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CFP'93 - Transcript

CFP'93 - Transcript of Freedom, Fun and Fundamentals

Defining Digital Progress in a Democratic Society

The Third Conference on Computers, Freedom and Privacy
San Francisco, Wednesday, March 10, 1993

Nicholas Johnson

Copyright notice. This material is Copyright c 1993 by Nicholas Johnson. [Internet:; Postal: Box 1876, Iowa City IA 52244; Voice: 319-337-5555; Fax: 319-335-9019.] Permission is granted to reproduce it on condition it is done (1) in full, (2) with this notice, (3) without payment to the distributor. For other uses contact the author. Thanks.

Bruce Koball, Conference Chair: Without further ado what I will do then is turn the floor over to our keynote speaker. That's Nicholas Johnson. Professor Johnson was, for those of you who haven't read his bio in the program, a former Commissioner of the Federal Communications Commission and is currently a professor at the College of Law at the University of Iowa. Professor Johnson. [applause]

Nicholas Johnson: Well, I thank you Bruce, and good morning everybody. [laughter] You may wonder why I'm here. [laughter] As General Stockdale once said, "If you don't know who I am you also don't know why I'm here." [laughter] But Bruce didn't check with General Stockdale, he checked with Ross Perot. And he said, "Ross, what do you think, maybe we get a former FCC commissioner to speak at our Third Conference on Computers, Freedom and Privacy?"

And Ross Perot said, "We can get one for you, but it ain't going to be pretty." [laughter] Well, as you can see he was right. [laughter] I got out my old commissioner uniform for you, and it still fits. At least it fits as well as it ever did. And this is what it looks like, and it's not pretty. [laughter]

It's a privilege, actually, to be asked to even attend this conference, let alone to speak at it, and I'm delighted to be here.

Some of you may have noticed from the promotional literature that you received that while I teach at the University of Iowa College of Law in Iowa City, Iowa, I am the Co-director of an Institute for Health, Behavior, and Environmental Policy at the University of Ohio. Now I would like to be able to tell you that this is made possible by the technology that we love [laughter] -- as indeed it was when I was on the faculty of a University of California San Diego project called "International Executive Forum." That was a group of faculty and fellows globally arrayed that kept in touch with computer conferencing. But in this case my Ohio tie really bears a closer relationship to the story that is told of the lady from Iowa who made her way to Boston. She was asked where she was from and replied proudly that she was from Iowa, only to be told by this proper Bostonian woman, "Here in the East, my dear, we pronounce it Ohio." [laughter] We have a tee shirt in Iowa City, which I should have worn, that says "University of Iowa, Idaho City, Ohio." [laughter] The problem with it is that nobody outside of Iowa City ever gets the joke, [laughter] and everybody in Iowa City has long since seen it and is bored with it. [laughter] So the fact is, both of those full time jobs that I hold are in Iowa City, Iowa.

Now I am not so naive as to think that the only driving force that brings us here is one of public service, but I do think that that's a major part of it.

As you know, innovations in technology seem to follow a pattern, going from just a spark of creative imagination, then developing into science fiction, and then some inventor tinkering around to see if he can actually do what the science fiction writer said, and then a scientist actually designing it, and the engineer testing and building it. And then, of course, the first use is military -- which has driven technology since the beginning of humans on this planet so far as I know. And then it comes into industrial use for the Fortune 500, and then it becomes consumer electronics for the life styles of the rich and famous. I remember the first satellite dishes were in the Nieman- Marcus catalog one Christmas: his and her satellite dishes, $30,000 apiece. Well, they've come down since then as you know. And then it becomes consumer electronics for the rest of us. And then at the end of this parade, lagging a few blocks behind the band, are the academics and the think tank policy wonks who are trying to think about the implications of all of this for us. And finally, following them, are the legislators and regulators who are attempting to create the laws and regulations under which we all must live.

Leapfrogging the Policy Process

And as I understand it from Bruce and the rest of you, what it is we are trying to do with these conferences is leapfrog that process a little bit, so we don't wait until the end of the parade. You are taking on the responsibility of raising these policy questions a little earlier on, and helping to formulate some of the answers to the often unprecedented and certainly very complex public policy and legal issues that fly like sparks off of this new technology, systems and services that are coming down the assembly line.

Now we certainly hope that our new leader, Hillary Rodham Clinton [laughter] -- and her husband -- are going to bring a new approach to the public policy process, one that I hope and trust we bring here to this conference. All too often the cynics in Washington, D.C., have started by asking what is possible. "How much of a cigarette tax increase can we get the American Tobacco Institute to support?" "How strict a children's television standard will the National Association of Broadcasters stand still for?" Now that's an understandable orientation after years of being beaten down by the special interests, but it's not very likely to create policies in the best national interest.

President Johnson, who gave me two presidential appointments along the way, was a complex fellow, no question about that, but I never had anything but very positive personal experiences with him. And one of the most impressive things he did early on in his presidency was to send out a memo to all the presidential appointees. He said, "I want to hear from you what you think is in the best national interest in the area over which you have responsibility. I don't want you to worry about what's politically possible. A lot of things you think we wouldn't have a prayer of getting through Congress I'll show you how we can get them enacted. And a lot of things you think would be easy to do I'll explain to you why it's impossible. I'll make those deci- sions, and I want you to give me a lot of those decisions to make." And we filled up shelf-fulls of three-hole-punched notebooks on Bill Moyers' shelves as a response to that, and had one of the most exciting and successful legislative periods in our nation's history, as you may recall, following that.

