Information policy questions have traditionally been framed in the context of discrete legal, legislative, organizational, and disciplinary traditions. This paper attempts to provide a more comprehensive model for information policy analysis. Using speech policy as an illustrative example, it explores issues of stakeholder standing and obligations within the context of policy purpose and realms of influence, and relates these variables to information production, dissemination and use.Contents
Introduction
Outlining the boundaries of speech
A further clarification
Mapping information policies onto the environment
Finding a way forward
Introduction
Every day it seems we are presented with problems of information policy. For instance, are we free to copy a page or image from a Web site without risking a lawyer’s letter? May the government use electronic surveillance to monitor the movements and information use of suspected terrorists? Are my medical records private, or free for sale to the highest bidder? What protections should be developed to thwart theft of identity? Should the government share information it has about public health or safety threats?
Though these and similar questions are frequently discussed in the media, in books and essays, government reports, and in law and other journals, unifying structures with which to understand the dimensions of information policy problems in a broader, society–wide context are uncommon. In the decade and a half since Hernon and McClure (1987) called for the development of a discipline of information policy analysis and the development of exploratory, descriptive, predictive, or ideal information policy models, few researchers have made this a priority (McClure, 1989; Hernon, et al., 1996). In the field of information science, Berger (1993) noted that information policy debates have tended to treat information policies as technical and bureaucratic responses of government agencies, rather than placing them within the context of the cultural environment they impact and from which they derive. In response, he set out to frame information policy studies within the discipline of information science, while suggesting the necessity for broader interpretations. Some commentators have provided classifications of information policies based on social norms (Overman and Cahill, 1990), established descriptive assessment tools to analyze specific government information policies (McClure, et al., 1999), or mapped policy impacts from a user perspective (Hernon and McClure, 1987). Other researchers have focused on information policy as a component of information resource management (Levitan, 1987), reviewed information technology policy options in specific industry sectors (Louw and Hammer, 2002), or have focused on the process of information policy development in the governmental sector (U. S. Congress Office of Technology Assessment, 1986).
Part of the general failure to develop a broader conception of the role of information in society may lie in the fact that information policy, while serving as a convenient catchall for a variety of policy questions, has infrequently been treated as a unified problem by policy makers and commentators. Rather, issues like freedom of speech, privacy, intellectual property rights, government information collection and use, information access, and information stewardship are often separated by legal, legislative, organizational or disciplinary traditions that have set artificial boundaries on discourse.
This paper is an attempt to bring a broader perspective to the discussion of information policy, by placing information within a socio–technical context (Trist, 1981) that emphasizes the interaction between social and technological systems. The effort derives from a conviction that until we begin to understand the problems of information policy as a unified field, policy decisions will continue a decades–long drift away from the principles on which American governance was founded, while at the same time becoming more incomprehensible to anyone seeking coherent answers to both practical and theoretical questions in the field.
But what are information policies? They are social, political, legal, economic and technological decisions about the role of information in society. These decisions operate both at a societal level when applied to national and international policy, and at an instrumental level, as they impact the creation, dissemination, use and preservation of information.
The definition underscores some of the complexity inherent in the information policy arena. First, policies can come in a variety of forms, from fundamental laws like national constitutions; supplemental governmental laws, state legislation, and judicial case decisions in a variety of areas; internal organization policies; trade agreements; technological implementations; and, economic decisions by information producers and distributors. Secondly, they involve a multiplicity of actors with different policy preferences and concerns. As a result, any effective information policy regime must span a broad range of policy instruments and stakeholders. Lastly, information policies are socio–technical in nature, involving a dynamic interplay between social and instrumental concerns.
To formulate information policies, we need to begin by digging deeper into the nature of stakeholders in information policy debates. The following table outlines the concerns, constraints and powers exercised by various classes of stakeholders in the information policy arena. It proceeds from the assumption that information policy decisions are made in an environment where four realms of power compete for domination.
