****************************************************************** ////////////// ////////////// ////////////// /// /// /// /////// /////// /////// /// /// /// ////////////// /// /// ****************************************************************** EFFector Online Volume 5 No. 13 7/23/1993 editors@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 -==--==--==-<>-==--==--==- In this issue: Online Congressional Hearings Postponed Summary of New Infrastructure Bill EFF Joins Telecommunications Policy Roundtable -==--==--==-<>-==--==--==- ************************************** Online Congressional Hearing Postponed ************************************** In the last issue of EFFector Online (Volume 5, Number 12, July 7, 1993), we announced an upcoming online Congressional hearing to be held over the Internet on July 26 at 9:30AM EDT. Unfortunately, this event has been postponed until October or November. The following note from Internet Town Hall organizer Carl Malamud explains: "I wanted to explain a bit more my understanding of why we are delaying the congressional hearings. Please be very clear that I do not represent the committee and that this explanation is being sent in my capacity as the organizer of the Internet Town Hall. "The Internet Town Hall depends on voluntary donations from a large number of parties. For this Internet Town Hall, we've had a tremendous outpouring of support from groups such as O'Reilly & Associates, Sun Microsystems, Cisco, ARPA, Empirical Tools and Technologies, BBN, UUNET, Metropolitan Fiber Systems, and many others. "The purpose of this broad coalition is to demonstrate how the Internet works and how the Internet can be made to work in the congressional process. We wanted to make the point that there exists a general-purpose infrastructure that allows everything from email to IRC chat to WAIS databases to the World Wide Web to be accessed. "One of the key things we wanted to show the Congress was how audio and video can work over a general purpose infrastructure such as the Internet. Rather than transmit video over the key transit networks, which tend to get overloaded during events such as the Internet Town Hall, ARPA had agreed to furnish the use of DARTNET, the experimental advanced research network they operate. "The underlying transmission facilities for DARTNET are operated by Sprint. In order for the National Press Club, the headquarters site for the hearing, to be part of DARTNET we required a T1 line from our facility to the Sprint point of presence a few blocks away. We had requested Sprint to provide that T1 line and become part of the Internet Town Hall. "In the course of examining our request, Sprint postulated that furnishing a T1 line for a congressional hearing might violate congressional ethics laws. There are in fact laws on the books that prohibit members of Congress or its committees from accepting in-kind donations over a certain value under certain circumstances. Sprint forwarded their concerns to the House Ethics Committee, and then later informed the Subcommittee on Telecommunications and Finance and my organization of their actions. "Needless to say, there are technical alternatives to the T1 line that we asked Sprint to furnish. In fact, a single call to Metropolitan Fiber Systems resulted in a 10 Mbps virtual Ethernet using ATM between Washington, D.C. and Boston which is available for the hearing when it does occur. "Even though the technical issue is solved, there still remains the ethics concern. We firmly believe that a broad industry/government group volunteering time and money to show how the congressional process can be changed to include more input from the general public to be in the public interest. However, we are equally adamant that *ANY* ethical concerns *MUST* be cleared before we proceed with the hearings. "The crux of the issue has to do with in-kind contributions. If you are testifying before Congress, it is clearly allowed to bring in computers. However, a donation to the underlying infrastructure of the congressional committee might be construed as an expense that must be reimbursed by the committee to the donor. The purpose of such laws is to establish beyond the shadow of a doubt that the congressional process is clean and not subject to the undue influence of a particular interest group. "We will spend the next few months describing to congressional officials exactly what we have in mind for the hearings. Since this will be a historical occasion, there is no precedent for on-line hearings. We want to make sure that everybody is very comfortable with the issues and that officials believe that there is public benefit in such a demonstration. "I'd like to thank all the volunteers for their time and effort to date. A tremendous amount of behind the scenes efforts has already taken place and we're hoping to salvage some of that effort so we don't have to start from scratch. I'd also like to thank everybody on the network who sent in letters. The Subcommittee and Congressman Markey were truly impressed at the volume and the quality of the commentary from the public through e-mail and are looking forward to a successful on-line hearing later in the year. "BTW, we're keeping congress@town.hall.org open ... no sense in cutting off communication! Carl Malamud Internet Multicasting Service" ******************************************************* Telecommunications Infrastructure Act of 1993 (S. 1086) ******************************************************* Introduced by Senators Danforth and Inouye on June 9, 1993 First hearing scheduled: July 14, 9:30 AM A Summary by the Electronic Frontier Foundation The Senate Communications Subcommittee is now in the process of considering legislation that would eliminate the legal monopoly that local telephone companies