Internet Info 1997 December/Internet_Info_CD-ROM_Walnut_Creek_December_1997.iso/infoguide/about-internet/culture/laws-of-cyberspace

Text File | 1997-12-01 | 30KB | 538 lines

              REMARKS OF REPRESENTATIVE EDWARD J MARKEY
        "Networked Communities and the Laws of Cyberspace"

       Delivered at the "Rights and Responsibilities of Participants
             in Networked Communities" Conference Dinner
            Computer Science and Telecommunications Board
            National Research Council, Academy of Sciences
                          Washington, D.C.
                        February 18th, 1993

        As many of you are aware, we are in a time of transition. As of
last night, the Clinton Administration, has begun the political
transition from 12 years of Republican economic policies, launching the
nationally televised "airwave" assault of Operation Shared Sacrifice
with an address to Congress. The "ground war," wherein we get into the
nitty, gritty details of legislation, will come later this spring.

        Although it is an ancient Chinese curse to live in interesting
times, it's an exciting time to be here in Washington because of all the
transition and the change.

        Everyone is throwing out their old speeches about gridlock and
divided government, the misguided regulatory state and the lack of
vision. And you should see what the Democrats are doing. New material is
being written all over town. Gone are the jokes about George Bush and
grocery scanners. Tough to get a smile with a line about Dan Quayle or
anything these days. If he were still around, somebody could crack a
joke about Vice President Quayle, as head of the Space Council,
proposing that the country build a "cyberspace station" before the
Japanese do. But he's not around, so we won't use any of those jokes.

        It is a good time instead, to talk of technological transition
and the change it is spawning throughout industries and indeed,
throughout American society. As all of you know, technologies are moving
increasingly from analog to digital forms of communication, and whole
industries are undergoing a transition being wrought by the
concrescence, or growing together, of digital technologies.

        This technological transition or convergence is leading
inexorably toward the creation of a new mega-industry: the information
industry. Comprised of computer companies, software houses, telephone
and cable companies, manufacturers of wireless gadgets, and others, the
development of this mega-industry and its harmonization of what we more
often think of as diverse teclmologies and distinct industries is taking
place at a heady pace.

        A quick look around at what IS happening out there can astound
even those who follow such developments, as I do, rather closely. For
instance:

        * Hollywood is going digital. New computer-controlled special
effects like "morphing," which allowed villainous characters in
Terminator 2 to constantly change forms, digitized movies, and computer
simulated prescreening, which saves producers thousands of dollars, are
becoming commonplace, The high tech efforts of today are allowing
"digital actors " from yesteryear, like Humphrey Bogart or Groucho Marx,
to come alive again on screen, or to dance with Paula Abdul in soft
drink commercials. Columbia pictures has talked about releasing its
movies and interactive video using digital distribution over phone lines
and cable TV to homes and theaters.

        * In health care, a recent study by Arthur D. Little concluded
that advanced telecommunications could help cut the cost of health care
delivery In this country by $36 billion annually through "telemedicine,"
remote video doctor-patient consultations, and electronic filing of
claims.

        * In education, the advent of digital communications in the
classroom, from ISDN-based distance learning projects to interactive
media as a new tool in teaching, could help make the telecommunications
infrastructure of tomorrow the " Great Equalizer" in American education
by linking resources and students, rich and poor, urban and rural, and
by giving everyone access to the Information Age.

        * In manufacturing, the agile techiques that telecommunications
conversant CEO's employ could mean that the "Virtual Corporation" may
help Bill Clinton achieve a "Virtual Economic Recovery." In short, the
rapid teclmological change and the new networks being created will
increase efficiency and create thousands of jobs.

        All of this excites the imagination. And I'm excited to have a
"front row seat" to it all as chairman of the House Subcommittee on
Telecommunications and Finance, which oversees and legislates in the
area of telecommunications. At its heart, it's the subcommittee of MTV
and Hollywood, of telephone networks, cable companies and computers.

       Historically, though, policymakers and regulators have tended to
look at the telephone industry, the cable industry, or the television
and broadcast industries as distinct entities defined by their
technologies. We speak of wires and switches, antennas and cables,
regulated services and tariffs. Often, policy debates revolve around
intra-industry or inter-industry tugs of war with legislators and
regulators feeling a little like the mythical creature of Dr. Doolittle
-- the "pushme-pullyou" -- a llama with two heads facing in opposite
directions. Policy stasis was frequently the result; (also known as
"gridlock" to you Perot supporters out there.) In such scenarios,
creating a national network and articulating overarching policy goals
for the country can be an arduous task.