It is a different way of going about things. It's not that you don't ever have to compromise. Of course, you're going to have to compromise. But you start not with a compromise but with an ideal, what it is you're trying to accomplish. What's really in the best national interest for our country? And then, as it's necessary, you back off from that to try to make it happen. But throughout the process you know what you're losing, and know what it was you were trying to gain.

Actually, my first interest in computers began not very far from here some thirty years ago. I was teaching at the University of California Berkeley Law School. I had no more enthusiasm then for grading law students' blue book exams than any professor I've met before or since. At a Lake Arrowhead conference down south I ran into an IBM executive. This was the early 1960s. I said to him, "What can you do with these computers anyway?" -- hoping that perhaps I could grade essay exams with them. He said, "You remind me of a friend of mine who goes into a restaurant, looks at the menu, and says, 'Hmmm, what goes good with french fries?'" [laughter] He said, "You tell me what it is you want these computers to do and I've either got one on the shelf that can do it or I'll invent the hardware and software for you in less than 18 months." Well, [laughter] as you know, we do have software that can do some relatively unsophisticated analyses of writing. But unfortunately I am still grading law students' essay exam booklets, as John Housman would say, "the old fashioned way." But then we educators never were very quick to pick up new technology. As somebody once observed, it took us fifty years to get the overhead projector out of the bowling alley and into the classroom. [laughter] So I hope you'll be patient with me and my colleagues.

This is going to be a very exciting three days -- starting right after this speech. [laughter] I don't know about the speakers, but I do know about the participants, and we've got a terrific group of participants here, those of you sitting out there. Each of you has a story or two to tell, and I've already heard some of them, and I look forward to hearing a good deal more before the week is over. So I urge you to visit with as many of those people sitting next to you as you can before the week is over. Actually I lie. I do know about the speakers, and the speakers are terrific, too. I already got some briefings yesterday at the session.

Computers Create Privacy

This "Computers, Freedom and Privacy" is an interesting mix of concepts. Some would note that the more computers you have in your life the more you tend to be working for them rather than the other way around. And since, at least so far, they are not organized, [laughter] they are capable of working faster and smarter than you are, and they seem to have no need for sleep or other breaks, the net result is that you have very little freedom left to do anything other than relate to computers. So that's one observation we can make about freedom and computers. [laughter] There are some, indeed, who view this as computer slavery rather than computer freedom. But those of us old enough to remember 1984 recall that it was George Orwell who explained to us how slavery really is freedom, and we are patient with those who have not yet sensed this truth and realize what freedom we offer them with our computer systems. [laugher]

So that's sort of a complex idea, but privacy and computers I think a much simpler concept to grasp. It is truly amazing how much privacy you can get for yourself if you spend all your time with computers, [laughter] and then, when it is necessary to have a brief conversation with a humanoid, to limit the subject matter to computers. [laughter] You will find that friends no longer call or come by. [laughter] Significant others and children will gradually drift away. [laughter] In fact, the current state of the empirical data suggests an almost linear correlation between the quantity of computers and the quantity of privacy. It's probably because of the relative simplicity of the "computers and privacy" algorithm that Bruce has indicated to me that he wanted me to concentrate on the much more complex "computers and freedom" side of this equation.

Computer "Freedom"

Now class we must, of course, begin with a definition of "freedom," and I've done a lot of research on this. Some of you will be old enough to remember Janis Joplin's definition, which was "freedom's just another word for nothing left to lose." [laughter] Given the employment layoffs by America's largest corporations, and the national unemployment figures, if she was right, I think it certainly bodes well for increasing levels of freedom in this country. We can all be grateful for that. And when you consider the extent to which the unemployment of humanoids has been brought about by the transfer of their work to robots and computers, the relationship of computers to freedom also becomes obvious. Now unfortunately Ms. Joplin is no longer available for interviews, so my wife and I went to a Peter, Paul and Mary concert the other night [laughter] and after- wards visited with my old friend Peter Yarrow and asked him for suggestions of any ideas I could pass along to you on this subject of freedom and computers. Peter said, "Don't ever take away my freedom." When I asked him what he meant by that he said, "Don't ever take it away." I see you're much more familiar with Janis Joplin than you are with Peter Yarrow, [laughter] which is really too bad because Peter, Paul and Mary are still terrific if you get a chance to catch them in concert. In any event, it seems to me that Joplin and Yarrow have pretty much summed it up so unless there are questions about the definition we will proceed. [laughter]

There are many kinds of freedom. There is "freedom from" and "freedom to." Computers play a role in both. Computer networks give us the freedom to access from home, or office, the information in thousands of computers worldwide. But, of course, that also reduces our freedom from the intrusions that result when government agencies and other large institutions have comparable access to information about us. They give us the freedom to, for example, choose the option of working from home rather than commuting down congested interstate highways. The person for whom we work, the institution for which we work, may very well not provide us that option, but that's a human limitation and not a technological one.

In my case, from Iowa City, Iowa, I've been able to participate as a faculty member in this group out in LaJolla I mentioned, write nationally syndicated columns distributed out of New York, record and uplink nationally distributed radio commentaries, write scripts for a network television show that I did on PBS for a couple of seasons that was actually produced out of Madison but we shipped the scripts back and forth electronically from Iowa City to Madison, and participate as a national board member in Common Cause, where we have a system called CauseNet. I would recognize that for others computers may have reduced their freedom from the overbearing supervisor who is now able to track their work keystroke by keystroke.

