Private Networks, Public Speech: Constitutional Speech Dimensions of Access to Private Networks
(c) 1994 by Prof. Allen S. Hammond, IV, New York Law School 1
Draft Document
Do Not Cite or Quote Without Author's Express Permission
I. Networks and Closed User Groups Defined
II. Current Scope of Network and User Group Access and Speech Restrictions
III. The Constitutional Dimension
IV. Regulation of Access and Speech in the Age of Convergence, Some Preliminary Observations...
The current multiple network environment -- broadcast, cable television, telephone and computer networks -- in the United States is undergoing significant change. Network functions and the information they carry are merging as converging fiber optic, t elephone and computer technologies allow the integration of video, voice and data information. 2 This integration has created opportunities for expanded access and speech activities in the workplace, the marketplace and the home.
Regulatory distinctions between video distribution and public switched networks are disintegrating as the government increasingly allows inter-industry competition in the nation's video distribution, long distance and local telephone markets.3 Meanwhile network video, voice --and services are increasingly provided by private as opposed to public networks. The movement from public to private networks can be seen in two recent developments. For instance , in video distribution, the emergence of cable television represents a shift from "public/free" over the air broadcast television to "private/subscriber" driven cable television services. In telephony, public common carriers have begun to lose market sha re as large corporations and other sophisticated users demand more specialized services that private carriers are able to provide more efficiently. This is because private carriers have no obligation to serve the less profitable segments of the public. Th us network technology applications which facilitated broad public access to information and/or interactive speech are giving way to specialized private networks which may limit access based on market demand and profit maximization.
The shift in market reality has been mirrored by a shift in government policy regarding future networks. For example, the government is increasingly relying on private market driven investment to fund the building of the future broadband electronic sup er-highway. The Clinton administration has made clear that they have resolved the question of who will build the electronic highways in favor of private industry. 4
Administration reliance on private sector investment and privatization of network infrastructure is a pragmatic policy developed in a time of decreasing public revenues. However, sole reliance on pro competition policies will not adequately protect the individual and group speech and related activities potentially fostered by broadband intelligent networks or existing telecommunications networks. In the process of managing market entry and firm competition, current US competition policies run the risk of ceding creation and control of speech activities to private firms. This is particularly true to the extent the First Amendment is read as a negative bar to government action rather than an affirmative protection for speech activities.
Pro-competitive privatization policies do not directly address the need for preserving and expanding access and electronic speech activities as an appropriate pro-social goal of American democracy because they possess no incentive structure to assure b road public access to the network . Under such policies, the provision of access [and subsequent speech "rights"] is a function of market demand for access and services which is in turn a function of the economic distribution of wealth and the network pro vider's perception of a market's desirability. Lack of wealth or lack of perceived desirability results in decisions to eschew deployment of infrastructure or the provision of services. The net result of such decisions in a broadband interactive network c ontext is to deny access and speech opportunities.
The universal access and service debate addresses public policy concerns about how society may blunt the negative impact of pro-competitive network development policies on the economically disadvantaged. However, even this debate fails to address the i mpact of the provider's perceptions and assumptions about a potential market's or a potential user's desirability.
Because pro-competitive policies do not address the above mentioned concerns, reliance on such policies creates a significant risk of losing opportunities for electronic speech and its related activities which might accrue to significant portions of Am erican society . Consequently the definition, preservation and expansion of electronic speech and its related activities must be elevated to a priority policy goal and incorporated within the broader policy framework of the government's network infrastruc ture policies.
At least one state has recognized the importance of elevating electronic speech policies to co-equal status with pro-competition policies. New York has recently published a document developed by the Governor's Telecommunications Exchange. The document, entitled "Connecting to the Future," identifies numerous policies which it is suggested the state pursue in acquiring the economic benefits of an advanced telecommunications infrastructure. Among the key recommendations is reliance on a competitive marke t to ensure greater consumer choice and higher quality service. However, unlike the federal government's NII report, the New York report acknowledges that the state retains an obligation to ensure a free flow of information and ideas accessible to all. 5
As the movement from public to private provision of network services occurs, one of the critical questions for First Amendment theorists and scholars concerned with mass media and telecommunications is what access and speech rights will network owners and users have after the convergence and privatizing of the mass media and telecommunications networks? 6
The growing reliance on network services provided by private as opposed to public common carriers, poses potential dangers to access and broad based speech opportunities. Privatizing the delivery of network services can lead to the concentration of con trol over access and content in the hands of private network owners. Because of the historic tendency to equate speech rights with ownership of the means of transmission, privatizing the merging of technology, network function and information streams cou ld transfer control over access and speech activities from the current shared public/private constitutional arrangement to a private/contractual arrangements. 7
Inherent in the status of ownership, is an underlying bundle of property rights which include control over who may have access to the network owners' facilities and/or services. These rights are often referred to as rights to create, publish and/or dis tribute information. While the degree of control over access varies with the type of owner, ultimately, as long as ownership includes the right to decide access, some segment of potential users are likely to be excluded for a variety of oft-times unrelate d reasons ranging from particular pricing or service configurations, to equipment requirements, information format, capacity needs, or discrimination based on economic or normative value considerations regarding identity of speaker or content of speech. T his is so because private network providers may opt to act as publishers or distributors of information instead of carriers.
Such a result could be detrimental to the potential speech and access opportunities of existing and future network users of video, voice and data network information services. 8 Private owners may not be motivated by public interest considerations of access and inclusion. Instead, where a private corporation is using an internal network, its major motivation to provide access and speech to their employees is utilitarian. A private network owner's major motivation to serve a particular individual or group of customers depends (in the most ideal sense) upon the desirability of that individual or market as a customer base and their ability to pay. Because these decisions about who to serve, what is said a nd to whom are private, there is arguably less opportunity to rest the justification for access and speech rights upon constitutional grounds given the alleged absence of state action. 9
For instance, government regulation of broadcasting has not been deemed sufficient justification for finding that the editorial decisions of broadcasters constitute state action. 10 Recently, several circuit courts have held that decisions by regulated telephone companies to deny access or billing services to information providers of indecent communication do not constitute state action. 11 The wei ght of precedent would tend to support a conclusion that actions to deny access or speech conducted by regulated cable operators and telephone companies are constitutionally permissible although they would be constitutionally proscribed if conducted by th e government. 12
Under such circumstances it is reasonable to ask, will privatizing the merged multi-function, multi-media networks result in speech rights only for network owners and those they employ or decide to serve? Who will serve people who own no network or are not selected as desirable markets ? In an era of privatized carriage in the provision of network services, what ability will the government have to assure access and speech rights for the non-facilities based public?
This article begins the process of answering these questions. It defines private networks and closed user groups in relation to public networks and examines the current practices by which the owners of networks limit the access and speech activities of employees as well as potential and actual customers and subscribers on their networks. It then identifies and addresses some of the potential constitutional questions raised by such practices. In the process it identifies the current boundaries of the ne twork access and speech continuum in the United States and addresses how these boundaries may change in light of evolving technology and government policy. 13
The article concludes that a pragmatic balance must be struck between the speech rights of network owner providers and network users. In the area of employee access and speech rights, a three-way balance must be struck between the network owners' legit imate business needs; the employees' access, speech and privacy rights; and public policy concerns including the public's right to know. Ultimately, employee speech rights should not turn on whether they are employed by public or private firms. Rather, at minimum, employee speech "rights should encompass concerns regarding wages and working conditions, as well as safety and product quality issues about which the public may have interest. 14
In the broader area of network access and service provision, the article concludes that current government efforts to rely on network privatization to assure the development and deployment of network infrastructure and services are problematic . This r eliance, when combined with legislative and judicial decisions expanding network provider control over access and speech activities, may result in the loss of significant access and speech opportunities for network users and subscribers.
The government should acknowledge and protect the access and speech rights of network providers. There are a host of legitimate reasons why a network owner would deny access or speech to potential network users. However, the government also must act to ensure access and speech rights for potential public and private network users, whether they are subscribers or employees.
In addition, the government should use pro-active policies to discourage censorship by network owners. Network owners should have the right to speak but not the sole right to speak. Network owners should have obligations and incentives to be as inclusi ve and accessible as possible in what they carry and who they serve.
One way to accomplish these goals is to remove some of the liability network owners face for the speech of network users and subscribers. Network owners should be free to select the extent to which they will exercise editorial control without governmen t requirement. Absent the assertion of editorial control by the network provider, responsibility and liability for speech should reside with the speaker.
Another way to encourage access and broad speech is to require interconnection among public an private networks. This gives all network users more potential access to a broader array of services and information as well as to each other. As a result, th e infrastructure does not serve to fragment or balkanize the national polity or its discourse. Instead, it can be used as a positive tool for achieving an inclusive national and international dialogue.
Finally, incentives to insure universal access and services are needed. These incentives would include subsidies targeted to those subscribers who might not otherwise acquire access or needed services. They would also include active use of the anti-tru st laws and structural safeguard policies such as open network architecture.
Chapter I: Networks and Closed User Groups Defined
A. General Characteristics
In their most basic manifestation, networks are collections of interconnected users.15 They can be defined in terms numerous characteristics, including: a.) technology [spectrum, wire, fiber]; b.) in formation [video, voice, data]; c.) ownership [ private or public ]; d.) control of content [editor, hybrid, common carrier]; and e.) control of network access and/or functionality. This article will discuss them primarily in terms of ownership of facilit ies, control of network access and/or functionality, and , ultimately, control of content. In the process, it will acknowledge the various characteristics as they apply in addressing the impact of owner control on the user subscriber and third parties.
B. The Network Lexicon
1. Public Switched Network: "Open Network"
The commercial common carrier network owners own the network facilities and retain control of all levels of network functionality.16 There are no predetermined limits on who may or may not join the n etwork. All who timely pay the subscription fee [tariff rate for the particular class and volume of service] may gain access and enjoy usage.17 Because the network is available to virtually all potentia l users,18 it may be defined as being "open."19 These networks are the long distance, regional and local public switched networks.
2. Virtual Private Networks
In contrast to the public switched networks, virtual private networks (VPNs), offer their customers access to reserved private line capacity on the public switched telephone network (PSTN) .20 VPN is essentially a long-distance service in the USA. In the case of VPNs, the user manages network applications while the carrier manages all other levels of network functionality. 21 It is anticipated that by 1997, VPN services will account for 17 per cent of the domestic service revenues of the three biggest US long-distance carriers -- AT&T, MCI and Sprint. 22
3. Private Networks
In the case of private networks, all telecommunications facilities are owned by an entity other than a government certified commercial common carrier, or, the user leases dedicated lines from certified carriers but maintains control over both ends of t he communications channel. In the case of the latter, the user typically owns facilities on its premises [local area networks or private branch exchanges i.e. "intra-building private networks"] and leases from carriers anything that crosses public rights of way. For example, the company may lease a dedicated T-1 between two privately owned private branch exchanges (PBXs) . Network usage is confined to the owner and its affiliates and is not usually shared or aggregated on a commercial basi s. 23
4. Closed User Groups
A private network may be open or closed. However, most closed user group networks are based on privately owned or dedicated facilities. Thus most closed user group networks are private.24 Closed user groups are large volume users which tend to communicate with each other "intensely." They combine to form alternative network associations for much of their communications needs. Associations' networks may have specialized performance attributes related to group needs.basis. 25
5. Hybrid Networks
A large number of U.S. users have now opted for hybrid networks combining leased lines between particular locations , with VPNs. Users prefer to use private networks for sensitive business information (in the form of encrypted data) because these are c onsidered more secure and upon occasion, cheaper than VPNs.
