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The impact of state-society relations on the design and implementation of digital-communication networks: a Franco-American comparative perspective
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The impact of state-society relations on the design and implementation of digital-communication networks: a Franco-American comparative perspective
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THE IMPACT OF STATE-SOCIETY RELATIONS ON THE DESIGN AND IMPLEMENTATION OF DIGITAL-COMMUNICATION NETWORKS: A FRANCO-AMERICAN COMPARATIVE PERSPECTIVE by Julien Mailland A Dissertation Presented to the FACULTY OF THE USC GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy COMMUNICATION Committee: Dr. Jonathan Aronson (Chair), Dr. François Bar, Dr. Steven Lamy August 13, 2013 Copyright 2013 Julien Mailland 1 TABLE OF CONTENTS 2: Chapter 1: Introduction 28: Chapter 2: Literature Review 45: Chapter 3: The Teletel Network 128: Chapter 4: American Videotex Networks 187: Chapter 5: The French Internet 230: Chapter 6: America’s Internet 283: Chapter 7: Conclusion 298: Bibliography 2 CHAPTER 1: INTRODUCTION The nineteen-seventies marked a turning point in domestic and international communication throughout the western world. Technological innovation in the field of digital information distribution technologies abounded, fueled by the development of cheap and small transistors and by scientific advances in computer science. Progress led to the "convergence of modes," meaning that "a single physical means - be it wires, cables, or airwaves - may carry services that in the past were provided in separate ways." 1 As they went digital, however, different western countries took different paths. The comparative story of how the United States and France went digital provides insights as to why different countries chose different paths to achieve similar macro-technological advances and as to why there results significant differences at the micro level. In early seventies’ United States, AT&T's monopoly and strict control over the phone network stifled innovation that was burgeoning at the edges of the network under the influence of entrepreneurs and the computer industry. As a result, boundaries were placed on the monopoly in order to foster innovation from the edges. One result of such market- oriented and technologically-neutral approach was the development of a chaotic and quantitatively-marginal videotex industry, that is, a series of digital information-delivery services using a variety of computer terminals, access providers, service providers, and information databases. In parallel, Congress-funded network-development research 1 Ithiel de Sola Pool, Technologies of Freedom (Cambridge: Harvard University Press, 1983) 3 conducted by academics who were formally supervised by the Department of Defense, but very much left to work collaboratively and only very-loosely supervised, led to the development of the Internet network. The combined forces of a vibrant computer industry producing constant technological advances, and of the work of computer-science academics, planted the seeds that led to the Internet revolution once the World Wide Web was introduced by European researchers in the early nineties. In France, meanwhile, the dirigiste tradition led the State to consider that innovation in the field of digital information distribution technologies could only be fostered successfully through direct action of the State and its agencies, that is, from the center rather than the edges. The central role of the State was stressed with that much more importance that domination of US companies in the field, chiefly that of IBM, was perceived as a major threat to national sovereignty. President Giscard d’Estaing stated in 1974 that “[f]or France, the American domination of telecommunications and computers is a threat to its independence in the crucially significant if not overriding area of technology and in the field of culture, where the American presence, through television and satellite, becomes an omnipresence.” One of the solutions to both the digitization of France and the IBM-USA threat, that emerged as the result of State planning, was what Nora & Minc, in their seminal report The Computerization of Society, 2 called telematics, that is, the meeting of telecommunication and computers. Telematics became one of the cornerstones of the new French societal policy, under the auspices and steering of the State. What practically 2 Simon Nora and Alain Minc, The Computerization of Society (Cambridge and London: MIT Press, paperback, 1981) 4 emerged in the eighties as a consequence of such policy was a fully-digitized country and the world's first mass market for personal electronic communications (emails, chat rooms) and online commerce, the Minitel network. As a result, "in 1989, Minitel made France the world’s most ‘wired’ country.” 