have on local phone service, allow any communications provider to offer local phone service, and allow local telephone companies to compete fully in the cable television market. The legislation's goal is to promote increased investment in the nation's telecommunications infrastructure. The bill proposes many significant policy changes, chief among which is a very rapid move toward deregulating the local telephone companies' monopoly on local telephone service. The policies proposed are laid out in broad concepts, leaving the Federal Communications Commission to wrestle with the actual implementation of the policies. LOCAL EXCHANGE COMPETITION One year after the bill is enacted, any company would be allowed to offer local telephone service. Potential new entrants that would be allowed in the local exchange market under this bill include cable television companies, wireless service providers, and even Bell companies outside their current local exchange monopoly areas. Any State laws that would preserve the current telephone company monopoly or limit the entry of competitors are pre-empted by the bill. TELECOMMUNICATIONS CARRIER OBLIGATIONS Any company that offers telecommunications service or is interconnected with the local exchange carrier's network has several obligations under this bill. The definition of telecommunications service is somewhat vague, but it certainly includes voice telephone service, interactive data services used to carry information services, and possibly one-way video services such as those currently provided by cable television companies. Carriers' obligations include: 1. Interconnection All carriers that either provide telecommunications service or are interconnected with a carrier that provides telecommunications service must allow other carriers to interconnect with their network for the purpose of providing telecommunications or information services to users of either network. Network operators must provide interconnection under nondiscriminatory terms, on an unbundled basis. Operators must also supply all necessary technical information to enable others to interconnect and interoperate from one network to another. 2. Universal Service All providers of telecommunications service must contribute to the "preservation and advancement of universal service." States, in cooperation with the FCC, are responsible to make regulations that establish the mechanism for supporting universal service in the newly competitive telephone market. The bill does provide, however, that any universal service support should be given directly to "individuals and entities that cannot afford the cost" of telecommunications service. Subsidy for users' communications equipment is also allowed. 3. Number Portability The FCC will establish regulations the provide for "portable" numbers from all carriers as soon as possible. Thus, a customer could switch telecommunications providers without having to change telephone numbers. The administration of the numbering system would be removed from Bellcore and placed with an "impartial entity." INFRASTRUCTURE FOR RURAL AREAS AND NONCOMPETITIVE MARKETS The bill recognizes that in a competitive market environment, rural and "noncompetitive markets" may not enjoy the level of investment necessary for providing advanced telecommunications services. The minimum level of service desired in the bill is that which would "provide subscribers with sufficient network capacity to access to information services that provide a combination of voice, data, image, and video; and are available at nondiscriminatory rates that are based on the reasonably identifiable costs of providing such services." It is not clear that such services would be interactive. State regulators would be given the primary responsibility to ensure that carriers have an incentive to provide high-quality services to all areas. If this approach fails, the FCC is empowered to take action to have necessary service delivered to these areas. NETWORK STANDARDS AND PLANNING All segments of the communications industry are encouraged to work together to set voluntary standards for interconnection and interoperability. If the FCC determines that standards development is not succeeding or is proceeding too slowly, it may set incentives or deadlines for work to be completed. The FCC may also impose mandatory standards if the voluntary process fails. The FCC and the States are required to ensure that advanced telecommunications services are designed to be accessible to people with disabilities. TELEPHONE COMPANY ENTRY INTO CABLE TELEVISION MARKET The current ban preventing local telephone companies from entering the cable television market is lifted, in part. Local phone companies will be allowed, under the bill, to provide cable television service within their serving area, if the service is provided by a separate subsidiary and the phone company does not break any laws regarding improper cross-subsidization between phone service and cable services. By the same token, cable companies that provide telecommunications service must do so through separate subsidiaries and obey laws regarding cross-subsidization. Phone companies are still not allowed to purchase more than 5 percent interest in any cable system that provides services within the phone companies' service regions. CHANGES IN LONG DISTANCE RESTRICTIONS The restrictions on local phone companies against providing long distance (InterLATA) telecommunications service are lifted, in part, by the bill, to enable local phone companies to function more easily in the cable television and cellular phone markets. Bell companies would be allowed to operate wireline and satellite links for the purposes of distributing cable television signals over long distances. Some relaxation of the InterLATA restriction