Intellectual Property Law

Weird boxes

By Susan Crawford

With the help of one of my colleagues, I’ve been going through the history of the Computer Inquiries and all of the regulatory muttering that goes into the “information services”/”telecommunications services” dichotomy.

What a strange story of subversion.

We started off, back in the 60s, with a real fear of dominant telephone companies manuvering/leveraging their way into data processing businesses.  So we (basically) cordoned off data processing as a separate business and kept the telcos out.

Then, about 20 years later, the telcos pointed out that they needed to use computers to run their managed networks, and so we let them into the (unregulated) data processing business on the condition that they operate these businesses using separate subsidiaries - at about the same time, we set up a distinction between “basic” transmission services and “enhanced” everything else, and solemnly declared that everything was either one or the other.  (That same distinction gets enshrined in the Communications Act as the “information”/”telecommunications” dichotomy.)

Then, about 20 years after that, we decided that internet access was an “information” service and so not covered by any nondiscrimination obligations.

What?

The entire early history of this basic/enhanced distinction was based on the premise that of course there would be common carriage transmission services - they’d always be around - and all we were doing was making sure that those carriers wouldn’t be able to leverage their position in society (and their market power!) into new markets.

Now we’ve got carriers with enormous market power, none of which provides naked internet access.  They’re all selling bundles of services. So competition for this access is mild at best - no one can compare prices and speeds across varying bundles.  The telcos are getting rid of copper.  There’s no regime of common carriage.  We have no nondiscrimination rules for any form of internet access at this point.

We took a distinction designed to retain the key role of common carriage and subverted it - all carriage is now proprietary and discretionary, because everything has been jammed into the “information service” box.  That box was created to shield a new industry from the depredations of an older one.  Now the older one has managed to get into the box itself!

The “data processing”/”new market” idea is completely lost.  The definitions in the 1996 Act of “information services” etc.  are now construed with care as magical/determinative language, with zero context or history.

It would be good to start over.

Full post as published by Susan Crawford Blog on April 07, 2008 (boomark / email).