        I do feel, however, that this year we are on the cusp of
dramatic change that will bring success. With Bill Clinton and Al Gore,
along with Ron Brown at the Commerce Department, we have an
Administration that understands the nature of technology and the
economic role it can play. Moreover, they are also people who understand
the  small-D" democratic potential of these new information networks and
place more importance, I believe, on some of the basic principles of
personal privacy that we should all be vigilant in protecting. We've
gone from a President who didn't know about grocery scanners to one who
not only knows what a "PBX" is, but knows the capacity of the one in the
White House and he's unhappy with it!

        Tonight's forum, where we talk of the nature of "community" in a
networked world and the rights and responsibilities of the members of
that community, gets us beyond the wires and the switches to the
electronic culture that exists on the ends of the line and between the
wires -- the amorphous, borderless world of "cyberspace." Although
cyberspace existed before author William Gibson coined the term in his
book "Neuromancer," word of this new realm, this electronic frontier,
has only begun to capture the imagination and attention of the general
public recently.

        Of course, appearing on the cover of TIME magazine helps to get
the word out. (So, "Cyberspace" does have newfound name recognition --
although it would probably have to make some rounds at Manchester
coffeehouses before it would be a top vote getter in the New Hampshire
primary.)

    What happens in cyberspace, and what its popular emergence portends
for our society, is what I'd like to talk about tonight. I want to step
back and highlight some of the tough issues that lurk just over the
horizon of our electronic frontier. It is imporant to raise the issues
now. This is a new arena for communications and law. Conferences like
this one provide a great service by sharing information and perspectives
and by trouble-shooting potential problems. In short, when we begin to
address the rights and responsibilities of cyberspace, we will be boldly
going where no policymakers have gone before.

        Before we can discuss " communities" in a networked world --
before we get to the larger, national network -- we must first look at
an individual human being and that individual's relationship to the
technology.

        When Harvard's Mark 1 computer and the Eniac computer were being
brought on line back in 1944 and 1945 the budding dream of many a
computer scientist was to create ever more complex machines. The
ultimate goal was to create a machine that could thnk like a human
being, to move beyond the simple logic, the programmed syllogisms, the
endless zeros and 1's -- to artificial intelligence and thought
processes that would mimic and indeed rival humans.

       Science fiction novelists have long written of such machines and
robots. The ambition was to have machines play an integral role in human
society. The Paradigm has changed in recent years. Ironically, today we
talk of what role humans can play in an interconnected network of
machines.

        The culture that develops in cyberspace will have both good and
bad elements, analogous perhaps to the "thinking machines" dreamt of in
science fiction, which sometimes acquired human qualities we ourselves
would often like to forget. Think of "Hal," the on-board computer which
took over control In the movie "2001: A Space Odyssey," and one is
reminded that there can be less than benevolent consequences from
technological advances.

        Ironically, after World War II, as computers began to evolve and
become more sophisticated, a debate was also raging in the field of
human psychology -- the behavioralist school was maintaining that humans
were actually more " computer-like," in the sense that human actions and
behavior stemmed from predictable logic or conditioned behavior.
Hungarian writer Arthur Koestler, more famous perhaps for writing the
anti-totalitarian classic 'Darkness at Noon' in 1941 wrote another
novel. 'Ghost in the Machine,' in 1967, in reaction to behavioralist
psychology.

        Koestler' s almost visceral defense of distinctly human
qualities of emotion and judgement foreshadow some of what we may
encounter when trying to understand the dual nature of cyberspace --
both the mechanical and human aspects of it. Because it is a human
creation it will embody all of the eccentricities, judgment, reason,
sense and dreams we consist of ourselves along with our flaws,
weaknesses, and prejudices.

        Almost twenty-five years ago, shortly after Koestler's novel was
published, Robert Kennedy went to Detroit, a city that had recently been
torn apart by a riot, and he spoke to how we measure the wealth of a
community and the difficulty in quantifying intangible assets or values.
He said,

        "We cannot measure national spirit by the Dow Jones Average, nor
        national achievement by the gross national product.

        "For the gross national product includes air pollution and
        advertising for cigarettes, and ambulances to clear our highways
        of carnage. It counts special locks for our doors and jails for
        the people who break them,..The gross national product swells
        with equipment for the police to put down riots in our cities.
        And though it is not diminished by the damage these riots do,
        still it goes up as slums are rebuilt on their ashes.

        "And if the gross national product included all this, there is
        much that it does not comprehend. It does not allow for the
        health of our families, the quality of their education or the
        joy of their play...The gross national product measures neither
        our wit nor our courage, neither our wisdom nor our learning,
        neither our compassion nor our devotion to country. It measures
        everything, in short, except that which makes life worthwhile;
        and it can tell us everything about America -- except whether we
        are proud to be Americans.