6. Other Networks Distinguished
The preceding definitions are admittedly limited to switched telecommunications networks in some way related to the public switched networks. In contrast, video distribution networks include traditional broadcasting and cable television networks, which are non switched -- essentially one way distribution media which are not usually interactive.
C. Convergence and Metamorphosis: From Cable and Telephony to Broadband Networks
However, it is argued that cable networks and local telephone networks likely will evolve into the switched broadband interactive networks of the near future.26 Should this be true, the resulting net
works could span the gamut from private networks, virtual private networks, hybrid networks to public (common carrier) networks, and they could incorporate a potential range of access options from non-discriminatory access, 27 mandated leased and/or tariffed access,28 free access,29 to private access by negotiated contract or ownership. Speech options
could range from owner control of a portion of available capacity with unrestricted user speech on the remaining portion, to owner control of all capacity and ultimately all speech allowed on the network. This spectrum of alternative access and speech rel
ationships is in essence the amalgam of access and speech relationships currently residing on cable (mandated leased or free access) and telecommunications (non discriminatory and negotiated contract access) networks.
In this context, litigation challenging the must carry rules of the Cable Competition and Consumer Protection Act of 1992 and the telco-cable cross-ownership prohibition of the Cable Communication Policy Act of 1984, as well as several e-mail and elect
ronic bulletin board service cases percolating through the judicial system, may establish much of the scope of access and speech rights network owner providers and users will have. 30
Chapter II: The Current Scope of Network and User Group Access and Speech Restrictions
There are at least four levels at which a network owner or closed user group may control access and/or speech activities on their facilities. Control may be exercised over actual speech or communication (content), over access to the network as configur
ed by the owner (network access), over the ability to reconfigure network functionality (network software intelligence), and over the ability to set equipment standards for network provisioning and interfacing with the network (equipment standards and net
work protocols). Current government policies affect the exercise of access and speech at each of the first three levels.
Legal sanction of the exercise of control varies depending upon the manner in which the network is used. Where the network is merely one of many tools or assets used by a firm to conduct its business, the "network owner" enjoys wide latitude over each
of the four levels. Where the network and its related functions and services are the product the private or public firm sells to customers, the network owner's ability to control access has been subject to greater government restraint, depending on archit
ecture, market power and traditional rights accorded networks having similar technologies and functions.
A. Owner Imposed Limitations on Access
1. Subscriber/User Initiated Access to Third Party Users and Networks
a. Network Owner/Employer Restrictions on Outgoing Calls Employers may be subscribers to the public switched networks, virtual private network subscribers, owners of their own networks or a collection or association of users forming a closed user group. They may be private or public firms. In any event, beca
use of the utility of long distance and electronic mail (e-mail), as well as the growth in availability of 800 and 900 services, employers often find it necessary to block access to certain networks and phone services to limit corporate expenses. Call blo
cking, for instance, is used to limit employee access to the above mentioned services.31 In the process, employees are denied access to the networks over which such services are provided and the informa
tion providers residing at the other end of the line. Federal and municipal government call blocking restrictions on access to dial-a-porn and long distance calls are well known examples.32 Employers al
so engage in call monitoring as a means of policing their restrictions on network usage. 33
Employers' justifications for engaging in these practices include the need to manage or reduce costs or fraud involved in unauthorized 900 number and e-mail calls which have cost companies hundreds of thousands of dollars. In addition some companies us
e computers to monitor customer services employees' performance, such as keystrokes per minute, time between phone calls, length of breaks and number of errors. 34
There are potential dangers inherent in call blocking and monitoring which raise significant public policy issues. Call blocking has been argued to implicate first amendment concerns because the employer's limitations on access to the network and hence
those an employee might contact constitute limitations on potential speech activities in which the employee might otherwise engage. Call monitoring is said to raise issues of worker privacy as the employee's expectation of privacy is infringed by periodi
c monitoring. 35 Call blocking and monitoring activities raise nettlesome problems for the public's "right to know" as well. For, these practices may also be used to detect whistle blowers [footnote mov
ed to end of sentence and combined with another note] instead of individuals calling dial-a-porn providers and other unauthorized users.36
Some observers argue that employer/network owner control of access or usage of the corporate telephone or network affects employee's constitutional speech and/or privacy rights. 37 Such arguments hav
e met with only limited success to date. The speech activities upon which the articulation of "new" employee rights are based nevertheless occur within the traditional confines of the work place, conducted over technologies which are owned and/or paid for
by the employer. Even though e-mail and intelligent network technologies provide new opportunities for speech activities, the articulation of these activities as rights squarely pits them against the heretofore established and legally recognized property
rights of the employer/network owner.
b. Third Party Access to Private Network or VPN Facilities
Firms also attempt to limit third party access to their networks to protect against toll fraud.38 Computerized telephone equipment such as voice mail, often help companies conduct business with great
er efficiency and lower cost. However, they also often provide access to electronic thieves who steal thousands of dollars of long-distance telephone service. Unauthorized entry can be accomplished by calling a company's toll-free 800 number or a voice ma
ilbox and using a computer with an automatic dialer to break the security code and gain access to the company's telephone system and outgoing lines.39 Electronic bulletin boards are sometimes used to ex
change generic passwords which provide access company to maintenance ports; exchange programming instructions for various systems; or procure programming manuals for voice systems enabling unauthorized parties to gain operational control, including the ab
ility to unblock restrictions on international dialing and turn off on-site call accounting equipment.40 According to some experts, computer hacking, may cost U.S. companies between $ 2.2 billion and $
4 billion nationally.41
In a less arcane realm, e-mail, voice-mail and telephony systems may be used by union organizers, law enforcement authorities, friends or family members to communicate with employees. However, efforts of union organizers to make use of the employer own
ed telecommunications systems and/or networks to communicate with employees under section 7 of the National Labor Relations Act (NLRA),42 may prove unsuccessful. As a practical matter, recent precedent
supports the employer's right to bar union access absent a showing that the union possesses no other reasonable means of communicating its organizational message to employees.43
c. Restriction on Membership in Closed User Groups: Control of the Jointly Owned Network Asset
Some firms joint venture to develop jointly owned networks (JONs). JONs can increase the efficiency and competitiveness of their owners. 44 In the process, JONs can adversely affect the relative mark
et position of non-owners by creating new barriers to market entry and exit which are often controlled by the JON owners. 45 JON owners can raise barriers to network (and often, market) access for compe
titors by establishing, maintaining, and changing the network's pricing structure as well as applications, standards, protocols, and internal control procedures. 46 For instance, it is alleged that owne
rs of major airline reservation systems have acted in anti-competitive ways by using their systems to minimize the bookings of competing non-owners. 47
B. Network Owners' Exercise of Content Controls
Public and private firms also use call monitoring to manage employee communications to the firm's customers. Telemarketing and travel reservations services are two common examples. 48 There are also
numerous content/subject matter restrictions. Computer networks such as Prodigy have asserted some control over bulletin board content in response to various user protests regarding speech on controversial subjects. 49 Some other bulletin board providers have no policy regarding what may or may not be said over their facilities. For them, the communicator of the information bears the ultimate responsibility for the content. Their position has met with j
udicial approval in one instance. 50
Aside from firm business oriented restrictions on access and in house, on-line speech, there are the traditional limits on audience or subscriber access and speech in the realm of broadcasting, and the evolving limits in cable television and plain old
telephone service (POTS). The First Amendment protects the exercise of speech and editorial control over programming decisions and transmissions by broadcast licensees from the assertion of access and speech rights by viewers and other programmers. <
a href="#note51">51 It protects the exercise of speech and editorial discretion by cable television operators, 52 but portions of the subscribing public and other programme
rs are afforded access and speech opportunities as well. 53 The First Amendment also has been held to protect subscriber and programmer access to telephone networks even where the voice communication is
indecent. 54
However, recent decisions in the area of telephony and cable may be harbingers of a revision of access and speech rights afforded network owners and subscribers. The First Amendment has been held to accord local exchange network operators the right to
engage in video communication to their service area subscribers. 55 And, telephone common carriers are viewed by at least one Supreme Court Justice and two circuit courts as private speakers possessing
the right to refuse carriage or billing services to subscribers seeking carriage of indecent programming the carrier deems undesirable. 56 The potential impact of these decisions is that common carriers
which have heretofore been prohibited from exercising editorial control over the content of speech may do so either as constitutionally protected speakers, 57 or, under the guise of a refusal to transa
ct business. 58
By comparison, in a somewhat analogous case regarding the regulation of indecent programming on cable television access and leased access channels, the D.C. Circuit did not adopt the Second and Ninth Circuits' private actor analysis as it was applied t
o telephony. It declined to view the cable operator as a private actor in the context of regulating indecency on access channels on cable television. 59 The D.C. Circuit noted that unlike the government
compelled offering of leased and public access channels in cable, the billing services provided by telephone companies were voluntary and therefore private. 60 The state action/private action distincti
on relied upon by the Circuit Court in Alliance, could have a profound effect on future regulation of customer access to the networks of forborne carriers. 61 They, like the local telephone companies' o
ffering of billing services, offer their common carrier communications services on a voluntary basis. Thus, per the Alliance for Media analysis, they would free to engage in discriminatory provision of services.
62
More important however, the dial-a-porn precedents have potential seriously negative implications for network user access to common carrier telephone networks. Read broadly, these precedents allow telephone common carriers to deny carriage to speakers
for private business reasons or because the carriers are able to classify the requested service as "non common carriage" despite that fact that denial of such service precludes viable access to the network.
When these precedents are combined with the recent holding that local telephone companies possesses constitutional speech rights, the constitutional construct of the content neutral common carrier is severely undermined. In the worst case scenario, tel
ephone companies would be free to deny access and speech rights to others via the constitutional exercise of editorial control over their networks or by business fiat.
Chapter III: The Constitutional Dimension
The above review, leads to the conclusion that network owner providers limit access and speech activities of employees, user/members and third parties to accomplish numerous tasks including: protection of property, assets, costs and market share, as we
ll as to achieve competition advantage, limit or constrain dissemination of proprietary information, manage the communication of information and/or discourage the procurement or transmission of sometimes illicit information.
Under such circumstances when may we say that a user-member or a potential outside communicator is impermissibly constrained from gaining access or engaging in speech? Is it possible to distinguish between legitimate business needs and impermissible co
nstraints on speech activities? At first blush, based on the prior discussion, one could suggest that permissible firm needs include all of those previously listed above .63 By the same token, others mi
ght argue that impermissible firm needs include many of the same goals articulated as legitimate. 64
One possible way to answer this dilemma is to examine the manner in which the law has addressed and apportioned access and speech rights in the varying relationships between network owner/providers and closed user groups on the one hand and network use
rs and third parties on the other. A critical distinction in the manner in which such rights are apportioned is the relative status of the network. Where the network is an asset established primarily for the internal use of the corporation or closed user
group, the employees, closed user members and third party communicators have very limited access and speech rights. Where the network is the product or service offered by the corporation or closed user group, subscribers and viewers have been accorded gre
ater access and speech rights based on constitutional, economic and other public policy principles. But, in the latter area, the law is in substantial flux.
