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Global Networks and Local Values A Comparative took at Germany and the United States Committee to Study Global Networks and Local Values Computer Science and Telecommunications Board Division on Engineering and Physical Sciences National Research Council NATIONAL ACADEMY PRESS Washington, D.C.

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NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the Na- tional Academy of Sciences, the National Academy of Engineering, and the Institute of Medi- cine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. This study was supported by a grant between the National Academy of Sciences and the German-American Academic Council. Any opinions, findings, conclusions, or recommen- dations expressed in this publication are those of the authoress and do not necessarily reflect the views of the organizations or agencies that provided support for this project. International Standard Book Number 0-309-07310-3 Library of Congress Control Number: 2001099571 Additional copies of this report are available from: National Academy Press 2101 Constitution Avenue, NW Box 285 Washington, DC 20055 800/624-6242 202/334-3313 (in the Washington metropolitan area) http: / /www.nap.edu Copyright 2001 by the National Academy of Sciences. All rights reserved. Printed in the United States of America

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National Acaclemy of Sciences National Acaclemy of Engineering Institute of Meclicine National Research Council The National Academy of Sciences is a private, nonprofit, self-perpetuating soci- ety of distinguished scholars engaged in scientific and engineering research, dedi- cated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its mem- bers, sharing with the National Academy of Sciences the responsibility for advis- ing the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Wm. A. Wulf is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Insti- tute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth I. Shine is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sci- ences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal gov- ernment. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the Na- tional Academy of Sciences and the National Academy of Engineering in provid- ing services to the government, the public, and the scientific and engineering com- munities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. Wm. A. Wulf are chairman and vice chairman, respectively, of the National Research Council.

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COMMITTEE TO STUDY GLOBAL NETWORKS AND LOCAL VALUES KENNETH H. KELLER, University of Minnesota, Chair KENNETH W. DAM, University of Chicago Law School (resigned) PAUL A. DAVID, All Souls College, Oxford University KENNETH KENISTON, Massachusetts Institute of Technology HENRY H. PERRITT, JR., Chicago-Kent College of Law, Illinois Institute of Technology ROBERT SPINRAD, Xerox Palo Alto Research Center (retired) GEORGE VRADENBURG, America Online, Inc. (resigned) German Delegationfrom the Max-Planck-Projektgruppe CHRISTOPH ENGEL, Max-Planck-Projektgruppe, Chair of the German Delegation KLAUS W. GREWLICH, Center for European Integration Studies, Bonn; College of Europe, Bruges; Universitat Freiburg BERND HOLZNAGEL, Universitat Munster, Institut fur Informations-, Tele-kommunikations- und Medienrecht MICHAEL HUTTER, Universitaet Witten-Herdecke RAYMOND WERLE, Max-Planck-Institut fuer Gesellschaftsforschung MARTINA ZITTERBART, Institut fuer Betriebssysteme und Rechnerverbund (resigned) U.S. Staff National Research Council HERBERT LIN, Senior Scientist NICCI DOWD, Project Assistant (through September 1999) MICKELLE RODRIGUEZ, Senior Project Assistant (through February 2001) rANICE SABUDA, Senior Project Assistant German Staff Max-Planck-Projektgruppe Recht der Gemeinschaftsguter JOACHIM DOLKEN ANJA MOOSMANN .. LORENZ MULLER WOLF OSTHAUS NOTE: Though this report is formally a report of the National Research Council, prepared in accordance with NRC rules and procedures, it is in fact the product of a U.S./German steering group effort that was carried out with Christoph Engel and Kenneth Keller serving as cochairs. ~v