3 However, the system collapsed after 1993, when the World Wide Web was introduced. The contradiction between what the now-global American Internet enabled its users to do, and established French order, led the French State through its various branches of government to attempt to replicate its traditional regulatory models onto the Internet. Once again the dirigiste hand was at play. These stories reveal fundamental differences in the ways in which innovation was fostered in both countries. METHOD OVERVIEW This section follows the framework for "structured, focused comparison" proposed by Alexander George and Andrew Bennett. 4 It also borrows methodological clues from the comparative public policy literature, specifically from Heidenheimer, Heclo and Teich Adams. 5 Because this dissertation, from a disciplinary standpoint, also includes a legal dimension, the methodology also draws from insights provided by French and American comparative law theorists, particularly Pierre Legrand 6 and Vivian Grosswald Curran. 7 3 James Gillies and Robert Cailliau, How the Web Was Born(New York : Oxford University Press, 2000) 4 Alexander George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences (Cambridge, Mass.: MIT Press, 2005), 67 5 Arnold Heidenheimer, Hugh Heclo and Carolyn Teich Adams, Comparative Public Policy New York: St. Martin’s Press, Third Edition, 1990) 6 Pierre Legrand, “Comparer,” Revue Internationale de Droit Comparé 48 (1996), 279 5 QUESTION Both the United States and France were pioneers in building modern Western democracies at the same time in history. Both place civil liberties in general, and freedom of speech and the press in particular, at the center of their state-society covenants. From the early nineteen seventies on, both countries aggressively pursued digitization policies which fostered information exchanges within their societies and with the outside world. Yet, the process of designing and implementing digital information-distribution networks and the results in terms of freedom to access and distribute information have taken different paths. Why? PUZZLE The question is one of comparative public policy, that is, "the study of how, why, and to what effect different governments pursue particular courses of action or inaction.” 8 As such, the purpose of this dissertation is "to throw light on hidden assumptions operating within" the United States and France with regards information-distribution networks design and implementation. 9 Further, as Heidenheimer, Heclo and Teich Adams have noted, "to function successfully in this interdependent world, we need to understand the 7 Vivian Grosswald Curran, Comparative Law: An Introduction (Durham: Carolina Academic Press, 2002)Vivian Grosswald Curran, “Cultural Immersion,” 46 American Journal of Comparative Law 78-83 (1998) 8 Heidenheimer,Heclo and Teich Adams, Comparative Public Policy, 3 9 Ibid., 2 6 different problem-solving approaches that nations adopt and the ways they interact with each other.” 10 The importance of this question is acute in the present context of global networks development because the global flow of information causes disturbances in established nation-state/society orders and furthers the need for international institutional exchanges (not to say "cooperation," which is only one type of such exchange.) For international institutional exchanges to be effective, the operational code of each institution needs to be well understood. Operational code analysis, as summarized by Walker, Schafer and Young, is an approach to foreign policy analysis that "may focus narrowly on a set of political beliefs or more broadly on a set of beliefs embedded in the personality of a leader or originating from the cultural matrix of a society." 11 Further, as put by Christopher Hill, "[n]o serious treatment of international politics can avoid taking a view on the state. Yet foreign policy analysis has rarely attempted to theorize the state. This is a (...) failing given (...) that it seeks to bridge foreign relations and comparative politics.” 12 The operational code of states, when it comes to the reasons why digital information-distribution networks are implemented in certain ways within their territories, needs to be studied further, lest international institutional exchanges be wholly ineffective. One may wonder, for example, if former Secretary of State Hillary Clinton paid any consideration to China's when it riddled its “Remarks on Internet Freedom” speech 13 – 10 Ibid. 11 Stephen G. Walker, Mark Schafer and Michael D. Young, “Profiling the Operational Codes of Political Leaders,” in Jerrold M. Post, ed., The Psychological Assessment of Political Leaders: With Profiles of Saddam Hussein and Bill Clinton (Ann Arbor: The University of Michigan Press, 2005), 216 12 Christopher Hill, The Changing Politics of Foreign Policy (New York: Palgrave Macmillan, 2002), p.30. 