Table 1: The realms of information policy. Sovereign Transformation Production Global Main
concernsSocial contract,
Social cohesionInformation creation
and useOwnership Reciprocity Main
constraintsConstitutional laws
and social normsSocial and private
contracts, pravacy
rightsPrivate contracts,
property laws,
technologiesNegotiated treaties, global
standingMain sources
of powerPolicital, cultural Legal protections Economic,
technologicalPolitical, cultural, legal
economic and
technologicalPrimary stakeholders National
government,
states,
communitiesIndividuals Information creators
producers, and
disseminatorsNation-states,
transnational
government bodies,
transnational corporations.
From the perspective of the sovereign realm, issues of information policy are concerned with the social contract, and the shared expectations of nation–states and their citizens. The transformation realm focuses on the actions of individuals, who may be the subjects, creators and consumers of information. The production realm, in contrast, is concerned with the relations among information producers, and their relative abilities to control information ownership. Finally, globalization involves reciprocal relations across states, and between states and trans-national corporations.
Each information policy area may cross more than one realm, generating debates about the obligations of each respective stakeholder, defined as their rights, roles and responsibilities relative to other concerned parties. What stakeholders in any information policy decision process negotiate are their expectations of communal responsibility and individual entitlement to preferential treatment.
The importance of treating information policy questions in the context of relevant realms can be illustrated by a common example. Questions about freedom of speech are found in all four realms of the model. In the individual realm, people use speech to create new information and extract information from other sources. In the sovereign and global realms, the degree to which speech critical of government or societal actions is controlled will determine the acceptable level of discourse about social and political issues. Finally, in the realm of production, control over production and distribution of speech will help determine what is heard and distributed throughout society. In this instance, for example, regulations about the use of inappropriate words over broadcasting airwaves may have implications for the dissemination of some information products.
After determining that speech policy may affect one or more of the four realms listed above, we are confronted with two further questions. What is the standing of any stakeholder, and in what realm should the question most appropriately be addressed? Answering these questions is both a non–trivial task and one critical to coherent policy. What rights, for instance, do I as a citizen have to express my opinions about an issue in the workplace? Is my speech protected in another country? Must I balance my speech rights against the social norms of the community? And can I use speech to lobby for changes in government structure and policy?
Any attempt to make sense of information policies in a way that allows us to treat questions like these in classes (and hence capable of broader solutions, applications and understanding) must first rest on answering three fundamental questions.
Our first question involves the legal order of precedence among realms. Which realm — the sovereign, individual, production, or global — should take precedence? Today, stakeholders in information policy disputes may support claims of ownership and control by arguing the primacy of a particular realm when it suits a particular interest, and switch to another stance in support of some other claim. For instance, an information production company may suggest that the global realm is ascendant if it matches their need for extension of copyright terms within the United States (e.g., debates over the Copyright Term Extension Act). However, they may play the sovereignty card in support of U.S. trade negotiations about intellectual property enforcement, while resisting any incursion of the sovereign realm into production relations when it involves contractual negotiations between authors and corporations. This shift, while optimum from the perspective of the individual firm, tends to obscure public discourse by framing information policy questions in an environment of shifting norms and expectations.
Our second key question relates to the intended purpose of the information policy we are studying. What, for example, is the purpose of a speech policy? Is it to allow for citizen comment on the workings of the state, to control speech so that only acceptable ideas are produced and broadcast, or to promote the happiness of individuals within society?
Our last fundamental question involves the claims of competing stakeholders both within and across realms. What relations of communal responsibility and individual entitlement are consistent with our prioritization of realms, and the requirements of realms of a higher level of precedence? Answering this question helps us to view and build information policies from within a consistent framework.
Outlining the boundaries of speech
To determine the boundaries and stakeholders in the area of speech, we must first decide which realm is primary. If, for instance, we accept the primacy of the sovereign realm, this means that information policies in the United States rest on constitutional principles, rather than on subsequent laws, regulations, practice, technologies, or the demands of information producers or global bodies. In the case of freedom of speech, from an American perspective policy decisions flow from the First Amendment of the Constitution, whether the decisions are related to national policy, individual utterances, speech within the production environment, or treaties with other countries.
