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Communications Regulation in the Global Information Society
by Paula M. Murphy and Colin Blackman
The need for a framework for governance of the internet and e-commerce, and principles and rules for a wide range of matters including, amongst other things, standards setting, consumer protection and competition, raises questions about what are legitimate concerns for the traditional public sphere and what should be left to private interests. The clash between the public and the private was an enduring theme throughout this wide-ranging conference which brought together a stimulating mix of predominately European and North American academics (economists, political scientists, lawyers and media) and government representatives.
The opening session, a broad and philosophical discussion of the role of the public sphere in the information society, was chaired by Richard Higgot of the ESRC Centre for the Research of Globalisation and Regionalisation at Warwick University, one of the main sponsors of this meeting. He called for caution when analysing both e-commerce and the information society as tools of globalization. This trepidation was echoed by Nicholas Garnham (University of Westminster) who questioned traditional conceptions of the public sphere and information society as potentially misleading as they serve to re-articulate existing power structures. Drawing on social and political theory he provided an analysis of approaches to understanding the limits and convergence of the public and private. Following a critique of both Habermas and Hegel's conceptions of the public sphere and their implicit Kantian distinctions between the public and private, he outlined Benhabib's integrationist approach, where everything can be seen as public.
Cyberspace, continued Harvard Law professor Larry Lessig, can be seen from different perspectives, both as an ideal type of liberal public space or, alternatively, as another system of control and regulation that defines behaviour and experience, much like a legal constitution, through code. As a result, approaches towards regulation are divergent. Like the political sphere, cyberspace transforms with the marriage of code and commerce and the union of interests between government and commerce. The debate was dense, provocative, providing more questions than answers. One general conclusion came from Andrew Graham (Balliol College, Oxford) that the public sphere matters for a number of reasons - to ensure rights, efficiency, democracy, public goods and merit and chiefly for its ability to foster a common language of discourse and debate.
The rest of the conference was organized around a number of sessions: The next GATS round and e-commerce; Convergence in European digital TV regulation; E-commerce: who sets the rules?; Media pluralism and democracy; Industry standard setting; Antitrust and intellectual property in the digital economy; Transatlantic regulatory coordination or collision?; Towards self-regulation?; Competition law and policy; and The future of communications regulation.
The debate over the public v private spheres did not digress into a simple overview of the roles of government, the firm, the court or the individual, but it is perhaps a useful way to summarize some of the discussion that took place within these categories.
As traditional public spheres, government policy and intergovernmental policy coordination continue to be active in trying to shape future rules for e-commerce. Government officials from the EU and the USA, Lee Tuthill of the World Trade Organization as well as Jonathan Aronson (UCLA) and William Drake (Carnegie) provided insights into the future of e-commerce regulation by multilateral, regional and national governmental bodies. Concerning the upcoming GATS round, for instance, one can foresee a myriad of interesting questions related to e-commerce: How can the reference paper be improved to better foster effective e-commerce? Is it principally a good or service? What is a telecom service? What if different industries offer the same service? How appropriate is the distinction between basic and enhanced services? How to ensure and foster consumer protection and awareness? And, crucially, what exactly is self-regulation?
Self-regulation
Businesses, supported by some governments, are pressing for an a digital world unencumbered by government regulation, suggesting that industry self-regulation and codes of conduct are the best way to ensure the take up of e-commerce. A panel chaired by Monroe Price (Cardozo Law School) began to explore the meaning of the term self-regulation. Self-regulation will have different meanings depending on who the 'self' is and will differ from nation to nation, sector to sector, and on whether the perspective is from private multinational firms or individuals. Stefaan Verhulst (PCMLP, Oxford) considered self-regulation in the context of the protection of children from harmful content. What about technological solutions to content issues? Beth Noveck (Yale Law School) cautioned against viewing filtering technologies as a panacea, illustrating how they could undermine the goal of self-regulation by ceding control to unaccountable and privatized technologies.
The battle between public and private interests was clearly illustrated in other sessions dealing with industry standards, antitrust and intellectual property, and competition law. Standards making has ceased to be just an engineering matter and become a market issue because standardization is required in advance of the development of new markets. The consequence is an increasingly complex arena for battle between shifting and competing alliances of national and regional public, quasi-public and private interests. Peter Grindley (LECG Ltd) illustrated the use of standard setting as a means of facilitating cartels by a case study of 3rd generation mobile telecommunications. Competing visions of standards and internet governance were explored by Mark Gould (University of Bristol), contrasting the open and pluralistic procedures of the Internet Engineering Task Force with the more restrictive model of the Internet Corporation for Assigned Names and Numbers (ICANN).
Not surprisingly, the spectre of Microsoft loomed large in several panels, first in an examination by David McGowan (University of Minnesota Law School) of the implications of Java in operating systems and related software markets. The Microsoft antitrust case was further dissected in another session involving Mark Lemley (University of Texas), Larry Lessig and David McGowan. It was especially illuminating to hear Larry Lessig (who was appointed Special Master in the case) conclude that the Microsoft case will now only answer the question 'is Microsoft a bully?' rather than the really important questions raised by the technological tying of Windows 95 and Internet Explorer through code rather than contract.
The conference attempted to bring together the issues discussed in a final session on the future of communications regulation. Perhaps Pam Samuelson (University of California, Berkeley) managed to best encapsulate some principles for the future: