Colorado Law Review
Copyright (c) 2000 University of Colorado Law Review, Inc.
Fall, 2000, 71 U. Colo. L. Rev. 1203
NET REGULATION: TAKING STOCK AND LOOKING
(Associate Professor of Law, New York University School
Imagine that there were an American Administration in the second half of
the fifteenth century. Imagine that it issued its major policy statement
on the introduction of printing, entitled "Framework for Print-Based Commerce."
And imagine that, after two or three perfunctory sentences about how print
would revolutionize religion, science, language, and political discourse,
the statement went on to focus its policy planning exclusively on making
sure that the print environment was safe for glossy magazine advertisements,
that printed order forms and back-of-the-form standard contracts were enforceable,
and that publishers of popular novels had copyright protection. If this sounds
silly, then you should take a look at the Administration's Framework for
Global Electronic Commerce n1 from 1997.
Fear not - I have no intention of boring you with a tedious review of a three-year-old
document in an area in which those three years account for about half the
life of public concern with the issue - internet regulation. My description
of the document is here merely to motivate an exercise I think we are almost
ready for in "Net" n2 regulation - taking stock and evaluating our
In order to separate, at least initially, the task of taking stock from the
inevitable normative bias entailed by one's own sense of what things are
"important," the basic text of this evaluation was developed by a rather
mechanistic method. [*1204] Part I presents a survey of all bills
introduced in Congress and all public laws passed by both houses and signed
by the President that contain the terms "internet," "electronic commerce,"
or one of a number of other terms that should capture references to the Net
in the legislative branch. n3 The idea behind this methodology is
to capture a zeitgeist, rather than to identify comprehensively all instances
of Net regulation. Needless to say, this method excludes important instances
of regulation, like federal agency decisions, executive actions, and state
regulations. Nonetheless, the breadth of the sweep of congressional action
and the nature of congressional politics suggest that surveying the bills
as well as the laws passed should give us a good picture of the issues that
have been seen during the 1990s, by at least some significant constituency,
as appropriate for legislative action.
The survey suggests that Net regulation until now has involved three clusters
of issues: (1) harnessing the Net to provide traditional public goods, like
education and access to government information; (2) developing the future
physical and intellectual infrastructure for the Net; and (3) establishing
patterns of control over information flows in society, where entrenched patterns
of control have been destabilized by the new technology. This is not to say
that regulatory efforts have always cohered, or that a broad understanding
of the importance of these three regulatoryroles has always driven them.
But these categories do begin to organize our thoughts about the issues of
Net regulation and suggest a more-or-less coherent methodology for thinking
about regulatory choices and placing them in context with other regulatory
choices about Net regulation.
Part II describes the three clusters and explains how the first two clusters
should properly be seen as being about Net regulation, no less than the third.
Part III identifies the structure of regulation that falls within the third
cluster. It consistently involves destabilization of patterns of control
over information flows, the emergence of a range of regulatory options for
response to this destabilization - each with differing outcomes for the distribution
of control over information flows - and a regulatory choice that pushes towards
a new, stable pattern of control. Part IV concludes by suggesting that a
[*1205] consistent methodological approach to Net regulation should
be taken in the future - an approach that identifies the relationship between
the "problem" requiring regulation and the effects of the technology on information
flows, and then designs an institutional response that can be justified given
its expected effects on the flow of information in our society and polity.
I. Taking Stock of Net Regulation in the 1990s
A. Background and Methodology
The concept of regulating the Net - in the lawmaking or regulatory sense,
rather than engineering sense - did not exist prior to the 1990s because
"the Net" did not yet exist as a society-wide communications medium. Legislative
acts in the early 1990s were responses to specific issues raised by computer-based,
usually closed-system, electronic communications. Courts and commentators
addressed issues of service provider liability for defamation with respect
to proprietary commercial online services like CompuServe or Prodigy, or
dial-up bulletin board services ("BBS"). n4 They dealt with issues
regarding internal employer local area networks ("LANs"), proprietary e-mail
gateways, and wide area networks ("WANs"), primarily involving employer-employee
relations regarding privacy. n5 They expressed concerns over electronic
contracting - concerns raised by the increase in, but mostly hoped for, business-to-business
electronic data interchange ("EDI"). n6 The broader conceptual framework
of "regulating the Net" was that, in the not-too-distant future, there would
be an "Information Superhighway" whose development required a regulatory
focus on traditional telecommunications and cable regulation, with the
[*1206] intent of harnessing these mature industries to build the infrastructure
for the Information Superhighway. n7
The development of the World Wide Web ("Web"), and of Mosaic as a graphical
user interface ("GUI") to it, coupled with America Online's ("AOL") phenomenal
success as the first proprietary service to provide a gateway to the internet,
changed all that. It turned out that the Net was not in the future; it was
here. There may have been some resistance among "the natives" to the users
who came from "aol.com," but that was quickly swept away by the sheer volume
of participation in what suddenly became the new popular (not to say mass)
In order to impose some measure of discipline in the unavoidably normative
exercise of evaluating Net regulation, I have taken a rather laborious and
automatic approach to developing the initial text of my analysis. Rather
than selecting a series of "important" or "representative" documents - judgments
that inevitably already reflect my assumptions on the matter - this article
offers a description of all bills and statutes introduced in or passed by
Congress that include any one of a number of terms that indicate reference
to what we might be interested in as "Net regulation." The following overview
is the result of a Lexis search of all bills introduced in the United States
Congress and all public laws passed by Congress and signed by the President,
which use the terms "internet," "electronic commerce," "e-commerce," "world
wide web," or "interactive" close to "computer" or "online." n9 There
were 15 such bills and joint resolutions in the 101st Congress, 23 in the
102d Congress, 34 in the 103d Congress, 66 in the 104th Congress, [*1207]
275 in the 105th Congress, and 348 introduced in the first session of the
106th Congress, for a total of 761. A total of sixty-two bills and resolutions
including these words were enacted into public laws or congressional resolutions
adopted by both houses: n10 three were enacted in the 101st Congress,
four in the 102d, three in the 103d, five in the 104th, twenty-nine in the
105th, and eighteen in the first session of the 106th Congress.
This approach has obvious limitations that must be kept in mind when evaluating
its results. It is crude, for it gives the Telecommunications Act of 1996
or the Children's Online Protection Act as much weight, as an initial matter,
as a bill to require boxing associations to publish their ratings of boxers
on the Net. It is partial, for it treats only the federal legislative branch,
and not all producers of regulatory actions. And it relies on the use of
specific language, and hence on self-conscious expression of the regulated
matter as "the Net," which may have left out regulatory acts that had significant,
intended effects on the Net, but did not refer to it in any way.
The advantage of the approach, however, is that it provides a relatively
value-neutral picture of the instances in which the primary legislative arena
in the United States self-consciously and expressly applied itself to the
Net. It includes "irresponsible" acts - bills introduced without a hope of
passing - as well as fully negotiated legislative regulations, and is therefore
a better measure of the kinds of things thought by at least some significant
portion of the American public to be important enough to justify regulation
- even if they could not pass, as a matter of political reality. What I am
hoping to get from this exercise is a representation of the 1990s Net regulation
zeitgeist. The initial crudity of treating all instances as equal is then
evened out by looking at trends and clusters in these legislative actions,
rather than at individual instances, as expressions of the general cultural
sense of what Net regulation is about, and what it might seek to achieve.
B. Bills: 1990-96
The term "internet" first appeared in bills introduced in the 102d Congress,
in 1991. Three initiatives focused on education, libraries, infrastructure
development through federal investment and coordination, and access to government
information. H.R. 4014 was aimed at promoting the use of technology to enhance
education and research, and spoke of the Net primarily as a means of disseminating
educational materials and enhancing communications among researchers.
n11 H.R. 5759 and S. 2937 (introduced by then-Senator Gore) sought to expand
focus and funding for developing high-performance, high-speed computing,
and proposed a federal effort to build a technological infrastructure focused
on linking schools to each other over the internet, thereby enhancing education,
libraries, medicine, and productivity. n12 H.R. 5983 and S. 2813 sought
to use the internet to facilitate public access to federal electronic information
through the Government Printing Office ("GPO"). n13 Another initiative,
H.R. 5392, proposed a program to promote electronic commerce as part of the
National Institute of Standards and Technology ("NIST"). n14 This
bill, however, did not once mention the term "internet," for its frame of
reference for electronic commerce was still business-to-business EDI.
The 103d Congress continued to see the internet as part of our national investment
in educational quality and equality, n15 and in online libraries.
n16 Congress reintroduced bills to focus federal efforts on building
an information infrastructure, n17 with some mention of the Net in
the major precursor bill to the Telecommunications Act of 1996, n18
and on increasing access to government information. n19 It addressed
electronic commerce only in the context of government acquisitions.
[*1209] Until 1995, then, the "internet" was associated with education,
with libraries, and with access to government information; and the policy
goals with which it was associated were the traditional policy goals for
providing these public goods. In 1995-96, the 104th Congress began to look
more familiar from the perspective of the late 1990s. There was much more
legislative activity and a whole new slate of objectives. During this period,
Congress attempted to regulate children's access to indecent materials,
n21 internet gambling, n22 hate speech, n23 advertising practices,
n24 consumer privacy, n25 and dissemination of information
of concern to national security n26 - in particular, regulating encryption.
n27 It began to regulate internet service providers ("ISPs"), by exempting
them from liability on the condition that the ISPs would help enforce federal
regulations. n28 Congress also continued to support the educational
use of the Net, n29 most prominently by enacting the universal service
subsidy in the [*1210] Telecommunications Act of 1996,
n30 and increasing use of the Net to provide access to government information.
n31 Democratization and the internet community gained recognition
in a joint resolution n32 and in a series of proposals to harness
the Net to improve dissemination of federal elections information.
C. Bills: 1997-99
There was a further explosion in internet regulation concerns in the 105th
Congress. Four times as many bills that somehow referred to the Net were
introduced, and six times as many such laws were passed. Bills were again
introduced to deal with the issues of educational access. This concern was
most clearly reflected in bills providing financial support for increasing
internet access in schools n34 and the use of educational technology.
n35 But there was also resistance to federal investments [*1211]
in school internet access n36 and to what would become a growing concern
in other areas - the content of communications on the Net. This concern led
to the first attempts to control what information minors can access over
the Net, by requiring installation of filters in school and library computers
as a condition of receiving universal service support. n37
During the 105th Congress, efforts to enhance access to government information
using the internet continued, and gradually transformed into a more general
assumption that government information should be made available on the Net.
n38 [*1212] Moreover, the concept of using Net publication
to enhance access to governance-related materials expanded to include information
required by law to be published by non-government actors, n39 and
for the first time was explicitly drafted to disseminate federal propaganda.
n40 There were more explicit attempts to use the Net not only to enhance
access to information generated by the government, but also directly to improve
government [*1213] services by using electronic information management
and online access. n41 There were also expanded efforts to harness
the Net to aid democracy - by disseminating federal elections-related information,
n42 by facilitating participation in public debate, n43 and
by noting the Net's importance in facilitating cultural preservation.
The 105th Congress was also the first Congress to debate, through proposed
bills, the future role of government in the development of the internet.
There were dueling bills regarding investment in the "Next Generation Internet":
on one side, the bills - eventually passed as law n45 - that funded
research and development through the National Science Foundation ("NSF")
and other government agencies; n46 on the other side, bills that resisted
the extent and nature of government participation in [*1214]
developing the internet, n47 such that even the NSF and NIST would
have been prohibited from spending money on the "Next Generation Internet."
n48 The resolution of this debate favored continued government investment,
n49 except that the drive to take the domain name system administration
out of the NSF did prevail. n50
The concern over Net infrastructure development also carried over into more
traditional areas of infrastructure regulation. There were bills that supported
the private provision of infrastructure development - through expanding satellite
services to include internet service, n51 or permitting low power
television ("LPTV") licensees to provide wireless internet access.
n52 There were efforts to shield internet access from time-sensitive pricing
by regulating its treatment by telecommunications carriers, particularly
the local exchange carriers. n53 Future planning was expressed by
an effort to add questions about internet connectivity to the Census 2000
questionnaire. n54 [*1215] While the universal service
reform passed by the 104th Congress in the Telecommunications Act of 1996
was the primary and central change in policy concerning distributive justice,
there were more efforts in the 105th Congress to deal with distribution concerns.
n55 Most interesting in this respect was a bill to permit consumers
to aggregate to provide a public internet service, as does a public electric
During this period there was also a continued heavy focus on regulating "bad"
or "dangerous" speech, and in particular, bills demonstrated a perception
that children are particularly exposed and endangered by the Net environment.
Sex, in this matter, is king. Bills were introduced to protect children from
access to pornography, n57 as well as from exploitation for child
pornography. n58 Congress sought to prevent children's access to pornography
by new prohibitions on the distribution of smut on the Web n59 and
by requiring ISPs to offer filtering software. n60 Moreover, heavy
attention was paid to protecting children from sexual assault n61
- which for some reason was linked with computers in the minds of legislators
- and therefore led to enhanced penalties for child sexual abuse if a computer
was used in perpetrating it. n62 There were prohibitions on making
available information that could facilitate illegal sexual relations
[*1216] with minors, n63 efforts to prohibit ISPs from offering
internet access to convicted "sexual predators," n64 and efforts to
persuade states to prevent state prisoners from having unsupervised internet
access. n65 "Dangerous communications" were also addressed through
the regulation of tobacco advertising and sales to children, n66 a
proposed ban on internet or mail-order gun sales without a federal license,
n67 and the return of internet gambling regulation. n68
On a parallel track was the introduction of consumer protection bills. Some
simply applied existing labeling requirements to online advertising,
n69 evidencing a concern over internet fraud n70 and expressing concern
over the quality of information available on the Net. n71 But more
specifically, bills showed continued concern over online consumer privacy.
n72 Children's consumer privacy took center stage, n73 while
resistance [*1217] to privacy regulation took the form of a preference
for self-regulation or of a focus on the privacy of users of government services.
n74 The problem of spam - unsolicited junk e-mail - also received
a good bit of legislative attention. n75 Bridging the area of privacy
concern and e-commerce was the continued focus on encryption regulation.
Here, Congress played the role of counterweight to the Administration's efforts
to stall the dissemination of strong encryption - to some extent relying
on a privacy rationale, but also relying on a rationale of the importance
of encryption to electronic commerce. n76
The 105th Congress focused heavily on electronic commerce, and on the Net
as an environment crucial to United States economic development - to be fostered
as a matter of industrial policy and facilitated by specifically-tailored
property and contract rules. To that end, there were general declarations
that supported electronic commerce n77 and bills that sought to support
electronic commerce by appointing an electronic commerce advisory committee
representing its business side and occasionally seeking the representation
of consumer [*1218] groups. n78 Bills proposed tax incentives
for the software and online services industries. n79 More generally,
there emerged the internet tax freedom notion of assuring that online access
services were not subject to tax, and that electronic commerce not be subject
to specific taxation. n80 The notion of internet tax freedom was put
forward as international trade policy, n81 and there were suggestions
to expand it to a more general notion of forbearance from regulation at both
the federal and state levels. n82 Federal procurement was also enlisted
to support the growth of electronic commerce. n83
In addition to the various subsidies designed specifically to aid electronic
commerce, as opposed to infrastructure, bills were introduced to make the
legal environment more conducive to electronic commerce. A digital signature
law was introduced, n84 and intellectual property rights were expanded
to increase the appropriability of information goods and services provided
online. The Digital Millennium Copyright Act ("DMCA") was introduced,
n85 and the development of domain [*1219] name policy was linked
to trademark concerns. n86 There was an effort to delineate clearly
the liability or responsibility of ISPs, n87 which were treated using
the same structure developed for content regulation: they were insulated
from liability, but given an enforcement role in exchange. n88 Finally,
there were more specific responses to problems like Y2K readiness
n89 and liability. n90 No less interesting, though of much lesser
prominence, was the first attempt to use the Net to facilitate real-world
efficient markets where market failure was in the past seen as legion - specifically,
a requirement that airlines publish their fares online. n91
The 106th Congress has followed more or less the same pattern. There has
been increasing use of Net publication as a standard approach to disseminating
government information, n92 [*1220] to providing government
services, n93 and to permitting the public to communicate with the
government. n94 It has been used [*1221] similarly as
a means for private parties to publish information they are required to make
public, n95 or to support private parties who are making useful information
available on the Web. n96 Congress has continued to attempt to harness
the Net to enhance the election process, not only by facilitating dissemination
of Federal Elections Commission reports, n97 but also by permitting
candidates to use public funds for internet-and Web-based campaign materials
n98 by excluding the use of internet communications by individuals
from covered expenditures, n99 and most creatively, authorizing a
study of the use of internet technology to enhance voter participation.
n100 There also has been increased use of the Net for government propaganda
and educational messages. n101
[*1222] Congress has continued to concern itself with infrastructure
development, n102 including Next Generation Internet development.
n103 There has been some sense that information technology is generally
the appropriate domain of policy analysis, n104 some attempts to restructure
the universal service system - primarily by localizing it n105 - and
new efforts to support the development of telehealth services. n106
Traditional infrastruc-ture regulation after the Telecommunications Act of
1996 has been represented in the question of whether interconnection requirements
should apply to cable operators insofar as they offer [*1223]
broadband access services. n107 The idea that internet service provided
by electric utilities can possibly be used to allow consumers who aggregate
to provide electricity also to provide internet service was also reintroduced.
n108 Wireless communications were enlisted to provide internet access
by the elimination of spectrum aggregation limits on spectrum auctioned after
December 31, 1999. n109
There has been more education-related legislation, n110 with some
efforts to fund teacher computer training. n111 More creatively, there
has been funding of prizes for students to develop educational software,
conditioned on the free distribution of that softwareon the Net to educational
Fear of "bad" information flows on the Net also has continued. There have
been repeated efforts to condition universal service, or even the availability
of general federal funds for schools and libraries, on installing filters
at internet access points. n113 There has been a crackdown on child
pornography on [*1224] the Net n114 and efforts to curtail
prisoners' communications. n115 There have been efforts to protect
children from pornography (and violence) on the Net, by nudging the new media
industry to restrain itself and facilitating industry collaboration in pursuit
of such restraint. n116 Concerns about internet gambling, n117
the sale of prescription drugs over the internet, n118 tobacco sales,
n119 and sales n120 and disposal n121 of firearms using
the Net round out the list of dangerous communications that have elicited
Consumer privacy, n122 spam, n123 communications privacy from
government search, n124 and consumer protection issues n125
- [*1225] in particular against internet fraud n126 -
have also continued to appear on the congressional table, as has encryption
regulation. n127 The arrival of online brokerage has been marked by
the introduction of bills to regulate or facilitate online securities transactions.