Since the First Amendment states that “Congress shall make no law … abridging the freedom of Speech,” it follows that the federal government’s claim to sovereignty is subservient. But subservient to whom, and in what order of precedence? In a federal republican governmental structure situated both within a market economy and an international framework of nation–states, there are several other candidates with potential standing: The 50 states, citizens, other legal residents (including corporations and non–citizens living within our borders), other nation–states, and people or corporations outside the geographic boundaries of the United States.
If we accept the primacy of the sovereign realm, the candidates for primary standing in the speech arena narrow to three: The 50 states, citizens, and other legal residents. This is by virtue not only of the First Amendment, which prohibits Congress from activities in this area, but also the Tenth Amendment, which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Further clarification on the question is found in Section 1 of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
The definition of rights contained in the Tenth and 14th Amendments helps to clarify standing, but also raises some important distinctions. First, it establishes a floor below which states cannot individually go with respect to free speech rights of citizens, by placing the citizen’s standing above a state’s in the area of speech. It also protects citizens and other legal residents (e.g., non–citizens, corporations) from arbitrary state actions against life, liberty or property, as well as ensuring “equal protection of the laws.”
In essence, therefore, the Constitution establishes an order of precedence with regard to speech that places individual citizens above both state and federal governments. However, it does not clearly establish precedence between citizens and other legal persons such as corporations. Nor does it solve the issue of precedence between the individual citizen — who might perceive her obligations with respect to speech as emanating from individual entitlement (representative of a libertarian notion of citizenship) — and the community in which the individual resides. The community might claim that to some degree an individual citizen’s speech should be constrained by an expectation of communal responsibility, based on Aristotelian notions of citizenship. It is just such issues which tend to bedevil information policy discussions in the area of free speech, and which lead to further questions such as an employee’s speech rights in the workplace, the rights of citizens vs. non–citizens, and the degree to which individual speech should be subject to limitations consistent with public safety or communal social norms.
If we accept the notion that the sovereign realm has primacy over the individual, information production and global realms, and if we remember that corporations are legal “people” created under state auspices, it would follow that the answer to the first issue — employee speech rights in the workplace — should be answered in favor of the individual employee as citizen above the corporation, who as a creature of the state would have inferior standing. (In practice, however, citizenship is often viewed as secondary to the contractual relations between employees and employers). The case of citizen vs. non–citizen speech is less straightforward, for while a reading of the 14th Amendment suggests some citizen precedence over non–citizens with respect to liberties like speech, the nature and scope of precedence is unclear. This is, however, not a defect of the scheme for interpreting information policy, but an underlying ambiguity in the wording of the law that has, over the thirteen decades since the passage of the 14th Amendment, generated much confusion and judicial interpretation.
With respect to the last issue — the respective rights of individuals and communities — we can make use of previously developed techniques for documenting the historical context of information policy (McClure, et al., 1999). A review of the evolution of the U.S. Constitution’s speech clause shows two primary policy purposes (Cogan, 1997). Table 2 lists them in relative order of importance, given their placement within the context of constitutional debate. The table also identifies the groups of likely stakeholders for speech policy.
Table 2: The purposes of speech policy Policy purpose Primary stakeholder
realmMain secondary
stakeholder realm(s)To allow citizens to inform and participate in the
deliberations of government.Individual Sovereign To allow inidividuals to pursue their own happiness by
writing and publishing their sentiments.Individual Information producers and distributors To promote knowledge in society, by insuring a free marketplace of ideas. Sovereign Individual
These three broad policy purposes have been identified as consistent with three theories of speech: Democratic Self–Governance; Free Expression and Human Dignity; and, the Marketplace of Ideas (Smolla, 1992). These represent the predominate rationales for support of free speech protection in society today. The identification of primary and secondary stakeholders helps provide some further focus to our enquiry, by providing more information regarding expectations about the obligations of parties within and across realms.
The first purpose, citizen participation in governance, falls into the sovereign realms. Hence, questions regarding this purpose tend to center around the obligations of individuals relative to the communal (often political) whole. An analysis of constitutional law regarding speech indicates that the main areas of disagreement regarding relations between the individual and the community are found in three areas. First, what is the right of the individual to promote civil unrest or endanger public safety, up to and including a call for the replacement of the government and social structure? Secondly, what is the boundary between the individual’s right to speech and their obligation to telling the truth about both public and private figures? And lastly, what rights does the individual have regarding speech that may be considered offensive by a large portion of the community (Gunther and Sullivan, 1997)?