A. Network as Business Asset or Tool
1. Employer/Employee Relationships As mentioned above, employers may be network owner/providers, closed user groups or simply network subscribers. The nature of their status as public or private institutions, however, has a significant affect on the scope and expectations which an emplo
yee may have regarding constitutional protection of their arguable rights of access to company facilities and ability to speak on those facilities.
Recently there have been a spate of law suits filed by employees alleging that their constitutional rights have been violated when employers monitored their conversations over email or telephone networks.65 None of the suits appear to have been judicially resolved to date, 66 but there are some indications of the extent of protection afforded employee speech. For instance, most experts agree that w
hile the Federal Electronic Communications Privacy Act of 1986 protects the privacy of electronic messages sent through public networks to which individuals or companies subscribe, it does not apply to internal E-mail. 67
Thus, to the extent that employees enjoy speech rights on company e-mail facilities, those rights are limited to communication over public e-mail systems. Employers retain the right to restrict access to, and monitor internal e-mail.
a. Public Employer/Employee
The courts have held that a public employee has First Amendment constitutional protection for speech about "matters" of public concern. 68 In cases where the employee is acting as a "whistle blower,"
public policy and legislation in an increasing number of jurisdictions supports a public employee's right to speak. 69 It is clear that employees do not enjoy an unfettered right of speech, however. Fo
r instance, current cases allow the employer to deny such speech where it may disrupt the work place. 70
b. Private Employer/Employee
Under the National Labor Relations Act, an employee has statutory protection for speech concerning work related activities. 71 There are also "whistle blower" statutes in many states which protect em
ployee speech about company wrongdoing. 72 Otherwise, under the "work at will" doctrine, the employee ostensibly has no recognized speech rights in the face of legitimate company interests , aside from
unionization related issues . 73 The scope of an employee's statutory license to use company e-mail and/or telecommunications facilities to realize their work related speech right is not established, however. 74
2. Closed User Group and Members (Actual and Potential)
Where firms or users associate via network facilities which they have acquired, they may exercise control over member and non member network access and speech. 75
While the scope of a closed User Groups' [Private Network's] liability for actionable speech is unsettled, it seems intuitively appropriate that its liability track that of bulletin board sysops such as Compuserve and Prodigy. 76
The more extensive its control over the communication of content, the more extensive the liability for that content ought to be. At the same time, the more extensive the control of content, the less extensive individual user
speech rights will be on that network.
B. Network as Product or Service: Relationships between Network Owner Providers and Users
1. Network Owner Provider and Subscriber Users (Common Carriage) The largest category of relationships between network owners and consumers exists in the provision of network transmission capacity and network related services. Telecommunications network owners may provide transmission between two or more points at v
arying speeds with a variety of ways to manipulate the various types of transported information. Services range from the provision of transmission capability for private networks, to virtual private and hybrid networks, 800 and 900 number services, billin
g, to plain old telephone service (POTS). The provision of network transmission, switching, billing and intelligence based services may be accomplished pursuant to regulated tariff, by contract or by a combination of the two.
As competition has increased, regulators have tended to afford network owner providers greater flexibility in providing services under contract. 77 Even where services are not provided pursuant to co
ntract, network owner providers have been granted greater flexibility in providing many services under tariff. 78 Where the services are offered on a common carrier or quasi-common carrier basis, the ne
twork provider has tended to limit network access based on the type and class of service, network integrity, security and capacity.
Aside from government mandated responsibilities to foreclose opportunities for harassing, indecent or obscene speech to reach protected subscribers, carriers have tended to eschew control of information content thereby foregoing liability for customer
communication. This practice has been sanctioned by federal and many state regulatory bodies. Also, carriers have traditionally sought to limit their liability for loss or damage to customer communications. 79 Until now, these efforts have been successful. 80
However, a recent court decision has held that telecommunications network owners have electronic video speech rights as extensive as cable video distribution network providers. 81 If the case is uphe
ld on appeal, and if the telecommunications network providers exercise their speech and editorial rights by limiting the access and speech of users, attempts to limit speech related liabilities may, and increasingly should prove less succe
ssful. 82
For instance, in a related area, bulletin board/e-mail providers have the ability to control access and screen speech content on their systems. 83 While some do not actively seek to control access or
more importantly, content, others do. As a result, while one provider has been successful in avoiding liability for libelous statements made by one of its users, it is not clear that others will fare as well. 84 Moreover, the decision to control content places the service provider in a difficult position when it either fails to prohibit offensive speech quickly or prosecutes other speech in a seemingly biased manner. 85
2. Network Owner/Information Provider and Consumer/Subscribers a. Telephony [POTS] and Telecommunications The need for interconnection and the economies of scale inherent in provision of local telephone service led in significant part to the creation of government sanctioned telephone monopolies. Government then sought to assure the public access to the mo
nopoly provider by requiring that the provider not discriminate between customers on the basis of facilities or the price paid for the services provided. 86
As a further means of assuring non-discrimination, the telephone company was not allowed any control over the content of information it transmitted. More recently, however, telephone companies have been allowed to deny billing and collection services t
o dial-a-porn providers deemed undesirable by the carriers. 87 Also, government requirements that long distance common carriers may not engage in the provision of information services and local common c
arriers may not provide electronic video services within their local markets have been overturned. According to a recent district court opinion, local telcos now have video electronic speech rights. 88 Shou
ld the decision be upheld on appeal, there is still a question of how this newly articulated speech right will merge with the telco owner's property right vis a vis control of access and content. 89 Man
y potential competitors and customers of local carriers possessing essential facilities have voiced concern over the potential for unfair competition. 90
In the area of switched, interactive telecommunications, the diverse set of relationships addressed above is expanding even farther as interactive video distribution capabilities come on line and user access to network functionalities increase via mani
pulation of network intelligence. 91 It is here that the greatest potential for increased access and electronic speech is to be found. 92
As fiber optic, computer and switched telephony technologies merge, so do the heretofore separate network functions and information streams of telephony, broadcasting, cable and print. 93 As this occ
urs, there is a potential danger that the network owner as the transmission provider and as a potential speaker, may experience a conflict of interest between the provision of network related services to users who, like the network owner, are also informa
tion providers. Newspaper publishers, cablecasters and broadcasters have raised this potential for conflict of interest as a reason for continuing the prohibition against local telephone companies' entry into the information and video distribution markets
. 94 While these arguments have found sympathetic ears in Congress, they have proved less persuasive before the FCC and at least one district court. 95
Similar complaints have been raised in other instances where access to transmission and owner speech merge. These instances concern the exercise of access and content control by bulletin board service providers, and, the provision of access and speech
related services by cable television media. 96
b. Computer Networks
According to a number of legal commenters, individual subscribers to commercial or private computer bulletin board services have no access rights. Access is garnered by contract, and control of access and ultimately speech resides, in the first instanc
e, with the service provider or the system operator (sysop). While there is very little information on the criteria employed for denying initial access, revocation of access is the ultimate sanction employed by sysops to discipline miscreant member users.
97 There are options short of denial of access which are also employed.
At base, the rationale for sysop control of access is ownership of the system facilities. With regard to sysop content control, the recent Cubby v. Compuserve decision provide s some indication of the considerations militating against sysop exercise of
content control.98 The greater the discernible control which the sysop exercises over access and content, the greater its potential liability to users and third parties for damage caused by the informa
tion's content.
In Cubby, Compuserve, an on-line-information service provider, was sued, unsuccessfully, for the alleged libel of a third party competitor of a bulletin board provided on the service provider's system. In determining that Compuserve was not liable for
the alleged libel, the court established by implication that heightened control of the communicated content would have resulted in liability. 99 In another libel action ultimately settled out of court,
Prodigy, another sysop, was sued for an alleged libel of a third party by a Prodigy subscriber. 100 Unlike Compuserve and many other sysops, however, Prodigy distinguishes itself based on the extent o
f control it exercises over transmitted content. 101 As a consequence, there was speculation that Prodigy might not have easily extricated itself from liability. 102
c. Constitutionally Based Access and Speech Rights in Traditional Media: Broadcasting and Cable TV
Historically, market entry and technological considerations have affected the apportionment of access and speech rights between media owner-providers and the public. While, as a practical matter, electronic speech has been protected under the constitut
ion regardless of whether it is in a print, 103 voice, 104 or video 105 format, traditiona
l media owners in each industry have been accorded different First Amendment rights vis a vis users based on differing assessments of the ease of economic and technological entry into each market.
3. Broadcasting
The initial scarcity of broadcast frequencies relative to public demand for access resulted in the requirement that the broadcast licensee share its frequency with the public. 106 With FCC engineer
ed deregulation of broadcasting, the fairness doctrine, community ascertainment regulations, and programming guidelines were abolished or seriously compromised. 107 Subsequent to deregulation and the
abolition of the fairness doctrine, the scope of access sharing was ultimately limited to candidates for political office. 108 Even before the fairness doctrine was "abolished," its potential power to
require access had been significantly limited by judicial decisions. 109
The current scope of government exercised content control over the broadcast licensee extends to the prohibition of speech which is libelous, indecent or obscene. 110 Users have a right to diverse
information but no right to speak as individuals or information providers owner permission.