Actually, as I mentioned earlier, I do know something about the speakers here, and in fact it was only because of my knowledge of the speakers that I agreed to appear here at all. I wanted to insure that there would be someone here to provide you something of substance and there certainly is. In fact, we all know there is a lot of overlap between freedom and privacy, so in that sense all of our discussions over the next three days are related to freedom. But especially this morning, we have sessions on electronic democracy, electronic voting, censorship and free speech on the networks. A great deal of the material I can simply "incorporate by reference," and that I do as a lawyer. [laughter]

Where You Stand is Where You Sit

Now I think it is important that we recognize that how we come out on a lot of these policy questions is determined by how we came in. "Where you stand is a function of where you sit." For starters, technology creates social issues, it almost has a dynamic all its own, and problems no one ever contemplated at the outset. Henry Ford certainly did not set out to change teenage courtship patterns. That was not his goal. But that most assuredly is what his mass produced automobile created.

Television has not only had an impact on our lives it has become our lives. The epitaph for many people will read, "She watched TV." [laughter] I mean that next to sleep and work that's what as a human species we now do -- until the coming of computers transferred our attention to yet another screen. The average five year old has watched more hours of instruction from television by age five than they will later spend in life sitting in a college classroom earning a BA degree.

We didn't have this in mind when television first came along. In the same way computers and telecommunications are having an impact not only on how we do business, on matters of freedom and privacy, but on how members of the human species relate to each other -- indeed, what it means to be human.

Now as we look at some of these issues I want to give a sense of the broader public policy orientations we bring to them, because how you feel about freedom with regard to computers is probably heavily affected by how you feel about freedom with regard to anything else.

How do you feel about the role of the government? Are subsidies only for the rich, a system of "socialism for the rich and free private enterprise for the poor"? There are many people who believe that that is in fact the proper role of government. The virtue of the market place has gone beyond an ideology to become really a branch of theology in our country. I recall a cartoon that made an impression on me thirty years ago. It was Barry Goldwater walking down the street and looking at these three street urchins sitting on the curb. He looks down at them and says, "Why didn't you have the incentive to go out and inherit a chain of department stores like I did?" [laughter] For such people, social good is defined as whatever comes out of the corporate struggle. It's the basis for "trickle down economics," which the economist Ken Galbraith, you may recall, has explained as a proposition that so long the horses are generously fed ultimately some will be made available to the sparrows. [laughter] It is summarized in the adage, "Life is a game in which whoever has the most toys when they die wins." It turns out, however, that many who are prepared to explode in standing ovations of applause at the Rotary Club for free private enterprise rather panic at the prospect of its moving in next door. So we see the newspapers in the 1920s fighting the radio stations as a distributor of news, television fighting cable television, cable television in turn fighting home satellite dishes, and I wouldn't be surprised if the home satellite dish industry is fighting direct broadcast satellites with their smaller dishes, and so forth.

There is in contrast to this philosophy a sort of religious- ethical-philosophically-based sense of responsibility for the less fortunate. It takes the form of tithing, it takes the form in Great Britain of the concept of noblesse oblige. It's what President Kennedy expressed in the phrase, "From those to whom much has been given much is expected," or President Clinton's concept of a national service corps.

Now I'm not suggesting that we debate and resolve those issues. Nor am I suggesting we ought to avoid them entirely because they involve religion and politics and one shouldn't discuss religion and politics in polite company. I'm just saying that we ought to be aware of the extent to which our attitudes about those basic philosophical, political, and economic theories and ideology affect the way in which we deliberate about telecommunications policy. There's often a hidden agenda behind us.

The Information Poor

Let me say a word about "information poor, information rich" and the Internet as infrastructure. I don't think we should ignore the needs of the military, the government, the Fortune 500, the super rich. I think we need to care about the availability of telecommunications equipment and networks and services for them. I don't mean that as a joke; I mean it seriously. I think our national defense and our international competitiveness and our domestic economy are dependant on good communications systems for our major institutions. But it is true that, in general, they are relatively well cared for in our society -- as they are with the health care services that are available to them, and the private schools for their kids.

Most of us here, and our children, have been advantaged by the institutional computer and telecommunications benefits that we've received by virtue of our professions or our employers: the equipment, the software, the training, the access to expensive databases and so forth. The families of the professional, academic and managerial classes in our society have had substantial subsidized benefits as we have entered the information age.

So here is one issue I think we need to be concerned about during the next few days, but only if our notion of freedom includes all Americans, and not everybody's definition of freedom does include all Americans. There is very significant group -- maybe a majority of people, but it certainly is a very substantial minority -- that believes that folks who are not well educated should not be permitted to vote. If you had incentive you would have done well in school. Decisions about government policy should be made by people who know about it, those who are the experts, particularly foreign policy. These things are simply too important, too sophisticated, to trust to the American people. I don't know how you feel about it, but if you feel that way you certainly have a lot of substantial company, including a lot of folks who live in Washington and work in our government.

But if you don't happen to belong to that group, if you do truly believe in democracy and think you'd like everybody to have a stake, then I think that we need to look at some of these questions. It's not just a matter of access to national data networks of course. It's how can everybody get access to the hardware and software in the first place? How can they get the training that they need, whether in schools or elsewhere? How can they be encouraged to have the incentive to want to participate, and to see the advantages to themselves of doing so? How can we improve the quality of our public educational system generally so as to aid in this undertaking? And necessarily, it turns out, if you're interested in those things you also need to be interested in how we can provide more widespread and better prenatal care (because crack cocaine babies are notoriously poor students), more widespread head start programs, educational day care centers, good educational programs, housing programs, training and employment opportunity, health enhancement and disease prevention programs, and in general provide the kind of society in which individuals are able to achieve the most of which they are capable -- including their participation in the information age. But, having said that, affordable and user-friendly access to national data networks is clearly at least a part of this equation.