        Similarly we can look at the speeds of our telecommunications
networks, the millions of miles of cable, fiber and copper, ascertain
the processing power of advanced computers, and measure their memory
capacities. We can look too, at the profit margins of software
providers, movie studios, and record companies. In the final analysis,
we can tell people everything about the state and quality of our network
except those things that make use of such a network worthwhile. Whether
the "console community" that is developing in cyberspace is a one of
enjoyment and wonder, or the potential domain of 'digital derelicts' who
may pillage our community with acts of "electronic wilding" is the
question Robert Kennedy would ask today.

        We all have to remain cognizant of the fact that for all the
glitter and gold out there on the frontier, there is, existing
simultaneously, a sinister side to cyberspace. It is an aspect of life
that every community, whether real or virtual, has to deal with. So even
as we look to the network and to the first colonies on the electronic
frontier to empower human beings with the tools of the information age,
to improve people's lives, and to provide entertainment and enjoyment,
the potential for harm in the networked community may become more than a
'virtual reality,' but a real reality.

       In 1989' I requested a comprehensive report from the General
Accounting Office on how federal agencies use, obtain, verify, and
protect personal information; how individuals are made aware of
information collected about them; and what telecommunications and
network facilities agencies' systems use to transmit data. The GAO
reported that personal information at tbe federal level is maintained in
about 2,000 program management, payroll, personnel, financial, and other
types of systems. Data in these systems included social security
numbers, names and addresses, financial, health, education, demographic
and occupational information. The GAO reported that although data in
about 91 percent of the systems were covered by the Privacy Act, many
agencies still share the personal information they maintain with other
federal, state and local agencies , as well as with the private sector.

        The GAO study also indicated that the government obtains
information electronically from third-party sources. Twenty percent of
the agencies surveyed reported that they collected personal information
electronically from third-party sources, such as credit bureaus, state
divisions of motor vehicles, and insurance companies. This study raises
two issues for us. One, how does the government continue to protect the
integrity of information collected about us for legitimate purposes, and
two, is the government collecting only the needed information?

        The same GAO report noted that some of the government's largest
databases of personal information are accessed remotely and
electronically. Forty-five percent of the databases surveyed were
accessed through the public switched network, such as through AT&T or
MCI, or through easily accessed commercial networks. Security of such
systems is an obvious concern we will need to address on an ongoing
basis.

        A more recent GAO survey, one I requested just last year, had to
deal with a proposal some of you may be aware of from the FBI to meet
its future wiretapping needs. In requesting the GAO investigation, I
wanted to ascertain what technological altematives to making the entire
telephone network -- including computer equipment -- "wiretap ready" for
the FBI were available. I also wanted to find out what exactly were the
FBI's wiretapping needs and what the estimated costs would be. The study
concluded that in its April of 1992 proposal, the FBI did not define its
wiretapping needs adequately. No specifics and no cost estimates were
available.

       I can't tell you what alternatives to making computers, PBX
equipment and the telephone network " wiretap ready" may be available to
the FBI because the Bureau classified that portion of the GAO report as
national security information I will tell you however, that it is my
personal belief that searching for alternatives to their current
proposal is where the FBI should be focusing their efforts.

        This is not only an issue of privacy' but for US manufacturers
of telecommunications equipment, the FBI proposal and the NSA standard
on encryption may also pose threats to the viability of their products
on the international market. Because of my role as Chairman of the
Telecommunications Subcommittee, I felt obligated to investigate the
issue thoroughly before any legislative proposals having far-reaching or
perhaps, unintended consequences, moved through Congress.

        I understand that the FBI considers wiretaps an essential
information gathering tool when fighting crime. But I am hopeful that
some accommodation can be found because I feel strongly that we need to
make our networks, databases and terminal equipment more secure, not
less secure, to invisible trespassers and others. The same is true for
wireless encryption. The National Security Agency wants the industry to
accept a standard that many believe too easy to decode. As the
telecommunications revolution goes wireless, and telephone
conversations, computer data and business information increasingly
travel through the air, we need to make sure privacy and confidentiality
is protected to the maximum extent possible.