4. Cable Television
According to at least one legal scholar, government regulation of access to cable channels is justified because franchises are scarce due to the physical limits inherent in the use of public rights of way. 111 The physical scarcity is further exacerbated by the economies of scale inherent in the provision of cable service. 112 For these reasons, the cable franchisee is required to share his/her
channels of communication with the public and other information providers. Concerns about the continued availability of local news and public affairs programming as well as economic market and anti-competitive constraints alleged to have been imposed by
cable firms have been used to justify limits on the control cable franchisees may exercise over broadcaster access to the cable networks. 113 The leased access, must carry and public access channels a
re an attempt by Congress to assure third party access to cable networks. 114 According to some scholars, the leased access rules have proved only moderately successful. And, due to recent litigation,
the must carry requirements are under a potential constitutional cloud. 115
The cable franchisee's control of communicated content is constrained by legal sanctions which may be imposed for libelous, indecent or obscene speech. 116 In part due to the necessity to avoid gov
ernment imposed sanctions, cable franchisees are compelled to exert editorial control over matter provided by third party information providers which may be deemed indecent or obscene. 117
IV. Regulatory Shifts in the Age of Convergence and Privatization: Some Preliminary Answers...
A. Network as Asset
1. Private Firms and Closed User Groups Where the network is the private asset of the firm, employee and third party efforts to assert first amendment rights of access or speech over internal communications systems will be limited. 118 In the case of employees of private firms, the National Labor Relations Act may allow them to negotiate for speech rights provided the rights are exercised for the protest or discussion of working conditions. 119 All arguments for fairness and ethics aside, beyond the narrow entitlement of the NLRA, employees of private firms enjoy little real access or speech rights to corporate network assets. Ultimately, the company network owner may limit and/or co
ntrol access and speech. 120
2. Public Firms
Employees of public [government] firms are similarly limited. The First Amendment has been interpreted to afford such employees the right to speak on matters of public interest. 121 They, like thei
r private brethren also receive some protection from a variety of state "whistle blower" statutes. Aside from these protections, however, public employees have no rights of access or speech to internal communications systems. At least one commenter has fo
rcefully argued that private and public employees should in enjoy the same scope of speech rights encompassing comment on work and product quality related matters. 122
Access to the networks of closed user groups is also limited. 123 Here, a showing that the network asset is being used to unlawfully restrain competition, 124 the user group may exercise control over access and/or speech on virtually all aspects of the network. However, the exercise of control over access and speech carries a certain level of responsibility for actionable speech violations. The
precise level of responsibility has yet to be measured, however, and may ultimately depend on the technology and the circumstances of each case. 125
B. Network as Product or Service
1. Convergence and Change: The Evolution of Speech Regulation in Traditional Media and Telecommunications While the traditional regulatory apportionment of network provider and user access and speech remains virtually intact in the broadcasting, it is under challenge in cable and telephony. Congress's decision to impose must carry requirements on cable fra
nchisees has been upheld for the moment. 126 It is now on appeal to the Supreme Court. 127 The statute authorizing franchising authorities to req
uire cable operators to provide public, educational and government (PEG) access channels, 128 and requiring cable operators to provide leased access channels 129 were held to be constitutionally permissible. 130
Congress's prohibition against local telco ownership of cable facilities in its service area and provision of video programming has been challenged and overturned in one district court. It too, is on appeal. Meanwhile, the cross-ownership ban is being
challenged in other district courts as well. 131 The challenges to the must carry, PEG and leased access provisions as well as the telephone-cable cross ownership ban are significant because they prov
ide several of the judicial pillars upon which regulation of the future electronic broadband networks will be built. This follows because the cases address the regulation of access and speech in cable and telephone the two industries from which much of th
e broadband infrastructure is likely to emerge. 132 Thus, judicial pronouncements on the relative rights of network owners to provide information over their networks and to determine who may have acce
ss and speak over their facilities other than themselves, are critical to the evolution of speech rights on the new and evolving infrastructure.
A decision overturning the must carry rules is possible. Congress may have rested a significant portion of the justification for must carry on its desire to assure the continued broadcaster provision of local news and public affairs programming. <
a href="#note133">133 And, evidence of economic harm may, upon closer analysis and examination of prior history, prove insufficient to establish a sufficient threat to the government's interest in the retention of viable bro
adcast stations.cy opinion.
Indeed, in its subsequent effort to justify the must carry rules, the FCC did not even advance an economic harm argument. A fact which the court noted, deeming that argument "foreclosed by Quincy Cable TV." Further, the district court was required to
apply a different standard to assess the advisability of removing the restrictions as the parties recommended. The Circuit Court did not reach the First Amendment issue, however. In the subsequent remand by the Circuit Court of Appeals, the District Court
reluctantly removed the restriction.
From 1988 to 1992, the RBOCs also sought relief from the cross-ownership ban through a variety of bills proposing to allow telephone company entry into the video transmission and provision market. See, H.R. 1504, 103rd Cong., 1st Sess. (1993) S. 1200,
102nd Cong. 1st Sess. (1991) H.R. 2546, 102nd Cong., 1st Sess. (1991) (companion legislation to H.R. 2546) 2. 2800, 101st Cong., 2nd Sess. (1990) S. 1068 101st Sess. (1989) H.R. 2437 101st Cong., 1st Sess. (1989) (companion legislation to S. 1068). Howeve
r, telco provision of video programming, which was seen as an alternative to re-regulation of cable television rates and practices, was not adopted by Congress despite significant support from the then sitting president. Instead, the cable industry was su
bstantially re-regulated. In 1993, S. 1504, a new bill which proposes to remove the cross ownership restriction, has been introduced. Yet, in all the legislation which has addressed the issue of telco ownership of video distribution facilities, and, despi
te efforts by telephone companies to raise the constitutional speech issue before the FCC and the MFJ court, to date, there are only two references to First Amendment speech issues in previously unsuccessful legislation. See, H.R. Rep. No. 934, 98th Cong.
, 2nd Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4668, citing Associated Press v. U.S. 326 U.S. 1, 20 (1945), explaining the relationship between the telephone-cable cross-ownership prohibition and the First Amendment goal of diversity of ownershi
p and viewpoint. Also see, S. 1200, Communication Competition and Infrastructure Modernization Act of(1991), Title I, Section 101 (14), which states:
"The Congress makes the following findings: (14) A broadband communications infrastructure will be every American's tool of personal emancipation will generate a quantum increase in Americans" freedom of speech."
The issue was addressed a second time when congress determined that its codification of the FCC's telephone-cable television cross-ownership rules was constitutional.
Finally, the issue was addressed in the context of FCC deliberations concerning its telephone company-cable television cross-ownership restriction. Collectively, in these proceedings, the government has set forth its rationale for why it's decision to
continue the imposition of the restriction on local telephone company provision of video programming is constitutional.
The government's argument is essentially as follows. The telephone-cable television cross-ownership ban is justified by the First Amendment interest "in the widest possible dissemination of information from diverse and antagonistic sources." Through th
eir control of access to their local transmission and switching monopolies, the telephone companies could reduce or eliminate competition in electronic publishing thereby reducing diversity. Therefore, the removal of the ban would threaten the First Amend
ment interest in diversity.
The ban does not violate the First Amendment rights of local telephone companies for several reasons. First, the ban is an anti-trust prohibition similar to those which other media companies are also subject. Second, common carriers are treated differe
ntly for purposes of the First Amendment. Third, the ban is a, content neutral restriction which incidentally affects speech. It is narrowly tailored to meet the substantial government interests in preventing anti-competitive abuses by telephone carriers
possessing monopoly power and maintaining a competitive environment for broadband communications.yf services made available and the manner in which they are priced by the merged firms would affect who would have access to network functionalities. If the p
ost telco-cable merger economics follow the same trends as prior periods of merger in related media industries such as broadcasting, debt service demands will ultimately force the merged firms to cut costs, serve more lucrative markets and raise prices. <
sub>134 C. An Alternative Fix
Some scholars have argued that the nation's constitutional laws be changed to reflect the growth of speech related activity engendered by the convergence of computer, network switching and fiber optic technologies. For instance, at least one eminent co
nstitutional scholar has argued for an amendment to the First Amendment to protect speech activities conducted over computers. 135
Other scholars have argued that the First Amendment in its current form, may be interpreted to protect access and speech activities conducted over computer augmented broadband interactive switched networks.
136
Short of constitutional solutions, however, the government retains other regulatory tools for assuring "universal" access and relatively unfettered speech for network owners and users. These include use of: the antitrust laws, speech and tort liability
, structural network parameters favoring distributed intelligence and switched interactive network technologies, and a universal service requirement to assure access and speech in the face of the above mentioned market failures. These regulatory choices a
ffect the exercise of access and editorial control at the content, network configuration and equipment levels. The same levels at which network owners exert control.
1. Maximizing Access
a. Choice of Technologies For instance, given the extensive cost of deploying fiber optics to the home, federal and state regulators could allow private industry to continue to build network information delivery systems composed of one way, compressed channel technology (cable
and video dial tone) rather than switched, two-way, interactive technology (ISDN/broadband). While this approach may be favored by portions of the industry, there is a significant danger that such a solution would postpone the advent of switched interacti
ve multi-media communications. More important, however, it replicates the current regulatory difficulties which accrue when the government cedes control over distinct, clearly discernible transmission paths to network owners and then imposes liability for
speech.
b. Access via Market Regulation
Where the network owner exercises control over the network via access or content control to deter or forestall competition, the government can invoke the antitrust laws. It may also seek to deter such activity through the use of its and structural safe
guards policies. Enhanced service providers and information providers who find their access to the network or their communication over the network constrained by the network owner, may be able to establish that an antitrust violation has occurred. If an i
nformation provider can successfully establish that the network provider either possess and seeks to maintain monopoly power, 137 or owns essential facilities, 138 or is attempting to monopolize a market segment, the network provider's activity may be prohibited.
Newspaper publishers, cable programmers and broadcasters which would comprise a significant portion of the potential information providers on a telecommunications carrier provided broadband network, have alleged that the local telephone companies will
in fact engage in anti-competitive activities if they are allowed to vertically integrate into the market for providing information services. For instance, broadcasters and cable operators oppose limited local telephone company entry into the video distri
bution services market via FCC's video dial tone proposal absent significant structural safeguards. 139
It is anticipated that some portion of the future broadband network infrastructure may be composed of essential facilities. If so, an antitrust violation will arise where such facilities are: 1.) extremely difficult if not impracticable for competitors
to duplicate 2.) owned by one or a group of firms and 3.) not made available to competitors of the network facilities owner without an appropriate business justification or apparent efficiency, especially where the network owner is also an information provider. 140
The FCC's structural safeguards policy was developed to address the concern that the RBOCs would use cross subsidies and accounting standards to compete unfairly in the competitive provision of enhanced and/or information services. In telecommunication
s, the term "structural safeguards" refers to the separation of a vertically integrated firm into corporate segments based upon whether they provided basic network services or enhanced services. 141 Enhan
ced services include data processing services as well as videotext, audiotext, database retrieval and other computer and communications technologies applications. The goal of open networks architecture policies 142 of which 'structural separations policy" was a part, was to prevent the ability of the RBOCs to underwrite their provision of competitive enhanced and information services with monies garnered from their basic network monopoly. After a
significant number of administrative hearings and judicial proceedings, there is still no agreement on how structural safeguards ought to be employed. 143
D. Incentives Regarding Control and Liability for Speech
As privatization continues, the lessons learned in the Compuserve case as well as other recent cases regarding publisher liability should give would be private network editors pause. Where a network owner exercises control over access and content, they
may not be able to avoid liability for that content when it is harmful to the public. 144 Similarly, network owners may be held liable for negligent or careless manipulation and control of subscriber
/user information where such action results in injury to the user or to third parties. 145
Certainly, the libel, obscenity and indecency laws will remain making control of content a cause for liability. Thus, even where network owners seek to eschew all content regulation, they are likely to be no more successful than telephone common carrie
rs and cable operators who by statute must exert some control over obscene or indecent subscriber speech. Ultimately, however, self preservation and protection of the bottom line may motivate firm efforts to curb libelous speech or avoid control of subscr
iber speech. But, forgoing editorial control over some content would remove a downside cost of doing business which may be preferable to the cost of maintaining the monitoring of subscriber and programmer speech and the potential liability which the exerc
ise of editorial control brings.