Jefferson on the Internet

We have a number of traditions that support the notion of free or heavily subsidized access to information. Thomas Jefferson did not choose to be remembered as someone who had been President of the United States, as those of you who have visited Monticello and seen his tombstone know. (If you've read the title of the talk, "Freedom, Fun and Funda- mentals," we're now dealing with the "fundamentals" part, for anybody taking notes.) [laughter] His version of democracy includes the following elements. Education was key -- the notion of public education in schools -- and he did a lot to encourage that. Because the Internet did not yet exist, [laughter] his second element of access to information took the form of public libraries. As you may recall, it was his personal library that was the first library for the Library of Congress. The notion that the very poorest among us could have the same access to information as kings and nobility and the very wealthiest in our society was central to Jefferson's idea of what was necessary to make self-governing function. He also supported the notion of free, or very deeply discounted, postal charges for circulation of books and magazines and newspapers, again as a part of this second element of self- governing, that is the accessibility of information to the very poorest in the society.

Third was lack of censorship, and the benefits that flow from the protection of the First Amendment -- and not only its contribution to self-governing. I'm not now speaking as a lawyer, but as a public policy person. We can get off on a discussion of constitutional law and the First Amendment, and to what does it apply, and that it is really directed to government, and where's the state action here, but that's not what I'm talking about. What is the policy behind this? What are we trying to accomplish with the First Amendment? Because what we're trying to accomplish is as applicable to large corporations and other institutions in our society as is applicable to government.

What were the purposes of the First Amendment? One was the notion of self-governing, that if we are in fact going to engage in this incredibly radical experiment -- that has yet, quite frankly, not yet been proved out: that people are capable of governing themselves -- we absolutely have to have access to information. Secondly, the notion that in a search for truth, whether scientific research or political ideas or whatever, you're more likely to be able to find it if you have a free and open marketplace of ideas. Third is the checking value that the media -- but all the rest of us, everybody who exercises the First Amendment -- can be a check on abuses of power not only by government, but by corporations and other large institutions in our society. You can't do that if you don't have free speech, so that's a third purpose. Fourth is sort of self-serving benefit for the establishment, and that is that it's much cheaper and easier and less hazardous to your health, if you want to stay in control of a society, to let the disenfranchised and upset folks speak of their dissatisfaction than to require them to remain silent and come into your neighborhood with rifles and rocks. It discourages violence and revolution to permit people to talk. And finally is the notion of what it means to be human. The very process of self actualization, of self fulfillment, is really of the essence of liberty, of freedom, of what it is we are trying to do with our society. Those were the purposes of the First Amendment that he was trying to serve with these ideas.

Finally, in that environment where you have education, so you have the ability to deal with the information, you have access to the information, and you have free speech, so you can hear the opinions of others and contribute the opinions of yourself. Then you being to expand the franchise, which started with a right to vote on part of white, males, who owned land, and were over twenty-one years of age, and we've gradually expanded that as you know. We've lowered the voting age now to eighteen, although eighteen-year-olds tend not to vote very much.

Is this remaining time? Is that what this flashing thing is? I'm only now catching on to that. [laughter] I have, however, a lot of it remaining I hesitate to tell you. I think there's coffee out there if you have trouble with this. [laughter] Isn't the old line, "If you finish your job before I finish mine raise your hand"? [laughter]

Now we still believe in public education. It has a lot of critics, but we're still working at it with reform. Libraries are constantly under attack from a number of directions, and they haven't yet figured how to provide their patrons free access to $200-an-hour databases, but they're still there and we're still funding them. We still subsidize the movement of books and magazines and newspapers through the postal service, and the law provides a number of special privileges for the media. The FCC still seems more intent on satisfying its corporate clientele than carrying out its mandate, but the applicable Communications Act still recognizes a public ownership of the air waves, and speaks of "public interest" in terms of the standard to be applied to broadcast programming. Some would probably find our interstate highway system another analogy; although paying for it with a gasoline tax does mean a charge of a fraction of a cent per mile for its use.

Well, this is the American tradition, and law, which you and I bring to the issues surrounding the Internet and ISDN [Integrated Services Digital Network; sometimes, "Innovations Subscribers Don't Need"] and NREN [National Research and Education Network].

But these national data networks invoke each of the institutions that Jefferson thought central to democracy. It's just the modern day version of it. They have a great contribution to make to public education from grade school through college. They provide access to libraries, certainly bibliographic databases, and increasingly full text is available -- Project Gutenberg along with Mead Data and others. They are also a forum for free speech, as presumably virtually everybody here has experienced online in one way or another. And they offer not only the potential for electronic voting, but the present reality of citizen communication to public officials during the campaign and since. As you may know there are ways you can reach the White House online.

Therefore, I think it's not at all radical to suggest that access to these networks, and the information they provide, is something that should be free to every U.S. citizen. Such free access would be as American as free public schools, free libraries and free speech in the free public park. That's not to say that one could not propose charges for access, it's just that it would be un-American to do it. [laughter] You can do a lot of things that are un-American, just ask Joe McCarthy.