The history of U.S. free speech legislation and jurisprudence has shown a general tendency for individual rights to contract in the face of communal perceptions of danger. Communal responses to threats are often played out in the legal realm by court opinions that are subsequently attenuated once the perceived danger has passed, or by legislative attempts at control which run afoul of constitutionally established boundaries (e.g., Communications Decency Act of 1996; Alien and Sedition Acts of 1798). Under these conditions, the sovereign realm had tended to overwhelm information policy protections in the other realms, in what can be called a majoritarian legal and legislative response. Although James Madison argued that the multiplicity of interests spread across a national union of states would guard against such a response, his own and subsequent experiences have shown that structural control over majoritarian abuses has not been perfect (Banning, 1995).
Finding an ultimate balance between individual and communal speech rights requires a clear prioritization of individual and communal obligations, and a process for translating our priorities into policy. A potential model for analysis, albeit with a commutarian bias, can be found in Etzioni’s treatise on privacy (Etzioni, 2000). Etzioni argues that effective and consistent policies can be developed if we begin by determining the danger to the common good and the expected consequences of a policy that emphasizes individual entitlement, and determine actions that can be taken to minimize communal dangers without restricting individual rights. Further, if speech restrictions must be introduced to mitigate dangers, we should choose those that are minimally intrusive, while carefully managing undesirable side effects in adjoining areas of concern.
With respect to the second purpose (the individual’s pursuit of happiness through creation and communication) we would expect such a goal to fall primarily within the individual realm. Indeed, at the time of the Constitution’s creation, authorship and publication were essentially a “do it yourself” proposition (Tebbel, 1987). However, the rise of the corporate production environment as the predominant means of actuating an individual’s distribution of the fruits of her labor has greatly expanded that realm’s importance and increased its claim of stakeholder standing in this area.
From the perspective of speech policy, the current struggles over control of information creation, production, distribution and consumption, caused by the rise of digitization and digital communication, can be seen primarily as a debate over the relative standing of the transformative and production realms with respect to the second purpose listed in Table 2. Is the individual pursuit of happiness best achieved by advancing individual claims for freedom of information creation and consumption, or by protection of the production realm? At first glance, the primary standing of individuals would seem to argue for maximum individual latitude in the use and transformation of information for personal betterment. However, authors and representatives of the production realm might argue that individual happiness (particularly the happiness of those individuals who create and sell new works) can best be served by maintenance of property controls over information products, a stand that incidentally protects the production environment and other individuals who have invested in organizations that produce and distribute information goods.
In order to account for this debate and solve our speech policy problem, we might therefore have to reframe the question, providing more complexity but a greater level of specificity. The new question might not therefore be whether individuals in general should take precedence, but which individuals should be most advantaged, and how can a policy achieve maximum benefits for all. Nor can we ignore the first purpose of speech policy. In attempting to mediate the competing claims of different individuals pursuing happiness, what policy most aids individuals to carry out their obligations as participating citizens?
It is important to note three things about our speech example that apply to other information policy issues.
First, different assumptions about the primacy of the sovereign, individual, production, and global realms may lead to very different conclusions about the standing of stakeholders, and the outcomes of policy deliberations. If, for instance, we support global primacy in the area of free speech, precedence in standing and the core documents and assumptions we use in determining stakeholder precedence change. In such an environment, United Nations agreements and bi– and multi–lateral treaties might claim first standing. Similarly, if we establish that the production realm is primary, the norms and patterns of the stakeholders within that realm, and the obligations, contractual and otherwise, which pertain to the production environment will come to the fore. While not readily apparent in the arena of speech policy, such a stance might be very relevant in cases requiring sorting out the relative obligations of different parties in with respect to information product ownership and disclosure of proprietary research (Soley, 2002).