1. Tort Liability
There is another way in which network owner control of speech may be tempered by government sanction, the imposition of tort liability. The exercise of control over access and content necessarily invites expectations that the network owner, in the exer
cise of its editorial discretion, has reviewed and sanctioned all information which it transmits. Moreover, should the network owner lose or damage customer information in storage, manipulation or transmission, or, negligently preclude the transmission of
customer information entrusted to its care, it is reasonable to require that the owner compensate the customer to the extent of its legally recognized tort damages. A recent case in Illinois has so held based on state law. 146
The removal of government sanctioned protections from carrier tort liability would encourage some network owners to eschew private carriage for the protection which public common carriage still affords. Tort liability would attach whenever the private
carrier negligently handled subscriber information. Private carrier and closed user group attempts to exempt themselves from such liability via exculpatory contract clauses or tariff language would be deemed unconscionable and unenforceable as a matter of
law where it could be established that the subscriber does not possess equal bargaining power.
At least one commenter has noted that in an era of deregulation, the reasons for continuing to limit the tort liability of non-dominant telecommunications common carriers cease to be applicable. 147 At
least three reasons have been used by the courts to justify the continuation of exculpation clauses limiting common carrier liability. First, federal and state regulators may be held to possess the regulatory authority to establish such limits. Secon
d, such limits, judgments paid by monopoly carriers would be passed on to subscribers having no alternative service providers. Third, limited liability provisions preserve national uniformity in the provision of services and avoid discrimination between l
ike situated by geographically dispersed subscribers.
Today, however, such reasons retain little credibility. First, the Communications Act of 1934, does not authorize federal regulators to preempt state law tort remedies then existing at common law or by statute. Rather, such remedies as the act provides
are in addition to existing state remedies. 148 In addition, courts have not automatically granted primary jurisdiction over state tort liability claims to regulatory agencies but often have found su
ch claims to be within the purview of the courts. 149
Second, in an era of convergence and expanding competition at all market levels in the telecommunications and ultimately, multi-media marketplace, many subscribers will have alternative sources of service. Finally, a growing portion of the telecommunic
ations infrastructure is owned by a disparate number of private owners serving distinct "high-end user" sub-markets rather than the larger local or national markets of various subscribers. Under such circumstances, national uniformity appears to be less a
function of government action and more a function of the relative market power of the service provider, the purchaser and market demand. For these reasons, government sanctioned carrier initiated limitations on tort liability should be abolished except w
here a carrier elects to serve all classes of customers via public switched multi-media networks.
A decision to remove the tort liability limitation except when applied to carriers serving the majority of all classes of users via a public switched multi-media network or providing significant interconnection between public switched networks, would s
erve as a financial incentive for some carriers to maintain service to a broad subscriber base, or to expand their service offerings to include other consumer groups or, at the very least, assure sufficient compatible interconnection.
2. Subscriber Protection via the Theory of Unconscionability
Where the non-dominant network provider or providers resort to contracts or tariffs as the vehicle for the offering of services to subscribers, there may be instances in which the doctrine of contract unconscionability may be invoked. If the network ow
ner, as provider of scarce network resources, leveraged its economic position by employing form contract language to limit its tort liability, it's attempt to enforce such restrictions might be denied by the courts on the grounds of unconscionability.
E. Interconnection and Distributed Intelligence
Other than the use of these strategies, the government may pro-actively encourage access and speech by creating regulatory policies and tax incentives which favor the building of open, switched, interconnected networks incorporating distributed intelli gence. For instance, the government has initiated regulatory proceedings aimed at equalizing user interconnection to the local monopoly public switched network architecture and increasing network service offerings by enhancing network flexibility through distributed network intelligence. These proceedings have yet to be conclude. 152 A resolution which favors distributed intelligence and shared user/network control over network functionalities would m aximize speaker control over the process by which information is communicated.
Networks incorporating distributed intelligence and shared control, whether public or private, could provide the opportunity to engage in broadband multi-media interactive speech to large numbers of users. 153 They arguably would also provide a preferable alternative to multi-ëchannel, uni-directional distribution systems in which network architecture and functionality preclude two-way, broadband interactive communications.
When combined with the regulatory strategies outlined above, selection of a switched network architecture would also ensure that neither network owners or users forfeit meaningful access or speech rights. For, in a switched broadband interactive networ k environment, the capacity for carriage of information is substantial and the notion of scarcity upon which the constitutional regulation of antecedent technologies is based, should become a less viable justification for limiting access and speech rights. 154
Each of the above mentioned policies affects the incentive structure under which carriers would exercise control of access and speech on their networks. The proposed policies do not preclude network owner exercise of control over access and speech. The y merely remove liability protections enjoyed by public common carriers, expand technical opportunities for user access and speech, and continue pre-existing economic regulation. As such, they should be adopted as regulatory policy regardless of whether c onstitutional law is changed.
Note 1: Associate Professor, New York Law School and Director, Communications Media Center, New York Law School. The author thanks the Administration and the Board of Trustees of New York Law School for a summer grant which s upported this research. Thanks are also due to the library staff of New York Law School, especially Camille Brousard, and to Anjali Singhal, my research assistant for their excellent assistance. Finally, a sincere note of appreciation is extended to Profe ssors Michael Botein and Eli Noam who reviewed earlier drafts of the article, and to my wife, Linda who provided valuable editing and significant encouragement. Back.
Note 2: The convergence phenomena arguably began with the merger of telephone network switching and computer technology. It has continued with the evolution of network transmission technologies from copper and coaxial cable t o fiber optic cable along with channel/signal compression and the evolution of signaling system seven (SS-7) technology. Its most recent manifestation is the merger of fiber, telephone and computer technologies into broadband communications networks. Back.
Note 3: The speed with which various industry firms seek to joint venture or combine to enter new markets underscores this fact. See, Alan Deutschman and Joyce E. Davis, THE NEXT BIG INFO TECH BATTLE Fortune, November 29, 199 3, Domestic Edition INFORMATION TECHNOLOGY SECTION; Pg. 39; EDITORIAL, POLICING THE INFORMATION HIGHWAY, Chicago Tribune, November 26, 1993, Friday North Sports Final Edition, Pg. 30; ZONE: N; John Huey, Andrew Kupfer, Jane Furth and John Wyatt, WHAT THAT MERGER MEANS FOR YOU, Fortune, November 15, 1993, Domestic Edition INFORMATION TECHNOLOGY SECTION, Pg. 82; Jolie Solomon, Daniel Pedersen, Rich Thomas, Carolyn Friday, Peter Katel, Sherry Keene-Osborn, Charles Fleming, Vern E. Smith, Marc Levinson, Micha el Meyer and Annetta Miller, Big Brother's Holding Company, Newsweek October 25, 1993 , UNITED STATES EDITION BUSINESS; Pg. 38; and JOHN GREENWALD, John F. Dickerson, Thomas McCarroll, and Jeffrey Ressner WIRED!; Bell Atlantic's bid for cable giant TCI is the biggest media deal in history; it's also a peek at the future Time October 25, 1993, U.S. Edition BUSINESS; Pg. 50; The Economist October 16, 1993 Special; Pg. 21 MULTIMEDIA; The tangled webs they weave; and Sandra Sugawara and Paul Farhi, Merger to Create a Media Giant; $ 26 Billion Bell Atlantic-TCI Deal Is a Vision of TV's Future, The Washington Post October 14, 1993, Thursday, Final Edition, FIRST SECTION; PAGE A1. Back.
Note 4: The Clinton administration's report entitled, National Information Infrastructure: Agenda for Action (Report) identifies other policy and actions goals as well. There are four principal policy goals and five major act ion areas. The first of the four principal policy goals are: is reliance on private sector investment. The other three principal policy goals are: support for universal service; promotion of technical innovation and new applications; and promotion of a se amless user driven NII. These goals are to be accomplished via reformation of government regulatory policies concerning: information security and network reliability; improved spectrum management; protection of intellectual property rights; increased dome stic and international inter governmental coordination;and enhanced access to government information concomitant with improvement of the procurement process. See, Information Infrastructure Task Force, The National Information Infrastructure: Agenda for A ction, September 15, 1993, at pp. 1-2, 4-16. See generally, JOHN HOLLIMAN, Vice President Gore Press Conference on Info Highways, Transcript # 267-1 of Live Report, CNN News SHOW, 1:00 pm ET, December 21, 1993 18:30 Eastern Time; Ronald Brown, Secretary B rown on Three Goals for Our New National Information Infrastructure, Telecommunications Policy Briefing - Roll Call, Nov. 15, 1993 - Special Section; and Brooks Boliek, U.S. data superhighway project short on concrete; But Gore vows action on new infrastr ucture, The Hollywood Reporter, Thursday, September 16, 1993. Back.
Note 5: See, Connecting to the Future: Greater Access, Services, and Competition in Telecommunications, Report of the New York's Telecommunications Exchange, December 1993, at xii, and 18-21, 28-29. Back.
Note 6: As fiber optic distribution and switching technology is introduced, the distribution functions and information streams of broadcasting, cable and telephony are merging. As they merge, the access, speech and related ac tivities which received varying degrees of constitutional protection when conducted over the antecedent technologies will come to reside on the merged network(s). However, because the apportionment of these constitutionally recognized rights was made in t he specific context of antecedent technologies and relationships, the fate of such rights in an advanced, intelligent, broadband network context is unsettled. See, generally, Joshua Quittner, Online To A Revolution: The Amazing - and some Say Ominous - Ne w World of TV, Telephone and Computer Is Heading Your Way, Newsday, July 18, 1993, Sunday, NASSAU AND SUFFOLK EDITION, News SECTION Pg. 4, Other Edition: City Pg. 50; and ELECTRONIC MEDIA REGULATION AND THE FIRST AMENDMENT: FUTURE PERSPECTIVE, DATA CHANNE LS (INCL COMPUTER DIGEST); No. 3, Vol. 19; February 3, 1992. This uncertainty is exacerbated by the growing number of private networks. Some scholars have begun to address this question. See, EDGE, December 2, 1991, SECTION: No. 175, Vol. 6 Special Report : Universal Telephone Service; Ready For The 21st Century? 1991 Annual Review Of The Institute For Information Studies. A Joint Program Of Northern Telecom And The Aspen Institute. Back.
Note 7: Several scholars have criticized the current state/ private dichotomy established by the Supreme Court in light of the continuing trend toward privatization in American life. See Rodney A. Smolla, 31 Wm and Mary L. Re v. 321 (1990). (Arguing that since restraints on human thought and action are the same whether applied by public or private entities, protection of constitutional freedoms should be maintained in the private as well as the public sector.); Clyde Summers, The Privatization of Personal Freedoms and the Enrichment of Democracy: Some Lessons from Labor Law, 1986 Univ. Ill. L. Rev. 689 (1989). (Arguing that as more public functions are performed by private entities there is a critical need to protect constitut ional rights heretofore protected from government control in the public sphere from private control in the private sphere.) Back.