Content and Conduit

Content and conduit, entry and access issues. There are almost an infinite range of issues that one could talk about under this heading of computers and freedom. And as a concession to the shortness of life you will be so relieved to hear I have chosen but one. It is, however, what I believe to be the single greatest threat to our electronic freedom, the most important telecommunications policy issue currently confronting our country.

An issue even more fundamental than charges is whether we will get access at all, at any price. The question might be put this way: "Should telephone companies be encouraged, permitted" -- this is a multiple choice question, (a), (b) or (c) -- "Should telephone companies be permitted, encouraged or forbidden to (1) offer conduits for information services, such as and including cable television, owned and provided by others, and (2) to offer such information and services which they own?" All right, that's the distinction. I'll repeat that: "Should telephone companies be encouraged, permitted, or forbidden to (1) offer conduits for information services owned and provided by others, (2) offer such information and services which they own?"

I am untroubled by the possibility that such services may cause cable monopolists to have to cut their rates and improve their services. [laughter] I am also untroubled at the prospect of cable companies -- now providing a service best described as one Dixie cup and a string [laughter] -- getting into what we have traditionally thought of as the telephone business. That doesn't bother me either.

I am untroubled at the prospect of others offering a continuously updated, flexibly searchable database combining what we today think of as "yellow pages" and what the newspapers think of as "classified ads" -- notwithstanding whatever adverse economic impact that might have on the newspaper industry. But I think they should be forbidden to offer the second.

I think it is a bogus issue to argue, as the phone companies have in full page ads all across this country, that unless they own the information we will be deprived of access to it. These services not only can be offered by others, they are now being offered by others, as everybody in this room knows -- both major commercial operations, such as Mead Data and Dialog and the rest of them, and the 40,000-plus private bulletin board systems.

Putting the RBOCs [Regional Bell Operating Companies] and other telecommunications companies squarely into the content business is not only contrary to the national interest, and the interests of consumers, it is not even in the best interests of the telephone companies' shareholders. If they don't understand anything else I hope the shareholders are listening to that one. The problems of cross subsidization and anti-competitive practices are virtually impossible to monitor, and if to be monitored involve the creation of involved regulatory machinery, an enormous number of employees of government -- or some external force -- with its concomitant impact, and an adverse impact, on the telephone companies. Leaving it unregulated would be un- thinkable, from the standpoint of consumers, and small business information providers, and others.

The Natural Desire to Censor

There is a natural and almost inevitable desire to censor. As Dr. Martin Luther King once said, "Having been denied access to radio and television we have had to write our most persuasive essays with the blunt pen of marching ranks." This is true for most revolutions, terrorists, hostage takings or whatever. They are trying to get the word out and they are being stifled. We have seen countries from the Soviet Union, China, South Africa, whatever, censoring the media.

My baptism of fire on this issue was the ABC-ITT merger, proposed back in 1965-66. Question: "Would ITT ever try to control ABC's coverage of the news to favor ITT's other business interests?" "Oh, no," they would testify at hearings, and while testifying, at that very moment, their Vice President for Public Relations was calling up the President of the Associated Press, the New York Times, and the Washington Post, trying to change the content of the stories being filed by their reporters. This is the most natural thing in the world. Of course, it is going to occur. Don't tell me it's not going to occur.

You know back in the days when AT&T owned the whole shooting match, before I wrote a couple of opinions that kind of broke that business up -- I'm waiting for another fusillade there. I used to do this routine -- and it's nothing as good as Lily Tomlin -- but you walk into the telephone store and you say, "Do you have any phones? I'm new in town, want a phone line, want a phone." "Well, yeah, we've got some phones." "Well, can I have one?" "Well, just a minute now. Suppose, I mean just suppose, I were to go back there and get you a phone, get you set up with a line, what kind of things would you be saying over the phone?" [laughter]

Now you either laugh or cry at that because it is so totally out of our experience. It would be illegal, it's contrary to our custom, it's contrary to our experience. The phone company made lines available to anybody who wanted them. They had to make more lines available. If they'd run out of lines they had to build a new switching station. And you could say anything over the phone you wanted to say; absolutely no censorship.

Now, note that other industries have asked for and been granted censorship power. Florida had a statute that said, "newspapers can attack politicians all they want, but when they do they have to give the politician attacked an opportunity to respond." The Supreme Court said, "No; unconstitutional. The newspaper, with its right of free speech, has a right to censor out of its pages anybody it wants to censor. It can be as biased and one-sided as a newspaper monopoly as it wants to be."

Radio and television. A group of businessmen opposed the Vietnam war. They had a spot done pointing out how the Vietnam war was bad for business -- at which point it had attracted their attention. [laughter] They wanted to put it on WTOP in Washington, and were stunned to discover they had at long last, after a lifetime of search, found something that money could not buy, [laughter] which was access to radio and television. I wrote a big dissenting opinion. The U.S. Court of Appeals overturned the FCC and upheld my dissent. But unfortunately the case went on to the Supremes, [laughter] and they decided that I and my friends on the Court of Appeals were all wrong, and so that one has been eliminated. You cannot walk into a radio or television station any more than a newspaper and say, "What are your rates? Here's my money on the counter. Put this on the air." They can look at it and say, "What would say on my radio station? No we're not going to let you say that to the people of this town." And they get by with it constitutionally.

Cable television systems are making the same argument. "We have free speech rights. We're programming these channels. We have a right to censor material that we don't like off the cable system -- all 500 channels."