Secondly, further exploration of the framework in different information policy arenas should begin to show some consistent groupings where seemingly different policy questions share common core assumptions. For instance, if we accept the primacy of the sovereign realm, discussions about freedom of religion, assembly, and the press might distill down to the same core questions as those related to speech, since they stand on the same constitutional foundations. What should vary in our debates, therefore, would be answers to the question about the relative obligations of the individuals, communities, production agents, and global parties and the means for achieving the proper balance between the parties while preserving, to the great extent possible, the rights of all.
Lastly, the framework can be used as a tool not only for debating current and future policy options, but also analyzing the shift of primacy of realms, or changes in the expectations of obligations among parties within those realms over time. So, for example, in an area such as copyright where we experience significant disagreement over the original and emergent intent of policies, we could use the framework to uncover instances of a shifting balance of producer, sovereign, global and transformative rights, and map shifting assumptions about standing over time. This would help us determine whether the shifts observed are indicative of shifting expectations about obligations within a particular realm, or more dramatically, a shift of primacy across realms, calling into question the underlying assumptions of past and current decision–making.
A further clarification
Answering the questions outlined above can help focus the broad discussion of information policy. However, answering these questions falls short of providing a means for understanding the all interconnections among policies in the four realms, nor does it provide much clarity about the impact changes in one policy might have both within and across policy realms. This requires a more fine–grained analysis.
To begin with, we must return to our definition of information policies and remember their socio–technical nature, involving a dynamic interplay between humans and technology. This means that we cannot answer information policy questions by focusing solely on social issues or technological concerns.
The social nature of information policies has significant impacts on social outcomes such as the development and maintenance of cultural norms and values, public safety, the health and welfare of members of society, and the development and diffusion of useful knowledge both within and across nations. As such, they are focused on the impact of information on people and social groups. In contrast, instrumental information policies determine how information is collected, transformed, produced, distributed, used, and preserved. They are focused primarily on the work and the technology for producing, disseminating, storing, and preserving the work. Instrumental policies help us determine limits on information ownership.
It would be an easy matter if we could say that social information policies were the sole province of the sovereign and global realms, in that they deal with broader questions of national and international cultural and political obligations. We could then leave the job of determining instrumental information policies to stakeholders in the information transformation and production process. However, this laissez faire separation of market and state is not possible for several reasons.
First, the control and use of information is vital to the functioning of nation-states. Decisions about issues of censorship, information production and dissemination, press freedom, government promotion of education, knowledge diffusion, and the protection of secrets vital of state security help frame the relationships between citizens and states, and determine the degree to which citizens are afforded knowledge of and control over state actions. As such, broader social information policies naturally intrude on the workings of the marketplace and help define which works are created, produced and distributed. Conversely, instrumental decisions, laws and regulations constrain the range of information available to citizens and governments.
Secondly, information is not created and manipulated solely in the market sphere of individual and corporate buyers and sellers. Governments have responsibility both for the creation of information and the protection of personal rights that allow for creation and deployment of new information in the private sector. As such, they play a boundary–spanning role as purveyors, creators, and regulators of information products. In addition, nation—states are responsible to protect the instrumental processes within their boundaries. In this role, they act as negotiating agents for internal information producers against the incursions of foreign producers wishing to expand into national markets.
Third, information products are both physical things and packages of non—physical meanings. While we can treat the physical object as a market commodity, the embedded facts and ideas transcend physicality. As such, the transition of ideas to expressions on fixed physical materials is not a complete transition to pure physicality, and is therefore a source of potential conflict when attempting to treat information works as objects of property. In a similar vein, we cannot fully detach the social beings that use information from those who produce works. This issue complicates determinations of the role of individual ownership of information products as commodities, and the value and rights of the public domain.
The figure below provides a model of the environment of an information product, highlighting the relationships between instrumental activities in the information sphere, and places those activities within the different realms of influence.
Figure 1: Information environmental model.
As we can see, the sovereign realm is primarily concerned with processes of social sense making, governance and information preservation. These activities provide both a degree of control over individual sense making and a mechanism for maintaining and changing social understanding of new information. Within the transformation realm, the major activities are related to the extraction of information from the environment, creation of new information, consumption of information goods, and integration of new information into existing knowledge. The production realm is concerned with the production and dissemination of information, while the global realm concerns itself primarily with importation and exportation of information across national boundaries. Finally, the public domain, encompassing ideas, facts, subjects (including people), and information artifacts (both national and international) provide the raw material for new information, ideas, and information products.