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COMPUTER SCIENCE AND TELECOMMUNICATIONS BOARD DAVID D. CLARK, Massachusetts Institute of Technology, Chair DAVID BORTH, Motorola Labs TAMES CHIDDIX, AOL Time Warner rOHN M. CIOFFI, Stanford University ELAINE COHEN, University of Utah W. BRUCE CROFT, University of Massachusetts at Amherst THOMAS E. DARCIE, AT&T Labs Research rOSEPH FARRELL, University of California at Berkeley rEFFREY M. rAFFE, Bell Laboratories, Lucent Technologies ANNA KARLIN, University of Washington BUTLER W. LAMPSON, Microsoft Corporation EDWARD D. LAZOWSKA, University of Washington DAVID LIDDLE, U.S. Venture Partners TOM M. MITCHELL, WhizBang! Labs, Inc. DONALD NORMAN, Nielsen Norman Group DAVID A. PATTERSON, University of California at Berkeley HENRY (HANK) PERRITT, Chicago-Kent College of Law BURTON SMITH, Cray, Inc. TERRY SMITH, University of California at Santa Barbara LEE SPROULL, New York University JEANNETTE M. WING, Carnegie Mellon University MARrORY S. BLUMENTHAL, Director HERBERT S. LIN, Senior Scientist ALAN S. INOUYE, Senior Program Officer rON EISENBERG, Senior Program Officer LYNETTE I. MILLETT, Program Officer CYNTHIA PATTERSON, Program Officer STEVEN WOO, Program Officer rANET BRISCOE, Administrative Officer MARGARET HUYNH, Senior Project Assistant DAVID DRAKE, Senior Project Assistant rANICE SABUDA, Senior Project Assistant JENNIFER BISHOP, Senior Project Assistant DAVID PADGHAM, Research Assistant BRANDYE WILLIAMS, Staff Assistant v

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Preface BACKGROUND It is described alternatively as the "third wave," the "information revo- lution," or the "virtually connected world." Whatever the rhetoric used to capture the impact of information technology in general and global net- works in particular, it leads inevitably to the assertion that these develop- ments will have a profound and increasing impact on individual life, social communities, commerce, and government. But what kind of impact and how, specifically, will it occur? For some it appears to be a set of risks and threats. For others, it amounts to almost unbounded opportunity. Both assertions may have elements of truth. Opportunities and risks are twins. Unfortunately, because most discussions of the likely effects have been rather general and conjectural, there has been little basis for judging either the optimism of the technophiles or the pessimism of the technophobes. Where opportunities are concerned, conjecture and uncer- tainty have few negative consequences; the ingenuity of creative people, the workings of the market, and the acceptance by society of useful new tools will determine soon enough which technological applications will find a place in our lives and in what ways. The risks are another matter. It is important to try to anticipate the social effects of a new technological development in order to understand what tools and strategies might be used to reduce the risks or minimize the negative impacts. The societal implications of new information technologies have not been universally welcomed. Most nations, including both fundamentalist and dictatorial nations as well as liberal democracies that tend to have vii

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V111 PREFACE high respect for personal freedom, have individual values that may be threatened by new information technologies. For example, in 1996 the Bavarian Attorney General forced CompuServe to ban a couple of newsgroups on issues of homosexuality that were perfectly legal in Cali- fornia. Similarly, some types of Nazi propaganda that would be crimi- nally prosecuted in Germany are constitutionally Protected as free speech in the United States. --) r Local governments have traditionally been responsible for counter- measures against information regarded as socially harmful. However, today's global telecommunications may constrain the options available to governments for controlling information, limit the effectiveness of old policy tools, and make it more difficult for governments even to under- stand or identify the values held by the populace at large. Governments might lose considerable ability to influence or preserve values that are different from those elsewhere in the world, or even to manage regional differences within their own boundaries. Many questions regarding social organization arise. To what extent is it possible to organize power along territorial lines in a world of global telecommunications? What new loci of power and influence are made possible? To what extent do global telecommunications enable power to be organized around personal interests rather than geographically based or limited communities? What is the impact of such organization on so- cial development? How will the roles of government and of society change as a result of global networks? Will all governments or even all democratic governments change in the same way? Are there scenarios in which governments may use the power of networks to enhance their power? To address some of the issues related to the impact of global networks on local values, the German-American Academic Council asked for a study in this area. In response, the U.S. National Research Council estab- lished a committee in accordance with its usual procedures. The German delegation, under the auspices of the German Max-Planck-Project Group on Common Goods, Law, Politics, and Economics, were intimately in- volved in all aspects of the development of this report (participating in meetings, writing, and so on), but were not formally approved as NRC committee members. A comparison of Germany and the United States was thus appropri- ate for two reasons. The procedural reason is that the expertise of the committee members was more concentrated on these two nations than on others, and that it was the German-American Academic Council that asked for the study. The substantive reason is that Germany and the United States have many important similarities (e.g., a well-developed information-technology infrastructure and a commitment to democracy

