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Who sets U.S. cyberspace policy? For many Americans, the medium is as central as radio, television, telephone, and library all rolled into one, yet there is no Department of Cyberspace, no “cyberczar.” Instead, like so many sites on the Web, government policy-makers are scattered among a number of agencies in Washington and connected through the White House’s Working Group on Electronic Commerce. What’s more, U.S. cyberpolicy has zigzagged over the years, as both Internet and policy-makers changed, and the loose working group structure has yet to develop a consistent, integrated government vision for cyberspace. The Internet did not spring up on its own. It was the government’s idea in the first place. The Defense Department funded early experiments for tying separate data networks together. The first test took place Oct. 29, 1969, although the system crashed that day. Later, the National Science Foundation took over funding and supervision. The NSF deployed the technology to interconnect research and university networks and, in so doing, made the Internet an academic preserve. Things changed in the 1990s. In March 1991, the NSF opened the Internet to commercial entities. Four years later, the NSF privatized the physical network and got out of the business of running it. Although the general public was not thinking about the Internet in 1992, the Clinton/Gore campaign was. A campaign policy paper talked about the public interest in expansion of the Internet, promising that if elected, Clinton/Gore would: “Build Information Superhighways: to develop an advanced communications network, which will help companies collaborate on research and design for advanced manufacturing, allow doctors across the country to communicate, put immense resources at the fingertips of American teachers and students and much more.” True to its word, the Clinton administration converted the campaign promise into the high-profile National Information Infrastructure initiative. In September 1993, the administration announced an Agenda for Action with nine ambitious principles and goals to guide government policy that included encouraging private sector investment, ensuring affordable prices, providing online security, protecting intellectual property rights, and giving online access to government information. The administration also changed the bureaucracy for Internet policy. The president put the secretary of commerce in charge. For advice, the secretary was to rely on both an interagency group, the Information Infrastructure Task Force, and a prestigious private sector panel, the Advisory Council on the National Information Infrastructure. The secretary was also to strengthen and streamline federal communications and information policy-making agencies. For the next four years, this Information Infrastructure Task Force had primary responsibility for developing and coordinating Internet policy. Then, in 1997, the bureaucracy was again reshuffled and government policy was refocused. This shake-up was based on recommendations in a report entitled “A Framework for Global Electronic Commerce,” the product of a working group led by the White House’s Ira Magaziner. ‘DIGITAL MARKETPLACE’ The new framework substantially narrowed the administration’s earlier policies. Gone was the metaphor of the “superhighway.” Gone were the noncommercial principles in the Agenda for Action. And gone from cyberspace was government. Instead, the report recommended that government look upon the Internet as a “digital marketplace.” This new framework viewed the Internet far differently from the 1992 campaign paper. “The private sector should lead,” it said. “Where governmental involvement is needed, its aim should be to support and enforce a predictable, minimalist, consistent and simple legal environment for commerce.” Any notion that there would be a government Internet policy was largely abandoned. The policy was instead to use the Internet to promote electronic commerce stimulating electronic commerce, government would be stimulating world trade, not just in the information and products that were sold over the Internet, but also in the wires, hardware, and software of cyberspace. Electronic commerce was becoming one of the driving forces behind the prosperity of the new economy, and U.S. companies were leading the way. Thus, government seemed to go from being the quarterback of cyberspace to being the referee, as well as the cheerleader for the U.S. commercial Internet industry. Structurally, the White House took over responsibility for coordinating e-commerce policy. The Working Group on Electronic Commerce, which consists of representatives from the White House, the vice president’s office, and invited federal agencies, replaced the Commerce Department’s Information Infrastructure Task Force. David Beier, chief domestic policy adviser for the vice president, chairs the working group and Sally Katzen, counselor to the director of the Office of Management and Budget, is vice chair. Formation of working groups to tackle problems spilling across agency boundaries is common in government. Each agency with a piece of the action or an expertise is represented. The identities of the various bureaus and offices invited to sit on a working group are not made public. However, its annual reports, which are on the Web at www.ecommerce.gov, mention such obvious departments as Commerce, Justice, Treasury, State, Defense, and Agriculture, as well as the Small Business Administration, the Federal Trade Commission, the Federal Communications Commission, the U.S. Trade Representative, and the General Services Administration. The Department of Health and Human Services is the only agency named in the recent annual report that is not business-oriented. However, the Department of Education and the Consumer Product Safety Commission are now participants. Representatives on these working groups tend to see things from the perspective of the jurisdictions and constituencies of their own agencies. The Commerce Department, for example, looks at the Internet as a way of promoting U.S. businesses. The Justice Department worries about it as a crime scene. Neither necessarily thinks of it the way the National Science Foundation once did, as a communications network for research and