        Let me get away from the government's side of cyberspace to some
of the threats to personal privacy as they arrive from the private
sector or from private individuals'

        First, private industry. Erik Larson published a book last year
called, "The Naked Consumer." In it, he unveils some of the tools
Madison Avenue is employing to find out more about you and,
subsequently, how they cater their sales pitch to you accordingly. New
marketing technologies are being refined using sophisticated sfotware
that takes huge amounts of information collected from various sources
and combine it into a single database. Larson calls this
cross-referenced information "recombinant information." It can include
court records' credit card balances' bank account information, magazine
subscriptions, store purchases, and a "host of personal data collected
discretely by companies of all kinds and then, widely, avidly, and
aggressively marketed to anyone willing to pay for it."

        Larson notes in his book, for instance, that in 1988, one long
distance company began trading the names of its millions of customers.
Anyone who rented the list could select customers who were female, who
made international calls' or who travelled a lot. The author relates
that the long distance company tracked customers ' travels through the
use of the company's telephone calling card, designed to be used on the
road.

        Much of the personal information collected about Americans may
be occurring anytime someone calls an 800 or 900 telephone number.
Unbeknownst to most Americans, companies can receive the name, billing
address, and telephone number of every caller to their 800 or 900
numbers. This information can then be reused, bought and sold without
restriction.

       In the last session of Congress, I offered legislation to help
combat this kind of personal information hijacking. I will introduce it
again this session and will push for its adoption aggressively. It
requires recipients of personal information gleaned from the network
during an 800 or 900 call NOT to reuse or sell that information without
receiving the affirmative consent of the caller first.

        I'd like to read you an short excerpt from another book, this
one by Jeffrey Rothfeder, called "Privacy for Sale." By reading it, I
think I'II give you all some sense -- if you don't have it already -- of
how much information is readily available.

    The author writes:

                "I chose Dan Rather as my test case because I was told
        the stoic, tight-lipped CBS anchorman has taken numerous steps
        to guard his personal information. With this in mind, he seemed
        like the perfect subject to assess the limits of the
        [information] underground....But in the end, it owly involved
        extra keystrokes on my computer and patience. I started with Dan
        Rather's credit report, because that's the simplest bit of
        confidential information to obtain.

        "But to get that I needed his complete address and preferably -
        " but not necessariiy - his Social Security number. So I began
        by requesting from the superbureau Rather's credit report
        header, which contains biographical data taken from eredit
        bureau files and usually available by just typing in a person's
        name....Once I had Dan Rather's address and Social Security
        number, getting his credit report was easy....It's hard not to
        be envious of a clean credit report like Rather's....

        "However, delving further into Dan Rather's electronic alter ego
        offers a slightly different perspective on him.... I obtained a
        list of the stores he shops at and how much he spends.,..I
        learned that Rather doesn't spend a lot on entertainment.
        Shopping seems to be more his speed....He shopped at five
        clothing stores and ate at only two restaurants, both ethnic.
        Rather spent 10 times more on apparel than dining out.

        That's all I'II read to you, but you should know that it is just
the tip of the iceberg of things the data superbureaus have on all of
us.

        As you can see, the Information Age is about more than just
information. What we're communicating is not just raw data. It's values;
it's meaning. It's a message about the very purpose of our lives.
Communications has the power to change the way people live, the power to
overthrow governments.

        As networked communities in cyberspace develop further, the
rights and responsibilities of all of its inhabitants, and all of us as
well, need to reflect the underlying power they possess, in addition to
the promise the network holds for us.

        By looking at an individual's relationship with the machines and
the network, we can also try to formulate boundaries of law in the
network's borderless world that will serve well the community which
inhabits it. In a sense, we begin with a sort of "technological
anthropology," and work from there to the manifestation of human
potentialities and needs in the technological milieu of the network as a
whole. John Sculley of Apple computer has spoken of developing
"human-centric" technology to reflect his company's emphasis on
development of information appliances for everyday people.

        In 1991, Professor Laurance Tribe of Harvard Law School gave an
address at the first conference on Computers, Freedom and Privacy, out
in California entitled "The Constitution in Cyberspac" The questions he
raised was how constitutional protections written two centuries ago
remain intact in the context of a world, a digital world, the Framers
could never have envisioned.

        It is a fundamental question for us. As a policymaker at the
federal level, I will be holding hearings on these issues, especially
the electronic consequences to personal privacy in the Information Age,
Big questions loom for us to answer. Questions that will need not only
legal, copyright, First Amendment or consitutional law answers, but also
societal and political nswers as well. We will be breaking new ground
in this increasingly interconnected world.

        Here are some of the questions we will have to explore and
attempt to find answers to:

        Are the fundamental values of our society so universal and
enduring that they will not be threatened by the advent of new
technologies or any new subcultures such technologies produce?

