V

A Communications Sampler

The tendencies I have been describing here by no means end with the Communications Decency Act and the NII Copyright Protection Bill. In fact, the turn to privatised and technologically based enforcement to avoid practical and constitutional obstacles seems to be the rule rather than the exception.

Outside of the Net, the most obvious example of this is the V-Chip, a device to enable parents to restrict television programming through a "voluntary" rating system. While the rating system is voluntary, the device is mandated by section 551 of the Telecommunications Act of 1996.⁽⁶⁵⁾ The V-Chip decodes a set of ratings agreed to by private parties and suggested by a state-convened "private" board." It then blocks programming that is above a ratings threshold set by parents.⁽⁶⁶⁾ The attractiveness of this hardwired mix of public and private decisions can be judged by the spread of V-Chip analogies -- President Clinton's "V-Chip for the Net," Rep. Markey's "E-Chip." Why is this device so popular, not just as a device, but as a rhetorical trope? The answer, I think, is partly provided by the characteristics outlined here. The V-chip seems to be merely a neutral facilitator of parental choice. The various acts of coercion involved -- the government making the television company insert the thing into the machine, the public-private board choosing which ratings criteria will be available for parents to use -- simply disappear into the background. Finally, the distributed privatised nature of the system promises that it might actually work -- though admittedly, state administration of the television system poses fewer headaches that state administration of the Net.

Another set of examples is provided by encryption policy. In the digital era, encryption is no longer merely the stuff of spy novels. It provides the walls, the boundaries, the ways of preventing unauthorized or unwanted entry. Faced with the development of a cryptography industry which would produce digital walls unbreakable by the state, the government responded by attempting to legislate its own backdoor The first proposal was that the encryption of all communications had to be through a government designed device -- known as the Clipper Chip. Your phone, fax or computer system would encrypt your communication using the algorithm hardwired into the Clipper Chip. The Clipper Chip utilizes a "key escrow" system under which the government maintains a "back door" key to decrypt all Clipper communications; a key that is supposed to be available only to law enforcement agencies who, most of the time, would have to get judicial approval of their actions. After considerable controversy, use of the Clipper Chip encryption system was declared "voluntary" for both the government and the private sector.

This might seem to be a partial vindication for the digital libertarian position. In fact, the government has, for the most part, adopted the Clipper Chip and has tried to use its considerable purchasing power to make it a de facto industry standard.⁽⁶⁷⁾ While the success of this method may have been undermined by later technical development, the strategy shows that hardwired legal regime can be implemented through market power as well as by fiat.

One of the arguments behind the Clipper Chip was that law enforcement agencies were merely striving to achieve the same level of physically permissible surveillance in a world of encoded transmissions as they currently possessed. With this as a baseline it was obvious that the material possibility for interception and decryption should be hardwired into the system itself. The same argument was made successfully over digital telephony. Realizing that new telephony technology, such as call forwarding, cellular telephones, and digital communications in general, present increasing challenges to wire tapping, Congress passed the Communications Assistance for Law Enforcement Act,⁽⁶⁸⁾ more commonly known as the "Digital Telephony Act." At its heart, the Digital Telephony Act requires that telecommunications companies make "tappability" a design criteria for the system. Everything recorded by the traditional "pen register" system, as well as a few new categories of information, must be digitally recorded. Under the Act, information regarding a subscriber's name, address, telephone toll billing records, telephone number, length of service and the types of services utilized are now available to the government.⁽⁶⁹⁾

Technologically hardwired protections have also been implemented in order to protect intellectual property as in the Digital Audio Tape or (DAT) standard. Unlike compact disks, which until recently were "read-only," digital audio tape technology allows users to make perfect copies of recordings. Fearing that this ability would lead to the development of an extensive market for copied tapes, the recording industry pushed for mandatory technological protection, which they received in the Audio Home Recording At of 1992.⁽⁷⁰⁾ This Act requires all DAT recorders to utilize the Serial Copy Management System, which allows a first copy to be made onto DAT but prevents all subsequent copies.

These examples give us a number of conclusions at odds to popular wisdom. On the one hand, they offer a cautionary note to the libertarian techno-optimists who believe that technology always grows out of governmental control and always in the direction of greater "liberty." Let us lay aside many of the assumptions behind that belief for a moment-- such as that governments are generally the greatest threat to daily "liberty" -- or conversely that liberty should be defined primarily around the absence of governmental restraint. Even with these qualifications the idea that the technological changes of the digital revolution are always outside the control of the state seems unproven,. In fact, the state is working very hard to design its commands into the very technologies that, collectively are supposed to spell its demise.

Another point needs to be made: As these examples indicate there are -- whether one likes them or not -- strong arguments that the "technologies of freedom" actually require an intensification of the mechanisms of surveillance, public and private, to which we are currently subjected. Cheap copying can be seen as primarily a threat to copyright, global communication as a source of child pornography and bomb recipes, encryption as a wall behind which the terrorist and the drug smuggler can hide. If the digital technologies enlarge our space for living, both conceptually and practically, the dangers posed by that expansion will prompt the demand -- often the very reasonable demand -- that the Panopticon be hardwired into the "technologies of freedom."⁽⁷¹⁾
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65. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).

66. See, Kristin S. Burns, Protecting the Child: The V-Chip Provisions of the Telecommunications Act of 1996, 7 Depaul-Lca J. Arts & Ent. L. 143 (1996); David V. Scott, The V-Chip Debate: Blocking Television Sex, Violence, and the First Amendment, 16 Loy. L.A. Ent. L. J. 741 (1996).

67. See Howard S. Dakoff, The Clipper Chip Proposal: Deciphering the Unfounded Fears that are Wrongfully Derailing its Implementation, 29 J. Marshiall L. Rev. 475, 482-84 (1996) (discussing the use of the government's purchasing power to create a de facto encryption system); See also, Richard L. Field, 1996: Survey of the Year's Developments in Electronic Cash Law and the Laws Affecting Electronic Banking in the United States, 46 Am. U. L. Rev. 967, 993 (1997); Ira S. Rubenstein, Export Controls on Encryption Software 748 PLI/Comm 309 (1996); A. Michael Froomkin, The Metaphor is the Key, Cryptograpy, the Clipper Chip, and the Constitution, 143 U. Pa. L. Rev. 709 (1995).

68. Pub. L. No. 103 - 414, 108 Stat. 4279 (1994) (codified at 47 U.S.C.A. s 1001 -10 (Supp. 1995)

69. 18 U.S.C. s 2703(c)(1)(C) (1994). See Susan Friewald, Uncertain Privacy: Communication Attributes After the Digital Telephony Act, 69 S. CAL. L. REV. 949 (1996).

70. 17 U.S.C. §§ 1001-1010 (1994).

71. Ithièl de Sola Pool, Technologies of Freedom (Harv. Univ. Press 1983).

72. See Lessig, Cyber Rights Now: Tyranny in the Infrastructure supra note 24.