educational uses. FCC’S HANDS-OFF POLICY No single executive branch agency has plenary jurisdiction over the new world of cyberspace. Only the Federal Communications Commission has a statutory mandate broad enough, but it is an independent regulatory agency whose adjudicatory and policy-making functions, including those affecting cyberspace, are not under presidential control. The FCC was created “for the purpose of regulating interstate and foreign commerce in communication by wire and radio” in order to make available “a rapid, efficient, nationwide, and world-wide wire and radio communication service” (47 U.S.C. �151). The FCC is czar of radios, televisions, and telephones. Theoretically, it might have been czar of cyberspace as well. Yet it had no interest in such a role.. To the contrary, the FCC has declared its policy to be forbearance from regulation of the Internet government, can police the Internet, and, therefore, that FCC oversight would not be in the public interest. FCC critics, particularly those in Congress, have agreed. Thus the White House has resorted to the working group to grapple with the complexity and diversity of the Internet. A sampling of the group’s two annual reports, which are available at www.ecommerce.gov, illustrates both the range of its interests and its emphasis on commercial issues. In 1997, the working group’s efforts led to presidential directives affecting tariffs, copyright protection, patentable innovations, privatization of the domain name system, taxes, digital signatures, adoption of privacy codes by the private sector, electronic payments systems, and encryption. In 1998, its recommendations brought about directives on consumer protection, the spread of the Internet to developing countries, public education about the digital economy, and encouragement of small business use of the Internet. Yet the working group’s vision for cyberspace appears no different for the most part from what one might have expected from its predecessor, the Commerce Department. The executive summary to the recent annual report includes this narrow, mercantile ambition for government: “Working together, we can ensure that cyberspace is a safe place to shop.” To be fair, the same report shows the glimmerings of a grander vision that is closer to the public interest policies trumpeted in the 1992 campaign. The report moves away from the narrow commercial theme of “A Framework for Global Electronic Commerce” and announces three new government cyberspace initiatives: improve equal access to the Internet; enhance online government services (“egovernment”); and, promote use of the Internet for social benefits such as tele-medicine and distance learning (“esociety”). Whether these latest initiatives are diversions from a continuing focus on e-commerce, or whether they represent first steps in a new direction remains to be seen. The executive branch, of course, is always expected to take the leading role on policy matters, and the working group structure, as cumbersome as it may appear, is far ahead of what the other two branches have done. Congress routinely creates special and select committees to deal with special situations, but it has not thought it necessary to form a committee about the Internet. Like the blind men touching an elephant for the first time, its standing committees must try to discern the whole creature from whatever part is within their jurisdiction. The closest approximation to Internet oversight is the Congressional Internet Caucus, which describes itself as “a bi-partisan group of over 100 members of the House and Senate working to educate their colleagues about the promise and potential of the Internet.” The judiciary is even farther behind. Judges are customarily reluctant to make policy on any issue, but the deference given in last month’s opinion by the U.S. Court of Appeals for the 9th Circuit in AT&T v. City of Portlandseems excessive: The parties, and numerous amici, forcefully urge us to consider what our national policy should be concerning open access to the Internet. However, that is not our task, and in our quicksilver technological environment it doubtless would be an idle exercise. . . . Like Heraclitus at the river, we address the Internet aware that courts are ill-suited to fix its flow; instead, we draw our bearings from the legal landscape, and chart a course by the law’s words. MIXED SIGNALS Arguably, how the bureaucracy is structured for making cyberspace policy is inconsequential. Many would agree with the conclusion reached by “A Framework for Global Electronic Commerce” that the private sector should lead and that government’s role is minimal. The Clinton/Gore administration has, over time, been of several minds on this question, as its policies have moved from information superhighway to digital marketplace to “egovernment” and “esociety.” Still, most people expect cyberspace to be more than just a safe place to shop, more than a digital marketplace. They don’t want it to be an information superhighway only for trucks. They expect it to be a place where research is exchanged, where people are brought together in communities, and where knowledge is disseminated. Government itself can and should use the Internet to provide information, education, and services. Even more, government should ensure that the medium can be used in noncommercial ways that further the public interest, and it should encourage such use. Government still must lead and not simply cede cyberspace to commercial interests. One can draw an imperfect analogy between reactions to Columbus’ landing in the New World in October 1492 and reactions to the Defense Department’s test of cyberspace in October 1969. When European governments set policies for the world that lay over the ocean, some decided to exploit the resources, sending ships to bring back the riches of gold and furs. Others focused more on commerce and trade. Still others encouraged colonization for purposes of trade. None embraced a policy of opportunity and freedom for the new world. Revolutions were necessary to win those. History will judge whether government policies for cyberspace are any more farsighted. D.C. lawyer James H. Johnston is a frequent contributor to Legal Times. He may be contacted at [email protected].

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