Finally, electronic commerce has continued to occupy much of Congress's Net-related
attention. There have been more [*1226] statements about the
need explicitly to foster electronic commerce. n129 There have been
attempts to make the internet tax freedom concept perpetual, n130
to prohibit the Federal Communications Commission ("FCC") from imposing access
charges on internet access services, n131 and to make internet tax
freedom a stable part of United States foreign trade policy. n132
There has been a continued focus on developing the use of electronic commerce
in government procurement. n133 There have been more efforts to study
the effect of the internet on access to price and other attributes of service
in real-world markets and to use [*1227] the Net to facilitate
efficient real-world markets. n134 In the arena of developing the
property and contract regimes to undergird electronic commerce, there have
been database protection bills, n135 bills concerning digital signature
n136 and electronic contracts, n137 and attempts to regulate
the trademark/domain name issue. n138 There have also been attempts
to legislate Y2K litigation control. n139
D. Public Laws: 1990-99
The bills enumerated above reflect the range of issues considered by congressional
representatives to be sufficiently important to propose as a bill. The list
of public laws actually passed over this period suggests which issues commanded
an effective majority of congressional representatives who thought them sufficiently
important to make them laws.
In infrastructure regulation, the Telecommunications Act of 1996's attempt
to, among other things, harness telephone and cable providers to build the
broadband network was obviously one of the most expansive laws. n140
So too were its universal service provisions and their inclusion of internet
access for schools and rural healthcare providers. n141 The Next Generation
[*1228] Internet Research Act of 1998 n142 and other means of
funding internet development n143 continued the government's commitment
to engagement in the development of the Net - although the prohibition on
the NSF from expending funds on entering into contracts regarding management
of the domain name and numbering system after September 30, 1998 n144
suggested an ambivalence. Funding for the development of educational uses
n145 and cultural development are also noteworthy. n146
[*1229] As with the bills, the public laws too began to rely heavily
on the Net to disseminate public information, beginning with dissemination
of the legislative materials themselves early in the 1990s, n147 and
then continuing to rely on the Net more generally to disseminate government
information, n148 including government [*1230] propaganda
and educational campaigns. n149 Similarly, Congress did in fact adopt
the notion of using the Net as the proper location for publishing materials
required by law to be made public by non-government actors. n150 There
were also the beginnings of offering services through the Net, n151
whose efficacy is hinted at in, for example, funds allocated to the non-governmental
Center for Missing Children, seen to be an effective user of Net publication
to serve the public interest. n152
The concerns about dangerous communications tended to fare well in Congress,
resulting in, for example, the Communications Decency Act of 1996 ("CDA"),
n153 the Family Online Privacy [*1231] Act, n154
and the Child Online Protection Act ("COPA"). n155 There was also
a study on the availability of pornography to children on the internet,
n156 a declaration that prisoners should not have unsupervised internet access,
n157 and a sentencing enhancement for sexual abuse of children if
a computer is used to solicit the child or organize the abuse. n158
Along parallel lines, there were studies of internet gambling n159
and the availability of information on the Net regarding terrorism.
Children also provided the binding agent that allowed at least one form of
general consumer protection legislation to pass - in the form of the Children's
Online Privacy Protection Act ("COPPA"). n161 That Act recently has
been implemented in FTC regulations effective April 21, 2000. n162
In the consumer protection area, Congress also required a study of the appropriate
regulation for online banking. n163
The drive to enhance and facilitate electronic commerce was similarly effective
in Congress. The Internet Tax Freedom Act was passed, n164 there was
a declaration that the internet [*1232] should be free of tariffs,
n165 and there was funding allocated for the use of electronic commerce
in government procurement. n166 The DMCA n167 and the Anticybersquatting
Consumer Protection Act n168 were passed, and there was funding allocated
for infrastructure tied to a study of the effects of domain name registration
policy on trademark owners. n169 Finally, there were Y2K laws creating
litigation exemptions n170 and facilitating collaboration among industry
participants to resolve Y2K issues. n171
II. Mapping Net Regulation
The appearances of the Net in legislation and legislative efforts can be
organized usefully into three clusters.
In the first cluster, legislation attempts to harness technology to serve
what are perceived to be governmental goals unrelated to the Net. These include:
enhancing education by providing school access and teacher training; funding
internet [*1233] access in libraries; publishing government information
and information required by law to be published by non-government actors;
and communicating with government by opening up the process of public comment
on regulations. The tax breaks, trade policy, and procurement aspects of
support for electronic commerce could also be seen as falling within this
category - as instances of the industrial policy of a nation steering its
industrial sector to an area where the government sees the greatest welfare
While these legislative efforts may, at first glance, seem to harness technology
- defined independently of these efforts - to serve pre-existing governmental
goals, a review of some of the actual uses suggests that the technology can
alter the perceived role of government. This change in the perception of
government's role can in turn affect the direction of technological development,
as technology seeks to respond to facilitate the new role. When the declining
cost of communication leads Congress to provide Congressional Research Service
products online, n172 we might be observing a slight shift in the
perceived role of government publication, from a means of assuring transparency
of government, to a means of providing a public good: information. If we
see low-cost communications being harnessed to provide significantly better
real-time or near-real-time feedback mechanisms for public comment,
n173 we might be observing a slight shift from a good-administration conception
of government - with comment and publication maintained for transparency
purposes - to a conception of government as implementing the product of public
discourse - with publication and feedback serving a deliberative, rather
than a monitoring, function.
As more public functions are performed on the Net, and are enhanced and altered
by the Net, its role in people's lives is affected. The machine through which
you debate political issues with your community plays a different role in
your life [*1234] than the machine through which you shop for
Christmas presents. The social construction of the Net is affected by the
extent to which it is understood and treated as a means for public participation,
as a means for study and education, or as the great shopping mall in the
sky. That social construction will be affected by the extent to which, and
the way in which, the public uses the Net to provide traditional public goods
like education, civic participation, or information about the world we share
as citizens and autonomous persons.
The second cluster of legislative actions encompasses efforts aimed directly
at fostering the advancement of Net infrastructure. These include primarily
physical infrastructure regulation, as well as investment in research and
development of the intellectual infrastructure. This is not to say that all
such investments are apolitical, aimed solely at some commonly-held sense
of optimal development. Competing bills seeking to fund or defund the NSF's
Next Generation Internet efforts suggest debates over the role that public
investment and oversight should play in infrastructure development. There
are questions of just how freely the market can provide for infrastructure,
both physical and intellectual. Investments in research and development indicate
at least some concern that markets will not invest optimally; regulation
of incumbent carriers suggests the same for the physical infrastructure market.
There are disagreements over which set of regulations will best achieve infrastructural
development - whether, for example, cable carriers who offer broadband data
carriage must interconnect with competing ISPs or not. n174
As I have explained in detail elsewhere, n175 the way that our infrastructure
is built affects the distribution of control over content or, in other words,
who gets to say what to whom, and who decides these questions. To take the
example most relevant in late 1999 and early 2000: if cable broadband develops
with a relatively large difference between upstream and downstream
[*1235] capabilities, and if its owners prohibit home consumers from
using their home service to run a server n176 from private homes,
then this system begins to resemble more of a broadcast model than what,
throughout most of the 1990s, was our understanding of the widely decentralized
internet model. Whether one believes that such a shift would be desirable
- as a mechanism to reduce information overload - or undesirable - because
it would undermine the diversity made possible by the Net - is less important,
at this point, than to recognize that those are the stakes of such choices.
Moreover, the general acceptance of the assumption that infrastructure will
be privately deployed and owned limits the imagination in terms of thinking
of solutions for issues of control over infrastructure. Debates over universal
service, for example, traditionally fall within the conceptual area of telecommunications
regulation, and increasingly are focused on the most efficient method of
subsidizing the purchase of telecommunications services in a private market.
In the bills, however, we see a whiff of a possibility of an alternative
approach in the consumer-aggregation approach to electric utilities.
n177 The basic idea is that consumers can aggregate, either voluntarily or,
more interesting and likely, through municipal government, to provide electricity
publicly. As electric utilities come to be seen as potential providers of
information infrastructure, n178 so too we see these municipal consumer
aggregations become the first legislatively-empowered instances of public
information infrastructure. The same model, even more simply, could suggest
a series of publicly-funded municipal or otherwise local networks for high-speed
access to the Net. [*1236] Whether these networks are economically
feasible, and why they are normatively appealing, are questions I have addressed
elsewhere. n179 It suffices to say that the cost of setting up a wireless
public system, even if only as a carrier of first or last resort for time-insensitive
communications, need not be so great as to exclude a political conversation
of whether it might be as justified to use the public purse for this purpose
as to use public funding for maintaining a public roadway system.
n180 Why would we want such infrastructure? For the same reasons we want
public schools, libraries, or scientific labs: because the capacity to communicate
- to produce, use, and receive information - is the kind of good whose distribution
and structure have enormous normative consequences for our democratic culture
and our capacity for personal autonomy - consequences we may not want to
leave to markets to determine.
The importance of the question of whether infrastructure is privately or
publicly owned (or not owned at all n181 ) is partly dependent on
our regulatory response to the question of the relationship between ownership
over physical infrastructure and control over content. In the case of the
broadcast spectrum, for example, "ownership" over a license provides the
owner with complete control over content, subject to government regulation.
In the case of cable, most of the capacity is completely controlled by the
owner of the cables, with much less regulatory intervention, but some portions
of the capacity cannot be controlled by the infrastructure owner at all -
as with must-carry channels and access channels. In the case of telephones
or telecommunications carriers, ownership over the infrastructure entails,
by definition, n182 no control over the content. Which model will
prevail at the physical layer of the digital [*1237] environment
will have significant consequences on the relative role of owners of that
physical layer in controlling information flows on the Net.
To return to the example of cable access, if AT&T can exclude all competitors
from using its system to provide internet access, n183 and if it can
also decide to install a filter for certain kinds of information - say, because
it believes a "safe" service will draw more consumers - then, vis-a-vis its
subscribers, that information does not exist as long as the subscribers continue
to use a cable modem. Depending on the availability of alternative facilities-based
providers who are common carriers - digital subscriber lines ("DSL") being
the most relevant today - who do not control the information, and depending
on consumers' switching costs, the possibility that the contents of some
pipelines will be controlled by their owners could give these owners significant
control over the flow of information to and from homes they serve.
The third cluster of issues on Congress's legislative agenda during the 1990s
directly concerns control over information. These efforts at regulation respond
to radical changes that the Net has wrought on traditional structures of
control over information flows. Where doors and locked bureaus could once
protect privacy, data-mining and encryption now do battle over whether there
will be more privacy than in the pre-Net environment, or less. Where clearly-demarcated
copies of information goods - like books or records - once defined the boundaries
of control that intellectual property owners had over their products, technological
protection measures and licenses do battle with digital duplication and transmission
to determine whether owners or users will gain more control over the information
products they own, or use, respectively. Where brown paper wraps, the watchful
eye of the store keeper or the parent, and government and social regulation
once controlled access to "dangerous materials," kids more technologically
attuned than their parents and users who seek out or provide "dangerous materials"
can now produce and access these materials at lower cost, and much freer
of the traditional means of social surveillance, than ever before. This third
cluster is a series of laws attempting to establish the terms of control
over information flows, given the shake-up of the technological parameters
that [*1238] defined the boundaries of control before the Net.
These laws are the subject of Part III.
III. Distributing Control Over Information
Pornography regulation, privacy and encryption regulation, the DMCA, and
the Anticybersquatting Bill all have similar structures as forms of Net regulation.
They all perceive a destabilizing effect that the Net has on the pre-Net
equilibrium of control over certain kinds of information, and all intervene
to settle the lack of equilibrium by setting the parameters for a new pattern
of control over the information flows on the Net.
This Part looks at a series of such events, and outlines a pattern of regulatory
impulses, responses, and effects by tracking a number of instances of Net
regulation through the destabilization to which they respond, the new patterns
of control the technological shift makes possible, and the actual regulatory
choice made. The result of this exercise should be a plausible method for
analyzing new Net regulation issues that fit this pattern, allowing a somewhat
removed analysis of proposed laws whose normative implications may be quite
different than those expressly engaged by their proponents.
1. Pornography and Dangerous Information
Over the course of the twentieth century, pornography regulation in the
United States has gone from a practice of general enforcement of public morality
- personified by Anthony Comstock n184 - to a combination of direct
enforcement of public morality against very extreme instances of morally
unpopular sexual depictions (contemporary definitions of obscenity),
n185 and protection of children from less extreme sexual depictions that
are still morally disfavored by the majority, n186 which functionally
segregates these unpopular sexual depictions [*1239] from the
information environment of most of the population. n187 In an information
environment composed of print, broadcast, telephone, and film, this settlement
was satisfactory to the moral mainstream. Mainline print is kept "clean"
by market factors, while niche printers can be physically segregated, their
products wrapped in brown paper or placed behind a curtain. n188 Broadcasters
are tightly regulated, and even criticism of the broadcast censorship system
itself can constitutionally be kept "clean" in its modes of expression.
n189 Film can only be accessed in designated theaters, where gatekeepers
and ratings can keep children and honest people out. For more conservative
communities, these theaters themselves may be segregated geographically.
The introduction of video was very simple to assimilate into the book or
magazine model - with segregation in the store, and in-home viewing sufficiently
segregated from the public sphere so as to prohibit imposition of public
morality regulation, and so as to be sufficiently within the control of parents.
Cable and the introduction of broadcast-like phone services - the dial-a-porn
services - were more difficult to assimilate. They could be accessed by anyone,
from anywhere, and were thus "in the public sphere" and more troubling to
those who had come to rely on the status quo to provide a more-or-less "clean"
environment. They could be accessed by children from every home. Both of
these media were therefore problematic for the status quo, and the solutions
to the disturbance they caused were also similar. Dial-a-porn was constitutionally
protected, but it was acceptable to require providers to use child-resistant
mechanisms to exclude children and, presumably, unsuspecting adults.
n191 Pornography on cable may constitutionally be subjected to the same kinds
of restraints. n192 And, as it turned out, it may be subjected to
even more restraints - to [*1240] those necessary to banish the
porn from the one public sphere into which an adult or child in the late
1980s and early 1990s might unsuspectingly have wandered: leased access cable
The introduction of the Net caused a much more significant disturbance than
any previous technological change since the abandonment of the general acceptability
of morality regulation per se. This is so for a number of reasons. The most
important reason is organizational. The Net eliminated the intermediaries
that, in previous technologies, were used as gatekeepers to control the dissemination
of, and access to, pornographic materials. Gone were the editor, the magazine
or video store owner, the broadcasters, the cable operator, or even the telephone
company. Anything that anyone was willing to put online was available directly
to anyone else, using facilities that saw nothing but streams of zeros and
ones. This not only eliminated organizational control points, but also social
approbation control points - the need to look someone in the eye in order
to rent or buy the thing.
Second, the Net dramatically reduced producers' production and distribution
costs. Anyone could put his or her fantasies online at a cost of no more
than spare time, or exhibit their photographs at the cost of scanning them.
To add insult to injury, it made available to mainstream users pornography
that was much more "obscene" than they would normally be able to get their
hands on, and created room for more outrage - an outrage fanned by the infuriating
fact that many kids could actually navigate this thing better than the adults
we usually think of as their "controllers."
2. Consumer Privacy
The sources of destabilization in the area of consumer privacy are the increase
in processing power and decline in its price, and the characteristic of digital
communications that they carry information about themselves as an integral
part of the communication. In the United States, the problem of consumer
privacy was first raised significantly in the 1970s. n194 [*1241]
The practice of businesses collecting and sharing information about the purchasing
habits of their consumers, and using this information to profile users so
as better to target them for advertising and offers, has been growing ever
since. The difference today is the amount of information available in processible
form, and how easy it is to process it. When many purchases were made in
cash at local, separate stores, collecting information was extraordinarily
expensive. Financial services companies and mail order vendors could keep
records on consumption patterns, but information about books, records, groceries,
and many other consumer goods was lost at the point of information intake.
Increasing quality of computing and networking enabled more sharing of this
information. As we moved to electronic payment systems with the rise of credit
cards, there was also a rise in the number of information intake points -
any point of sale where a credit card was used was a point of information
about the purchasing habits of an identifiable person. As computing became
cheaper, checkout counter registers could be transformed into information
collection and communication points. With the rise of the Net, every move,
whether part of a purchase or not, becomes a potential point of information
collection, for every move entails a series of information exchanges between
the source of the information and its user. All of these exchanges are in
machine-readable form and they are all eminently capable of retransmission
and resale to other users of a consumer's personal profile.