Note 8: Users may be divided into two major groups composed of those who own network facilities ( facilities based users) and those who do not own facilities ( non-facilities based users ) . The vast majority of users are non -facilities based. These individuals, firms or groups purchase access to some of the networks (telephone) over which they may interact. They are most often semi-passive recipients of information transmitted one way over other networks (broadcasting and ca ble). The communications needs of these users vary substantially, are evolving at different speeds and in multiple directions. For instance, many businesses already have significant needs for high speed, high capacity broadband communication networks. See , Dertouzos, Communications, Computers and Networks, 265 Scientific American 62, 64, September 1991; Gore, Infrastructure for the Global Village, 265 Scientific American 150, 152; Dertouzos, Building the information Marketplace, 94 Te chnology Review 28, 31-32, January 1991; Guilder, supra note _____, at ____. By comparison, the general public has not yet generated needs sufficient to precipitate demands for greater network speeds and capacities. Customer-users include residential as w ell as business customers. Back.
Note 9: Generally, absent a showing of an independent nexus of involvement by the state, neither the chartering, funding, licensing, regulating or tax exemption of a corporation by the government constitutes state action. See Cohen v. Illinois Institute of Technology, 524 F. 2d 818 (7th Cir. 1975) cert. denied 425 U.S. 943 (1976) and Sament v. Hahnemann Medical College and Hospital of Philadelphia, 413 F. Supp. 434 (E.D. Pa. 1976) Affirmed mem. 547 F. @d 1164 (3rd Cir. 1977) (charter); Aasum v, Good Samaritan Hospital, 542 F. 2d 792 (9th Cir. 1976), Manning v. Greensville Memorial Hospital, 470 F. Supp. 662, (C.D. Va. 1979) and Trageser v. Libbie Rehabilitation Center, 590 F. 2d 87 (4th Cir. 1978), cert. denied 442 U.S. 947 ( 1979) (funding); Moose Lodge No. 107 v. Innis, 407 U.S. 163 (1972) (licensing); Jackson v. Metropolitan Edison, 419 U.S. 345 (1974) (regulation); and Weis v. Syracuse University, 552 F. Supp. 675 (N.D.N.Y. 1982), Narango v. Alverno College 487 F. Supp. 63 5 (D.C. Wisc.1980) and Stewart v. New York University, 430 F. Supp. 1305 (S.D.N.Y. 1976).
Where the private entity exercises powers traditionally reserved to the state, state action may be found. See Nixon v. Condon, 286 U.S. 73 (1932) (election), Marsh v. Alabama 326 U.S. 501 (1946) (company town), and Evans v. Newton, 382 U.S. 296 (1966) (municipal park). Back.
Note 10: See CBS, Inc. v. DNC, 412 U.S. 94 (1973). Back.
Note 11: Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989), concurring opinion of Justice Scalia; Dial Info. Servs. Corp. of N.Y. v. Thornburg, 938 F. 2d 1291 (2nd Cir. 1991); and Carlin Communication Inc. , v. Mountain States Telephone & Tel. Co., 827 F. 2d 1291 (9th Cir. 1987); and Information Providers Coalition for the Defense of the First Amendment v. FCC et al. , 928 F. 2d 866 (9th Cir. 1991) (Information Providers). Back.
Note 12: Recently, however, statutorily required efforts by cable operators to limit or ban indecent programming on leased and/or public access channels have been deemed to constitute state action. See Alliance at note _____ __ [Cite to Chapter 2 discussion and notes concerning government regulation of indecent communication on cable and telephone.] Back.
Note 13: At present, the network access/speech continuum is bounded at one end by public switched telecommunications networks (PSTN) providing a variety of services to the public on a common carriage non-discriminatory basis . At the other end of the continuum is the privately network (PN) functioning solely as a business tool providing services exclusively to the owner(s). In between public telecommunications switched and private networks are the cable television (CATV), bro adcast (B/CAST) and virtual private networks (VPN). The continuum can be represented as illustrated below.
PSTN -- CATV -- B/CAST -- VPN -- PN
Until recently, the continuum, when read from left to right represented the network owner's decreas ing regulatory responsibility to provide access to a set of diverse subscribers on a non discriminatory basis, and simultaneously tracked the increase in control which the network owner may exercise over access and speech on its network. With the advent o f recent court decisions regarding cable television-telephone cross ownership and dial-a-porn, (see footnotes __ through __ infra), the continuum will become shorter. It may be that the pure public switched common carrier may cease to be a category. Certa inly the former common carriers will have greater flexibility to provide services on a non-common carrier basis. The new network owners at the left hand end of the continuum will have the option to provide common carriage, private carriage and/or engage i n speech themselves. Thus the continuum might look more like the representation below.
PSTN/CATV -- B/cast -- VPN --PN
Note 14: See generally Estlund, What Workers Want? Employee Interests, Public Interests, and Freedom of Expression, 140 U. Pa. L. Rev. 921 at 925, 935-936, and 960-964. Arguing that the general public has an equal interest i n the product quality and safety concerns of public and private employees. And, that public employees have work place concerns similar to those of their private employee counterparts and ought to enjoy the same protections for work place related expressio n and association. Back.
Note 15: For the purposes of the paper, networks are defined as collections of interconnected users. National Telecommunications and Information Administration, NTIA Infrastructure Report: Telecommunications in the Age of Information, October 1991, at 13-20, 92. The type of transmission and the receive/send machinery employed varies. These points may or may not be capable of engaging in interactive communication. This definition acknowledges that cable and broadcast t elevision systems may be deemed to be networks just as the public switched inter-exchange and local exchange systems constitute networks. This definition also facilitates the exploration of the broader array of access solutions presently employed and like ly to be employed in the regulation of future networks.
The paper assumes that interconnection between networks and/or potential users of networks can and does take place. It does not address directly the need for common languages, protocols and convent ions, speeds, as well as procedures of machine interaction, all of which are critical technical issues involved in network interconnection. For an excellent lay explanation of network interconnection and nomenclature, see, Dertouzos, Communications, Co mputers and Networks; and Cerf, Networks, 265 Scientific American 62 and 72, respectively, September, 1991. These issues are addressed, if at all, solely from the perspective of the network facilities, pricing and service configurations which t he network owner(s) may choose in providing services and the impact such choices may have on the potential user class. It is recognized that these choices in significant measure will determine the eligible class of users.
Finally, the range of services that a network owner may provide are assumed to include inter alia, transmission, switching and routing, storage and/or manipulation of user information, access to 3rd party and/or network provider information, and enhanced services. A network provider ne ed not provide all of the functions listed above, or be limited solely to those listed. Back.
Note 16: A network's functionality is the combination of the various hardware and software defined functions the network performs. A network's functionality is determined by its hardware and software architecture and by the network standards or documents which specify network protocols. Network protocols allow hardware of various manufacture to communicate with one another. Peter Fetterrolf, Connectivity: The Sum of Its Parts, Byte, State of the Art Section Interoperability, Vol 16, No. 11, p. 197. Back.
Note 17: A tariff is a published set of rates charged and conditions under which various classes of service are offered by common and private carriers Back.
Note 18: The notion of network and service availability is subsumed within the definition of universal service. Universal Service was a government and industry policy which encouraged AT&T [then a monopoly] to make telep hones and service available to the American public at reasonable rates. Subsidies of less profitable [or unprofitable] provision of service to rural and poorer areas were built into the business and long distance charges. David Coursey, Battle of the Band width, Infoworld, January 14, 1991, Perspectives, p. 34. The traditional goal of universal service was to assure that "all but the poorest Americans could afford to make and receive telephone calls, even if they lived in remote, expensive to serve areas." Special Report: Universal Telephone Service; Ready for the 21st Century?, Forward, Edge, December 2, 1991, No. 175, Vol. 6. As such, universal service operated as a kind of equality in access and likeness in service offerings. In the current era of incre ased competition and privatization, however, universal service may no longer mean likeness (or comparability) of service or equality in technical access. Id. Back.
Note 19: The term "open" as used here to describe essentially, non discriminatory access to communicate on the network as configured by the owner, should not be confused with the Federal Communications Commission's "open net work architecture" policy. In theory the open network architecture policy is an attempt to provide enhanced service providers such as voice messaging, on line data and bulletin board service providers the same access to the local telephone companies' tran smission and features as the telephone company or its subsidiaries. See Dawn Bushaus, Enhanced Services -- ONA and AIN on a Collision Course, Communications week, Computer Networking Section, p 32L, June 17 ,1991. Back.
Note 20: See generally, VPNs set to challenge private networks and PSTN during nineties, _____, April 15, 1992; Mark Luczak, Tapping the Hidden Savings in Virtual Networks; Hybrid Networks, Telecommunication, Vol. 25, No. 3, p. 45, March 1991; and Robert Violino, A Network of Their Own, Information week, January 14, 1991. Back.
Note 21: See discussion in note 13 infra. Back.
Note 22: VPNs set to challenge private networks and PSTN during nineties, FinTech Telecom Markets, ENERGY SECTION, April 15, 1992 Back.
Note 23: The networks typically are created to meet the needs of their respective users for transmission of high speed data, information processing, voice traffic and/or security. Consequently, they serve closed sets of user s with relatively cohesive sets of needs, as well as eligibility, procurement and financing criteria. There are some firms which sell their excess network transmission capacity commercially. Back.
Note 24: This definition doesn't include closed networks established without the use of private or dedicated facilities. Back.
Note 25: Closed user group networks may be local, regional, national or international in scope. Examples of closed user group networks include those owned by: ad agencies, media firms, printers, insurance agencies, hospitals , record rooms, police, automobile manufacturers, parts suppliers, dealers, financiers and computer networks. User groups' networks may be closed for numerous reasons including: specialized equipment, specialized features, transmission speeds, security, s ervice pricing or speech related restrictions. Back.
Note 26: See, Alan Deutschman and Joyce E. Davis, THE NEXT BIG INFO TECH BATTLE, Fortune, November 29, 1993, Domestic Edition INFORMATION TECHNOLOGY Section, Pg. 39; MULTIMEDIA: The tangled webs they weave The Economist, Oct ober 16, 1993 Special SECTION, Pg. 21; and Sandra Sugawara, Paul Farhi, Merger to Create a Media Giant; $ 26 Billion Bell Atlantic-TCI Deal Is a Vision of TV's Future The Washington Post, October 14, 1993, Thursday, Final Edition, FIRST SECTION; PAGE A1.< a href="#txt26"> Back.
Note 27: Non-discriminatory access in the common carrier context connotes holding out ones self to provide like services to like situated customers at equitable rates. Back.
Note 28: This access option is similar to the common carrier model except that the network provider has not held itself out voluntarily to provide access to the network but is compelled to do so by law. The cable television leased access provisions are the best current example of this form of mandated access. Back.
Note 29: The public, educational and governmental access channels which are required under cable franchises as well as the must carry channels set aside for broadcasters which are required by federal law are an excellent exa mple of this type of "negotiated" or mandated access. Back.
Note 30: cite to portion of article where discussion takes place. Back.
Note 31: Carl Warren, Abuse of company facilities for E-mail must be curbed Network World March 30, 1992 SECTION: TOP NEWS; E-MAIL; Pg. 25. Back.
Note 32: For instance, many New York city agencies have configured their phones to prevent city workers from dialing long distance and calling specialty phone services such as dial-a-porn and sports information lines. See, J ennifer Preston, It's OK, As Long as It's A Local Call Newsday, Thursday, October 26,1989, CITY EDITION News SECTION, Pg. 5. Back.