Even the billing envelopes. Out here in California, as a subscriber to PG&E you pay for that billing envelope. You pay for the stamp. You pay for the printing of that bill. And you pay for that one-half ounce of the empty space in that envelope that's going to waste. And a group of consumers came in and said, "Look we want to put our literature in that billing envelope. We've paid for the damn thing anyway. It's not going to cost the company a dime. We're going to print up these announcements, and we're going to put them in the envelopes." And the company said, "Well, we have free speech rights over that envelope, and you don't have access to that envelope." It went to the Supreme Court, and the Supreme Court decided in the company's favor.

Freedom's Last Frontier: Free Speech by Phone

So in case you haven't noticed, over the last few years, the only remaining possible free speech medium in this country today is the telephone system. Everything else is gone. And once the phone company gets to providing information -- I mean, as a lawyer I'm willing to argue any case. And I'll try to come up with something on your behalf before the Supreme Court as to why we still have access to the telephone company. But I'm telling you it's going to be one hell of a hard argument to make. Because they're going to say, "Look, we're putting information out over this telephone network. We're as much a free speech provider as the newspaper publisher, or broadcaster, or cable operator, and therefore we've the right to censor off the system anything we want to censor." Right? We've seen a little of that with some of our commercial services, haven't we. So this is a very, very hot issue.

And lest you think that we should trust the phone company on this let's just look at a little history. [laughter and applause]

One of the earliest communications channels was the post office. One of the things the post office carried was newspapers. One of the earliest combines was postmasters who owned newspapers. "Oh, we'll provide carriage to our competitors. Of course, we will." Yeah, at a higher rate while delivering your own paper for free. There is a scandal. It is the most natural thing in the world to want to abuse the channels of communication if you own them and you're using them for your own service.

What was next up? The telegraph company. There's a good story. The Associated Press was formed about 1848, I think. There was not yet a under-ocean cable across the Atlantic, so if you wanted news from Europe you had to go up to Halifax to get it. So they said, "We'll run a telegraph from Halifax down to New York City, and we can get the news quicker than it would come down normally." In order to do that it [the line] had to pass through a telegraph system from Maine to New York that was owned by this guy who thought it would be real nifty if the telegraph company became a news gathering and distribution source. He refused to make access available to the Associated Press. It's the most natural thing in the world.

The history is there. It's clear. It's happened every time. There's no reason why it's not going to happen this time. So it happened with the post office. It happened with the telegraph company. Radio came along, and the newspapers said, "Gee whiz, these guys are going to be able to put information out as it happens. Nobody's going to buy the papers anymore." So they put pressure on so that the radio stations would not provide news. All right, so there's another example. But it's not limited to that.

We have examples on the telephone industry, too. In fact we have one on the front business page of the New York Times this morning. Back again, "MCI says AT&T uses price threats in 800 fights." Many years ago AT&T was fighting vigorously to prevent a little microwave company from running a line from St. Louis to Chicago, because, they said, "We own it all." That was back in the days when a plastic cover on your phone book was called a "foreign attachment" by the phone company. [laughter] You could not have a little white plastic thing that fit over your phone to make it look phony like a white phone. You couldn't have a plastic cover on your phone book. Those were "foreign attachments." They owned it all. And that's what gave rise to Lily Tomlin's great line: "We don't care. We don't have to. We're the telephone company." [laughter] All right, now they have to care.

Well, since I made a career out of writing dissenting opinions at the FCC you can imagine my surprise when I got a majority of the commissioners to go along with me, and say that this little fly-by-night outfit ought to be able to put in this private microwave system. Today that company has grown into something we call MCI. But before it got to where it is today you may recall the abuses that were thrust upon it by AT&T, which was both its conduit and its competitor. They led to the largest anti-trust judgment in history: 1.8 billion dollars worth of abuses by AT&T, anti- competitive practices of various kinds. And that's what we mean by why we need to separate content and conduit. Right?

There are ten thousand ways to screw over your competitor. I mean it is unlimited, only limited by the imagination of human kind. You've got your service going out, but it's going to take another six weeks before the lines are going to be available for your competitor. Your lines are up, your competitor's lines went down. Customers can get access to your information in a fraction of a second, but they have to wait twenty seconds to activate your competitor's line. And worst of all, the sort of thing going on in this story, is by definition the carrier knows all your customers. So what is the first thing information marketing does? They get the customer list. And they call up all the MCI customers. And they say, "How would you like to switch to AT&T?" "How did you know I had MCI?" Yeah. [laughter] I mean it is unlimited the things you can do to screw over a competitor. It is just not going to work. And even if the FCC wanted to regulate such abuses -- which it doesn't -- it wouldn't be able to. So the only way to insure fair competition is to prevent those mergers of function in the first place. You just make it clean.

And I think that they really ought to be able to get rich beyond their wildest dreams of avarice by sucking money out of both ends of the cable, don't you? I mean, if you charge the information provider and you charge the information recipient, shouldn't that be enough? [laughter and applause]

"Cop Killer" Telcos

But now I would like to address the interests of shareholders, in a sense of fairness and balance under the fairness doctrine, which I support. [laughter] Whether or not -- and the FCC doesn't [laughter] -- whether or not -- Mr. Subliminal [laughter] -- whether or not what is good for General Motors is good for America, it does not necessarily follow that what is good for General Motors' management is good for American owners of General Motors stock. That maybe is a little too convoluted. I guess I wouldn't use that if I had it to do over again. In any event, some years ago I did an analysis of fifteen case studies of instances in which Bell System management had come up with policies that simultaneously raised rates for customers while lowering return for shareholders. Now I want you to think about that. That's not easy to do. [laughter] Raised rates to customers while lowering return to shareholders. Well, how did AT&T respond? Did they try to shore up its practices and improve the benefits for shareholders? Hell no. They filed a petition to disqualify me from ever again participating in an FCC case having to do with AT&T. [laughter] Fortunately, it was the only time my colleagues came to my support. So I continued to hear these cases. Because they [AT&T] felt, you see, that anybody who put the interest of AT&T shareholders ahead of the interests of AT&T management obviously was disqualified to consider these cases.