If we find the model plausible, we can make some hypotheses about behaviors we would expect to encounter in studying the life cycle of information products, and the complications we might expect in developing information policies. These include:
Legal standing of information products: The information product undergoes a distinct physical and legal metamorphosis from objects in the public domain, to individual creation, to copy, possession, and eventually artifact. This metamorphosis requires different treatments and involves different obligations from a legal and cultural standpoint throughout the product life cycle.
Areas of likely conflict: During their life cycle, information goods cross realms. We might hypothesize that it is at these points where potential conflict over ownership would occur most frequently, since transfer of the product requires a transfer of at least some control from one realm to another.
Downstream impacts: Information policies that are focused on a particular process are likely to have “downstream” effects in subsequent processes and realms. For instance, information policies focused on distribution will tend to have impacts on policies related to consumption, acculturation, governance and preservation, as well as the nature of the public domain. This provides us some further insight into the dimensions of policy arguments when we attempt to use Etzioni’s or a similar model for policy decision–making.
Expansion of realm boundaries: We might expect that each realm would attempt to expand control over wider areas of the information environment, by promoting policies that would allow it to develop standing in areas formerly seen as lying within another’s realm. For example, the global realm might seek more control over production and distribution within a nation–state, through mechanisms such as multi–lateral intellectual property and trade agreements. Similarly, the production environment might seek greater control over the creation process, by increasing “work–for–hire” provisions in copyright law.
Expanded theories of information use: Earlier, we noted three predominate contemporary rationales for speech freedoms: The Marketplace of Ideas and Democratic Self–Governance (primarily concerned with the sovereign realm), and Free Expression and Human Dignity (individually focused). If the model above is complete, we might postulate several other theories as necessary for theoretical and practical completeness. These are outlined in Table 3, along with terms participants might use to describe the particular theoretical focus.
Table 3: Theories of information policy. Communal emphasis Individual emphasis Sovereign Communal cohesion: Policies should support social cohesion through broad information dissemination, collective debate, and creation and maintenance of community consensus and standards. Marketplace of ideas: Individuals make personal political decisions based on an open competition of ideas. Any policy that constricts individual access diminishes governance, because it requires individuals to choose based on imperfect knowledge. Transformation Knowledge creation: The purpose of policy is to support individual creativity and invention so that it can add to the common pool of knowledge, rather than individual gain. Individual happiness: Policies should support the pursuit of individual happiness, by giving individuals control over their personal information and allowing them freedom to achieve success through individual effort. Production Information dissemination: Policies that allow broad production and dissemination of information throughout society should be supported. Information ownership: The protection of information property is a fundamental policy goal, because it protects individual initiative and property, leading to new efforts at creation, production and dissemination. Global Global village: Policies should promote the free exchange of information and knowledge, improving health, welfare and toleration across ethnic, social, and political boundaries. Global hegemony: In developing information policies, individual states should pursue self–interest, both to promote their cultural and political ideas, and protect the interests of individuals within their boundaries.
In this formulation, the Marketplace of Ideas theory of speech would be contained in the section with the relevant name, while Democratic Self–Governance would straddle Marketplace of Ideas and Communal Cohesion, since it relates both to the individual role of information use in governance, and the communal activity of group decision–making. In contrast, the speech theory Smolla (1992) labeled Individual Expression and Human Dignity would correlate to the section labeled Individual Happiness, underscoring the conceptual differences between individual transformative speech activities, and those related to collective and individual governance.
Mapping information policies onto the environment
Using the preceding model, we can begin to cluster information policies more closely, based both on their placement within realms, and their impact on various information processes. Table 4 provides a preliminary ordering. Under the process columns, policies have been coded using Overman and Cahill’s (1990) normative distinctions, contrasting those that are primarily restrictive (i.e., limit the use of information products) with those more distributive in nature.
