Volume 48; 1995-1996 • Issue 1

Proceedings

From Conduit to Content: The Emergence of Information Policy and Law

Welcoming Remarks and Statement of the Issues The creation, manipulation, transmission, storage, and use of information constitute the United States’ and the world’s largest economic sector, affecting almost every aspect of business, education, government, and entertainment. The convener of From Conduit to Content: The Emergence of Information Policy and Law introduces The Annenberg Washington Program forum by noting the proliferation of information technologies and services, the diversity of industries and interests affected, and the number of government entities with jurisdiction, that contribute to both the complexity and the importance of information policy making.

Information Issues: Intellectual Property, Privacy, Integrity, Interoperabilty, and the Economics of Information

The first panel of From Conduit to Content: The Emergence of Information Policy and Law examines the wide range of legal and regulatory issues presented by information, including intellectual property, privacy, free expression, liability for false or damaging expression, interoperability, international trade, antitrust, and government investment in and provision of information. Participants include Anne W. Branscomb, Fred H. Cate, Brian Kahin, Ellen M. Kirsh, and P. Michael Nugent.

Information Policy Making

The second panel of From Conduit to Content: The Emergence of Information Policy and Law addresses the government’s response to the policy making challenges presented by information. Panelists from the government and academia explore the question: “How has, and how should, the policy-making process respond to the diversity of issues, interests, and policymakers?” Participants include Fred H. Cate, Allen S. Hammond, Bruce W. McConnell, Michael Nelson, Janice Obuchowski, and Marc Rotenberg.

Essay

Freedom of Information and the EU Data Protection Directive
by James R. Maxeiner

Because of advancements in information technology, the tension between protection of privacy and freedom of information has intensified. In the United States this tension is addressed with sector specific laws, like the Fair Credit Reporting Act. Conversely, in Europe, data protection laws of general applicability have existed for two decades. Recently, the Council of Ministers adopted a Common Position in a data protection directive.

The Author analyzes specific provisions of the Directive, primarily focusing on the provisions that address the tension between the right of privacy and the free flow of information within the European Union. Ultimately, the Directive strikes a balance between privacy and the free flow of information in three ways. First, the Directive is limited to “personal data” and does not apply to information about corporate or governmental bodies. Next, the Directive allows Member States to create their own exceptions in certain categories like journalism. Finally, it requires Member States to prohibit processing of racial, ethnic, political, or religious data although allows processing in five enumerated instances.

Article

The Last Mile: A Race for Local Telecommunications
by Craig D. Dingwall

Although AT&T relinquished control of its local exchange carriers (LECs) in 1983, competition in the local telecommunications market has not flourished. Instead, Bell Operating Companies (BOCs) still retain the bulk of the market share for local exchange services, and most customers cannot access alternative local exchange service providers. In the long-distance market, however, increased competition has provided customers with better services at lower costs. In order to reproduce the notable consumer advantages found in the long-distance market, consumers must have consistent, convenient access to a multiplicity of alternative service providers.

The Author examines barriers surrounding the lack of competition in the local markets and offers several proposals. Above all, the Author argues that any effort to promote local competition must bar BOCs from entry into the interstate Local Transport Access Areas (LATAs) until effective, facilities-based local competition exists and minimum safeguards protecting local competition are in place. The Author suggests several safeguards. First, alternative local service providers must be able to offer discounts to customers for switching service providers and allow customers to retain their existing phone numbers after they change service providers. Second, access charges, which currently subsidize incumbent service providers, must be replaced with cost-based prices and a universal fund. Third, new entrants to a local market must be able to interconnect with other local service providers at nondiscriminatory rates. Finally, the Author concludes with a discussion about jurisdictional considerations and the interplay between federal and state local competition policies.

Notes

Raise the Yellow Submarine! Subafilms and Extraterritorial Application of the Copyright Act
by Michael T. Crowley

Protecting United States industry from the costs of overseas pirating is complex without an enforceable bilateral copyright agreement. In fact, the U.S. loses billions of dollars to acts of piracy abroad every year. Yet, the Ninth Circuit destroyed a potential check against overseas piracy in Subafilms, Ltd. v. MGM-Pathe Communs. Co. when it ruled that the U.S. Copyright Act does not prohibit piracy abroad. After a discussion of relevant case law surrounding extraterritorial application of the Copyright Act, the Author of this Note criticizes the Subafilms decision and proposes changes to the current language contained in the Copyright Act.

Your Life as an Open Book: Has Technology Rendered Personal Privacy Virtually Obsolete?
by Sandra Byrd Petersen

As society becomes increasingly automated, the ability of individuals to protect their “information privacy” is practically nonexistent. Information that was once kept on paper in filing cabinets is now on-line in computer databases. At the touch of a computer key, a complete stranger can conveniently access and compile from a variety of different sources a dossier of intimate, personal information about people without their knowledge. Perhaps more shocking is the current lack of legal recourse available to contest the nonconsensual use of personal data.

In this Note, the Author examines the currently loose constitutional and common-law protections and suggests strategies litigants could utilize to create protection of information privacy. The Author argues that congressional action provides the most effective way to restrain the invasion of information privacy.

In God We Trust; All Others Who Enter This Store Are Subject to Surveillance
by Karen A. Springer

Until recently, Americans could enjoy a quiet conversation over a doughnut and a cup of coffee with the knowledge that the conversation was indeed private. Dramatically, the illusion broke: the “walls have ears” at some Dunkin’ Donuts shops in the form of hidden microphones. Employees and management actually listened to customers’ “coffee talk.” This Note analyzes the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and concludes that the surreptitious recording of customers’ oral communications violates the spirit and letter of the Act.

Copyright: Copyright © 1995 by the Federal Communications Law Journal. Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that (1) copies are distributed at or below cost, (2) the author and the Journal are identified, (3) proper notice of copyright is attached to each copy, and (4) the Federal Communications Law Journal is notified of the use.