is also allowed to enable Bell companies to carry cellular phone calls from one region to another, and to hand off calls from one cellular system to another. INFORMATION SERVICES SAFEGUARDS Bell companies that provide information services must do so through a separate subsidiary in order to prevent cross-subsidies that would be unfair to consumers of basic phone service and to information service competitors. The separate subsidiary must maintain separate books and records, only engage in arms-length transactions with the Bell company, and follow other regulations that the FCC issues regarding accounting, tariffing, and business practices. PRIVACY OF CUSTOMER TRANSACTION INFORMATION Telecommunications carriers are prohibited from disclosing information about individual customers unless there is an affirmative, written request to do so by that customer. Carriers must, however, make any information (Customer Proprietary Network Information) that is disclosed available equally to their affiliates and all competitors who request the information. Customer Proprietary Network Information includes quantity, type, and technical characteristics of telecommunications service used by a customer, as well as information contained in bills received by the customer. [A complete copy of S.1086 is available by anonymous ftp on ftp.eff.org.] [Please direct any questions to eff@eff.org.] ********************************************** EFF Joins Telecommunications Policy Roundtable ********************************************** The Electronic Frontier Foundation is pleased to announce its participation in the newly formed Telecommunications Policy Roundtable. With market actions fast outpacing the public policy process, it is critical that citizens' groups articulate basic public interest goals that can help frame the debate over information infrastructure policy. Organizations such as the Association of Research Libraries, the Center for Media Education, Computer Professionals for Social Responsibility, and the Institute for Civic Networking all played leading roles in initiating the Roundtable. We thank these organizations, for creating the very important forum, in which a wide range of public interest organizations work together to frame common communications policy goals. In addition to general participation in the group, EFF has agreed to focus its efforts on the public policy and legislative strategy taskforce of the Roundtable. The initial announcement of the Roundtable (posted to com-priv) contained some suggestion that EFF's work on infrastructure policy issues over the last year was narrow and lacking in vision. Though we have never pretended to know, or be able to pursue, the solutions to all communications policy problems, we do feel that we have made a significant contribution to the infrastucture debate and to the effort to protect free speech and privacy in new electronic media. Some criticize our emphasis on ISDN and other affordable digital media as too narrow. We believe that our Open Platform policy efforts in support of ISDN have caused a major change in the way communications infrastructure policy is discussed. With the example of ISDN, we showed that citizens do not have to wait around 20 years while RBOCs lay fiber-to-the-home. Rather, with affordable, available technology, those who don't own telephone networks or cable television networks can start to create the applications and services that will shape our experience of the information age. Our Open Platorm efforts are aimed at increasing the diversity of information sources, expanding the notion of universal service, increasing access to information, and protecting privacy. ISDN is not our final goal, but a first step that shows we should begin to expect the benefits of digital networking technology soon, at affordable rates, and with nondiscriminatory terms. In order to show that we are not stuck on ISDN, either as a technology or a policy goal, we convened a meeting of over 20 major public interest organizations on June 1, 1993 (several weeks before the Roundtable was announced), to discuss EFF's long-term policy concerns and to hear the views of other groups. A section of the paper that we prepared for that meeting is appended to this message. We hope that this will clarify that EFF does have a view of communications policy goals beyond ISDN. We certainly invite comments on this document, but hope that in the future people who write about our positions will take the time to read our work first. (Please see also an article in the July/August '93 issue of Wired Magazine by Mitchell Kapor, EFF's Chairman of the Board, "Where Is the Digital Highway Really Heading? A Case for a Jeffersonian Information Policy" for a broad statement of EFF's infrastructure vision.) EFF has joined the Roundtable to be part of the process of framing a comprehensive public interest communications policy. We are looking forward to the success of this effort. ========================================================= TOWARD A NEW PUBLIC INTEREST COMMUNICATIONS POLICY AGENDA FOR THE INFORMATION AGE A Framework for Discussion by the Electronic Frontier Foundation June 1, 1993 I. Introduction For over a decade, techno-prophets have been predicting the convergence of telephone, computer and television technologies. In this world, endless information would be available at the touch of a button, and many of life's chores would be simplified by artificially-intelligent personal assistants. The prophesied results were said to be everything from a newfound global village enabled by democratized communications tools, to an Orwellian multimedia, mind-numbing, thought-controlling, consumer culture/police-state gone wild. In the past, discussions of this convergence has been relegated to the musings of futurists