The result is the possibility of an online life that is more or less completely
subject to surveillance by commercial companies. The destabilization comes
from the fact that as a society we value privacy quite highly, and in the
past could rely on the significant imperfections in the system of collection,
processing, and dissemination of information about our lives to protect that
privacy. In the digitally networked environment, we can, as a practical matter,
be pervasively seen, and our actions can be comprehensively recorded, processed,
and shared or sold among others without our being able to have any say at
The first destabilizing effect relevant to encryption regulation is simple:
better, faster, cheaper processors. As more people have access to faster
processors, it becomes more plausible for everyone to use complex encryption
algorithms that require processing power to encrypt and decrypt with a key,
and are increasingly difficult, not to say impossible, to decrypt without
a key. n196 The result is that the advantage government agents have
over everyone else when it comes to encrypting and decrypting messages is
steadily decreasing. Whether this is a good thing or a bad thing may depend
on whether the government agent you are thinking of is an anti-terrorism
squad of a democracy or the Stasi. n197 Furthermore, the increasing
surveillance possibilities discussed with respect to the destabilization
in consumer privacy apply with equal, or greater, force to concerns over
government surveillance in a fully digital - and hence machine-searchable
- communications environment.
4. Digital Information Goods
Control over information goods is profoundly destabilized by digitization
and networking. n198 The basic law regulating control over information
goods is copyright law. It is a law deeply rooted in the print environment,
and it relies on the technical and economic characteristics of print to delineate
the [*1243] boundaries between vendors and buyers. Copyrights
are primarily rights in the distribution medium - rights to copy, distribute,
and perform or display publicly. The major deviation from this line is the
right to make derivative works. This allows producers to capture enough of
the value they create to give them incentives, while leaving many uses incapable
of monitoring by the producer, or not subject to the owner's exclusive rights,
or both. This structure of delineating the boundaries of control mostly around
the distribution medium was easily transferred to other distribution media
that were relatively simple to control, and could not be easily displaced
by user-made copies. Celluloid, broadcast, and records or CDs were sufficiently
similar in their distribution characteristics to print to allow for a more-or-less
simple extension of the copyright framework to them. It provided a rough
and ready, but livable, solution to the tension between the interest in giving
producers incentives and the interest in maximizing public access to the
information once it is produced.
Digital network distribution is different. Copies are perfect and almost
costless, and redistribution is almost costless. This threatens to render
the producers' staple rights null. But copies can be encrypted, their use
monitored by owners, and click-on licenses can surround each information
good with technical and contractual fences much tighter and more impregnable
than copyright law ever provided. n199 This renders users' traditional
practices of access to information obsolete. The result is that, in both
directions, control over information goods can no longer be based primarily
on the assumption of relatively clearly defined, but porous, boundaries of
the distribution medium. The issue that regulation must resolve is whether
this destabilization will result in a more tightly controlled, a more freely
flowing, or a more-or-less similarly controlled environment.
5. Trademarks and Domain Names
The destabilizing effect of the Net on trademarks is a result of the radical
reduction in the cost of searching for information on the Net. In the physical
business environment, searching for products to compare, say, price and quality,
is costly. Brand names and trademarks reduce search costs by declaring location
and price/quality information in easily-accessible ways. The mass mediated
information environment works well with this role of trademarks, for it provides
a relatively costly way of communicating this self-designation of price and
quality. Such a costly method excludes many potential competitors - who would
crowd the attention of consumers with competing marks - and permits a relatively
small number of businesses to acquire instant, human-memory-based recognition
as carrying certain attributes of the price/quality tradeoff. Hence the emergence
of the category of "famous marks" that is increasingly receiving property-like,
rather than consumer-protection-like, protection, as in the Anti-Dilution
Act of 1995. n200
The Net radically reduces the transaction costs involved in obtaining multiple
quotes and offers. It makes possible software-based comparison shopping,
and facilitates the acquisition of price/quality tradeoff information on
a purchase-by-purchase rather than vendor-by-vendor basis. It allows for
the development of services like CNET, that collect information, review it,
make price comparisons, and link to vendors. While this may be good news
for consumers and for aggregate social welfare, it is very bad news for the
owners of famous brand names. The value of their brand names - premised on
the happy accident that their social-welfare-increasing investments in saving
consumers search costs also made competition more difficult from non-brand
name producers, and hence gave them the ability to exercise some discipline
on prices and quality - was undermined. The result of this destabilization
is seen in the trademark/domain name debate. n201 (A fascinating subplot
of the destabilizing effect of the dramatic reduction in search [*1245]
costs on established models of market behavior is the occasional attempt
in Congress to force certain participants to reveal their prices to consumers.
B. Possible Approaches to Stabilization
1. Pornography and Dangerous Information
The primary destabilizing factor with respect to pornography or other dangerous
materials was disintermediation - the elimination of intermediates as potential
points to control the flow of information from producers to users. This makes
possible three ideal-type outcomes to the destabilization. First, there is
the possibility of extensive prohibition on the production or use of the
disfavored materials, so as to capture one or both ends of the dangerous
information flow that the Net enabled. This was more or less the approach
of the CDA, and if the Court had taken to the Net something like its approach
to television or even to cable access television, n203 then keeping
this universally-accessible medium "clean" could have meant widespread prohibition
on the production and use of dangerous materials like pornography.Reno v.
ACLU n204 excluded that outcome as a normative choice - the justices
thought the price in lost valuable communications too high. The opposite
resolution would be the "anything goes" possibility. As communications occur
increasingly between a willing recipient who seeks out information and a
willing sender who makes it available, we could see an approach where all
communication is treated as a "private" matter, outside the regulatory power
of the state. What we already see, though, is what we will likely continue
to see - an increasing focus on developing and legally requiring the use
of various technical means of reintroducing a control point between producer
and user, replacing the intermediary who once served that purpose. Whether
it is a pervasively- [*1246] filtered infrastructure or some
other mechanism remains to be seen. The point here is to see the possibility
of focusing the legal response onintroducing a stabilizing institutional
response at the point of destabilization, rather than at the point of production
or reception of the information. The problem for policy analysis will be
to try to evaluate the costs and benefits of one or another of these resolutions.
This evaluation will depend on other possible ways in which information flows
will or will not be controlled, given the destabilization of the patterns
of control prevalent in the mass-mediated environment.
2. Consumer Privacy
The regulatory responses to the radical increase in surveillability of consumer
transactions could range along a spectrum from doing nothing to prohibiting
the collection of information. In the former case, which is largely the American
response, consumers will likely be subject to pervasive surveillance by vendors.
In the latter case, surveillance will be limited to organizations willing
to work outside the law, and therefore will not be a pervasive fact of commercial
interactions. This will also result in the lost utility of vendors being
able to anticipate the preferences of consumers by extrapolating from profiles
of past behavior.
In between, a variety of legal responses require more-or-less prominent notification
and consent by consumers to the collection. Two possibilities are to require
that the default option be permission to collect, or non-permission; or impose
different levels of care in maintenance of the information, in keeping it
updated, and in permitting consumers to update and challenge information
kept about them.
At the technical level, the destabilization effect can be dampened by development
of better anonymization technologies. One approach would be pervasive use
of anonymizers n205 - service s that strip a consumer's addressing
and routing information from requests for information on the Web, and hence
limit the capacity of vendors to collect information about visitors
[*1247] to their sites without expressly asking for information. This
would be impossible to implement, however, without a second component: widespread
use of digital cash mechanisms - payment mechanisms that, like cash, are
readily available and anonymous. With or without anonymizing utilities, the
pervasive availability and use of digital cash would render unnecessary many
of the current information collection practices necessary for implementing
existing forms of electronic payment, like credit cards.
The theoretically possible response to the destabilizing effect of strong,
cheap processors on the balance of power between government agencies (or
rich corporations) and non-governmental, small-scale users is to require
the use of only weak encryption algorithms in consumer products. The theory
is that if the public at large uses weak encryption, then the rapid rise
in processing power will keep the decryptors ahead of the encryptors, much
as they are in the pre-low-cost-processor world. This was the theory underlying
the Clipper Chip initiative n206 and the United States' export restrictions
on encryption technology. The alternative approach is not to regulate, in
which case we will likely see widespread availability of very strong encryption.
Its usefulness to electronic commerce and its embrace by users as a means
to secure privacy suggest that, barring a prohibition, the market for strong
encryption will drive its inclusion in popular applications intended for
use in a networked environment very soon.
4. Digital Information Goods
The destabilization of patterns of control over information goods is bi-directional,
in that it could lead to either much more control, or to much less control,
of owners over information goods. The status quo was a contingent accommodation
between the public interest in assuring incentives to producers and the public
interest in assuring access to users, contingent upon the technological characteristics
of available distribution media. Responses could therefore range along a
wide spectrum. [*1248] At one end, we could imagine very strong
rights for owners to control uses of this information n207 - perhap
s on a theory that declining transaction costs for contracting largely eliminate
the need for most access privileges. n208 These would be supplemented
by prohibitions on circumventing technological protection measures intended
to extend the owners' capacity to monitor use and exclude non-paying users,
and by strict enforcement of online contracts intended to mete out use rights
and carefully price-and-quality discriminate among users. n209 At
the other end, we could imagine very strong user privileges to take advantage
of the new technology to access and use information, on a theory that in
a near-zero marginal cost communications environment, the "goods"-based concept
of information production - itself a zero marginal cost "good" - is no longer
the appropriate way to think of how information is produced. n210
We could, in other words, see law as shifting away from protecting business
models based on sales of products, and towards business models based on relationships
built around information exchange. n211 Or we could see various approaches
in between these two. What is unlikely to happen is that we will find a settlement
more or less like the preceding settlement, because the relative costs of
communication, reproduction, and use around which that settlement crystallized
are so fundamentally altered by the new environment.
5. Trademarks and Domain Names
The concern over trademarks in domain names represents a destabilization
of the value of trademarks as search-cost reducing mechanisms. One response
could be an attempt to [*1249] transfer the value of trademarks
from the high search cost bricks-and-mortar plus mass media environment to
the low search cost digitally networked environment. The other approach would
be to accept the declining importance of trademarks, to limit legal protection
to situations where competitors try to use a mark to confuse consumers, and
to abandon the notion of dilution as protection of goodwill, which developed
to protect the famous marks most useful in the old environment. This would
result in some decline in the importance and value of famous marks, and would
instead increase the importance of search engines, rating services, and other
methods of reducing search costs.
C. Regulatory Choices Made
1. Pornography and Dangerous Information
In the area of pornography, we see two general strategies adopted to attempt
to stabilize the area of public sexual morality and children's exposure to
sex. The first, identified in the CDA and COPA, is an attempt to ban or burden
the introduction of sexual material at its source. CDA did so clumsily, and
was therefore overturned with little difficulty. COPA has attempted to do
so while crossing every "t" and dotting every "i" required by Reno v. ACLU.
Functionally, however, their response is the same, and it is the response
traditionally used in the area of broadcast. Both laws raise the costs of
being a producer of sexual materials troubling to the majority, and place
on producers the risk of error if they do make their materials available
to the formally protected audience - children. Whether the more careful version
of this approach taken in COPA will withstand First Amendment scrutiny remains
to be seen. n212
The other general approach is to foster and enhance the introduction of intermediaries
between the end-user and the information producer. The most obvious instances
of this are the repeated attempts to require libraries and schools to install
filtering [*1250] software n213 and the attempts to encourage
ISPs to offer, or even implement, filtering mechanisms. n214
Of the two approaches, the latter seems, at first sight, to be more specifically
responsive to the destabilizing factor - disintermediation - and to be less
"speech restrictive," in that it does not entail prohibiting anyone from
speaking. From a formal, nonfunctional First Amendment perspective, then,
it is likely to receive a more robust response. It was Lessig, however, who
noted that the relatively benign nature of filters may be illusory.
n215 For one thing, intermediaries will be reintroduced not because of any
necessity created by the technology, or because the medium requires a clearly
defined editor. Intermediaries will be reintroduced solely to acquire their
utility as censors of morally unpalatable materials. The laws effectively
require libraries to take on the role of censors of what their users can
see, rather than as facilitators of access to information their users seek.
n216 Even more importantly, the introduction of filters and the pervasive
tagging of information introduce the possibility that ISPs, employers, or,
for that matter, governments less constrained than the United States government,
will interject themselves between producers and users of information. A specific
ban, or set of restrictions, on providers of sexual materials might have
much narrower consequences for the information environment as a whole and
would less likely [*1251] undercut the decentralized nature of
the Net. It is unclear, however, that the rights-based analysis of the First
Amendment would take account of the full impact of preferring pervasive filtering
to direct burdens on sexual speech.
2. Consumer Privacy
Except in the case of children's privacy under COPPA, the American response
to the consumer transactional privacy concern has generally been a do-nothing
approach. Stating a preference for self-regulation, and contrary to the European
response, n217 both the Administration n218 and Congress have
refrained from regulating information collection practices. For example,
Real Networks' practice of secretly collecting information about the listening
habits of users who purchased their Real Jukebox product - including their
habits of listening on their computer's CD-ROM drive, not over the Net using
Real Jukebox n219 - may have been bad business, n220 but was
not necessarily illegal.
It is difficult to tell what the consequence of this regulatory response
will be. One option is that consumers will adjust their behavior patterns
to life in this panopticon, n221 and try to make sure that they do
not behave in ways that they would rather not be seen behaving. Another option
is that a few well-publicized campaigns and failures of producers who collect
too much information, like Real Networks with Real Jukebox, or [*1252]
like Lotus with Lotus Marketplace, n222 or like Lexis with the P-TRAK
database, n223 will in fact result in some form of industry-based
self-restraint, and the development of non-regulatory mechanisms to control
privacy practices, like TRUSTe. n224 Almost certainly, however, in
the absence of regulation, the digitally networked environment will be significantly
more subject to surveillance than the analog environment - because it can
be, and because the constraints will only be placed to reach a level just
below the threshold of consumer rebellion, but no lower. Consumers will therefore
likely be exposed to information chosen by vendors who guess what a user
will want to see, based on past purchases reflected in a user profile. Advertising,
as well as the content of news reports themselves, will be tailored by sites
that a consumer visits based on past behavior. This would in effect be a
modified "Daily Me" n225 - something like the "Daily Me as I am Perceived
by Information Vendors." From a positive perspective, one might be uncertain
whether this shift is welfare enhancing - giving individuals more relevant
information at lower search and collection costs - or welfare reducing -
limiting the ability of individuals to expose themselves to information relevant
to them at the time, as opposed to information relevant to where they would
have been had their preferences and interests followed a predictable path
from past observable behavior. Largely this would depend on a combination
of our sense of the linearity of the progression of people's preferences,
and our evaluation of the quality of the models used by information vendors
to predict future preferences, [*1253] even if linear and in
principle predictable. From the normative perspective, such a development
undermines individual autonomy because it pervasively displaces personal
control over the information environment within which individuals view the
world, because the perception of the world and of possible options for action
are defined by others. n226
In the area of encryption regulation, the cat seems to be well out of the
bag. Encryption regulation within the United States has come to be seen as
constitutionally suspect. n227 Export regulation has come to be seen
as futile, n228 and even the Administration seems to have abandoned
its central effort to prevent the spread of strong encryption. n229
Whether it is because of the ease of distribution, or because of the pressures
from United States industry to prevent the Administration's efforts from
simply shifting market share to foreign encryption producers, it seems that
there is no longer any response other than to adjust law enforcement practices
to a strong-encryption environment. This appears to be an instance where
destabilization has gelled into a new equilibrium, technologically determined
and autonomous of legal efforts to the contrary. Like talking about the weather,
it is therefore difficult to draw normatively interesting conclusions from
the encryption regulation debate. It does, however, suggest that there are
in fact situations when technology and market forces simply defy regulation,
as the techno-utopians of yesteryear foretold. n230 [*1254]
4. Digital Information Goods
In stabilizing control over digital information goods, the regulatory response
has been fairly consistent, and it has consistently been on the side of expanding
the power of the owners to control the use of their products. The DMCA criminalized
circumvention of technological protection measures n231 and the provision
of any services or products capable of circumventing technological protection
measures. n232 This likely will lead to pervasive installation of
technological locks, which will have the effect of prohibiting all uses not
expressly permitted and enabled, because any uses - legally privileged or
otherwise - require access through the code. This extension dovetails with
the DMCA's conditional exemption from liability for ISPs. n233 The
DMCA includes a series of exemptions for ISPs from contributory liability
for various infringement actions, n234 in exchange for a requirement
that ISPs enforce copyright claims made by owners under a "notice and take
down" framework. That framework, in effect, operates as a private temporary
restraining order, pending resolution in court. n235 If the states
also adopt the proposed Uniform Computer Information Transactions Act ("UCITA")
n236 - the law formerly known as UCC-2B n237 - which, among
other things, validates mass market licenses, n238 [*1255]
then we will likely see the displacement of copyright and related laws by
private regulation, achieved by a combination of contract, code, and organizational
Whether an environment of near-perfect excludability of information goods
- which are true public goods in the sense of being non-rival - is a good
idea as a matter of positive analysis is as questionable as would be the
efficiency of a perpetual patent right. Whether it is an environment that
is normatively appealing is even more questionable. In such an environment,
a relatively small number of organizations control increasing portions of
our information environment, and their control extends to an increasingly
fine-grained degree of how each of us uses and interacts with our information
environment. n239 What is important to see in this context is that,
in the area of digital information goods, the regulatory response seems quite
systematically to choose one of the two extreme ends of the possible approaches
to resolving the destabilization created by the technology. The political
economy of this preference for the outcome preferred by those who see the
direct effects of the laws as private benefits - the copyright owners - and
not the outcome preferred by those who do not see most of the costs of this
choice as private costs - users and future producers - is not particularly
mysterious. n240 Building an institutional counterweight to this political
imbalance would require courts to take on a more active role of constitutional
review of intellectual property regulation. n241
5. Trademarks and Domain Names
The resolution of the destabilization of trademarks has gone in the direction
of trying to maintain the value of brand names at the expense of the efficiency
of electronic commerce. Whether this position is the (relatively) more moderate
approach taken in the Internet Corporation for Assigned Names and Numbers
("ICANN") rules, n242 or the more aggressive approach taken by Congress,
n243 the basic approach has been to do the following three things.
