief that searching for alternatives to their current proposal is where the FBI should be focusing their efforts. This is not only an issue of privacy; for U.S. manufacturers of telecommunications equipment, the FBI proposal and the NSA [National Security Agency] standard on encryption may also pose threats to the viability of their products on the international market. Because of my role as chairman of the Telecommunications Subcommittee, I felt obligated to investigate the issue thoroughly before any legislative proposals having far-reaching, or perhaps unintended, consequences moved through Congress. I understand that the FBI considers wiretaps an essential information-gathering tool when fighting crime. But I am hopeful that some accommodation can be found because I feel strongly that we need to make our networks, databases, and terminal equipment more secure, not less secure, to invisible trespassers and others. The same is true for wireless encryption. The National Security Agency wants the industry to accept a standard that many believe is too easy to decode. As the telecommunications revolution goes wireless and telephone conversations, computer data, and business information increasingly travel through the air, we need to make sure privacy and confidentiality are protected to the maximum extent possible. Let me get away from the government's side of cyberspace to some of the threats to personal privacy as they arrive from the private sector or from private individuals. First, private industry. Erik Larson published a book last year called The Naked Consumer. In it, he unveils some of the tools Madison Avenue is employing to find out more about you and, subsequently, how they direct their sales pitch to you accordingly. New marketing technologies are being refined using sophisticated software that takes huge amounts of information collected from various sources and combines it into a single database. Larson calls this cross-referenced information "recombinant information." It can include court records, credit card balances, bank account information, magazine subscriptions, store purchases, and a "host of personal data
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collected discretely by companies of all kinds and then widely, avidly, and aggressively marketed to anyone willing to pay for it." Larson notes in his book, for instance, that in 1988, one long-distance company began trading the names of its millions of customers. Anyone who rented the list could select customers who were female, who made international calls, or who traveled a lot. The author relates that the long-distance company tracked customers' travels through the use of the company's telephone calling card, designed to be used on the road. Much of the collecting of personal information about Americans may be occurring anytime someone calls an 800 or 900 telephone number. Unbeknownst to most Americans, companies can receive the name, billing address, and telephone number of every caller to their 800 or 900 numbers. This information can then be reused, bought, and sold without restriction. In the last session of Congress, I offered legislation to help combat this kind of personal information hijacking. I will introduce it again this session and will push for its adoption aggressively. It requires that recipients of personal information gleaned from the network during an 800 or 900 call NOT reuse or sell that information without receiving the affirmative consent of the caller first. I'd like to read you a short excerpt from another book, this one by Jeffrey Rothfeder, called Privacy for Sale. By reading it, I think I'll give you all some sense—if you don't have it already—of how much information is readily available. The author writes: I chose Dan Rather as my test case because I was told the stoic, tight-lipped CBS anchorman has taken numerous steps to guard his personal information. With this in mind, he seemed like the perfect subject to assess the limits of the [information] underground. … But in the end, it only involved extra keystrokes on my computer and patience. I started with Dan Rather's credit report because that's the simplest bit of confidential information to obtain. But to get that I needed his complete address and preferably—but not necessarily—his social security number. So I began by requesting from the superbureau Rather's credit report header, which contains biographical data taken from credit bureau files and usually available by just typing in a person's name. … Once I had Dan Rather's address and social security number, getting his credit report was easy. … It's hard not to be envious of a clean credit report like Rather's. … However, delving further into Dan Rather's electronic alter ego offers a slightly different perspective on him. … I obtained a list of the stores he shops at and how much he spends. … I learned
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that Rather doesn't spend a lot on entertainment. Shopping seems to be more his speed. … He shopped at five clothing stores and ate at only two restaurants, both ethnic. Rather spent 10 times more on apparel than on dining out." That's all I'll read to you, but you should know that it is just the tip of the iceberg of things the data superbureaus have on all of us. As you can see, the Information Age is about more than just information. What we're communicating is not just raw data. It's values; it's meaning. It's a message about the very purpose of our lives. Communications has the power to change the way people live, the power to overthrow governments. As networked communities in cyberspace develop further, the rights and responsibilities of all of its inhabitants, and all of us as well, need to reflect the underlying power they possess, in addition to the promise the network holds for us. By looking at an individual's relationship with the machines and the network, we can also try to formulate boundaries of law in the network's borderless world that will serve well the community which inhabits it. In a sense, we begin with a sort of "technological anthropology" and work from there to the manifestation of human potentialities and needs in the technological milieu of the network as a whole. John Sculley of Apple Computer has spoken of developing "human-centric" technology to reflect his company's emphasis on development of information appliances for everyday people. In 1991, Professor Laurence Tribe of Harvard Law School gave an address at the first conference on computers, freedom, and privacy, out in California, entitled "The Constitution in Cyberspace." The question he raised was how constitutional protections written two centuries ago remain intact in the context of a world, a digital world, the Constitution's framers could never have envisioned. It is a fundamental question for us. As a policymaker at the federal level, I will be holding hearings on these issues, especially the electronic consequences to personal privacy in the Information Age. Big questions loom for us to answer—questions that will need not only legal, copyright, First Amendment, or communications law answers, but also societal and political answers as well. We will be breaking new ground in this increasingly interconnected world. Here are some of the questions we will have to explore and attempt to find answers to: Are the fundamental values of our society so universal and enduring that they will not be threatened by the advent of new technologies or any new subcultures such technologies produce?