Note 33: Ronald E. Roel, Advances in The Campaign For Workers' Rights; Laws, Court Rulings Offer Protection In Areas Where Bill of Rights Doesn't, Newsday January 10, 1988, Sunday, NASSAU AND SUFFOLK EDITION BUSINESS, Pg. 84 ; also see, PLAN TO MONITOR CALLS MADE BY CIVIL SERVANTS ATTACKED, Los Angeles Times, March 10, 1985, Sunday, Home Edition, SECTION: Part 1; Page 11; Column 1; National Desk. Back.
Note 34: Ronald E. Roel, Advances in The Campaign For Workers' Rights; Laws, Court Rulings Offer Protection In Areas Where Bill of Rights Doesn't, Newsday January 10, 1988, Sunday, NASSAU AND SUFFOLK EDITION BUSINESS; Pg. 84 City Pg. 92 Back.
Note 35: Ronald E. Roel, Advances in The Campaign For Workers' Rights; Laws, Court Rulings Offer Protection In Areas Where Bill of Rights Doesn't, Newsday January 10, 1988, Sunday, NASSAU AND SUFFOLK EDITION BUSINESS; Pg. 84 City Pg. 92 . An examination of employee privacy rights is beyond the scope of this article. Back.
Note 36: See, PLAN TO MONITOR CALLS MADE BY CIVIL SERVANTS ATTACKED, Los Angeles Times, March 10, 1985, Sunday, Home Edition SECTION: Part 1; Page 11; Column 1; National Desk. "The limited rights granted to government worker s under the under the U.S. Constitution are reinforced for federal workers through the Whistle-blower Protection Act of 1989." The laws protecting corporate employees, are inconsistent at the state level. See, Tom Devine, A Whistle-blower's Checklist, Che mical Engineering, November, 1991, You and Your Job Section, Vol. 98, No. 11, pg. 207. Back.
Note 37: Carol Wolinsky and James Sylvester, Privacy in the telecommunications age; Association for Computing Machinery, SECTION: Vol. 35 ; No. 2 ; Pg. 23 February, 1992. Back.
Note 38: SUSAN E. KINSMAN;Toll fraud on rise, SNET says; SNET warns businesses to guard against toll fraud , The Hartford Courant, July 29, 1992, A Edition SECTION: BUSINESS; Pg. B1. "To frustrate casual hackers, net manager s are adding password protection to private branch exchanges, voice mail systems, automated attendants and the remote administrative ports used to manage them. They are thwarting the pros by blocking calls to certain locations and taking corrective action when call monitoring indicates they've fallen victim to hackers." See, Annabel Dodd, When going the extra mile is not enough; Despite extra steps taken to protect voice systems, hacker are still getting through., Network World, April 12, 1993, FEATURES; Network Security; Pg. 49. Back.
Note 39: SUSAN E. KINSMAN;Toll fraud on rise, SNET says; SNET warns businesses to guard against toll fraud , The Hartford Courant, July 29, 1992, A Edition SECTION: BUSINESS; Pg. B1 Back.
Note 40: Annabel Dodd, When going the extra mile is not enough; Despite extra steps taken to protect voice systems, hacker are still getting through, Network World, April 12, 1993, FEATURES; Network Security; Pg. 49. Back.
Note 41: SUSAN E. KINSMAN;Toll fraud on rise, SNET says; SNET warns businesses to guard against toll fraud , The Hartford Courant, July 29, 1992, A Edition SECTION: BUSINESS; Pg. B1 Back.
Note 42: U.S.C. sections 7, as amended, 29 U.S.C.A. section 157. Back.
Note 43: For instance, absent a showing by union organizers that: (1) they possess no other reasonable alternative means of communication to reach non-union employees, or (2) that the employer is discriminating against the u nion's access to facilities it otherwise makes available, the courts are unlikely to afford the organizers access to an employer's private e-mail or telecommunications facilities. The Supreme Court has held that reasonable alternative means of communicati on (RAMC) do not exist when the location of the employer's premises and the employee's living quarters place the employees beyond the reach of the union's reasonable efforts to communicate with them. Reasonable alternative means of communications include publicity, mail, letters, and person to person communication at employees' homes, by phone, or on the streets. See Lechmere, Inc. v. NLRB 112 S. Ct. 841, 848 (1992); Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180 , 205 (1978); and NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). See Michael L. Stevens, The Conflict Between Union Access and Private Property Rights: Lechmere, Inc. v. NLRB and the Question of Accommodation, 41 Emory L. J. 1317 (Fall 1992). (Arg uing that the Supreme Court's "reasonable alternative means of communication" standard first announced in Babcock and later affirmed in Lechmere is the appropriate standard.)
Newspaper advertisements were explicitly rejected as a "RAMC" by the Lechmere Court. The NLRB has held that media advertisements are not considered a RAMC due to their costly, impersonal nature. And, absent access to the phone numbers of target employees, telephones do not constitute a reasonable alternative. See Peter J. Ford, The NLRB, Jean Country, and Access to Private Property: A Reasonable Alternative to Alternative Means of Communication Under Fairmont Hotel, 13 Geo. Mason U.L. Rev. 683 (1991). (Arguing that the Jean Country decision strikes a more appropriate balance betwee n employer property rights and employee access to information under section 7 of the NLRA, and citing all NLRB access cases through the 1991 publication date of the article) and their holdings.) Back.
Note 44: James I. Cash Jr; Benn R. Konsynski, IS Redraws Competitive Boundaries , Harvard Business Review, March 1985 / April 1985, PAGE: Pg. 134. Companies may participate in JONs on three levels. They may enter and receive information (content and access to the network as configured), they may participate in the development of software and network maintenance (network intelligence), and they may manage the network and control its configuration and provisioning (network man agement and control) At the first level, the JONs participant only has access to the network through restricted protocols and usually acts solely as an information entry-receipt node. The JONs system simply provides standard messages. For example, an inde pendent travel agency may use one of the major airline reservation systems without possessing additional in-house processing capability. The majority of current JONs participants are operating at this entry level. Id.
Companies participating at the seco nd level control the development and maintenance of the software used by the other JONs participants. Usually, these JONs developers have absorbed the cost of software development and maintenance in order to gain exclusive control over decisions on access , price, application design and the network. In the airline reservation systems, American and United Airlines are second level participants. They are primarily responsible for developing their SABRE and APOLLO systems, respectively.
Participants at lev el three serve as the utility. They usually own or manage all the network facilities as well as the computer processing resources. The Bell operating companies, The Source, and CompuServe are examples of such participants. Id. Back.
Note 45: James I. Cash Jr; Benn R. Konsynski, IS Redraws Competitive Boundaries , Harvard Business Review, March 1985 / April 1985, PAGE: Pg. 134. Back.
Note 46: This is an area that is receiving increasing scrutiny as telephone network users push for access to the network's functionalities and intelligence for purposes of reconfiguration. Back.
Note 47: See, Dunstan McNichol, Former NWA Exec Says Computer Monopoly Is Killing Airlines, States News Service; and John Helliwell, Networks provide a critical competitive edge for airlines: reservation-system leaders reap diverse benefits Networks Provide a Critical Competitive Edge for Airlines, PC Week January 19, 1988, Vol. 5; No. 3; Pg. C1. While the actual use and impact of the networks is still debated, it is clear that in the airline, travel, hotel and vacation/leis ure businesses, the use of joint owned networks has often lead to a significant competitive edge in the market. See, Salvatore Salamone, Airline reservation network flies into new age of LANs, ; Software front end, QIK RES, speeds terminal termination at American Airlines, Network World, November 26, 1990, FEATURES; Pg. 34; and John Helliwell, Networks Provide A Critical Competitive Edge for Airlines, PC Week January 19, 1988, Vol. 5; No. 3; Pg. C1. Back.
Note 48: See, Carol Wolinsky and James Sylvester, Privacy in the telecommunications age; Association for Computing Machinery, SECTION: Vol. 35 ; No. 2 ; Pg. 23 February, 1992. Back.
Note 49: Prodigy Services Co., an information services company owned jointly by Sears, Roebuck and Co. and International Business Machines Corp., has been involved in a number of controversies regarding speech over it facili ties. It eliminated controversial bulletin board files such as "Health Spa" which precipitated a bitter argument between religious fundamentalists and gays because of discussions of gay sexuality. It also terminated the memberships of subscribers protesti ng Prodigy's increase in e-mail prices to Prodigy advertisers. See W. JOHN MOORE, Taming Cyberspace, The National Journal March 28, 1992, LEGAL AFFAIRS; Vol. 24, No. 13; Pg. 745.
Prodigy maintains that its subscribers have no first amendment rights on its bulletin board services, nevertheless it does not want to be held responsible for the content of communications it allows to run absent an express endorsement or failure to disavow. For instance, Prodigy was uncomfortable with taking responsibility fo r bulletin board statements that the Holocaust never occurred. Id. Back.
Note 50: See, Cubby v. CompuServe Information Service, at note ____, infra. The court held that CompuServe was not responsible for allegedly libelous statements made in a bulletin board called Rumormonger, that was carried o n CompuServe's system. Liability was not forthcoming because CompuServe did not exercise editorial control over the bulletin board's content. Id at ___. Also see, W. JOHN MOORE, Taming Cyberspace, The National Journal March 28, 1992, LEGAL AFFAIRS; Vol. 2 4, No. 13; Pg. 745; and FELICITY BARRINGER, THE NATION: Electronic Bulletin Boards Need Editing. No They Don't, The New York Times, March 11, 1990, Sunday, Late Edition - Final, Section 4; Page 4, Column 1; Week in Review Desk. Back.
Note 51: See CBS v. Democratic National Committee, 412 U.S. 94 (1973) (broadcasters could not be compelled to accept editorial advertisements covering controversial issues); and Syracuse Peace Council, 2 FCC Rcd. 5043, recon sideration denied 3 FCC Rcd. 2035, affirmed, Syracuse Peace Council v. FCC, 867 F.2d 654. Back.
Note 52: Leathers v Medlock, 499 U.S. ---,--- (1991); Los Angeles v. Preferred Communications, Inc. 476 U.S. 494 (1986). However, the courts have not definitively decided whether cable operators possess absolute editorial a nd speech rights. See, A-798, Turner Broadcasting System, Inc. v. FCC, U.S. Law Week, Daily Edition, May 5, 1993, In Chambers Opinion of Chief Justice Rehnquist, Circuit Justice. (Request for injunction against enforcement of must carry section of Cable A ct of 1992 legislation denied.) Back.
Note 53: Broadcaster access to cable television channels has been upheld in Turner Broadcasting v. FCC, while public access to cable channels via public government and educational access channels and programmer access to cab le leased access channels has been recently upheld in Daniels. Back.
Note 54: Sable Communications of California, Inc. v. FCC. Back.
Note 55: Chesapeake and Potomac Telephone of Virginia et al. v. U. S. 830 F. Supp. 909, 1993 U.S. Dist. Lexis 11822 (1993). Also see Edmund Andrews, Ruling Frees Phone Concerns to Offer Cable Programming, New York Times, Aug ust 25, 1993, A1, Col. 2; cont.'d on D5, Col. 1. Announcing the decision of the U.S. District Court decision overturning the telephone-cable television cross-ownership ban. Also see, 47 U.S.C. @ 533 (b), The Cable Communications Policy Act of 1984, prohib iting local telephone companies from providing video programming to potential viewers in their service area directly or indirectly through an entity owned by the telephone company or under its common control. Back.