Table 4: Information policies, by process and realm relevance. Information policy Process impacted
(R=restrictive, D=distributive)Legal foundation E
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nSovereignty Government secrecy R R R R Government practice, Secrecy laws and regulations Censorship R R R R R R R R First Amendment Search filtering R R R Technology Freedom of speech D D D D D First Amendment Freedom of assembly D D D First Amendment Freedom of information D D D FOI law Press freedom D D D First Amendment Transformation Government archives D D D D Archive laws and regulations Education promotion D D D D D D Social contract, government policy Idea expression R R Case law, copyright law Fair use D D Case law, copyright law Freedom of religion/conscience D D D First Amendment Privacy R D R R Fourth Amendment Production Library copyright exemptions D D D Case law, copyright law Universal service D D D Telecom law First sale doctrine D D D Case law, copyright law IP term limitation D D D D D D D Article 1, Section 8 IP laws R R R R R R R Article 1, Section 8 Digital rights management/licensing R R R R Copyright law, technology Global International trade laws D/ R D/ R D/ R International trade agreements
As outlined in the table, we can see that information polices cross process boundaries, exhibiting the downstream effects noted above. Turning to our analysis of speech policy, we see other patterns. A close examination of speech policy shows a close relation, both positive and negative, to a smaller group of policies across categories. These relationships are shown in Table 5.
Table 5: The neighborhood of speech policy. Policy focus Information policy Creation Production Distribution Governance Acculturation Legal foundation Social Speech D D D D D First Amendment Freedoms of press, information, assembly & religion and conscience D D D First Amendment and FOIL laws Education promotion D D D Social contract, government policy Censorship R R R R First Amendment Government secrecy R R R Government practice, secrecy laws and regulations Work IP term limitation D D D Article 1, Section 8 (intellectual property clause) IP ownership R R R Article 1, Section 8
The policies listed in Table 5 are included because they relate to speech along a majority of its dimensions. The close mapping of speech policy with the other information policies in Table 5 means that policy changes in one of these areas are likely to have significant impacts in the other areas listed. Two further characteristics of the table are worthy of special note. First, each focus area contains policies that both promote and restrict information use. This means that, for example, an increase in speech rights is likely to translate into a decreased ability to impose censorship. Secondly, the policies listed fall into two general categories, those related to social behavior, and those related to the nature of a work.
The second point, regarding the difference between social and work–related policies, represents an important area of legal contention, most recently in the case of Eldred v. Ashcroft. There, suit was brought to overturn legislation (Copyright Term Extension Act of 1998) passed by Congress increasing the length of copyright protection. During the case, the plaintiffs argued that extension of copyright imposed an unacceptable restriction on the dissemination of new ideas by placing constraints on the dissemination of works into the public domain past a point necessary to promote the development of new works. The government argued that since copyright protection extended only to the expression of ideas (i.e., the work) and not to the underlying ideas, speech was not constrained.
Cases such as Eldred v. Ashcroft provide a different example of the role of the courts in determining information policy. Here, the court’s role is mediation, in which it seeks to establish a Solomon–like ‘bright line’ between two positions with valid claims to standing, or between two parties representing different realms of discourse. Previous Supreme Court decisions (Harper & Row v. Nation Enterprises, 471 U.S. 539,556 (1985) and legal commentators (Waltersheid, 2001; Nimmer, et al., 2000) have noted that a “definitional balance” must be achieved between protection of the marketable work and the dissemination of information to the public. Reflecting on Table 5, we can see that such a debate is inevitable because speech policy impacts the work in the production realm by affecting what may be produced and distributed. Similarly, intellectual property laws will impinge on the sovereign realm by supporting or constraining the process of acculturation. It does this by affecting the ability of individuals and communities to integrate the information into the cultural sphere without running afoul of private property rights to works. Some legal and economic theorists have labeled this effect the “anticommons.” (Buchanan and Yoon, 2000)
Before closing our discussion of information policy, it is necessary to note one further role courts play in information policy debates. Particularly during periods of rapid technological change, such as those we currently are experiencing with respect to digitization of information products and communications, courts may frequently act as projectors of law. In such a situation, they attempt to point toward possible solutions to legal and legislative problems generated by new information technologies, while adhering to established baselines. Historical examples of such behavior can be found in the Supreme Court’s treatment of the rise of phonograph recordings (White–Smith v. Apollo, 209 U.S. 1, 1908), a series of cases related to the use of photocopiers in libraries (American Geophysical Union v. Texaco, 37 F.3d 881, 1994; Williams & Wilkins v. National Institute of Health, 420 U.S. 376 (1975) and the private use of video recording equipment to tape movies and other video broadcasts (Sony v. Universal Studios, 464 U.S. 417, (1984).