I just think it is not in the shareholders' interests. Do you remember the Ice-T "Cop Killer" thing a few months back with Time Warner, and all the heat they took over that at shareholders' meetings, and adverse public press and police organizations, and the public, people were outraged. Telephone company shareholders don't need that trouble. They really don't.

How much better for shareholders if the phone company's position is, "Look, we provide the conduit. Each of us individually has our own view about what is proper, what is pornographic, what should be distributed and what shouldn't be, and we don't like telemarketing, or whatever. But the way to resolve those concerns is with your state legisla- ture. And if they are willing to put the First Amendment aside and enact your legislation, OK, you've won. We'll abide by the legislation. But that's not our business as a phone company. We're here to get rich by sucking money out of both ends of the wire. And we don't care what runs through it, because that's not our mission, and that's not what we're supposed to do."

Well, then you avoid the "Cop Killer" problem. You say, "Hey, we didn't compose it. We didn't sing it. And we didn't approve it. You tuned in to that music provision service over our line and you got the song and if you don't like it you probably shouldn't play it a second time." [laughter] Right? I mean, I just think that's a lot cleaner way to deal with public relations problem. Because if they are going to be providing information, ultimately they're going to have to take on an incredible federal regulatory burden, which is going to cost them money, reduce their profits, create a lot more hassle -- plus building up government and raising our taxes. And it can be avoided.

It doesn't mean a shareholder can't own a share of a telephone company and also own a share of a movie production studio. It's just saying that the telephone company management should have a myopic focus on making the telephone system work. Which incidentally they have not had. They are losing billions of dollars on operating telephone companies. Do you know that? And then they go in and ask for increased rates, because the telephone companies aren't working. And then you say, "What did you do with the last ten cent increase we gave you?" And it turns out they went off and bought some amusement park in New Zealand. [laughter] Right? I mean you've got to watch these guys all the time. [laughter] They are supposed to understand the operation of telephone companies. And so maybe they could make more money if they stuck to it.

Well, that's about it. [laughter] Ultimately -- don't applaud now, I'll feel bad [laughter] -- no, I think these are very exciting times, and an exciting Conference. I like to believe that you're engaged in a lot of good works. We have some wonderful stuff coming on down the line over the next three days. And we have a few minutes for questions, but first I just thank you for letting me be a part of all of this. [applause]


Bruce Koball: We have two microphones set up in the center aisle, so if folks would like to cue up and ask Professor Johnson some questions. Yes.

Question: Are there any plans in the works for you to be associated with the current Administration?

NJ: None that Bill Clinton has told me about. [laughter]

Q: You mentioned that you supported the fairness doctrine. Would you prefer a system where it wasn't necessary, because there was the separation between conduit and content that you are proposing?

NJ: Absolutely. My first choice always is a non-regulated, fully competitive marketplace environment of some kind. The problem is, you can't get any of these free private enterprisers to support that. They are constantly coming to Washington and pleading, "Will the government please get on our backs?" You look back at most of the regulatory agencies. I used to work for the lawyer who wrote the Civil Aeronautics Act in the lobby of the Carlisle Hotel with six airline companies. And they wrote it so there would never be any other airline companies. And there weren't until we went to deregulation. That's what it's all about.

Q: I'm having a little trouble with your central thesis.

NJ: Well, obviously so was I. [laughter] I'm not sure either one of us has yet identified it. [laughter]

Q: The essential thrust seems to be, let's separate content and conduit. But you yourself said earlier, there is no longer a single conduit into the American home. There is cable, in addition to the phone lines. There is currently packet radio. The only reason there is one cable running into your home is generally local monopoly regulations. There is nothing to say that other cable companies technically couldn't use gas line access, electrical line access, and so forth, running multiple conduits into your home. Why, in that sense, would it be necessary if Bell manages, or if the RBOCs manage, to lock out their competition why can't that competition just go to another access?

NJ: I like your idea, especially the idea of the gas line bringing in television, which I always thought was pretty close to the case anyway. [laughter] The point is, it's not the number of lines coming into the home. It's what are the rules that govern entry and access to those lines. There were a lot of cheap shots taken at the telephone company by Lily Tomlin, me, and many others over the years. But nobody every complained about the telephone company in First Amendment terms. So the fact that there was one company that controlled all 150 million lines was not really an issue, because the rules of the game were: anybody can get a line who wants one, and anybody who has a line can say anything they want to say. Those being the rules of the game, it doesn't make any difference whether there are 100,000 owners of telephone lines or one owner of telephone lines. But unless you are going to give a line to each of 250 million Americans, which is going to make a big hole in your wall when you bring all those into your house, [laughter] you're going to have some limitation on the number of lines. So that I would apply the same principle to the cable company that I would apply to the phone company. I'd say, "You want to provide another line into the home that's called 'cable television,' fine. But you expand your capacity up to the 500 channels, or whatever, so that if there is anybody in the community who has something they want in, charge them. But at least don't retain the power to censor out of the cable system a program that some local group wants to put on video and put out over the cable system." That's a very important point to get into our heads. It's not the number of services, it's the rules that govern each service.