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Or will cyberspace become some lawless place, where the Constitution is cracked open by fiber fissures created when trying to convert a 200-year-old parchment into a binary world of zeros and ones? Can it continue to be a "living, breathing document?" Or will cyberspace develop its own distinct laws? Will it develop "digital vigilantes" to patrol and police the electronic bulletin boards and electronic highways? What indigenous political institutions may develop in such a vacuum? Could a closed system develop in the network with its own closed value system? I agree with Professor Tribe when he stated that science and technology open options, create possibilities, suggest incompatibilities, and generate threats. Yet they do not alter what is "right" and what is "wrong." Because in the absence of relevant laws, egregious transgressions of what most of us perceive to be right and wrong can occur. This includes both unauthorized electronic trespassing and infringements upon free speech rights, as well as some of the tactics employed by hackers, "phone phreaks," and others. Once we clearly define what the rules are, then we can deal with some of those digital desperados out there like the Dark Avenger—the Bulgarian notorious for spreading his computer viruses around the world. The most recent issue of Discover magazine, for instance, contains excerpts from a book which relates how the Dark Avenger has developed a virus that will mutate in 4 billion different ways, making it very difficult to vaccinate a system against. When the network goes global, how do we protect ourselves against cross-boundary access to personal data or infringements on our community? Will the privacy rules that govern U.S. systems be adhered to if the network or data is accessed from abroad? We need to build in such protections sooner rather than later. I have also seen the magazines of the so-called "cyberpunk" community—magazines like 2600: The Hacker Quarterly. A recent issue, for example, contained articles on how to steal long-distance service from a pay phone, how to defeat call-back verification, a program for a "simple C virus," and other articles indicating, quite explicitly, how to operate on the margins of, or to cross, what most of us would consider responsible behavior. Without appropriate laws that speak to our new, networked communities, the risk is that some of the citizens may be lost, not knowing exactly what their rights and responsibilities are. Often, when engaged in the legislative arena, I find myself exasperated by representatives of certain groups or certain industries who
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appear to walk through life with blinders on—failing to see the larger forces at work or the proverbial ''big picture." Similarly, there are numerous "geniuses" in the telecommunications or computer arena—self-described futurists and others—who appear to me to walk through life with binoculars on. They can see way out into the distance, yet anything in the immediate future is completely out of focus. Luckily there are some who do see the immediate, pragmatic steps we need to take, for the good of the network from a technical sense, but who also remain cognizant of the possible pitfalls nearby from a societal perspective—people like Mitch Kapor and those at the Electronic Frontier Foundation, for instance, Gene Kimmelman and Mark Cooper at the Consumer Federation of America, and Jan Goldman from the ACLU's Privacy and Technology Project. And there are others in this room as well. I look forward to working closely with all of you in the future on both the technical, regulatory side of cyberspace and on the societal, privacy implications as well. As I said earlier, it is important to do this now. To not look at these issues is running the risk of logging on one morning and entering the vast emptiness of a monadic realm that perverts our hopes for a true community with invasions of privacy and digitized demonstrations of injury and violence. To make our vision of a networked community a reality, we have to remember the core values behind the Communications Act of 1934—values which apply as well in cyberspace as they did in the New Deal. One value is to ensure universal access to every person in our country—rich or poor. Another is to ensure diversity: That there is a multitude of "media tongues" that can speak; That you don't have to work for the biggest and most powerful companies, or be a certain kind of person, to get access; That the smallest voices, those articulating creative ideas, those with information to communicate, have access to the telecommunications network; That they can be free and strong and separate from the larger voice that may want to be more monopolistic and drown them out, and that localism can be, in fact, fostered through this network; and That it's not just a couple of voices coming from New York or Los Angeles, but voices all across the country that can use the telecommunications system. For this reason I am advocating that America needs to take an interim step on the way to a fully functional broadband system for the country, a step that will avail a great number of people the opportunity
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to access a little bit of the future today, through digital telephone service to the home. The power of communications is the power to help us learn more about the world and to bridge the gaps that separate our differences. I would like to work with all of you to make that kind of network a "real" reality. Thank you for inviting me to speak with you tonight.