and the arcana of telecommunications regulatory policy. This year, however, the grand convergence is evident both on the front pages of national magazines and newspapers, as well as in the White House. Telecommunications infrastructure policy -- the management of this grand convergence -- has arrived as a mainstream policy issue. Most telling of all, large investments are now being made in order to take advantage of business opportunities arising out of the convergence of television, computers, and telecommunications. Despite existing regulatory barriers, a number of major corporations have undertaken major initiatives which blur the traditional media distinctions. Regional Bell Operating Companies, including Bell Atlantic and US West, have announced multi-billion dollar infrastructure investment plans that position them to expand from the telecommunications market to the video entertainment market. By the same token, cable television companies are crossing over from their traditional domain toward being able to offer telecommunications services. Early in 1993, Time-Warner announced plans to offer interactive services and connections directly to long distance telephone networks for residential customers in Orlando, FL. Six cable television companies also recently joined forces to purchase a company called Teleport, which competes directly with local telephone companies. And finally, US West announced in May 1993 that it will purchase a multi-billion dollar stake in Time-Warner Entertainment Partners. All of these developments are being watched with great interest by Congress and the Administration. No longer is telecommunications policy a matter of sorting out the special interests of newspaper companies, telephone companies, and cable companies. Rather it has been re-christened as "information infrastructure" policy. As such, it is recognized to have major implications for domestic economic development, global competitiveness, and science and technology policy. The ultimate symbol of this increased interest in telecommunications policy is the Vice President's frequent declaration that the Clinton Administration is committed to promoting the creation of electronic superhighways in the 1990s, just as the Vice President's father oversaw the construction of the interstate highway system in the 1950s. Talk of superhighways and potential for new economic growth, though, may lead some to forget that in shaping information infrastructure policy, we must also be guided by core communications policy values. The "highways" that are being built here are for speech as well as for commerce. In order to preserve the democratic character of our society as we move into the Information Age, these key public interest communications policy goals must be kept at the forefront: o Diversity of Information Sources: Creating an infrastructure that promotes the First Amendment goal of availability of a maximum possible diversity of view points; o Universal Service: Ensuring a minimum level of affordable, interactive service to all Americans; o Free Speech and Common Carriage: Guaranteeing infrastructure access regardless of the content of the message that the user is sending; o Privacy: Protecting the security and privacy of all communications carried over the infrastructure, and safeguarding the Fourth and Fifth Amendment rights of all who use the information infrastructure; o Development of Public Interest Applications and Services: Ensuring that public interest applications and services that are not produced by the commercial market are available and affordable. Advances in telecommunications have tremendous potential to support all of these important communications policy values. In many cases, inexpensive equipment exists that could give individuals and small organizations a degree of control over information that has never before been possible. However, if not implemented with core communications values in mind, the technology will do more harm than good. The convergence of historically separate communications media poses a major challenge to the public interest community. The Electronic Frontier Foundation hopes to play a role with other public interest organizations in realizing the democratic potential of these new technologies. II. Framing Public Interest Communications Policy Goals For The Information Age: What Is at Stake in the Development of the Information Infrastructure A. Diversity of Information Sources Aside from the universal service guaranty, the driving communications policy value for the last 50 years has been promotion of the maximum diversity of information sources, with the greatest variety of viewpoints. Most agree that from a diversity standpoint, the ideal environment is the print medium. Compared to both the broadcast and cable television arenas, print is the vehicle for the greatest diversity of viewpoints and has the lowest publication and distribution costs. Despite the regulatory steps taken to promote diversity in the mass media, the desired variety of opinion and information has never been fully achieved. The switched nature of advanced digital network technology offers to end the spectrum and channel scarcity problem altogether. If new network services are deployed with adequate down- and up-stream capacity, and allow point-to-point communication, then each user of the network can be both an information consumer and publisher. Network architecture that is truly peer-to-peer can help produce in digital media the kind of information diversity that only exists today only in the print media. If network access is guaranteed, as is the case in the public switched telephone network, the need for content providers to negotiate for air time and channel allocation will be eliminated. Even in a truly interactive network environment, the