Finding a way forward
Using the model proposed above does not solve all our conceptual or practical problems.
First, at the foundational level there will still continue to be disagreements about such questions as the degree to which privacy is protected in the U.S. Constitution and subsequent legislation; the mutual obligations between authors and society; the role of government in information collection and use; and the obligations attendant on freedom of speech and the press in a free society. Such discourse is entirely consistent with an ongoing need to articulate the social contract. What we can hope to achieve with such a framework will be a clarification of values, a better understanding of the relationships among policy domains, and a keener appreciation of information issues where instrumental decisions are framed in their appropriate realms.
Secondly, there will continue to be no clear boundary between stakeholders, because one person, government, or corporation can play multiple roles. However, what the model might help us do is to both to sort out the multiple types of roles a stakeholder plays, and determine his or her differential obligations to others in using information in a variety of different ways. So, for instance, an information producer may make ownership claims to products involving individual medical information, but may have only secondary standing to the underlying information. The current condition, evidenced by a lack of clear categories of information obligations attached to different uses of information, often allows stakeholders to pick and choose their standing in such a way as to maximize their personal position, independent of their standing relative to other stakeholders and realms, and independent of the use they intend for information products.
Third, the model does not directly address an important question in debates over information policy, which is the relative role and power of corporations, both uni- and multi–national, in the formation and implementation of information policies. The current condition, in which large corporations enjoy a status both as ‘persons’ under the protection of nation–states, and entities the size, influence and power of whom rivals many nations, is an important variable in any debate about information policy. The impact of such bodies on the model is likely to be felt in all realms. In the sovereign realm, corporations will exert pressure through lobbying and control of media outlets. In the realm of production, their decisions about methods and means of production and dissemination will greatly influence the shape and texture of communications vehicles such as the World Wide Web. In the global realm, corporations have been and will likely continue to be important players in debates over trade and intellectual property laws. And finally, at the individual level, corporate attempts to expand control over information products may help determine what information products we see, and how we use them (Soley, 2002). What the model can do is help to clarify the areas of disagreement, and bring into greater focus the nature of the grounds, warrants and claims made by corporations and other stakeholders in the formation of information policies in a digital environment (Toulmin, 1958).
In the end, the greatest hope for the model presented in this paper is that it can provide another tool for the establishment of clear problem definitions that help information policy researchers and decision makers move forward in useful and consistent ways. It is meant to complement other extant models, while focusing on the socio–technical interplay of humans, works, and technology. The ultimate value of such an undertaking would be to reframe and refocus information policy discussions, and allow for better coherence across traditional policy domains.
About the author
Terry Maxwell is an Assistant Professor at the Graduate School of Information Science and Policy, University at Albany. He has a BA in English from Bard College; a Masters in Public Administration from the University at Albany; and, a Ph.D. from the Rockefeller College, University at Albany, specializing in Policy Analysis and Organizational Behavior.
His experience with information policy, human service agencies, computers and information resources management spans 20 years, and he has consulted on information management issues with a variety of local, state, federal and foreign governments. He is a former Eastern Regional Director for the National Association of State Information Resource Executives, co–chairing the Welfare Reform Committee, and served at the principal investigator on welfare reform information issues for the Rockefeller Institute of Government. His research interests are in information policy and the use of information in organizations.
E–mail: tamaxwell [at] hvc [dot] rr [dot] dom
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Editorial history
Paper received 1 April 2003; accepted 16 May 2003.
Copyright © 2003, First Monday.
Copyright © 2003, Terrence A. Maxwell.Toward a model of information policy analysis by Terrence A. Maxwell
First Monday, Volume 8, Number 6 - 2 June 2003
https://www.firstmonday.org/ojs/index.php/fm/article/download/1060/980