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PREFACE MIX and the rule of law) and many important differences as well (e.g., differ- ing values that each nation wishes to uphold). For this reason, this report is structured around an exploration of the potential impacts of global tele- communications on values of Germany and the United States specifi- cally some of the values associated with democracy, privacy, freedom of information, and free speech. STUDY PLAN In carrying out its study, the Committee to Study Global Networks and Local Values met for the first time in the spring of 1998 and six more times (including two symposia described below) to deliberate. The sym- posia were integral to the study, as they involved speakers from a range of disciplines and helped to expose the committee to a much broader range of input and perspectives than what was represented by committee expertise. In this role, the speakers served admirably. (Individually authored papers from these symposia can be found online at for Symposium 1 and at for Symposium 2. These papers are also available in hard copy. ~ PURPOSE OF THIS REPORT This report focuses on the relationship between global information networks and political, economic, and cultural institutions and norms, which, in aggregate, are referred to as "local values." The study has exam- ined the effect of global networks on the ability of individual nations and communities to protect or perpetuate indigenous values and systems, and it has examined the policy approaches available, at least in the United States and Germany, to achieve those ends that is, to alter, control, or otherwise affect the local impact of information networks. This report is intended to help policymakers understand the issues, how they are linked to one another, and how action targeting one prob- lem or issue can have effects oftentimes unintended on others. It com- bines positive and normative analyses. The positive analysis describing and explaining the current situation, attempting to predict likely develop- ment paths and their future effects, and forecasting the consequences of iChristoph Engel and Kenneth H. Keller, eds., 2000, Understanding the Impact of Global Networks on Local Social, Political and Cultural Values," Law and Economics of International Telecommunications, Vol. 42, Baden-Baden: Nomos; Christoph Engel and Kenneth H. Keller, eds., 2000, Governance of Global Networks in the Light of Differing Local Values, Law and Eco- nomics of International Telecommunications, Vol. 43, Baden-Baden: Nomos.

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x PREFACE regulatory actions aims at making clear what the present and potential problems are. The normative analysis assessing the seriousness of the problems, making judgments on whether they require societal action, and, if so, commenting on what the course of action might be emphasizes the different levels and the range of formal and informal structures, institu- tions, and policies available to deal with the problems identified. Further- more, the report recognizes that legislators and the traditional political structures are not the only institutions that societies depend on to deal with perceived problems. A host of less formal political institutions and actors can, at times, be more effective, as they have been in much of the development of global networks that has already occurred. Therefore, the analysis in this report is not directed exclusively to traditional policy- makers, but is also intended for professional groups, commercial institu- tions, nongovernmental organizations, and the broad array of other enti- ties that make up civil society. Finally, it is worth noting that the report does not make specific policy recommendations. Rather, it offers insights that the committee hopes will be useful to policymakers in thinking about critical decisions. ACKNOWLEDGMENTS The committee wishes to express its gratitude to the participants in the two symposia, whose contributions were critical for helping the com- mittee to better understand the issues. Staff of the Max-Planck-Project Group on Common Goods, Law, Politics, and Economics and the U.S. National Research Council's Computer Science and Telecommunications Board provided helpful support, both logistically and intellectually. Most importantly, the U.S. and German delegations to the committee acknowledge each other for a willingness to overcome their cultural dif- ferences and work through the misunderstandings that often characterize multinational study teams. At first, a common vocabulary and working style seemed to elude the committee. But over time and with patience, committee members from the two delegations were able to work out a rough consensus on important concepts and definitions. (Indeed, at times the process of deliberation was self-reflective some of the issues dis- cussed in this report played out during the committee process.) The committee also thanks the German-American Academic Council (GAAC) for making this project possible, noting in particular the help of Dr. Rolf Hoffmann and Dr. Tohannes Belz in facilitating interactions be- tween the committee and the GAAC.