First, the resolution assumes that consumers will seek out products on the
Net by taking their knowledge base from the mass-mediated environment and
deciding that the way to acquire the most appropriate product given the consumer's
preferred price, quality, and terms is to seek a recognizable brand name
from the mass media environment to fit that preference, rather than to go
to a search engine or a product review site. Second, it assumes that this
reliance on an existing knowledge base will be translated into a consumer
typing into their browser a uniform resource locator ("URL") such as http://www.brandname.com
as their primary way to access products. Third, it gives owners of trademarks
the power to control the use of the alphanumeric string thatis a part of
their trademark as a second level domain name, the place represented by "brandname"
in our example.
It is not clear, however, that this resolution will be effective. It assumes
that browsers will continue to be as they are, that search-and-compare shopping
software and review services will continue to play second fiddle to brand
recognition, along with a variety of other technological and market assumptions
that may or may not turn out to be true. But what is important here is to
see that the regulatory effort identified an opportunity to negate the destabilizing
effect, and secured it for the stakeholders prior to the destabilizing event.
In this case, if consumers, rather than going to a search engine, shopping
software, or review site, hunt around for http://www. brandname.com, or http://www.brand-name.com,
or http:// www.brandname.net, then they continue to depend on their
[*1257] relatively limited ability to remember brand names, and the
investments made in building name recognition to capture consumers is not
lost. To make this possible, it is absolutely necessary that this way of
seeking information be a viable approach to searching at least for those
branded products, and for that purpose the control of brand-name owners on
the second level domain space must be more or less complete. It also suggests,
as we in fact see in early 2000, resistance on the part of brand name owners
to an expansion of the generic top level domain ("gTLD") space. n244
The very strong dilution/goodwill, rather than confusion-based, protection
offered in many of the cases, n245 the Act, and the ICANN policy is
consistent with the attempt to transfer the value of brand names from the
real-space, mass-mediated environment to the digital environment. This is
the appropriate regulatory means to maximize the probability that this outcome
will obtain in the market.
Whether it is in fact sensible - as a matter of social policy - to saddle
electronic commerce with the baggage of an imperfect approach to saving search
costs from the mass-mediated, real-world environment is a different question.
The private stakes for those corporations who have invested in building brand
recognition and plan to recoup their investments by exercising some price
discipline using the value of their brand name as a search-cost saving device
for consumers are obvious. The public benefits of protecting these costs
by encouraging consumers not to take advantage of the reduced search costs
in the electronic commerce environment are more questionable. But the methodological
point is the important one for this article. This is an instance in which
the policy choice was to counteract the destabilizing effect of the reduction
in search costs associated with electronic commerce and the solution is in
fact appropriate to provide at least the legal infrastructure necessary to
permit people to engage in electronic commerce without taking advantage of
its reduced [*1258] search costs, relying instead on the real-world,
mass media stand-in for actual comparison - brand name recognition.
D. Regulation as Stabilization Revisited
The above-described type of internet regulation cuts across many substantive
legal areas, and concerns instances in which the internet has destabilized
existing modes of controlling information. Some combination of technology,
law, and economic organization provided, in the pre-Net environment, a certain
stable pattern of control over information. Broadcasters could keep the main
public medium "clean" - walls, drawers, and cash created a sphere of privacy.
Moving to the digitally networked environment destabilized the particular
relationships of control over information flow, and someone found this destabilization
worrisome enough to try to use law to re-stabilize control.
What this Part suggests is that, when faced with such laws, we begin not
with the itch but with an analysis of its causes. We should look at what
it is about the digitally networked environment that destabilized the relations
of control over information. Once we know the cause of the concern, we can
begin to imagine fixes, and we can begin to imagine the kinds of dynamic
effects that different kinds of fixes will have. Only then can we make a
rational normative choice among possible responses. Only then can we assess
which approach would best respond to the concern without imposing too high
a cost in terms of how we use information more generally.
A review of the legislative activity in the area of Net regulation throughout
the 1990s reveals three general types of regulatory activities. The first
involves harnessing the Net to enhance fulfillment of traditional government
roles, like providing education or facilitating democratic participation.
In some cases, the utilization of the technology may do nothing more than
make more efficient that which already is. In others, it may actually affect
the nature of the government function, as one might hope or suggest would
be the case with significant enhancement of opportunities for citizen response
and input into government processes. The second type of regulatory
[*1259] activity involves direct efforts to enhance the deployment
and development of the Net itself. These efforts include investments in intellectual
and physical infrastructure, and regulation of markets that will serve this
development. Again, this is a regulatory area that may have normatively significant
effects. Different approaches to more-or-less regulation and more-or-less
direct provision by the government may have significant effects on the way
the network is built and used in the future.
Finally, there is a set of regulatory activities that are more commonly identified
with the concept "Net regulation," which have to do with regulating control
over information flows. This article suggested that these areas are amenable
to a common analytic approach. Using this mode of analysis may, for example,
reveal the stakes of the regulation more effectively than treating the problems
as separate, specific problems of regulation of pornography or copyright
The way to approach these questions of Net regulation is to ask, first and
foremost, whether they are issues of "Net regulation." The way to answer
this question is to analyze in what way, if at all, the perceived regulatory
problem is a result of the destabilization of extant models of control over
information flows in the pre-digital environment. If the regulatory problem
is not affected by the fact that the activity sought to be regulated is on
the Net, rather than in the real-world or mass-mediated environment, then
it is not clear that any new, Net-specific regulatory solution is necessary.
If, however, it is possible to identify the Net as a factor that destabilizes
the structure of control over the information flows sought to be regulated,
then we might indeed be facing a situation that requires a regulatory response
to resolve the question of control that has been set loose from its pre-digital
The second step is to identify how the Net destabilizes the incumbent structures
of control over information flows. In particular, we should seek to identify
who once had control, and no longer does, or who once had no control, which
they might now have, and what it is about digital network communications
that caused this shift. This may be a unidirectional effect, as in the case
of encryption, or a bi-directional effect, as in the case of digitized information
goods. But the methodological inquiry is the same.
[*1260] The third step is to identify the range of possible regulatory
responses that, given the new technological context, could stabilize new
patterns of control over information. Different regulatory responses could
result in different patterns of control, and we must consider the various
possible responses and outcomes in order to settle on a considered regulatory
The fourth and final step is normative evaluation. Understanding something
as a problem of Net regulation; understanding the ways in which law can re-stabilize
new patterns of control over information flow; and understanding who stands
to gain and who stands to lose what types of control over which kind of information
given adoption of the various regulatory responses possible, set the groundwork
for choosing the appropriate regulatory response. That choice, however, is
irreducibly normative. And it is a choice of great moment, for it sets the
legal framework for the new settlement in the digital environment of some
very basic social and cultural questions. These are the questions of who
gets to say what to whom, and who decides; who gets to produce culture; and
how concentrated or widely distributed our social, political, and cultural
conversations will be.
Together, recognition of the different layers of Net regulation and their
possible interactions with each other is a necessary pre-condition to developing
a coherent policy about Net regulation. We must understand that we make Net
policy at all these layers - its utilization for the provision of public
goods, its infrastructural development, and its effects on the structures
our society uses to control the flow of information - and that the choices
we make interact across clusters and within clusters among specific choices.
If we embrace the Net as a medium enabling widely dispersed, robust public
discourse, n246 then it makes little sense to negate that normative
choice by creating new tight controls over cultural production in the form
of expanded property rights to information goods. If we embrace extensive
monitoring of uses of information so as to permit owners to charge for every
use, then we cannot also [*1261] embrace a very strong perception
of privacy. n247 As we are bombarded with specific policy choices,
we will make better policy by stepping back and understanding where the choice
is situated in the map of policy choices we have already made and are likely
to make, comprehending the positive implications of our choices given the
technological backdrop and the change that it has created from our former
environment, and explicitly assessing the normative value of these implications.
n1. See The White House, A Framework for Global Electronic Commerce (July
1, 1997) <http://www.ecommerce.gov/framewrk.htm>.
n2. I use the term "Net" to describe, most obviously, the internet, but more
generally "the digitally networked environment," whose clearest manifestation
for most of us today is the internet.
n3. See infra note 9 for a more detailed description of the search terms
n4. See Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991); Stratton Oakmont,
Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710, at *5 (N.Y. Sup.
Ct. May 24, 1995); Yochai Benkler, Rules of the Road for the Information
Superhighway: Electronic Communications and the Law 330-55 (1996) [hereinafter
n5. See Electronic Communications, supra note 4, at 401-30.
n6. See generally Michael S. Baum & Henry H. Perrit, Jr., Electronic
Contracting, Publishing, and EDI Law (1991); Electronic Communications, supra
note 4, at 43-147; Benjamin Wright, The Law of Electronic Commerce (1991).
n7. See United States Dep't of Commerce, The National Information Infrastructure:
Agenda for Action (Dec. 21, 1993) <http://metalab.unc.edu/nii>. Item
1 on the agenda was to promote private investment, and the first action mentioned
was telecommunications regulatory reform to enlist telephone and cable to
the effort. See United States Dep't of Commerce, The National Information
Infrastructure: Agenda for Action (Dec. 21, 1993) <http://metalab.unc.edu/nii/NII-Agenda-for-Action.html>.
n8. See United States Dep't of Commerce, The Emerging Digital Economy II,
ch. 1 (June 1999) <http://www.ecommerce.gov/ede/chapter1.html>.
n9. I used a Lexis search on all full text bills in the 101st-106th Congresses,
with the following query: "internet" or "electronic commerce" or "e-commerce"
or "world wide web" or (interactive /5 computer) or "online". I retrieved
15 bills and joint resolutions in the 101st Congress; 23 in the 102d Congress;
34 in the 103d Congress; 66 in the 104th Congress; 275 in the 105th Congress;
and 348 in the first session of the 106th Congress by the end of 1999.
n10. There were actually 63, but one, from the 100th Congress, was swept
in by the (computer /5 interactive) phraseand referred in the same sentence
to instructional computers and interactive videodiscs.
n11. See H.R. 4014, 102d Cong. (1991).
n12. See H.R. 5759, 102d Cong. (1992); S. 2937, 102d Cong. (1992).
n13. See H.R. 5983, 102d Cong. (1992); S. 2813, 102d Cong. (1992).
n14. See H.R. 5392, 102d Cong. (1992).
n15. See H.R. 2728, 103d Cong. (1993); S. 1040, 103d Cong. (1993); H.R. 1804,
103d Cong. (1993) (enacted); H.R. 856, 103d Cong. (1993).
n16. See S. 626, 103d Cong. (1993).
n17. See H.R. 1757, 103d Cong. (1993).
n18. See H.R. 3636, 103d Cong. (1993).
n19. See H.R. Res. 463, 103d Cong. (1994) (requiring that legislative tracking
and text be made available online over the internet); H.R. 4606, 103d Cong.
(1994) (appropriating $ 1.5 million for a demonstration of making federal
and other databases available over the internet) (enacted).
n20. See S. 2207, 103d Cong. (1994); S. 2206, 103d Cong. (1994); H.R. 4263,
103d Cong. (1994); S. 1587, 103d Cong. (1993) (enacted).
n21. See H.R. 3606, 104th Cong. (1996); H.R. 1978, 104th Cong. (1995) (finding
its way, eventually, into the Telecommunications Act of 1996 as 509); S.
314, 104th Cong. (1995). The notorious Exon bill, which is the lineal parent
of the Communications Decency Act, did not use the term "internet," but is
later swept in by this rather crude search as part of Senate Bill 652, the
Senate version of the Telecommunications Act of 1996, into which the Exon
bill was incorporated. See S. 652, 104th Cong. (1995) (enacted).
n22. See H.R. 3526, 104th Cong. (1996); S. 1495, 104th Cong. (1995); S. 704,
104th Cong. (1995) (enacted); H.R. 497, 104th Cong. (1996) (enacted).
n23. See H.R. 3781, 104th Cong. (1996).
n24. See S. 2184, 104th Cong. (1996) (limiting the advertising of tobacco
online); H.R. 4079, 104th Cong. (1996); H.R. 3515, 104th Cong. 5 (1996) (applying
automobile advertising rules to internet advertising).
n25. See H.R. 4326, 104th Cong. (1996); H.R. 4299, 104th Cong. (1996) (regulating
the disclosure of social security numbers obtained by interactive computer
service); H.R. 4113, 104th Cong. (1996) (addressing the privacy of transactional
information); H.R. 3685, 104th Cong. (1996).
n26. See H.R. 3730, 104th Cong. (1996).
n27. See S. 1726, 104th Cong. (1996) (resisting the administration's efforts
to regulate encryption, in the name of aiding electronic commerce).
n28. See Communications Decency Act, S. 652, 104th Cong. (1995) (enacted)
(exempting ISPs from defamation liability as a publisher if the only control
they exercise over the content is to provide filtering and blocking facilities).
n29. See H.R. 4180, 104th Cong. (1996); H.R. 1617, 104th Cong. (1995). The
increasing voluntarism focus is seen in House Resolution 521, 104th Cong.
(1996), and Senate Resolution 274, 104th Cong. (1996), where the House and
Senate laud private companies providing web access to schools.
n30. Pub. L. 104-104, 254, 110 Stat. 56, 71 (codified as amended at 47 U.S.C.
254 (Supp. IV 1998)).
n31. See H.R. 2127, 104th Cong. (1995); H.R. 1024, 104th Cong. (1995). A
particularly odd instance of this is House Resolution 2491, 105th Cong. (1995),
which, in the process of proposing to cancel the Technology Administration,
requires that reports submitted to the National Technical Information Service
be in a format conducive to their dissemination on the Net and the Web. See
also S. 2179, 104th Cong. (1996) (disseminating information about hazardous
environmental conditions via the internet); S. 2004, 104th Cong. (1996) (making
health care information available on the internet); S. 1269, 104th Cong.
(1995) (establishing internet access to traffic conditions).
n32. See H.R. Con. Res. 185, 104th Cong. (1996); S. Con. Res. 65, 104th Cong.
n33. See H.R. 3820, 104th Cong. (1996) (using the Net to enhance disclosure);
H.R. Res 478, 104th Cong. (1996) (providing online public access to committee
documents); H.R. 3760, 104th Cong. (1996) (using the Net to enhance disclosure);
H.R. 3700, 104th Cong. (1996) (permitting interactive services to offer candidates
free facilities); H.R. 3653, 104th Cong. (1996) (requiring information contained
in reports to the Federal Election Commission to be available on the internet);
H.R. Res. 454, 104th Cong. (1996) (making representatives' voting records
n34. See H.R. 2112, 105th Cong. 2 (1997) (devoting fines for slamming to
the school connection component of the universal service fund); H.R. 1153,
105th Cong. (1997) (providing tax incentives for the contribution of computers
to schools); S. 1708, 105th Cong. (1997) (stating the level of universal
service support to schools' and libraries' internet connections, and increasing
funding for educational technology); S. 12, 105th Cong. 402 (1997) (expressing
the sense of the Senate that money should be allotted for technology in the
classroom); H.R. 6, 105th Cong. 301 (1997) (enacted).
n35. See H.R. 4552, 105th Cong. (1998) (establishing grants for local educational
authorities to provide teacher training); H.R. 2065, 105th Cong. (1997) (providing
for training of teachers); S. 839, 105th Cong. (1997) (same).
n36. See S. 2348, 105th Cong. (1998) (repealing the FCC's authority to levy
universal service charges to support internet access for schools, and moving
the subsidies to state authorities); H.R. 4324, 105th Cong. (1998) (repealing
the FCC's authority to levy universal service charges to support internet
access for schools); H.R. 4065, 105th Cong. (1998) (same effect as H.R. 4324);
H.R. 4032, 105th Cong. (1998) (same effect as H.R. 4324).
n37. See H.R. 4274, 105th Cong. 601-02 (1998) (requiring filters to be installed
by all schools and libraries receiving federal funds); S. 1708, 105th Cong.
(1998) (requiring recipients of funding to have policies restricting access
to inappropriate materials); H.R. 3177, 105th Cong. (1998) (requiring all
schools to install filtering or blocking mechanisms that prevent access to
"matter deemed to be inappropriate for minors" as a precondition to receiving
universal service funds); S. 1619, 105th Cong. (1998) (conditioning universal
service funds on installing filters in schools and libraries).
n38. See S. 2645, 105th Cong. (1998) (designating Library of Congress as
the United States station on Global Legal Information Network for global
sharing of legal information); S. 2636, 105th Cong. (1998) (regarding emission
rates from power generation plants); H.R. 4621, 105th Cong. (1998) (regarding
after-school programs); S. 2484, 105th Cong. (1998) (addressing the best
practices to avoid gun violence in schools); S. 2432, 105th Cong. (1998)
(enacted) (regarding information about assistive technology devices for individuals
with disabilities); H.R. 4461, 105th Cong. (1998) (same); S. 2416, 105th
Cong. (1998) (regarding health plan information); S. 2407, 105th Cong. (1998)
(regarding entrepreneurial opportunities available to veterans); S. 2339,
105th Cong. (1998) (regarding pension plans available for small businesses);
H.R. 4275, 105th Cong. (1998) (regarding economic development); H.R. 4110,
105th Cong. (1998) (enacted) (regarding gulf war syndrome); H.R. 4073, 105th
Cong. (1998) (regarding the best practices to avoid child-related gun violence);
S. 2185, 105th Cong. (1998) (same); H.R. 3980, 105th Cong. (1998) (regarding
gulf war syndrome research findings); S. 2124, 105th Cong. (1998) (addressing
maritime information); H.R. 3899, 105th Cong. (1998) (regarding HUD listings);
H.R. Res. 424, 105th Cong. (1998) (regarding information about travel of
members and employees of the House); H.R. 3661, 105th Cong. (1998) (regarding
gulf war syndrome information); S. 1901, 105th Cong. (1998) (providing for
online access to IRS materials); H.R. 3560, 105th Cong. (1998) (regarding
social security benefits); H.R. 3514, 105th Cong. (1998) (addressing reports
on violence against women); H.R. 3474, 105th Cong. (1998) (regarding health
effects of tobacco); H.R. 3435, 105th Cong. (1998) (addressing affordable
housing strategies); S. 1712, 105th Cong. (1998) (regarding ERISA and retirement
savings information); H.R. 3310, 105th Cong. (1998) (addressing small business
paperwork reduction information); H.R. 3150, 105th Cong. (1998) (regarding
bankruptcy-related reports); H.R. 3134, 105th Cong. (1998) (providing for
online warnings of telemarketing fraud aimed at seniors); H.R. 3131, 105th
Cong. (1998) (regarding all congressional research service materials); S.
