Vol. 14 No. 5 (May 2004), pp. 295-297 

RETHINKING RIGHTS AND REGULATIONS: INSTITUTIONAL RESPONSES TO NEW COMMUNICATION TECHNOLOGIES, by Lorrie Faith Cranor and Steven S. Wildman (eds.).  The MIT Press, 2003.  456pp.  $50.00  £32.95.  Cloth.  ISBN 0-262-03314-3

Review by: Alan Gaitenby, Center for Information Technology and Dispute Resolution, Legal Studies – University of Massachusetts, Amherst.  Email: gaitenby@disputes.net  

RETHINKING RIGHTS AND REGULATIONS presents 14 diverse and strong papers on the state of telecommunications law and practice after the so-called information technology revolution and bubble bursting.  The editors have drawn together a fine collection that explores relationships between new telecommunication technologies, resulting social practices, and law.  This book would be quite useful as a central text for advanced graduate seminars in public law or public policy with a telecommunications focus. 

This work is presented in three distinct parts that coalesce to expose the reader to a pretty large slice of the rapidly expanding telecommunication and information technology regulatory arena.  The first section presents several papers exploring an important question for policy development and implementation—How do we conceptualize the social / technological / communication phenomena that we propose to regulate?  Or, for the rest of us, what is Cyberspace for purposes of legislation, administrative rules, policies, and litigation?  The second section explores how new technology and practices develop to challenge existing legal regimes and rights, e.g. rights in intellectual property and wireless spectrum.  The final section includes case studies exposing several different regulatory responses to evolving information technology and telecommunications contexts.   

The metaphor of “Cyberspace as Place” is the subject of much attention in the first section of the book.  Hunter convincingly argues that an impending “tragedy of the anti-commons” in cyberspace is upon us, and that the metaphor of Cyberspace as Place is a prime suspect.  That is a powerful metaphor to be sure; however Hunter actually shows how metaphors or conceptualizations become socially constituted through the mediation of law.  Lemay largely agrees with that assessment, but posits that it is not too late to save some of the Cyberspace commons from a multitude of exclusionary use rights and claims.  A metaphor though is probably not entirely to blame, and in fact many courts according to Lemay have abandoned the metaphor of place.  Cannon’s paper steps away from theory a bit and returns the reader to the law on the ground—or, maybe more accurately, to law in practice.  Cannon examines the practices and technologies that make up the Internet and are loosely conceptualized as Cyberspace.  Cannon makes a good case that defining Cyberspace is not necessary for most legal contexts, with exceptions in 1st Amendment and [*296] some specific communications law.  Bechtold effectively exposes the importance of another concept for Cyberspace regulation, the concept of namespace in Cyberspace and the power of the namespace managers of ICANN who structure the online experience for all of us.  Chris Forman, Avi Goldfarb, and Shane Greenstein survey how Internet / information technology / telecommunication “participation” has spread geographically, and to those places where it has spread, ask whether there has been real “enhancement” in the productive capacities of economic interests.  Their basic finding is that rapid diffusion and ultimate participation does not necessarily correlate to rapid and/or profound enhancements in productive capacities.  It takes time to figure it out, and a lot of information technology was purchased on the basis of optimistic productivity projections. 

Authors in the second section address changing telecommunication contexts and their relationship to existing and emerging legal rights.  Benkler provides a thorough examination of the economics of wireless communications from a regulatory regime perspective.  Benkler suggests that the patchwork of public and private infrastructure and regulatory regimes that describes Internet regulation might serve as a useful model for regulating the wireless spectrum.  Such a notion is contrary to auctions and exclusive use licenses that is conventional wisdom in spectrum regulation.  Gaulhaber and Farber follow up with a take on spectrum management and the relationship between property rights, markets, and the commons.  They argue for flexible access rights instead of exclusive use terms of traditional spectrum property regulation.  Such an arrangement would be more efficient from an economic perspective and provide incentive for innovation from the engineering side.  Karjala’s paper posits that “functionality” needs to provide the doctrinal distinction between patent and copyright subject matter.  Karjala argues for a new intellectual property regime, or at least an altered one, which stems the tide of copyright extension, at the expense of patent, into software and other properties that perform functions.  Braman and Lynch present an insightful argument about Internet Service Providers (ISPs) and their terms of service agreements as private media law.  ISP terms of service agreements set the rules and delimit recourse to challenging administrative power.  They survey the agreements and apply statistical analysis across the ISP industry.  They are somewhat critical of this kind of private law and its tendency to minimize rights-based concerns with things like free speech.  In the final installment on legal rights Burk makes a nice argument for application of “misuse” doctrine to thwart copyright holders from exerting undue or unintended power achieved via particular applications of anti-circumvention provisions of the Digital Millennium Copyright Act (DCMA).  So-called “para copyright” from DCMA are providing rights holders with greater power than intended, and a needed counter-balance can be found in the misuse doctrine. 

In section three the editors bring the work to an even lower level of abstraction with several quality papers on regulatory innovation and responses to technological change.  Cherry suggests that in order to improve telecommunication network reliability, [*297] liability rules must recognize investor risk/reward strategies.  Cherry cautions that assigning too much reliability liability on the carriers, as appears to be the current direction, may be risky to other public policy goals.  Phillips, Regan, Bennett provide a good comparative analysis of implementing wireless 9-1-1 in so-called “emergent locations: in Texas, Virginia, and Ontario.”  The analysis is based on a number of metrics, but there is a clear focus on those that pertain to privacy.  The Ontario regulatory regime is described as less interventionist, while Texas and Virginia have a more interventionist profile.  The authors explore how privacy protection is manifested under each regime.  McKnight, Vaaler, Schrage, and Katz provide a detailed test of two dominant theories of telecommunications privatization.  The “mainstream” theory argues for less state control and more risk bearing by the telecommunications service providers.  The “alternative” model calls for greater state presence and risk amelioration to create incentives for capital investment in otherwise risky contexts.  Finally, Marcus provides a look at the European Union’s newly adopted regulatory framework for telecommunications with an eye toward potential relevance for the U.S. legal and regulatory framework.  Comparison of the two systems is baseline of the chapter.  Some metrics include regulatory framework, competition law framework, the need to protect sensitive third party data, support for deregulation, and balance between centralization and decentralization.

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Copyright 2004 by the author, Alan Gaitenby