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Acknowledgment of Reviewers This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with pro- cedures approved by the National Research Council's (NRC's) Report Review Committee. The purpose of this independent review is to pro- vide candid and critical comments that will assist the institution in mak- ing the published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsive- ness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the deliberative process. We wish to thank the following individuals for their review of this report: Michael Froomkin, University of Miami School of Law, lames Hamilton, Duke University, Herwig Kogelnik, Lucent Technologies, Viktor Mayer-Schoenberger, Kennedy School of Government, David Post, Temple University, Margaret lane Radin, Stanford University, and Debora Spar, Harvard Business School. Although the reviewers listed above have provided many construc- tive comments and suggestions, they were not asked to endorse the con- clusions or recommendations, nor did they see the final draft of the report before its release. The review of this report was overseen by Morris Tanenbaum. Appointed by the National Research Council, he was re- x~

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X11 ACKNOWLEDGMENT OF REVIEWERS sponsible for making certain that an independent examination of this re- port was carried out in accordance with institutional procedures and that all review comments were carefully considered. Responsibility for the final content of this report rests entirely with the authoring committee and the institution.

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Contents EXECUTIVE SUMMARY 1 INTRODUCTION AND CONTEXT 1.1 Aims of This Report, 15 1.2 Background, 17 1.3 This Study, 18 1.4 Germany and the United States: Some Contrasts, 19 1.5 Structure of This Report, 22 2 THE EVOLUTION OF GLOBAL NETWORKS 2.1 Introduction, 23 Evolution and Design of Global Telecommunications Networks, 26 2.3 The Value Dimension of Networks, 36 2.4 Global Networks and Changing Values: Toward Convergence or Divergence?, 42 3 UNDERSTANDING LOCAL VALUES AND HOW THEY ARE AFFECTED BY GLOBAL NETWORKS Introduction, 46 Are Values Always the Issue?, 48 The Function of Values, 51 The Locality of Values, 58 The Legitimacy of Values, 59 The Impact of Global Networks on Values, 61 x~ 1 15 23 46

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XIV 4 DEMOCRACY AND POLITICAL INSTITUTIONS 4.1 Democracy, Political Institutions, and Power, 74 4.2 The Impact of the Internet on Democracy, Political Institutions, and Power, 75 4.3 Constitutional Policy, 97 5 FREE SPEECH AND THE INTERNET 5.1 Introduction, 106 5.2 The Values Involved in Free Speech, 107 5.3 Common and Different Traditions and the Internet, 108 5.4 Operationalizing the Regulatory Goal, 119 5.5 Internet Content Regulation as a Challenge to Governance, 123 6 PRIVACY AND FREEDOM OF INFORMATION 6.1 Introduction, 133 Privacy, 135 Freedom of Information, 156 Note Added in Proof, 169 7 THE IMPACT OF GLOBAL E-COMMERCE ON LOCAL VALUES 7.1 Introduction, 170 7.2 Commerce and Values, 171 7.3 The Impact of E-Commerce on Local Commercial Values, 173 7.4 Effects on Local Commercial Values, 177 7.5 The Impact of E-Commerce on Global Networks, 185 7.6 The Impact of E-Commerce on Local, Social, and Political Values, 188 8 GOVERNANCE IN CYBERSPACE: MULTI-LEVEL AND MULTI-ACTOR CONSTITUTIONALISM 8.1 Introduction, 190 8.2 Governance, 190 9 INFORMATION NETWORKS AND CULTURE Introduction, 205 Cultural Hegemony, 208 Global Networks and Class Issues, 216 Public and Private Spaces, 218 Generational Phenomena, 221 CONTENTS 74 106 133 170 190 205

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CONTENTS 10 PRINCIPLES AND CONCLUSIONS 10.1 Governments and the Evolution of Local Values, 224 10.2 Democracy, 225 10.3 Regulatory Structure, 226 10.4 Free Speech, 227 10.5 Privacy, 228 10.6 Freedom of Information, 229 10.7 Technology Development, 229 10.8 Culture and Technology, 230 APPENDIX BIOGRAPHIES xv 224 233

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Global Networks and focal Values

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