1578, 105th Cong. (1998) (same); S. 1577, 105th Cong. (1998) (regarding child
care safety reports); H.R. 2876, 105th Cong. (1997) (addressing information
about food animal drug use and residues); H.R. 2691, 105th Cong. (1997) (regarding
risk analyses of safety devices in motor vehicles); H.R. 2688, 105th Cong.
(1997) (regarding information about economic development programs); H.R.
2451, 105th Cong. (1997) (regarding environmental hazards); S. 1153, 105th
Cong. (1997) (regarding drug residues in food animal products); S. 1150,
105th Cong. (1997) (enacted) (same); H.R. 2095, 105th Cong. (1997) (regarding
human rights abuses in China); H.R. 2015, 105th Cong. (1997) (regarding Medicare
information); S. 947, 105th Cong. (1997) (regarding Medicare choice options);
H.R. 1987, 105th Cong. (1997) (regarding information about college athletics
programs); S. 933, 105th Cong. (1997) (addressing college athletics); S.
771, 105th Cong. (1997) (regarding spam enforcement); S. 757, 105th Cong.
(1997) (regarding ERISA and retirement savings information); S. 712, 105th
Cong. (1997) (addressing report on declassification of government materials);
H.R. 1440, 105th Cong. (1997) (regarding Department of Education grants and
scholarships); H.R. 1377, 105th Cong. (1997) (regarding ERISA and other retirement
savings information); S. 599, 105th Cong. (1997) (regarding environmentally
hazardous conditions); S. 527, 105th Cong. (1997) (regarding ingredients
of tobacco products); S. 417, 105th Cong. (1997) (enacted) (addressing compliance
with alternative fuel vehicle purchases); H.R. 443, 105th Cong. (1997) (regarding
disclosure of Medicare information); H.R. 337, 105th Cong. (1997) (same);
H.R. Res. 5, 105th Cong. (1997) (addressing House committee reports). But
see S. 1867, 105thCong. (1998) (imposing small business paperwork requirements);
S. 1858, 105th Cong. (1998) (regarding work incentives for individuals with
disabilities); S. 1792, 105th Cong. (1998) (addressing retirement savings);
H.R. 2602, 105th Cong. (1997) (prohibiting advertising of military surplus
sales on the internet).
n39. See H.R. 4742, 105th Cong. (1998) (requiring publication of current
airline fares); H.R. 4274, 105th Cong. (1998) (publishing reports required
under the Labor-Management Reporting and Disclosure Act of 1959); H.R. 4250,
105th Cong. (1998) (addressing health plan information); S. 2238, 105th Cong.
(1998) (requiring publication of boxing associations' ratings of boxers);
S. 1889, 105th Cong. (1998) (requiring documents to be produced by tobacco
companies); H.R. 2264, 105th Cong. (1997) (publishing reports required under
the Labor-Management Reporting and Disclosure Act of 1959).
n40. See S. 1868, 105th Cong. (1998) (establishing religious freedom web
site); H.R. 2431, 105th Cong. 103 (1997) (establishing web site to promote
religious freedom worldwide) (enacted); H.R. 2232, 105th Cong. 5 (1997) (broadcasting,
with Voice of America, information about fugitives from American justice);
H.R. 2095, 105th Cong. (1997) (publishing information about human rights
abuses in China).
n41. See S. 2571, 105th Cong. (1998) (setting up tests to improve government
n42. See H.R. 3721, 105th Cong. (1998); H.R. 3582, 105th Cong. (1998); H.R.
3581, 105th Cong. (1998); H.R. 3526, 105th Cong. (1998); H.R. 3485, 105th
Cong. (1998); H.R. 3476, 105th Cong. (1998); H.R. 3399, 105th Cong. (1998);
H.R. 3315, 105th Cong. (1998); H.R. 3174, 105th Cong. (1998); S. 1561, 105th
Cong. (1997); H.R. 3019, 105th Cong. (1997); H.R. 2777, 105th Cong. (1997);
H.R. 2573, 105th Cong. 7 (1997) (providing access to candidate reports);
S. 1190, 105th Cong. (1997); H.R. 2433, 105th Cong. (1997) (same); H.R. 2183,
105th Cong. (1997) (requiring publication of use for campaigns with mild
modifications that affect the vice president, like internet publication of
uses of Air Force 1 and 2 and sweeping internet publication of soft-money
uses regulated or exempted from regulation); H.R. 2147, 105th Cong. (1997);
H.R. 2109, 105th Cong. (1997); S. 976, 105th Cong. (1997); H.R. 2074, 105th
Cong. (1997); H.R. 1780, 105th Cong. (1997) (providing information about
campaigns); H.R. 965, 105th Cong. (1997) (same); H.R. 653, 105th Cong. (1997)
(regarding use for campaigning); S. 25, 105th Cong. (1997).
n43. See S. 1882, 105th Cong. 303 (1998) (permitting Commission on Education
of the Deaf to conduct hearings on the Net, to enhance participation and
feedback); H.R. 3546, 105th Cong. (1998) (seeking to use internet forums
nationwide to discuss social security).
n44. See H.R. 4112, 105th Cong. 312 (1998) (enacted); S. 1971, 105th Cong.
(1998) (permanently authorizing the American Folklife Center in the Library
of Congress, noting that it shares its unique collections in digital form
over the Net).
n45. See Next Generation Internet Research Act of 1998, Pub. L. No. 105-305,
1998 U.S.C.C.A.N. (112 Stat.) 2919.
n46. See H.R. 3332, 105th Cong. (1998) (enacted). After the bill passed both
houses, Senator Leahy commented that including the domain name study was
putting the horse (trademarks) before the cart (efficient competition in
gTLDs); see also H.R. 3616, 105th Cong. (1998) (enacted) (providing funding
for Next Generation Internet in defense budget); S. 1609, 105th Cong. (1998)
(Senate version of H.R. 3332); S. 1046, 105th Cong. (1998) (providing funding
for Next Generation Internet in NSF budget).
n47. See H.R. 1271, 105th Cong. 6 (1997) (prohibiting use of funds to support
research on Next Generation Internet).
n48. See H.R. 1273, 105th Cong. 207 (1997) (affecting the NSF); see also
H.R. 1275, 105th Cong. 307 (1997) (affecting NASA); H.R. 1274, 105th Cong.
8 (1997) (affecting NIST). But see S. 1325, 105th Cong. (1997) (excluding
Technology Administration in Commerce from Next Generation Internet); S.
1250, 105th Cong. (1997) (permitting NASA, expressly, to participate in Next
Generation Internet); H.R. 1277, 105th Cong. 7 (1997) (affecting the Department
n49. See National Defense Authorization Act, Pub. L. No. 105-261, 1998 U.S.C.C.A.N.
(112 Stat.) 1920 (appropriating funds for Next Generation Internet development);
National Science Foundation Act of 1998, Pub. L. No. 105-207, 1998 U.S.C.C.A.N.
(112 Stat.) 869 (approving $ 48 million appropriation to NSF for Next Generation
Internet for fiscal years 1998 and 1999); 1998 Supplemental Appropriations
and Rescissions Act, Pub. L. No. 105-174, 1998 U.S.C.C.A.N. (112 Stat.) 58
(legalizing and ratifying fees collected as part of domain registration fee,
and transferring them to NSF to be used for internet intellectual infrastructure,
including Next Generation Internet).
n50. See Act of Oct. 20, 1999, Pub. L. No 106-74, 1999 U.S.C.C.A.N. (113
Stat.) 1047; Veterans Affairs and HUD Appropriations Act, Pub. L. No. 105-276,
1998 U.S.C.C.A.N. (112 Stat.) 2461 (prohibiting NSF from expending funds
on entering into contractual relations regarding management of the domain
name and numbering system after Sept. 30, 1998); H.R. 4194, 105th Cong. (1998)
(enacted) (restricting NSF's use of funds).
n51. See S. 1328, 105th Cong. (1997); H.R. 1872, 105th Cong. (1997).
n52. See H.R. 4802, 105th Cong. (1998).
n53. See H.R. 4801, 105th Cong. 6 (1998) (treating the telecommunications
industry's internet traffic carried by local exchange carriers ("LECs") as
interstate for purposes of reciprocal compensation); S. 86, 105th Cong. (1997)
(proposing that LECs and the internet community talk about access charges
rather than levy them).
n54. See H.R. 4270, 105th Cong. (1998).
n55. See S. 386, 105th Cong. tit. VII (1997) (addressing rural health care
providers and telemedicine).
n56. See H.R. 4798, 105th Cong. 206 (1998). As part of a general restructuring
of the electric power industry, House Bill 4798 permitted consumers to combine
to form nonprofit municipal electricity services or other nonprofit provision
mechanisms to provide services like those of electricity companies. See id.
It also provided telecommunications services, including internet service,
to those consumer aggregations if permitted to electricity providers.
n57. See S. 2648, 105th Cong. (1998) (permitting schools to use federal funds
to purchase screening software); S. 2491, 105th Cong. 901 (1998) (seeking
study of the problem and how to limit it).
n58. See H.R. 3985, 105th Cong. (1998).
n59. See H.R. 3783, 105th Cong. (1998) (COPA); S. 1482, 105th Cong. (1997).
n60. See H.R. 3494, 105th Cong. tit. IV (1998) (providing for an enhanced
penalty for transmitting obscene materials to minors); H.R. 1180, 105th Cong.
(1997); H.R. 774, 105th Cong. (1997).
n61. See H.R. 3494, 105th Cong. (1998) (addressing sexual abuse of minors);
H.R. 2815, 105th Cong. (1997) (prohibiting use of internet to target children
for sexual propositions or materials); H.R. 2791, 105th Cong. (1997) (prohibiting
service providers from offering internet accounts to "sexually violent predators").
n62. See H.R. 3494, 105th Cong. 503 (1998) (providing sentencing guideline
enhancement for use of a computer in sexual abuse of a minor).
n63. See H.R. 4276, 105th Cong. 130 (1998) (prohibiting making personally
identifiable information about a minor under 17 available for purposes of
soliciting sex that is illegal under any law); S. 1965, 105th Cong. (1998)
n64. See S. 1356, 105th Cong. (1997).
n65. See H.R. 3729, 105th Cong. (1998).
n66. See H.R. 3474, 105th Cong. (1998) (prohibiting advertising of tobacco);
S. 1755, 105th Cong. (1998) (prohibiting advertising accessible from the
United States); S. 1648, 105th Cong. (1998) (same); S. 1638, 105th Cong.
(1998) (prohibiting advertising available in the United States and publicizing
health risks on the Net); S. 1530, 105th Cong. (1997) (prohibiting advertising);
S. 1415, 105th Cong. (1997) (prohibiting internet advertising unless inaccessible
to minors); S. 1414, 105th Cong. (1997) (prohibiting internet advertising
accessible from the United States); H.R. 2034, 105th Cong. (1997) (prohibiting
sale of tobacco to children over the Net); H.R. 2017, 105th Cong. (1997)
(same); H.R. 1964, 105th Cong. (1997) (addressing tobacco, alcohol, and children);
H.R. 1244, 105th Cong. (1997).
n67. See H.R. 4114, 105th Cong. (1998).
n68. See H.R. 4350, 105th Cong. (1998); H.R. 2380, 105th Cong. (1997); S.
474, 105th Cong. (1997).
n69. See H.R. 4788, 105th Cong. (1998) (specifying that usual consumer protection
regulations apply to internet advertising as well); H.R. Con. Res. 318, 105th
Cong. (1998) (calling upon FTC to investigate internet advertisers that falsely
state their geographic location).
n70. See S. 2587, 105th Cong. (1998) (focusing in particular on seniors).
n71. See S. 2208, 105th Cong. (1998) (requiring evaluation of quality of
health-related information available on the Net).
n72. See H.R. 2368, 105th Cong. (1997) (seeking voluntary self-regulation);
H.R. 1964, 105th Cong. (1997) (focusing on children); H.R. 1287, 105th Cong.
(1997) (regulating disclosure of social security numbers or related personal
information to third parties); H.R. 98, 105th Cong. (1997).
n73. See H.R. 4667, 105th Cong. (1998) (requiring strict regulations regarding
the collection of personal information from children and disclosure of policies
and information to parents); S. 2326, 105th Cong. (1998) (requiring the FTC
to promulgate rules for protection of privacy of children as consumers on
n74. See H.R. 4632, 105th Cong. (1998) (requiring federal agencies to comply
with the same consumer privacy practices as private businesses); H.R. 4470,
105th Cong. (1998) (prohibiting government agencies from disclosing or selling
personal data); H.R. 1367, 105th Cong. (1997); H.R. 1331, 105th Cong. (1997)
(embodying a moderate "study" version); H.R. 1330, 105th Cong. (1997).
n75. See H.R. 4176, 105th Cong. (1998) (focusing on information about the
sender and enforcement of service provider rules); H.R. 4124, 105th Cong.
(1998) (focusing on assuring that spam is transparent as to source and enforcement
of service provider rules); H.R. 3888, 105th Cong. 201 (1998) (refraining
explicitly from regulating spam); S. 1618, 105th Cong. (1998) (requiring
disclosure of sender's identification and routing information and requiring
"remove" option); H.R. 2368, 105th Cong. (1997) (seeking voluntary self-regulation);
S. 875, 105th Cong. (1997) (prohibiting false source information, repeated
messages to consumers who notify of objection, and messages in contravention
of service provider policy); S. 771, 105th Cong. (1998) (requiring a label,
"advertising," at top of e-mail and requiring that routing information be
n76. See S. 2067, 105th Cong. (1998) (establishing general freedom to use
any encryption and prohibiting a mandatory key recovery system); S. 377,
105th Cong. (1997) (seeking to aid electronic commerce through strong encryption
availability); S. 376, 105th Cong. (1997) (permitting use of encryption and
prohibiting mandatory key escrow); H.R. 695, 105th Cong. (1997).
n77. See H.R. 2991, 105th Cong. (1997) (enhancing digital signature use and
electronic commerce by requiring federal agencies to adopt procedures for
accepting digital signatures); H.R. 2292, 105th Cong. 201 (1997) (forming
electroniccommerce advisory group, comprised of industry members, on the
proper structural changes required to expand electronic filings of tax returns).
n78. See H.R. 4105, 105th Cong. (1998) (achieving parity by having half-but-one
of the board appointed by the congressional minority leaders, but making
no provision for consumers or non-commercial information providers); H.R.
3529, 105th Cong. (1998) (same); S. 1096, 105th Cong. (1997); S. 442, 105th
Cong. 102 (1998) (including representation of consumer groups).
n79. See H.R. 143, 105th Cong. (1997) (providing equality to software exporters).
n80. See H.R. 4105, 105th Cong. (1998) (imposing a moratorium on internet-specific
taxing); H.R. 3849, 105th Cong. (1998) (same); S. 1888, 105th Cong. (1998)
(same); H.R. 3529, 105th Cong. (1998) (requiring tax parity for internet
and other commerce); S. 442, 105th Cong. (1998) (imposing a moratorium on
internet-specific taxing); H.R. 1054, 105th Cong. (1997) (preempting state
taxes); H.R. 995, 105th Cong. (1997) (exempting internet access and other
online services from tax).
n81. See H.R. 3849, 105th Cong. (1998) (declaring trade policy position that
internet should be free of tariffs and similar barriers).
n82. See H.R. 3849, 105th Cong. 231 (1998) (excluding internet service providers
from FCC's jurisdiction); H.R. 2372, 105th Cong. (1997) (seeking to embrace
minimal regulation by both federal and state authorities).
n83. See S. 936, 105th Cong. 844 (1997).
n84. See S. 2107, 105th Cong. (1998) (providing for the recognition by federal
agencies of electronic authentication and for a study of authentication in
electronic commerce); H.R. 3472, 105th Cong. (1998) (providing for electronic
authentication in banking); S. 1594, 105th Cong. (1998) (same); H.R. 2991,
105th Cong. (1997) (enhancing digital signature use and electronic commerce
by requiring federal agencies to adopt procedures for accepting digital signatures);
H.R. 2937, 105th Cong. (1997).
n85. See Digital Millennium Copyright Act, Pub. L. 105-298, 1998 U.S.C.C.A.N.
(112 Stat.) 2827; Digital Millennium Copyright Act, H.R. 2281, 105th Cong.
(1998); Digital Millennium Copyright Act, S. 2037, 105th Cong. (1998).
n86. See S. 1727, 105th Cong. (1998); S. 1609, 105th Cong. 7 (1998).
n87. See S. 1146, 105th Cong. (1997) (providing exemptions for activities
such as carriage, linking, and searching, and imposing a requirement of cooperation
in the removal of stored infringing materials).
n88. See H.R. 2281, 105th Cong. 201-03 (1998) (exempting ISPs from liability
for copyright infringement subject to their availability to block access
to information claimed by its owners to be infringing); S. 771, 105th Cong.
(1997) (eliminating liability for spam, but requiring termination of use
if notified of spammer in violation of law).
n89. See S. 2392, 105th Cong. (1998); H.R. 4455, 105th Cong. (1998); H.R.
4427, 105th Cong. (1998); H.R. 4355, 105th Cong. (1998); H.R. 3412, 105th
n90. See H.R. 4240, 105th Cong. (1998) (limiting recovery to contract damages).
n91. See H.R. 4742, 105th Cong. 5 (1998) (requiring airlines to publish current
n92. See S. 1955, 106th Cong. (1999); H.R. 3411, 106th Cong. (1999); H.R.