government will still need to provide financial support to ensure that public interest programming is produced and available, but channel set-asides per se will not be necessary. B. Universal Service: From Plain Old Telephone Service to Plain Old Digital Service The principle of equitable access to basic services is an integral part of this nation's public switched telephone network. From the early history of the telephone network, both government and commercial actors have taken steps to ensure that access to basic voice telephone services is affordable and accessible to all segments of society. Since the divestiture of AT&T, many of the internal cross-subsidies that supported the "social contract" of universal service have fallen away. Re-creation of old patterns of subsidy may no longer be possible nor necessarily desirable, but serious thought must be given to sources of funds that will guaranty that the economically disadvantaged will still have access to basic communications services. The universal service guaranty in the Communications Act of 1934 has, until now, been interpreted to mean access to "plain old telephone service" (POTS). In the information age, we must extend this guaranty to include "plain old digital service." Extending this guaranty means ensuring that new basic digital services are affordable and ubiquitously available. Equity and the democratic imperative also demand that these services meet the needs of people with disabilities, the elderly, and other groups with special needs. Failure to do so is sure to create a society of information "haves" and "have nots." C. Free Speech: Common Carriage In a society which relies more and more on electronic communications media as its primary conduit for expression, full support for First Amendment values requires extension of the common carrier principle to all of these new media. Common carriers are companies that provide conduit services for the general public. The common carrier's duties have evolved over hundreds of years in the common law and statutory provisions. Common carriers have a duty to: o provide services in a non-discriminatory manner at a fair price, o interconnect with other carriers, and o provide adequate services The public must have access to digital data transport services, such as ISDN and ADSL, which are regulated by the principles of common carriage. Re-shaping common carriage duties for new media environments is of critical importance as mass media and telecommunications services converge and recombine in new forms. Telephone companies, the traditional providers of common carriage communications services, are moving closer and closer to providing video and content-based services. By the same token, cable television companies, which have functioned as program providers, are showing great interest in offering telecommunications services. In what is sure to be an increasingly complex environment, we must ensure that common carriage transport is available to those who want it. Unlike arrangements found in many countries, our communications infrastructure is owned by private corporations, not the government. Therefore, a legislatively imposed expanded duty of common carriage on public switched telephone carriers is necessary to protect free expression effectively. A telecommunications provider under a common carrier obligation would have to carry any legal message, whether it is voice, data, images, or sound, regardless of its content. For example, if full common-carrier protections were in place for all of the conduit services offered by the phone company, the terminations of "controversial" 900 number services, such as political fundraising, would not be allowed, just as the phone company is now prohibited by the Communications Act from discriminating in the provision of basic voice telephone services. As a matter of law and policy, the common carriage protections should be extended from basic voice service to cover basic data service, as well. D. Privacy With dramatic increases in reliance on digital media for communications, the need for comprehensive protection of privacy in these media grows. The scope of the emerging digital communications revolution poses major new challenges for those concerned about protecting communications privacy. Communication that is carried on paper through the mail system, or over the wire-based public telephone network, is relatively secure from random intrusion by others. But the same communication carried, for example, over a cellular or other wireless communication system is vulnerable to being intercepted by anyone who has very inexpensive, easy-to-obtain scanning technology. As such, access to robust, affordable encryption technology will be critical to enable people to protect their own privacy. Government controls on encryption systems, whether for law enforcement or national security reasons, raise grave constitutional issues and could undermine individuals' ability to protect the privacy of personal information and communications. For more information contact: Electronic Frontier Foundation 1001 G St, NW Suite 950 East Washington, DC 20001 eff@eff.org A complete copy of this document is available by anonymous ftp at ftp.eff.org in the file named "pub/EFF/papers/open-platform-discussion-1993." ============================================================= EFFector Online is published biweekly by: Electronic Frontier Foundation 1001 G Street, N.W., Suite 950 East Washington, DC 20001 USA Phone: +1 202 347 5400 FAX: +1 202 393 5509 Internet Address: eff@eff.org Coordination, production and shipping by Shari Steele, Director of Legal Services & Community Outreach (ssteele@eff.org) Reproduction of this publication in electronic media is encouraged. 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