        Or will cyberspace become some lawless place, where the
Constitution is cracked open by fiber fissures created when trying to
convert a two hundred year old parchement into a binary world of zeros
and 1's? Can it continue to be a 'living, breathing document?"

        Or will cyberspace develop its own distinct laws? Wil] it
develop " digital vigilantes" to patrol and police the electronic
bulletin boards and electronic highways? What indigenous political
institutions may develop in such a vacuum.

       Could a closed system develop in the network with its own closed
value system?

        I agree with Professor Tribe when he stated that science and
technology open options, create possibilities, suggest
incompatibilities, and generate threats. Yet they, do not alter what is
"right" and what is "wrong."

        Because in the absence of relevant laws, egregious
transgressions of what most of us perceive to be right and wrong can
occur. This includes both unauthorized electronic trespassing,
infringements upon free speech rights' as wel] as some of the tactics
employed against hackers' phone phreaks and others.

        Once we clearly define what the rules are' then we can deal with
some of those " digital desperados" out there like the "Dark Avenger,"
the Bulgarian notorious for spreading his computer viruses around the
world. The most recent issue of Discover magazine, for instance,
contains excerpts from a book which relates how the Dark Avenger has
developed a virus that will "mutate in 4 billion different ways." Making
it very difficult to vaccinate a system agains. When the network goes
global' how do we protect ourselves against cross-boundary access of
personal data or infringements on our community? Will the privacy rules
that govern U.S. systems be adhered to if the network or data is
accessed from abroad? We need to build in such protections sooner rather
than later.

        I have also seen themagazines of the so-called "Cyberpunk"
community -- magazines like "2600: The Hacker Quarterly." A recent issue
for example, contained aricles on how to steal long distance service
from a payphone, how to defeat callback verification, a program for a
`Simple C Virus' ' and other articles indicating, quite explicitly, how
to operate on the margins of, or to cross, what most of us would
consider responsible behavior. Without appropriate laws that speak to
our new, networked communities' the risk is that some of the citizens
may be lost, not knowing exactly what their rights and responsibilities
are.

       Often, when engaged in the legislative arena, I find myself
exasperated by representatives of certain groups or certain industries
who appear to walk through life with blinders on -- failing to see the
larger forces at work or the proverbial 'Big Picture.' Similarly, there
are numerous "geniuses" in the telecommunications or computer arena --
self-described " futurists " and others -- who appear to me to walk
through life with binoculars on, They can see way out into the distance,
yet anything in the immediate future is completely out of focus.

        Luckily, there are some who do see the immediate, pragmatic
steps we need to take ahead of us -- for the good of the network from a
technical sense - but who also remain cognizant of the possible pitfalls
nearby from a societal perspective. People like Mitch Kapor and those at
the Electronic Frontier Foundation, for instance. Gene Kimmelman and
Mark Cooper at the Consumer Federation of America. And Jan Goldman from
the ACLU's Privacy and Technology Project. And there are others in this
room as well. I look forward to working closely with al] of you in the
future on both the technical, regulatory side of cyberspace and on the
societal, privacy implications as well.

        As I said earlier, it is important to do this now. To not look
at these issues is running the risk of logging on one morning and
entering the vast emptiness of a monadic realm that perverts our hopes
for a true community with invasions of privacy and digitized
demonstrations of injury and violence.

        To make our vision of a networked community a reality, we have
to remember the core values behind the Communications Act of 1934 --
values which apply as well in cyberspace as they did in the New Deal.
One value is to insure universal access to every person in our country
-- rich or poor. Another is to insure diversity' that there is a
multitude of "media tongues" that can speak, that you don't have to work
for the biggest and most powerful companies' or be a certain kind of
person to get access.

        That the smallest voices' those articulating creative ideas,
those with information to communicate, have access to the
telecommunications network,

       That they can be free and strong and separate from the larger
voice that may want to be more monopolistic and drown them out, and that
localism can be, in fact, fostered through this network.

        That it's not just a couple of voices coming from New York or
L.A., but voices all across the country that can use the
telecommunications system. For this reason I am advocating that America
needs to take an interim step on the way to a fully functional broadband
system for the country. A step that will avail a great number of people
the opportunity to access a little bit of the future today, through
digital telephone service to the home.

        The power of conununications is the power to help us learn more
about the world and to bridge the gaps that separate our differences. I
would like to work with all of you to make that kind of network a "real"
reality.

    Thank you for inviting me to speak with you tonight.


------

Scanned in OCR by Dave Hughes and posted to the network with Rep
Markey's permission immediately after the dinner address. Any
proofreading errors are Hughes fault. The hand scanner on my laptop
ain't perfect!