3226, 106th Cong. (1999); H.R. 3210, 106th Cong. (1999); H.R. 3206, 106th
Cong. (1999); H.R. 3196, 106th Cong. (1999); S. 1835, 106th Cong. (1999)
(publishing and maintaining information concerning the participation of each
state in the federal intellectual property system); S. 1776, 106th Cong.
(1999); S. 1772, 106th Cong. (1999); S. 1741, 106th Cong. (1999); H.R. 3073,
106th Cong. (1999); S. 1712, 106th Cong. (1999) (creating a requirement to
make information available on the Net whenever publication in Federal Register
is required under the Act); H.R. 3010, 106th Cong. (1999); S. 1672, 106th
Cong. (1999); S. 1639, 106th Cong. (1999); S. 1626, 106th Cong. (1999); S.
1618, 106th Cong. (1999); S. 1594, 106th Cong. (1999); H.R. 2832, 106th Cong.
(1999); H.R. 2645, 106th Cong. (1999); H.R. 2606, 106th Cong. (1999); S.
1422, 106th Cong. (1999); S. 1378, 106th Cong. (1999); S. 1333, 106th Cong.
(1999); H.R. 2399, 106th Cong. (1999); S. 1270, 106th Cong. (1999); H.R.
2303, 106th Cong. (1999); H.R. 2300, 106th Cong. (1999); S. 1266, 106th Cong.
(1999); S. 1234, 106th Cong. (1999); H.R. 2245, 106th Cong. (1999); H.R.
2188, 106th Cong. (1999); S. 1214, 106th Cong. (1999); S. 1204, 106th Cong.
(1999); H.R. 2095, 106th Cong. (1999); H.R. 2046, 106th Cong. (1999); H.R.
2034, 106th Cong. (1999); H.R. 2030, 106th Cong. (1999); H.R. 1995, 106th
Cong. (1999) (including internet dissemination as part of definition of "publicly
report"); H.R. 1926, 106th Cong. (1999); S. 1112, 106th Cong. (1999); S.
1111, 106th Cong. (1999); H.R. 1906, 106th Cong. (1999); S. 1072, 106th Cong.
(1999) (providing information about the centennial anniversary of flight);
S. 1066, 106th Cong. (1999) (providing access to information about soil carbon
potential); H.R. 1776, 106th Cong. (1999); S. 996, 106th Cong. (1999); H.R.
1734, 106th Cong. (1999); H.R. 1658, 106th Cong. (1999); H.R. 1655, 106th
Cong. (1999); H.R. 1654, 106th Cong. (1999); S. 942, 106th Cong. (1999) (providing
for use of internet-based capability to allow taxpayers to generate tax receipts);
S. 941, 106th Cong. (1999); S. 910, 106th Cong. (1999) (using the internet
to coordinate information about pests); H.R. 1568, 106th Cong. (1999); H.R.
1553, 106th Cong. (1999); H.R. 1551, 106th Cong. (1999); H.R. 1550, 106th
Cong. (1999); S. 804, 106th Cong. (1999); S. 790, 106th Cong. (1999) (providing
that a report on bottled water be posted on the internet); H.R. 1356, 106th
Cong. (1999); H.R. 1342, 106th Cong. (1999); H.R. 1307, 106th Cong. (1999);
S. 741, 106th Cong. (1999); S. 736, 106th Cong. (1999); S. 735, 106th Cong.
(1999) (publicizing the competitive grant program for children's gun violence
prevention education); H.R. 1153, 106th Cong. (1999); S. 633, 106th Cong.
(1999); S. 625, 106th Cong. (1999); S. 599, 106th Cong. (1999); H.R. 1000,
106th Cong. (1999); H.R. 975, 106th Cong. (1999); S. 484, 106th Cong. (1999);
S. 468, 106th Cong. (1999); H.R. 2, 106th Cong. (1999); H.R. 654, 106th Cong.
(1999) (making certain information available through the Congressional Research
Service website); S. 393, 106th Cong. (1999) (providing access to Congressional
Research Service, lobbying disclosure reports, and gift reports); H.R. 606,
106th Cong. (1999); S. 374, 106th Cong. (1999); S. 353, 106th Cong. (1999)
(allowing for copies of primary materials in class action suits to be posted
on the internet); H.R. 543, 106th Cong. (1999); S. 331, 106th Cong. (1999);
S. 261, 106th Cong. (1999); H.R. 417, 106th Cong. (1999); H.R. 412, 106th
Cong. (1999); H.R. 409, 106th Cong. (1999); H.R. 391, 106th Cong. (1999);
S. 205, 106th Cong. (1999) (providing for a study of using the internet to
disseminate statistical data compiled by government); S. 59, 106th Cong.
(1999); S. 22, 106th Cong. (1999); S. 21, 106th Cong. (1999); S. 9, 106th
Cong. (1999); H.R. 209, 106th Cong. (1999); H.R. 202, 106th Cong. (1999);
H.R. 199, 106th Cong. (1999); H.R. 10, 106th Cong. (1999).
n93. See H.R. 3331, 106th Cong. (1999) (allowing recreational fishing permits
to be sold over the internet); S. 1911, 106th Cong. (1999) (providing for
sale of fishing permits over the internet); S. 1809, 106th Cong. (1999) (providing
for use of the internet to improve support services for individuals with
developmental disabilities); S. 1800, 106th Cong. (1999) (providing for a
study of the feasibility of using the internet to administer the food stamp
program); S. 1666, 106th Cong. (1999) (providing for certification of farmers'
risk management reports); H.R. 2738, 106th Cong. (1999) (studying use of
online access to facilitate participation in food stamp program); S. 1372,
106th Cong. (1999) (seeking creation of automated internet-based system for
filing shippers' export declarations); H.R. 2490, 106th Cong. (1999) (regarding
internet-based capability for taxpayer to generate tax receipt); S. 942,
106th Cong. (1999) (using internet-based capability to allow taxpayers to
generate tax receipts).
n94. See H.R. 2607, 106th Cong. (1999) (requiring a comprehensive report
on commercial space transportation to include public comments collected on
relevant government web sites).
n95. See H.R. 3037, 106th Cong. (1999) (providing for Net publication of
labor management reporting and disclosure documents); S. 1650, 106th Cong.
(1999) (providing for electronic submissions of labor-management reports);
H.R. 2926, 106th Cong. (1999) (providing for internet access to health plan
information); H.R. 2569, 106th Cong. (1999) (providing for disclosures on
the internet by electric utility companies); H.R. 1832, 106th Cong. (1999)
(providing for placement of boxing ratings on the internet); H.R. 1687, 106th
Cong. (1999) (providing internet access to health plan information); S. 900,
106th Cong. (providing for a study and report of advertising practices of
online brokerage services); S. 753, 106th Cong. (1999) (providing for an
online consumer complaint bureau for insurance); H.R. 1073, 106th Cong. (1999)
(providing for electronic access to reports by municipal governments awarded
federal grants for housing assistance); H.R. 448, 106th Cong. (1999); S.
305, 106th Cong. (1999) (providing for publication on the internet of boxing
n96. See H.R. 905, 106th Cong. (1999); S. 254, 106th Cong. (1999) (funding
National Center for Missing and Exploited Children, citing value of their
web site); S. 249, 106th Cong. (1999).
n97. See H.R. 3243, 106th Cong. (1999); S. 1816, 106th Cong. (1999); S. 1671,
106th Cong. (1999); H.R. 2668, 106th Cong. (1999); H.R. 2490, 106th Cong.
(1999); H.R. 1922, 106th Cong. (1999); S. 1107, 106th Cong. (1999); H.R.
1818, 106th Cong. (1999); H.R. 1739, 106th Cong. (1999); S. 982, 106th Cong.
(1999); H.R. 417, 106th Cong. (1999); S. 26, 106th Cong. (1999); H.R. 32,
106th Cong. (1999).
n98. See H.R. 331, 106th Cong. (1999).
n99. See S. 1747, 106th Cong. (1999).
n100. See Digital Democracy Study Act of 1999, H.R. 3232, 106th Cong. (authorizing
a study of issues relating to the incorporation of online and internet technologies
in the voting process and for other purposes).
n101. See H.R. 2987, 106th Cong. (1999) (providing for placement of anti-drug
messages on federal department and agency web sites generally); S. 1428,
106th Cong. (1999) (providing for placement of anti-drug messages on federal
web sites); S. 1364, 106th Cong. (1999) (using Net to collect and make available
information about successful campaigns to promote responsible fatherhood);
S. 1337, 106th Cong. (1999) (providing for a posting of anti-drug message
on NASA site); H.R. 1654, 106th Cong. (1999) (same); S. 486, 106th Cong.
(1999) (providing for the posting of anti-drug messages on federal department
and agency websites).
n102. See H.R. 2534, 106th Cong. (1999) (directing NSF to report on the establishment
of high-speed large bandwidth internet access for all public schools and
libraries); H.R. 2420, 106th Cong. (1999) (excluding high-speed internet
access from services prohibited to incumbent local exchange carriers ("ILECs"),
preempting state regulation, excluding from unbundling and resale obligations,
and requiring interconnection); S. 1043, 106th Cong. (1999) (exempting internet
services from FCC or state public utilities commission regulation, exempting
technical standards regulation, and excluding internet services from the
resale and unbundling obligations of ILECs.); H.R. 1686, 106th Cong. (1999)
(excluding broadband data services from definition of "interLATA" services
prohibited to incumbent local exchange carriers without special approval
and requiring ILECs to submit plan for offering broadband services, then
binding them to follow it but free of price controls); H.R. 1685, 106th Cong.
(1999) (covering similar ground); S. 877, 106th Cong. (1999) (providing exemptions
from regulation to local exchange carriers providing DSL-capable loop and
n103. See H.R. 2086, 106th Cong. (1999) (funding networking and information
technology research). But see H.R. 2684, 106th Cong. (1999) (continuing the
effort to remove the NSF from managing the domain name space, effective after
Sept. 30, 1998).
n104. See H.R. Con. Res. 182, 106th Cong. (1999).
Resolved by the House of Representatives (the Senate concurring), That in
addressing issues of information technology and electronic commerce policy,
the Congress must - (1) focus on a broad spectrum of issues that are essential
to the evolution and strength of the American information technology industry;
(2) ensure that it plays an enabling and not an inhibiting role in supporting
the movement of industry and people into the Information Age; (3) incorporate
a principle of minimal and predictable government regulation; and (4) refrain
from acting in any capacity that would enshrine or favor specific technologies
n105. See H.R. 1746, 106th Cong. (1999) (delinking funding for schools and
health care providers' access to advanced telecommunications capabilities
from a tax on telecommunications, providing for equivalent tax from general
funds); S. 1004, 106th Cong. (1999) (same).
n106. See H.R. 3420, 106th Cong. (1999); S. 980, 106th Cong. (1999); S. 770,
106th Cong. (1999); H.R. 1344, 106th Cong. (1999).
n107. See H.R. 2637, 106th Cong. (1999).
n108. See H.R. 2645, 106th Cong. (1999) (permitting consumers to combine
to form nonprofit municipal electricity systems and, if utilities are permitted
to offer internet services, extending such permission to those consumer aggregations).
n109. See S. 1923, 106th Cong. (1999).
n110. See S. 1876, 106th Cong. (1999) (requiring a 2001 report on the availability
of high-bandwidth access in schools and its utilization); S. 1772, 106th
Cong. (1999) (providing for the use of the internet to increase parental
involvement in education); H.R. 3008, 106th Cong. (1999) (funding state and
local efforts to acquire school library internet access); H.R. 2965, 106th
Cong. (1999) (funding educational programming for the internet and for public
television); H.R. 2534, 106th Cong. (1999) (directing NSF to report on best
ways to develop high-speed large bandwidth internet access for all public
schools and libraries); S. 1262, 106th Cong. (1999) (establishing grants
to fund internet connections, other media sources, and training of media
professionals for schools); S. 1188, 106th Cong. (1999) (establishing grants
for teacher training); S. 1180, 106th Cong. (1999) (establishing grants to
facilitate using the internet to provide technical assistance and guidance
to parents, in order to help students); S. 1154, 106th Cong. (1999) (appropriating
funds to develop educational internet-based programming and distance learning
capabilities); H.R. 1960, 106th Cong. (1999) (funding state and local efforts
to expand the use of internet technology); S. 1029, 106th Cong. (1999) (funding
educational programming for the internet and for public television); H.R.
1139, 106th Cong. 658U (1999) (providing for a study of distance education
for child care providers and parents).
n111. See H.R. 1786, 106th Cong. (1999) (funding teacher training); S. 491,
106th Cong. (1999); H.R. 455, 106th Cong. (1999).
n112. See H.R. 1786, 106th Cong. (1999); S. 491, 106th Cong. (1999).
n113. See H.R. 3037, 106th Cong. (1999) (requiring schools and libraries
receiving any federal funds to install filters); S. 1545, 106th Cong. (1999);
H.R. 2560, 106th Cong. (1999) (requiring schools and libraries receiving
any federal funds, not only universal service, to install filters); H.R.
1501, 106th Cong. (1999); H.R. 896, 106th Cong. (1999); H.R. 543, 106th Cong.
(1999); H.R. 368, 106th Cong. (1999) (emphasizing local standard setting,
and not establishing federal filtering guidelines); S. 97, 106th Cong. (1999).
n114. See H.R. 640, 106th Cong. (1999) (providing additional funding to the
United States Cybersmuggling Center to fight internet child pornography).
n115. See H.R. 1930, 106th Cong. (1999) (requiringall sites offering communication
with incarcerated individuals to list information about the crime and release
date of the prisoner (carriage, access, and search engines are exempt)).
n116. See H.R. 2036, 106th Cong. (1999) (dealing with sex and violence in
entertainment materials generally, including on the internet); H.R. 1855,
106th Cong. (1999) (permitting industry collaboration on controlling the
content of entertainment products to limit sexual and violent material available
to children); S.J. Res. 23, 106th Cong. (1999) (seeking a study of the effect
of violent mass media and internet content on children); H.R.J. Res. 47,
106th Cong. (1999) (same).
n117. See H.R. 3125, 106th Cong. (1999); H.R. Con. Res. 137, 106th Cong.
(1999) (urging regulatory response to report on gambling, including internet
gambling); S. 692, 106th Cong. (1999).
n118. See H.R. 2763, 106th Cong. (1999).
n119. See H.R. 3007, 106th Cong. (1999) (applying federal labeling requirements
for cigarettes to internet advertisements); H.R. 2914, 106th Cong. (1999)
(prohibiting internet sales); H.R. 2579, 106th Cong. (1999) (prohibiting
cigar sales online).
n120. See H.R. 1245, 106th Cong. (1999); S. 637, 106th Cong. (1999); H.R.
87, 106th Cong. (1999).
n121. See H.R. 3020, 106th Cong. (1999); H.R. 1702, 106th Cong. (1999).
n122. See H.R. 3321, 106th Cong. (1999) (requiring a notice of collection,
the method of collection, and intention to disclose, as well as clear online
opt-in or opt-out mechanisms; providing access to information collected,
and notice of whether information has been sold or disclosed to another;
establishing a safe harbor for compliance with industry self-regulation standards;
creating a private right of action); S. 1908, 106th Cong. (1999) (requiring
GAO study of commercial arrangements in schools and their effects on student
privacy); H.R. 2915, 106th Cong. (1999) (prohibiting use of school funds
to buy an internet service that engages in collecting information about students
under 18); H.R. 1685, 106th Cong. 301 (1999) (requiring notice of collection
practices); S. 809, 106th Cong. (1999) (regulating collection of personally
identifiable information and providing for FTC regulations regarding issues
such as notice and the ability to opt-out); H.R. 367, 106th Cong. (1999)
(restricting disclosure of social security number or linked materials); H.R.
313, 106th Cong. (1999) (prohibiting disclosure to another person without
prior informed written consent).
n123. See H.R. 3113, 106th Cong. (1999) (creating an FCC-maintained list
where individuals may list themselves as having no desire to receive unsolicited
commercial e-mail, prohibiting sending spam to listed individuals, and prohibiting
any other use of list; creating a private right of action to enforce same,
and civil enforcement by FCC; giving ISPs standing to create anti-spam policy
and use similar means to enforce it); H.R. 3024, 106th Cong. (1999) (requiring
notice, opt-out ability, correct identifying information, and no violation
of ISP policy; establishing a safe harbor for ISPs for efforts to block spam);
H.R. 2162, 106th Cong. (1999) (prohibiting spam in contravention of ISP's
policy, and criminalizing use of the domain name of another in connection
with sending an e-mail and thereby causing damage to a computer system);
H.R. 1910, 106th Cong. (1999) (focusing on misleading sender information);
H.R. 1685, 106th Cong. (1999) (prohibiting sending spam in violation of an
ISP's policy, but no requirement that there be a policy prohibition on disguising
routing information or source of spam); S. 854, 106th Cong. 106 (1999) (permitting
domain name registrars to reveal information pertaining to a customer, if
they provide notice and opportunity to prevent disclosure); S. 759, 106th
Cong. (1999) (prohibiting spam after recipient notifies of unwillingness
to receive; prohibiting nondisclosure of source/routing; creating ISP level
opt-out option, and prohibiting spamming to a domain that has collectively
n124. See S. 854, 106th Cong. (1999) (equalizing treatment of internet addressing
information to dialing and signaling information for purposes of permitting
government agency use of pen registers).
n125. See Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 729, 1999 U.S.C.C.A.N.