Note 56: Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989), concurring opinion of Justice Scalia; Dial Info. Servs. Corp. of N.Y. v. Thornburg, 938 F. 2d 1291 (2nd Cir. 1991); and Carlin Communication Inc. , v. Mountain States Telephone & Tel. Co., 827 F. 2d 1291 (9th Cir. 1987); and Information Providers Coalition for the Defense of the First Amendment v. FCC et al. , 928 F. 2d 866 (9th Cir. 1991) (Information Providers).
In each of the Circuit Court cases, the issues concerned messages for which the telephone companies collected fees on behalf of the information provider. The information providers were allowed to provide messages which the telephone companies did not provide billing services for. H owever, the difficulties associated with collections absent the assistance of the phone companies rendered the information providers' businesses marginal at best. The carriers' provision of billing services was voluntary rather than required by law.
I n Information Providers, the Court inter alia considered petitioners' assertion that FCC regulations requiring that an individual wishing to receive "dial-a-porn" messages notify the carrier in writing, constituted a prior restraint. The Court concluded t hat no prior restraint was involved because there was no government action to enjoin speech, require advanced governmental approval for speech, censor or license speech. Instead, the court found that only the telephone companies are involved. And, as they are private actors, they are constitutionally free to ban dial-a-porn from their networks and/or refuse to make available billing services to dial-a-porn information providers. 922 F. 2d at 877. Similar conclusions were reached in the other cases. See, C arlin, 827 F. 2d at 1293, 1295, 1297 n10; and Dial Info., 938 F. 2d 1543. Back.
Note 57: Chesapeake and Potomac Telephone of Virginia et al. v. U. S. 830 F. Supp. 909, 1993 U.S. Dist. Lexis 11822 (1993). Back.
Note 58: Professor Jerome Barron has taken justifiable issue with the Circuit Court opinions. He argues that the courts, in upholding the decisions of telephone common carriers to refuse carriage or the provision of billing services to dial-a-porn providers, have allowed the telephone common carriers an unjustified measure of editorial control over the content of speech transmitted over their facilities. Barron, The Telco, The Common Carrier Model and the First Amendment -- The "Dial-A-Porn" Precedent, 19 Rutgers Computer & Tech. L.J. 371, (notes 39 through 65 and accompanying text) (1993). Back.
Note 59: Alliance for Media et al. v. FCC, 10 F. 3d 812 (1993). In Alliance, the Court considered among other issues, the constitutionality of FCC regulations requiring in some situations that cable operators: (1) prohibit o r segregate any programming on their leased access channels which they reasonably believes to be indecent; and (2) prohibit obscene or indecent programming as well as programming soliciting unlawful conduct. In response to the government's argument that c able operators operating under the regulations are not state actors, the court concluded that the statute significantly encourages the operators to ban indecent speech. Consequently, operator action is state action. Id at *31.
The Circuit Court reached its conclusion upon applying the state action test set forth in Reitman v. Mulkey, 387 U.S. 369 (1967) to Section 10 of the Cable Competition and Consumer Protection Act of 1992. Per Reitman, the immediate objective, historical context and ultimate effect of the cable statute were examined. The Circuit Court found that: (a) the statute's immediate objective was to suppress indecent information by limiting its transmission via access channels; (b) the context of the statute evidenced an effort by the gover nment to strip cable operators of editorial power over the content of information on leased and public access channels and then enlist the cable operator in identifying and then prohibiting only indecent material; and - the ultimate effect of the statute was to encourage a number of cable operators to ban indecent programming from leased and access channels altogether. Id at *23-*31. Based on these findings, the Circuit Court concluded that the statute's encouragement of total denial of indecent speech by cable operators constituted state action. Id at *31.
The court went on to find the total ban unconstitutional because it was not the least restrictive means for achieving the government's goal of regulating access to indecent programming by children. I d at *33-35. Back.
Note 60: Id at *24-*27 and accompanying notes. Back.
Note 61: Foreborne carriers have the right to serve discrete segments of the market without filing tariffs if they so chose. See In the Matter of Tariff Filing Requirements for Nondominant Common Carriers, 8 FCC Rcd 6752; Au gust 18, 1993; In the Matter of Policy and Rules Concerning Rates for Dominant Carriers, Part 1 of 3, 4 FCC Rcd 2873, April 17, 1989; and MCI TELECOMMUNICATIONS CORPORATION, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION et al., 765 F.2d 1186; July 9, 19 85. Back.
Note 62: Under a narrow reading of the applicable precedent, they would arguably be are constitutionally free to ban dial-a-porn from their networks by refusing to offer billing services to dial-a-porn information providers. See D.C. Circuit Court analysis of Dial Info. Servs. Corp. of N.Y. v. Thornburg, 938 F. 2d 1291 (2nd Cir. 1991); and Carlin Communication Inc., v. Mountain States Telephone & Tel. Co., 827 F. 2d 1291 (9th Cir. 1987); and Information Providers Coaliti on for the Defense of the First Amendment v. FCC et al. , 928 F. 2d 866 (9th Cir. 1991); in Alliance for Media et al. v. FCC, 10 F. 3d 812 (1993). Back.
Note 63: While the Electronic Communications Privacy Act protects users of E-Mail and bulletin boards against the intentional monitoring of their messages by third parties, employers seeking to protect company information an d assets can monitor employee messages on internal e-mail systems. JULIE BENNETT, Firms' rights protected by electronic mail laws, Crain's New York Business, October 8, 1990, TAKEOUT, Telecommunications; Pg. 28. The Electronic Communications Privacy Act o f 1986, also allows employers to read employee e-mail messages situated on company computer systems that permit third party access, provided the employee gives permission. ROSALIND RESNICK, The Outer Limits, The National Law Journal, September 16, 1991, P g. 1 Back.
Note 64: Some commenters take the position that any monitoring of E-Mail or searching through personal employee files is ethically wrong regardless of the law. See GLENN RIFKIN, Do Employees Have a Right to Electronic Privac y? The New York Times, Section 3; Page 8; Column 1; Financial Desk December 8, 1991, Sunday, Late Edition - Final. Aside from questions of ethics, other commenters have argued that the use of monitoring is demoralizing to employees and therefore counter p roductive. Glenn Rifkin, The ethics gap; Despite growing attention, many IS managers say, 'It's not my job,' Computerworld, October 14, 1991 EXECUTIVE REPORT; IS Ethics; Pg. 83. Back.
Note 65: See, Linda Wilson, ADDRESSING E-MAIL RIGHTS, Information Week, SUPPLEMENT ENTERPRISE COMPUTING; Pg. 54, February 15, 1993; ELECTRONIC MAIL RAISES ISSUES ABOUT PRIVACY, EXPERTS SAY., BNA Daily Labor Report, November 17, 1992 CURRENT DEVELOPMENTS SECTION; More E-mail legal actions, COMPUTER FRAUD & SECURITY BULLETIN, February, 1992; GLENN RIFKIN, Do Employees Have a Right to Electronic Privacy? The New York Times, Section 3; Page 8; Column 1; Financial Desk Decemb er 8, 1991, Sunday, Late Edition - Final; Alice Kahn, Careful - The boss might be reading your electronic mail, San Francisco Chronicle, November 20, 1991, Metro Edition Variety; Pg. 3E; JULIE BENNETT, Firms' rights protected by electronic mail laws, Crai n's New York Business, October 8, 1990, TAKEOUT; Telecommunications; Pg. 28; and ROSALIND RESNICK, The Outer Limits, The National Law Journal, September 16, 1991, Pg. 1. Back.
Note 66: Victoria Slind-Flor, What is E-Mail Exactly? The National Law Journal, November 25, 1991, p. 3. Back.
Note 67: The Electronic Communications Privacy Act (ECPA) protects all electronic communications systems, including purely internal E-mail systems and public systems from outside intruders. It also protects the privacy of ce rtain messages sent over public electronic mail systems like Compuserve and MCI Mail in much the same manner as telephone calls over public telephone systems are protected. See, Electronic Media Regulation and the First Amendment: Future Perspective, Data Channels (incl Computer Digest); No. 3, Vol. 19; February 3, 1992. See, generally, Linda Wilson, ADDRESSING E-MAIL RIGHTS, Information Week, SUPPLEMENT ENTERPRISE COMPUTING; Pg. 54, February 15, 1993; and Glenn Rifkin, The ethics gap; Despite growing att ention, many IS managers say, 'It's not my job' Computerworld, October 14, 1991 EXECUTIVE REPORT; IS Ethics; Pg. 83. The Electronic Communications Privacy Act (ECPA) of 1986, for example, states that electronic mail messages on company computer systems th at also permit access from outside can be read by the employer -- but only if the receiver or sender gives permission. See, ROSALIND RESNICK, The Outer Limits, The National Law Journal, September 16, 1991, Pg. 1. WE NEED STATUTORY CITATIONS HERE!!! Also, to the extent that state constitutions afford an employee a right of privacy or speech, they may not be precluded by the ECPA. For instance, a recent attempt to argue federal preemption failed in California. See Victoria Slind-Flor, What is E-Mail Exactl y? The National Law Journal, November 25, 1991, p. 3 discussing Alana Shores v. Epson America Inc., SWC112749 and Flanagan v. Epson America, BC007036. Back.
Note 68: Rankin v. McPherson, 483 U.S. 378 (1987). (Public employees may not be fired for making statements about matters of public concern.) See, generally, Cynthia Estlund, What Do Workers Want? Employee Interests, Public Interests, and Freedom of Expression Under the National Labor Relations Act, 140 U. Pa. Rev. 921, 923-924, (January, 1992). However, the question of whether employees can make such statements over the company's e-mail and/or telephone systems has not been addressed to date. Back.
Note 69: See, Estlund, at 924, n8. Also see, Matthew W. Finkin et al., Legal Protection for the Individual Employee 284-286 (1989). Back.
Note 70: Whether a public employee's speech concerns a matter of public interest is determined by the content, form and context of the statement, gleaned from the entire record before the court. See Connick v. Meyers, 461 U. S. 138, 147-148 (1983). Also see 76 Calif. L. Rev. 1109. Even when a public employee's speech addresses a matter of public concern, an employer can restrict the speech in question if the employer perceives that the speech will disrupt the workplace. 61 S. Cal. L. Rev. 3. Back.
Note 71: These include section 7 concerted activities for the purposes of mutual aid, such as union organizing, and striking to improve working conditions. They arguably also include protests and advocacy which predate cogni zable collective efforts to organize. See, Estlund, at 924, n8; and Charles Morris, NLRB Protection in the Non-Union Workplace: A Glimpse at a General Theory of Section 7 Conduct, 137 U. Pa. L. Rev. 1673, 1677 (1989). Back.
Note 72: See, Estlund at 924. Also see, Matthew W. Finkin et al., Legal Protection for the Individual Employee 284-286 (1