Another important distinction, if you'll permit me one more, is the difference between -- this is really all you need to know about the whole legal system -- the difference between matters of "right" and matters of "grace." You can write a letter to the editor of your local newspaper. The editor publishes your letter to the editor of the local newspaper. As a matter of "grace" you have had entry into that channel of communication. That's not the issue, matters of grace. The radio station may let you on. They may invite you on as a guest on a talk show. That's not the issue. The issue is, what happens when, as a matter of grace, they choose to exclude you from the channel? Do you then have a legal matter of right to get on that channel over the objection of the owner and operator of that conduit? That's the issue. That's what we're talking about. The gentleman in the back, standing there. That's you; that's as far back as we go.

Q: How do you see extending the common carrier sort of rules, where a company is required to provide access to anyone who wants it, to the new media, without adding in the whole regulatory burden that has been a problem for telephone and radio and television?

NJ: That's exactly what I am trying to do; to avoid that regulatory burden. And I think the way to avoid it is to say, "There will be no content control by the conduit provider." If that is the standard then there is no need to regulate content. There is no need for a "fairness doctrine." There's no need for "equal opportunity" in political contests. There's no need for government, or any other external institution to get involved in the minutia of what's going out on these systems. Then it is true that the multiple systems offer you a lot of opportunity. Is that responsive? You're still standing there. [laughter]

Q: It works for phone companies, but not for sort of the enhanced service providers, the networks that are built on top of telephone company lines, et cetera. They are still, as far as I can tell, free agents, free companies. They can take what customers they choose, et cetera. And at the same time they are not protected from charges that they would censor or whatever. Now it's possible you could pass a law that says, "Anybody who wants to can raise their hand and say, 'All right, I'm a common carrier. Don't regulate me, but I'll take anybody.'" Then the question is, why would they? What's the incentive for them to do so? Right now they can discriminate against their competitors, et cetera.

NJ: Well, I think the reason they would do so, and the advantage to them, is that they make more money. I told John DeButts once, when he was Chair of the board of AT&T, because AT&T was big on all these charts and graphs, and I said, "John, if I was you I would just keep one chart on my wall." "What's that?" I said, "I would set as my corporate goal increasing the information bits moving throughout this country at ten-fold per year. You do that and then forget about who gets a piece of the business. You'll become so rich." I just think that if their myopic focus was on increasing usage of the system, rather than decreasing it -- the librarian who says, "I'm so happy, I've got all my books in and on the shelf except for two, and they're coming in next Tuesday" [laughter] -- which was kind of AT&T's attitude about use of the system.

I have been given this wonderful television thing. I once wrote a book called How to Talk Back to Your Television Set, but never before have I dealt with a television set that talked back to me. [laughter] But that's what I'm dealing with here. It's counting down the time. We have only one round left, in boxing parlance, and it's called "Wrap Up Time." So would you like to contribute to the wrap up?

Q: Yes, sure. Just pushing a little further on this analogy you just mentioned between AT&T and the libraries, earlier you said in passing that you thought maybe the right model for access to these new information channels should be like the library, that is, everybody has access free. Right? How does that fit together with the idea of AT&T getting rich by sucking money out of both ends of the cable and so forth, looking out after their stockholders?

NJ: Well, I wanted to leave some issues for the rest of the week. [laughter] What can I say? We don't want to spoil it all here. OK, we have another question here.

Q: Do you think that publishing companies should be required to publish every manuscript that is submitted to them?

NJ: That's a very good question, and I felt it. [laughter] But let me draw the distinction that I think I'm entitled to draw in this instance, and on the ropes as I am here in the last round of this fifteen-round match. I think that there is a distinction between a published newspaper or magazine and an online service, which frankly had not occurred to me until about five minutes ago when I was struggling with this very issue before you asked the question. And that is, what is the harm in putting additional information into Lexis and Nexis, say? How is Mead Data disadvantaged by that if the provider of that information is charged enough to cover their costs? And if anybody ever did access it Mead Data would get profit from it and the information provider would get profit from it. How are they harmed by having that additional information there? Right? Having a guaranteed right of access to that distribution system. On the other hand a newspaper or magazine can more easily make the argument that, "Look, we have readers out there we are trying to satisfy. We've had people get broken bones in their feet as it is with supplements falling out of the Sunday paper onto their foot. We just don't want to add any more pages. We're delivering a product." That's not what you're getting when you log in to Lexis or Nexis. You're not getting the entire database. You're going in for something and you're getting it back out.

I would really welcome a question from you right now, rather than the follow up I'm about to get. [laughter]

Q: There's a couple of things that I see is different from a telephone from a newspaper. One of them is that the telephone is a pure channel. You don't have to rearrange your schedule of things. But a newspaper is edited. It doesn't just take things in the order that they come. And even if they did have to provide open access they might put it at the end of the newspaper or something like that. A pure channel. And the other thing that I was thinking of is that if the newspaper, if a television station were to run anything that was put on the air they might lose some of their customers because they wouldn't watch that station.

NJ: Right. That's very good. That's what I was trying to say. And next time she stands up I'm going to call on you. [laughter] But it's not going to be now, because I have 00:00 up here, which means it's time for the Conference to get serious and really get on with the issues.

Bruce Koball: Thank you, Nick. [applause] Thank you very much. That was enlightening and entertaining and I think it set a very good tone for the rest of the Conference. We're going to take a short fifteen-minute break right now, and reconvene for "Electronic Democracy," on time.

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