(113 Stat.) 1337, 1476 (providing for a study of online brokerage practices);
H.R. 3007, 106th Cong. (1999) (applying federal labeling requirements for
cigarettes to internet advertisements); S. 1015, 106th Cong. (1999) (addressing
online securities transactions); S. 787, 106th Cong. (1999) (regulating internet-based
credit card solicitations); H.R. 900, 106th Cong. (1999) (same).
n126. See H.R. 1862, 106th Cong. (1999) (providing for a study of targeting
of seniors for fraud, including internet fraud); S. 751, 106th Cong. (1999)
(addressing telemarketing to seniors); S. 699, 106th Cong. (1999) (protecting
from telemarketing fraud over internet); H.R. 612, 106th Cong. (1999).
n127. See S. 854, 106th Cong. (1999) (granting freedom to use encryption,
and limiting power to mandate key escrow or support it by procurement practices);
S. 798, 106th Cong. (1999) (adopting several policy principles: permitting
the use of encryption; preferring market-driven encryption policy; abstaining
from regulation; abstaining from imposing weak encryption as a condition
on participating in government procurement programs or otherwise communicating
with the government); H.R. 850, 106th Cong. (1999) (granting freedom to encrypt
and to sell; prohibiting mandatory key escrow).
n128. See S. 1015, 106th Cong. (1999); S. 921, 106th Cong. (1999).
n129. See S. 1912, 106th Cong. (1999) (creating Center of Excellence for
Electronic Commerce to promote electronic commerce and to facilitate adoption
by government agencies); Millennium Digital Commerce Act, H.R. 3220, 106th
Cong. (1999); S. Res. 207, 106th Cong. (1999) (justifying resolution to press
administration to open up Japanese telecommunications markets in terms of
Japan's lag in electronic commerce); S. 1494, 106th Cong. (1999) (funding
a program in the National Institutes of Standards and Technology to develop,
disseminate, and foster electronic commerce technologies and know-how); H.R.
1993, 106th Cong. (1999) (directing International Trade Administration to
assist small businesses in exporting and using electronic commerce); S. 921,
106th Cong. (1999) (addressing online securities transactions); S. 761, 106th
Cong. (1999) (validating digital signatures and writings; providing for a
study of legal barriers to development of electronic commerce).
n130. See H.R. 3252, 106th Cong. (1999) (making the tax moratorium permanent;
expressing the sense of Congress that the ban on e-commerce tariffs should
be the permanent United States trade policy); S. 1611, 106th Cong. (1999)
(making the United States moratorium permanent; expressing the sense of the
Senate that the trade representative should advocate no taxes or discriminatory
tax on e-commerce); S. 328, 106th Cong. (1999) (making the tax moratorium
permanent). But see S. 1433, 106th Cong. (1999) (creating a special excise
tax for all mail order, catalog, and internet-based sales not subject to
any state sales tax and applying that tax to a fund to defray teachers' salaries).
n131. See H.R. 1291, 106th Cong. (1999).
n132. See S. 1871, 106th Cong. (1999) (authorizing negotiation of a free
trade agreement with Chile covering, among other issues, measures to promote
electronic commerce); S. 1870, 106th Cong. (1999) (authorizing negotiation
of a free trade agreement with Singapore covering, among other issues, measures
to promote electronic commerce); S. 1869, 106th Cong. (1999) (authorizing
negotiation of a free trade agreement with Republic of Korea covering, among
other issues, measures to promote electronic commerce); H.R. Con. Res. 190,
106th Cong. (1999) (urging President to seek global consensus on permanent
moratorium on tariffs for electronic commerce and on special internet-related
taxes); S. Con. Res. 52, 106th Cong. (1999) (opposing "global bit tax" proposed
by the United Nations Human Development Report of 1999); H.R. 2670, 106th
Cong. (1999) (conditioning appropriation of United Nations dues on the United
Nations and its instrumentalities not taxing internet activity).
n133. See H.R. 2561, 106th Cong. (1999) (funding Electronic Commerce Resource
Centers and Joint Electronic Commerce Program Office).
n134. See S. 1362, 106th Cong. (1999) (providing for an airline industry
study); H.R. 2200, 106th Cong. (1999) (regarding the airline industry); H.R.
1828, 106th Cong. (1999) (authorizing Secretary of Energy to compile a database
of price comparisons of electricity providers); S. 1047, 106th Cong. (1999)
(addressing pricing and terms information about electric suppliers); H.R.
1030, 106th Cong. (1999) (regarding the airline industry); H.R. 1000, 106th
Cong. (1999) (same).
n135. See H.R. 1858, 106th Cong. (1999); H.R. 354, 106th Cong. (1999).
n136. See H.R. 3220, 106th Cong. (1999) (recognizing digital signature as
appropriate); H.R. 1714, 106th Cong. (1999) (validating and limiting states'
ability to legislate to regulate validity); H.R. 1685, 106th Cong. (1999);
S. 921, 106th Cong. (1999) (concerning securities transactions); S. 761,
106th Cong. (1999).
n137. See H.R. 3220, 106th Cong. (1999) (validating electronic commerce;
requiring the United States, to the extent possible, to validate international
electronic transactions); H.R. 1714, 106th Cong. (1999).
n138. See Anticybersquatting Consumer Protection Act, S. 1948, 106th Cong.
3001-3010 (1999); Trademark Cyberpiracy Prevention Act, H.R. 3028, 106th
Cong. (1999); Domain Name Piracy Prevention Act of 1999, S. 1461, 106th Cong.;
Trademark Cyberpiracy Prevention Act, S. 1255, 106th Cong. (1999) (a later
version of the Anticybersquatting Act).
n139. See S. 1138, 106th Cong. (1999); H.R. 775, 106th Cong. (1999).
n140. See Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
56 (codified as amended in scattered sections 15, 18, and 47 U.S.C.).
n141. See Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, 622-623,
111 Stat. 2440, 2521-22 (codified as amended at 47 U.S.C. 254 note (Supp.
III 1997)) (requiring a report from the universal service board on the effect
of certain definitions in telecommunications act on universal service, including
n142. Pub. L. No. 105-305, 1998 U.S.C.C.A.N. (112 Stat.) 2919 (codified as
amended at 15 U.S.C.A. 5501 note, 5513 (West Supp. 1999)).
n143. See National Science Foundation Authorization Act of 1998 - Appropriations,
Pub. L. No. 105-207, 1998 U.S.C.C.A.N. (112 Stat.) 869 (codified as amended
at 42 U.S.C.A. 1861-1862, 6686 (West Supp. 1999))(approving $ 48 million
appropriation to NSF for Next Generation Internet for fiscal years 1998-99);
1998 Supplemental Appropriations and Rescissions Act, Pub. L. No. 105-174,
8003, 1998 U.S.C.C.A.N. (112 Stat.) 58, 94 (legalizing and ratifying fees
collected as part of the domain registration fee, and transferring them to
NSF, to be used for internet intellectual infrastructure including Next Generation
Internet); Strom Thurmond National Defense Authorization Act for Fiscal Year
1999, Pub. L. No. 105-261, 215, 111 Stat. 1920, 1950 (1998) (appropriating
funds for Next Generation Internet development).
n144. See Departments of Veterans Affairs and Housing and Urban Development,
and Independent Agencies Appropriations Act, Pub. L. No. 106-74, tit. III,
1999 U.S.C.C.A.N. (113 Stat.) 1047, 1090-91; Veterans Affairs and HUD Appropriations
Act, Pub. L. No. 105-276, tit. III., 1998 U.S.C.C.A.N. (112 Stat.) 2461,
2505 (codified as amended in scattered sections of U.S.C.).
n145. See Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, App.
H.R. 3424, tit. III, 2000 U.S.C.C.A.N. (113 Stat.) 1501, 1537-251 (funding
the Florida Dep't of Education program for internet-based teacher recruitment);
Higher Education Amendments of 1998, Pub. L. No. 105-244, 1998 U.S.C.C.A.N.
(112 Stat.) 1581 (codified as amended in scattered sections of 20 U.S.C.)
(providing grants for developing distance learning; requiring the maintenance
of an accessible federal database of information about financial assistance
for education; establishing the Web-Based Education Commission to study educational
software and internet applications); Workforce Investment Act of 1998, Pub.
L. No. 105-220, 1998 U.S.C.C.A.N. (112 Stat.) 936 (codified as amended in
scattered sections of 29 U.S.C.) (authorizing funds for pilot projects on
distance education); Departments of Labor, Health and Human Services, and
Education and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-394,
tit. III, 106 Stat. 1792, 1819 (1992) (codified as amended at 20 U.S.C. 106a,
130a, and 4363 (1994)) (funding demonstration of online access to library
bibliographic databases); Excellence in Mathematics, Science, and Engineering
Education Act of 1990, Pub. L. No. 101-589, 221, 104 Stat. 2881, 2892 (repealed
1994) (funding grants for research into developing interactive linkages among
schools, and technologies to enable "two-way audio and video interactive
telecommunications and computer linkages designed to be used in conjunction
with each other").
n146. See Legislative Branch Appropriations, 1999, Pub. L. No. 105-275, 301,
1998 U.S.C.C.A.N. (112 Stat.) 2430, 2445 (funding American Folklife Center
in Library of Congress).
n147. See Government Printing Office Electronic Information Access Enhancement
Act of 1993, Pub. L. No. 103-40, 107 Stat. 112 (codified as amended at 44
U.S.C. 101 note, 4101 note, 4103 note (1994)) (directing GPO to make Congressional
Record, Federal Register, and other information available online at incremental
cost of providing it).
n148. See Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, 1999
U.S.C.C.A.N. (113 Stat.) 1501, 1503 (requiring the Secretary of State to
report on obligations incurred for assistance); Federal Financial Assistance
Management Improvement Act of 1999, Pub. L. No. 106-107, 6, 1999 U.S.C.C.A.N.
(113 Stat.) 1486, 1489 (listing agencies exempted from requirements imposed
on agencies running financial assistance programs published on OMB internet
site); Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 2000, Pub. L. No. 106-78, 1999 U.S.C.C.A.N.
(113 Stat.) 1135; Centennial of Flight Commemoration Act Amendments, Pub.
L. No. 106-68, 1999 U.S.C.C.A.N. (113 Stat.) 981 (codified as amended at
36 U.S.C.A. 143 note (West Supp. 1999)) (providing information about the
centennial of flight celebration); Treasury and General Government Appropriations
Act, 2000, Pub. L. No. 106-58, 650, 1999 U.S.C.C.A.N. (113 Stat.) 430, 479
(providing information about candidates' filings with FEC and making itemized
IRS receipts available online); Veterans Entrepreneurship and Small Business
Development Act of 1999, Pub. L. No. 106-50, 1999 U.S.C.C.A.N. (113 Stat.)
233 (providing for Veterans Administration's information); Assistive Technology
Act of 1998, Pub. L. No. 105-394, 1998 U.S.C.C.A.N. (112 Stat.) 3627 (codified
as amended in scattered sections of 29 U.S.C.) (providing information about
the availability of assistive technologies for individuals with disabilities);
Energy Conservation Reauthorization Act of 1998, Pub. L. No. 105-388, 1998
U.S.C.C.A.N. (112 Stat.) 3477 (codified as amended in scattered sections
of 42, 50, 87, 90, and 106 U.S.C.) (reporting on use of alternative fuel
by federal agencies); Veterans Programs Enhancement Act of 1998, Pub. L.
No. 105-368, 1998 U.S.C.C.A.N. (112 Stat.) 3315 (providing research findings
about health consequences of service in the Gulf War); Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277,
1998 U.S.C.C.A.N. (112 Stat.) 2681 (listing countries receiving aid from
the United States); Commission on the Advancement of Women and Minorities
in Science, Engineering, and Technology Development Act, Pub. L. No. 105-255,
1998 U.S.C.C.A.N. (112 Stat.) 1889 (codified as amended at 42 U.S.C.A. 1885
note (West Supp. 1999)) (reporting on women and minorities in science, engineering,
and technology development); Internal Revenue Service Restructuring and Reform
Act of 1998, Pub. L. No. 105-206, 1998 U.S.C.C.A.N. (112 Stat.) 685 (codified
as amended in scattered sections of 5, 19, 23, 26, and 31 U.S.C.); Agricultural
Research, Extension, and Education Reform Act of 1998, Pub. L. No. 105-185,
1998 U.S.C.C.A.N. (112 Stat.) 523 (codified as amended in scattered sections
of 7 U.S.C.) (discussing food, animals, and drugs); Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations Act,
1998, Pub. L. No. 105-119, 209, 111 Stat. 2440, 2483 (1997) (codified as
amended at 13 U.S.C.A. 141 note (1999)) (providing Census 2000 information);
Balanced Budget Act of 1997, Pub. L. No. 105-33, 1851, 111 Stat. 251, 281
(codified as amended at 42 U.S.C. 1395w-21 (Supp. III 1997)) (providing Medicare
information); Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1991, Pub. L. No. 101-515, 104 Stat.
2101, 2144 (1990) (codified as amended at 15 U.S.C. 648a (1994) (funding
demonstration of increasing access of small businesses to technology by developing
n149. See History of the House Awareness and Preservation Act, Pub. L. No.
106-99, 1999 U.S.C.C.A.N. (113 Stat.) 1330; International Religious Freedom
Act of 1998, Pub. L. No. 105-292, 103, 1998 U.S.C.C.A.N. (112 Stat.) 2787,
2795 (codified as amended at 22 U.S.C.A. 6413 (West Supp. 1999)) (establishing
religious freedom internet site); Savings are Vital to Everyone's Retirement
Act of 1997, Pub. L. No. 105-92, 111 Stat. 2139 (codified as amended at 29
U.S.C. 1146-1147 (Supp. III 1997)).
n150. See Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, 1999
U.S.C.C.A.N. (113 Stat.) 1501, 1503 (funding development of easily searchable
labor management reports); Gramm-Leach-Bliley Financial Modernization Act,
Pub. L. No. 106-102, 322, 1999 U.S.C.C.A.N. (113 Stat.) 1338, 1426 (creating
the National Association of Registered Agents and Brokers, whose office of
consumer complaints should be available using a web site); Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277,
1998 U.S.C.C.A.N. (112 Stat.) 2681 (funding creation of system for reporting
under Labor-Management Reporting and Disclosure Act of 1959); Savings are
Vital to Everyone's Retirement Act of 1997, Pub. L. No. 105-92, 111 Stat.
2139 (codified as amended at 29 U.S.C. 1146-1147 (Supp. III 1997)) (reporting
under Labor-Management Reporting and Disclosure Act of 1959).
n151. See Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 2000, Pub. L. No. 106-78, 1999 U.S.C.C.A.N.
(113 Stat.) 1135 (requiring online system to issue and report meat export
n152. See Missing, Exploited, And Runaway Children Protection Act, Pub. L.
No. 106-71, 2, 1999 U.S.C.C.A.N. (113 Stat.) 1032, 2139.
n153. Telecommunications Act of 1996, Pub. L. No. 104-104, 509, 110 Stat.
56, 137 (codified as amended at 47 U.S.C. 230 (Supp. III 1997)).
n154. Id. (protecting ISPs from liability as publishers for providing filtering
services to families).
n155. Omnibus Consolidated and Emergency Supplemental Appropriations Act,
1998, Pub. L. No. 105-277, 1301, 1998 U.S.C.C.A.N. (112 Stat.) 2681-732.
n156. See Protection of Children from Sexual Predators Act of 1998, Pub.
L. No. 105-314, 901, 1998 U.S.C.C.A.N. (112 Stat.) 2974, 2991 (codified as
amended at 18 U.S.C.A. 1470 note (West Supp. 1999)).
n157. See id. 802, 112 Stat. at 2990.
n158. See id. 503, 112 Stat. at 2980 (codified as amended at 18 U.S.C.A.
944 note (West Supp. 1999)).
n159. See National Gambling Impact Study Commission Act, 1996, Pub. L. No.
104-169, 110 Stat. 1482 (codified as amended at 18 U.S.C. 1955 note (Supp.
n160. See Technical Corrections to Title 17, Pub. L. No. 106-44, 1999 U.S.C.C.A.N.
(113 Stat.) 221 (1999).
n161. Children's Online Privacy Protection Act of 1998, Pub. L. No. 105-277,
1301-1308, 1998 U.S.C.C.A.N. (112 Stat.) 2681, 2681-728 to 2681-735 (codified
as amended at 15 U.S.C.A 6501-6506 (West Supp. 1999)) (prohibiting the collection
of personal information from children without parental consent and giving
parents the right to revoke consent and to obtain access to information collected
about their child).
n162. See FTC, Children's Online Privacy Protection Rule, 16 C.F.R. 312 (1999).
n163. See Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 729, 1999 U.S.C.C.A.N.
(113 Stat.) 1337, 1476.
n164. See Internet Tax Freedom Act, Pub. L. No. 105-277, 1100-1104, 1998
U.S.C.C.A.N. (112 Stat.) 2681, 2681-719 to 2681-726 (codified as amended
at 47 U.S.C.A. 151 note (West Supp. 1999)) (addressing internet access and
multiple or discriminatory taxes on electronic commerce).
n165. See Omnibus Consolidated And Emergency Supplemental Appropriations
Act, 1999, Pub. L. No. 105-277, 1203, 1998 U.S.C.C.A.N. (112 Stat.) 2681,
2681-727 (codified as amended at 19 U.S.C.A. 2241 note (West Supp. 1999)).
n166. See Act of Oct. 25, 1999, Pub. L. No. 106-79, 1999 U.S.C.C.A.N. (113
Stat.) 1212 (earmarking funds for electronic commerce resource centers);
National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85,
111 Stat. 1629 (1997) (codified as amended at 41 U.S.C.A. 426a (West Supp.
n167. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 1998
U.S.C.C.A.N. (112 Stat.) 2827 (codified as amended at 17 U.S.C.A. 101 note
(West Supp. 1999)).
n168. Anticybersquatting Consumer Protection Act, Pub. L. No. 106-113, 3001-3010,
1999 U.S.C.C.A.N. (113 Stat.) 1537, 1537-537 to 1537-544 (codified as amended
at 15 U.S.C.A. 1051 note (West Supp. 1999)).
n169. See Next Generation Internet Research Act of 1998, Pub. L. No. 105-305,
1998 U.S.C.C.A.N. (112 Stat.) 2919 (codified as amended at 15 U.S.C.A. 5501
note (West Supp. 1999)) (supplementing the Next Generation Internet Research
Act with a study of the effect on trademark rights of adding new generic
top-level domains). Astonishingly, this addition prompted Senator Patrick
Leahy's statement that at long last Congress was putting the horse before
the cart - i.e., trademark policy was driving domain name policy. See 144
Cong. Rec. S12155 (daily ed. Oct. 9, 1998) (statement of Sen. Leahy).
n170. See Y2K Act, Pub. L. No. 106-37, 1999 U.S.C.C.A.N. (113 Stat.) 185
(limiting Y2K litigation and establishing consumer protection from mortgage
foreclosure stemming from Y2K problems).
n171. See Year 2000 Information and Readiness Disclosure Act, Pub. L. No.
105-271, 1998 U.S.C.C.A.N. (112 Stat.) 2386 (codified as amended at 15 U.S.C.A.
1 note (West Supp. 1999)) (making Y2K readiness reports inadmissible as evidence
in most contract claims; temporary exemption from antitrust laws for collaboration
among competitors; setting up councils to work on readiness in the federal
n172. See, e.g., H.R. 654, 106th Cong. (1999); S. 393, 106th Cong. (1999);
H.R. 3131, 105th Cong. (1998); S. 1578, 105th Cong. (1998).
n173. See, e.g., H.R. 2607, 106th Cong. (1999) (requiring a comprehensive
report on commercial space transportation to include comments collected from
the public on various relevant government web sites); H.R. 3546, 105th Cong.
(1998) (seeking to use internet forums nationwide to discuss social security);
S. 1882, 105th Cong. 303 (1998) (permitting the Commission on Education of
the Deaf to conduct hearings on the internet to enhance participation and
n174. See, e.g., H.R. 2637, 104th Cong. (1995); see also FCC Staff Report,
Broadband Today, Oct. 1999 (visited Jan. 28, 2000) <http://www.fcc.gov/Bureaus/Cable/News<uscore>Releases/1999/nrcb9017.html>.
n175. See Yochai Benkler, Communications Infrastructure Regulation and the
Distribution of Control over Content, 22 Telecomm. Policy 183 (1998); Yochai
Benkler, Overcoming Agoraphobia: Building the Commons of the Digitally Networked
Environment, 11 Harv. J.L. & Tech. 287 (1998) [hereinafter Overcoming
n176. See Peter H. Lewis, Picking the Right Data Superhighway, N.Y. Times,
Nov. 11, 1999, at G1 (surveying broadband services and finding that "the
two leading cable data services, Time Warner's Roadrunner and AT&T Cable's
@Home, forbid residential customers to run Web server computers on the network").
n177. See, e.g., H.R. 4798, 105th Cong. 206 (1998) (permitting consumers,
as part of general restructuring of electric industry, to combine to form
nonprofit municipal electricity services, or other nonprofit provision mechanisms,
to provide services like those of electricity companies and permitting telecommunications
services, including internet service, to those consumer aggregations if permitted
to electricity providers); H.R. 2645, 104th Cong. 206 (1995) (same).
n178. This perception is given its official stamp in the Telecommunications
Act of 1996, in which Congress attempts to create regulatory incentives for
public utilities to enter the telecommunications field. See 47 U.S.C. 151-161
(Supp. III 1997).
n179. See Yochai Benkler, A Speaker's Corner Under the Sun, in The Commodification
of Information: Political, Social, and Cultural Ramifications (Niva Elkin-Koren
& Neil W. Netanel eds., forthcoming 2000).
n180. See Overcoming Agoraphobia, supra note 175, at 328-30 (describing field
studies conducted by David Hughes). For a series of reports on Hughes's work,
see Old Colorado City Communications and the National Sciences Foundation,
Progress Reports (visited Jan. 28, 2000) <http://wireless.oldcolo.com>.
n181. Such would be the case with license-free spectrum. See generally Overcoming
Agoraphobia, supra note 175.
n182. See Telecommunications Act of 1996, 47 U.S.C. 153(43) (Supp. III 1997)
(defining telecommunications as the "transmission, between or among points
specified by the user, of information of the user's choosing, without change
in the form or content of the information as sent and received").
n183. See Broadband Today, supra note 174.
n184. See Edward De Grazia, Girls Lean Back Everywhere: The Law of Obscenity
and the Assault on Genius 3-7 (1992).
n185. See Miller v. California, 413 U.S. 15 (1973).
n186. See Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727
(1996); FCC v. Pacifica Found., 438 U.S. 726 (1978).
n187. See Ginsberg v. New York, 390 U.S. 629, 650-71 (1968) (Douglas, J.,
n188. Compare id. with Butler v. Michigan, 352 U.S. 380 (1957).
n189. Compare Pacifica Found., 438 U.S. at 751-55 (reproducing a verbatim
copy of the text of George Carlin's monologue in an apparent attempt to show
its repulsiveness but instead making all too clear that it was social satire)
with Cohen v. California, 403 U.S. 15, 25 (1971) ("It is nevertheless often
true that one man's vulgarity is another's lyric.").
n190. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
n191. See Sable Communications of Cal. v. FCC, 492 U.S. 115, 130-31 (1989).
n192. See Denver Area, 518 U.S. at 757-79.
n193. See id. at 737-53.
n194. See, e.g., Secretary's Advisory Comm. on Automated Personal Data Systems,
93d Cong., Records, Computers, and the Rights of Citizens (1973); The Privacy
Protection Study Comm., Personal Privacy in an Information Society 345-91
(1977) (discussing government access to personal records).
n195. See Julie E. Cohen, A Right to Read Anonymously: A Closer Look at "Copyright
Management" in Cyberspace, 28 Conn. L. Rev. 981 (1996); James Boyle, Foucault
in Cyberspace: Surveillance, Sovereignty, and Hard-Wired Censors (1997),
available at <http://www.wcl.american.edu/pub/faculty/boyle/foucault.htm>;
Lawrence Lessig, The Architecture of Privacy (1998), available at <http://cyber.law.harvard.edu/works/lessig/architecture<uscore>priv.pdf>;
Jerry Kang, Information Privacy in Cyberspace Transactions, 50 Stan. L. Rev.
1193 (1998); Julie Cohen, Examined Lives: Informational Privacy and the Subject
as Object, 52 Stan. L. Rev. (forthcoming 2000).
n196. See A. Michael Froomkin, It Came From Planet Clipper: The Battle Over
Cryptographic Key "Escrow", 1996 U. Chi. Legal F. 15 (1996) (discussing the
importance of cryptography, and the consequences of the availability or lack
n197. See Eben Moglen, So Much for Savages: Navajo 1, Government 0 in Final
Moments of Play (visited Jan. 25, 2000) <http://old.law.columbia.edu/my<uscore>pubs/yu-encrypt.html>.
n198. See Intellectual Property Rights in an Age of Electronics and Information:
Joint Hearing before the Subcomm. on Patents, Copyrights, and Trademarks
and the House Judiciary Comm. Subcomm. on Courts, 99th Cong. (1986); Pamela
Samuelson, Some New Kinds of Authorship Made Possible By Computers and Some
Intellectual Property Questions They Raise, 53 U. Pitt. L. Rev. 685 (1992);
Electronic Communications, supra note 4, at 663-80.
n199. See Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of
Contract, 12 Berkeley Tech. L.J. 93 (1997); Julie E. Cohen, Copyright and
the Jurisprudence of Self-Help, 13 Berkeley Tech. L.J. 1089 (1998); Yochai
Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure
of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999); Mark A. Lemley, Beyond
Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal.
L. Rev. 111 (1999); Pamela Samuelson, Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley
Tech. L.J. 519 (1999).
n200. 15 U.S.C. 1125(c) (Supp. IV 1998).
n201. See Electronic Communications, supra note 4, 33A.2 (Supp. 1997); Jessica
Litman, Electronic Commerce and Free Speech 19-26 (manuscript presented at
Telecommunications Research Conference 1999) (visited Jan. 25, 2000) <http://www.law.wayne.edu/litman/papers/freespeech.pdf>.
n202. See H.R. 2200, 106th Cong. (1999) (discussing airlines); H.R. 1030,
106th Cong. (1999); H.R. 1000, 106th Cong. (1999); H.R. 4742, 105th Cong.
5 (1998); see also H.R. 1828, 106th Cong. 119C(c) (1999) (authorizing Secretary
of Energy to compile database of rates, terms and conditions of offered electricity
services); S. 1047, 106th Cong. (1999) (discussing electric suppliers).
n203. See Denver Area Ed. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727,
n204. 521 U.S. 844, 874-79 (1997).
n205. See A. Michael Froomkin, Flood Control on the Information Ocean: Living
With Anonymity, Digital Cash, and Distributed Databases, 15 U. Pitt J.L.
& Com. 395 (1996), for the most influential, and inevitably aging, description
of the relevant technologies.
n206. See generally Froomkin, supra note 196.
n207. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1452 (7th Cir. 1996);
Frank H. Easterbrook, Cyberspace Versus Property Law?, 4 Tex. Rev. L. &
Pol'y 103 (1999).
n208. See Robert P. Merges, The End of Friction? Property Rights and Contract
in the "Newtonian" World of On-Line Commerce, 12 Berkeley Tech. L.J. 115
n209. See William W. Fisher III, Property and Contract on the Internet, 73
Chi.-Kent L. Rev. 1203 (1998).
n210. See John Perry Barlow, The Economy of Ideas, Wired 2.03 (1993) and
Esther Dyson, Intellectual Value, Wired 3.07 (1995), for versions of this
position that were popularly expressed.
n211. See Yochai Benkler, Intellectual Property and the Organization of Information
Production (Oct. 1999) <http://www.law.nyu.edu/benklery/Ipec.PDF>.
n212. See ACLU v. Reno, No. CIV.A.98-5591, 1998 WL 813423, at *5 (E.D. Pa.
Nov. 23, 1998) (referring to the Nov. 19, 1998 restraining order).
n213. See H.R. 3037, 106th Cong. (1999) (affecting schools and libraries
receiving any federal funds); S. 1545, 106th Cong. (1999); H.R. 2560, 106th
Cong. (1999) (affecting schools and libraries receiving any federal funds,
not only universal service); H.R. 1501, 106th Cong. 1402 (1999); H.R. 896,
106th Cong., (1999); H.R. 543, 106th Cong. (1999); S. 97, 106th Cong. (1999);
H.R. 368, 106th Cong. (1999) (emphasizing local standard setting, instead
of federal filteringguidelines); H.R. 4274, 105th Cong. 601 (1998) (requiring
filters be installed by all schools and libraries receiving federal funds);
S. 1708, 105th Cong. (1998) (requiring recipients of funding to have policies
restricting access to inappropriate materials); H.R. 3177, 105th Cong. 2(a)
(1998) (requiring all schools to install filtering or blocking mechanisms
that prevent access to "material inappropriate for minors" as precondition
to receiving universal service funds); S. 1619, 105th Cong. (1998) (conditioning
universal service funds on installing filters in schools and libraries).
n214. See Telecommunications Act of 1996, Pub. L. No. 104-104, 509, 110 Stat.
56, 137-39 (codified as amended at 47 U.S.C. 230 (Supp. III 1997)).
n215. See Lawrence Lessig, Code and Other Laws of Cyberspace 176-82 (1999).
n216. See Elisabeth Werby, The Cyber-Library: Legal and Policy Issues Facing
Public Libraries in the High-Tech Era (visited Feb. 29, 2000), available
n217. See European Union Directive 95/46, 1995 O.J. (L 281/31) 213-38 (concerning
the protection of individuals with regard to the processing of personal data
and on the free movement of such data).
n218. See United States, Privacy and Electronic Commerce (June 1998) <http://www.doc.gov/ecommerce/privacy.htm>.
n219. See Sara Robinson, CD Software Said to Gather Data on Users, N.Y. Times,
Nov. 1, 1999, at C1.
n220. See Sara Robinson, RealNetworks to Stop Collecting User Data, N.Y.
Times, Nov. 2, 1999, at C2.
n221. A panopticon is a design for a penal institution, devised by Jeremy
Bentham, where each cell is always within view of a guard post, but the guard
is not viewable from the cell. This means that each inmate can always be
observed, but can never know when he is being observed. The assumption is
that the prisoner will always behave as though observed, cutting on the costs
of actual monitoring to assure compliance with required prison conduct. It
is a concept borrowed by Michel Foucault to describe the effects on social
behavior of a social environment in which everyone watches everyone else.
n222. See Mary J. Culnan, The Lessons of the Lotus MarketPlace: Implications
for Consumer Privacy in the 1990's (1991) <http://www.cpsr.org/ftp/cpsr/conferences/cfp91/papers/culnan>.
n223. See Lexis-Nexis: The P-TRAK Service (visited Jan. 26, 2000) <http://www.epic.org/privacy/ssn/>.
n224. See The TRUSTe Program: How it Protects Your Privacy (visited Jan.
26, 2000) <http://www.truste.org/users/users<uscore>how.html>.
This site states:
A cornerstone of our program is the TRUSTe "trustmark," an online branded
seal that takes users directly to your privacy statement. The trustmark is
awarded only to sites that adhere to our established privacy principles and
agree to comply with ongoing TRUSTe oversight and our resolution process.
Our privacy principles embody the core elements of fair information practices
approved by the U.S. Department of Commerce, Federal Trade Commission, and
prominent industry-represented organizations and associations.
n225. See Nichals Negroponte, Being Digital 153 (1995).
n226. See Benkler, supra note 199; see also Yochai Benkler, Siren Songs and
Amish Children, Autonomy, Information, and Law (unpublished manuscript, on
file with author).
n227. See Bernstein v. United States, 176 F.3d 1132 (9th Cir. 1999), withdrawn,
en banc reh'g granted, 192 F.3d 1308 (9th Cir. 1999).
n228. For an archive of the debate, see EPIC, Recent Crypto News and Documents
(last modified Nov. 24, 1999) <http://www.epic.org/crypto/>.
n229. See United States Dep't of Commerce, Commerce Announces Streamlined
Encryption Export Regulations (last modified Jan. 14, 2000) <http://18.104.22.168/public.nsf/docs/60D6B47456BB389F852568640078B6C0>
n230. See John Perry Barlow, A Cyberspace Independence Declaration (Feb.
n231. See 17 U.S.C. 1201(a) (Supp. IV 1998).
n232. See id. 1201(b).
n233. See id. 512.
n234. See id. 512(c)-(d). These provisions are highly controversial extensions
of contemporary copyright law - like the notion that linking or searching
are suspect under copyright law.
n235. The notice and take down structure frees an ISP of contributory liability
if it has no knowledge of infringement. If it is notified of infringing materials,
it must take them down if it stores them, or block access to them to enforce
the claim, unless it receives a court order to the contrary. See id.
n236. For the most recent version, see National Conference of Commissioners
on Uniform State Law Laws ("NCCUSL"), Drafts of Uniform and Model Acts (last
modified Feb. 24, 2000) <http://www.law.upenn.edu/bll/ulc/ulc<uscore>frame.htm>.[eb
n237. For last draft before the ALI abandoned the project, see NCCUSL, Uniform
Commercial Code Article 2B: Computer Information Transactions (Feb. 1, 1999)
<http://www.law.upenn.edu/bll/ulc/ucc2b/2b299.htm>. For the joint statement,
which removed the article from the UCC and left it in the uniform laws only,
see NCCUSL, NCCUSL to Promulgate Freestanding Uniform Computer Information
Transactions Act: ALI and NCCUSL Announce that Legal Rules for Computer Information
Will Not Be Part of UCC (Apr. 7, 1999) <http://www.nccusl.org/pressrel/2brel.html>.
n238. Whether these would be valid otherwise is controversial. See Mark A.
Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev.
1239, 1248-53 (1995), which reviewed the general reluctance of courts to
enforce shrinkwrap licenses before 1996. This position has been under pressure
since the decision of the Seventh Circuit to enforce such licenses in ProCD,
Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
n239. See Benkler, supra note 199, at 394-412; see also Yochai Benkler, The
Free Republic Problem: Markets in Information Goods vs. The Marketplace of
Ideas (visited Feb. 24, 2000) <http://webserver.law.yale.edu/censor/benkler.htm>.
n240. See Yochai Benkler, Constitutional Bounds of Database Protection: The
Role of Judicial Review in the Definition of Private Rights in Information,
15 Berkeley Tech. L.J. (forthcoming Apr. 2000).
n241. See id. See generally Benkler, supra note 199.
n242. See ICANN, Uniform Domain Name Dispute Resolution Policy (As Approved
by ICANN on October 24, 1999) (last modified Jan. 3, 2000) <http://www.icann.org/udrp/udrp-policy-24oct99.htm>.
n243. See Anticybersquatting Consumer Protection Act, Pub. L. No. 106-113,
3001, 1999 U.S.C.C.A.N. (113 Stat.) 1501.
n244. The point is that if the object of trademark protection is to maintain
the utility of brand names to capture consumers, then a proliferation of
gTLDs will both limit the utility of the hunt-and-peck approach to e-commerce,
and will increase opportunities for non-confusing, possibly non-infringing
uses of an alphanumeric string similar to a trademark as a second level domain
name. This would limit the utility of a trademark to exclude unknown competitors.
n245. See, e.g., Panavision Int'l, L.P. v. Toeppen, 945 F. Supp. 1296, 1303
(C.D. Cal. 1996), aff'd, 141 F.3d 1316 (9th Cir. 1998).
n246. See, e.g., Reno v. ACLU, 521 U.S. 844 (1997). "Through the use of Web
pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.
As the District Court found, "the content on the internet is as diverse as
human thought.'" Id. at 870 (quoting ACLU v. Reno, 929 F. Supp. 824, 842
(E.D. Pa. 1996)).
n247. See, e.g., sources cited supra note 195.