13 Hillary Clinton, “Remarks on Internet Freedom,” Washington, D.C., January 21, 2010, http://www.state.gov/secretary/rm/2010/01/135519.htm 7 directed to foreign countries and notably China - with religious undertones. Along the same lines, as will be discussed in Chapter 5, the French State Council displayed little understanding of America's operational code when it suggested that the French State convince foreign states (mainly, the US) to block access to content hosted locally to French residents. One goal of this dissertation, then, is to shed light on the elements of the US and France's operational codes which influence the development and implementation of digital information-distribution networks, in order to support more effective international institutional exchanges in the realm of global-networks design and implementation. The question: 'why have the process of designing and implementing digital information- distribution networks and the results in terms of freedom to access and distribute information taken different paths,' arises on a backdrop of economic and industrial policy. The abundant political economy literature has convincingly shown that different information-network design and implementation patterns in the United States and in France reveal a different model of capitalism: broadly speaking, state capitalism in the case of France, and laissez-faire, market capitalism in the case of the United States. The big story here revolves around industrial policy. The comparison between the United States and France specifically reveals the differences in conceptions by both countries of how and by whom innovation should be fostered. The United States' model relies on a belief that innovation is best fostered from the edges and that the state should adopt a technology- neutral stand when it comes to standards and leave it to the market to efficiently pick the best design and implementation. In contrast, it has been shown by the political economy 8 literature that the story of information-networks development in France since the seventies reflects French policymakers' belief that innovation is most aptly achieved from the center through dirigiste state policies that pick certain technologies, design, and implementations over others, and where the State micro-manages innovation. However, the political economy literature, standing by itself, is not fully satisfying because it does not solve the whole puzzle. It does not explain why the French State, while it was actively encouraging the development of digital-information services in the nineteen eighties, also censored the very network that it had built to foster such development and by doing so made it more difficult for entrepreneurs to develop the services the State wanted developed. The political economy literature does not explain why the United States Supreme Court struck the Communication Decency Act in 1997, 14 a move that had significant effects on the implementation of the American part of the Internet. It also does not explain why a French lower court decision in 2000 instructed an American company, Yahoo!, to retool its implementation of the Web, a move that had a significant impact on Web users worldwide. 15 Nor does it explain why a suggestion by a French administrative body that the French State convince the United States to block access to American sites by non-American residents was ignored by the United States government yet privately implemented by American companies such as Netflix without any judicial injunction to that effect. 14 Reno vs. ACLU, 521 U.S. 844 (1997) 15 T.G.I. Paris, May 22, 2000 (UEJF et Licra c/ Yahoo! Inc & Yahoo France); T.G.I. Paris, Nov. 20, 2000 (UEJF et Licra c/ Yahoo! Inc & Yahoo France) 9 HYPOTHESIS A key variable that explains the difference in design and implementation of digital information-distribution networks in the United States and in France is the role that the two states place on speech-content control and on information-distribution control in their respective state-society covenants. In France, content of speech is heavily constrained, in particular through a criminal law, the press act of 1881, which bans a wide variety of opinions. This regime is largely the result of a political tradition, in the realm of state-society relations, that rejects popular sovereignty as a valid concept and instead organizes society along a top-down model where a paternalistic State, in which sovereignty is vested, micro-manages society in order to protect the people against itself. A key concept is that freedom is dangerous and needs to be constrained by the State. The running hypothesis, then, is that this political tradition translates in the digital age into information-distribution network implementations, or, at least, implementation-attempts, that enable or would enable control over content and distribution of speech by the State, as a means of protecting the people against ”abuses of freedom.” In contrast, in the United States, First Amendment jurisprudence grants the people a hightened degree of protection against the government in the realm of content of speech. Practically, this means that speech that is outlawed in many Western liberal democracies, such as hate speech, is constitutionally protected in the United States. This regime is largely the result of a political tradition, in the realm of state-society relations, 10 that is opposite to France, in that it rests on the concept of popular sovereignty; that is, the people, while it recognizes the legitimacy of its government, retains sovereignty, including the power to make micro-decisions. In contrast to France, danger is not perceived as originating from the people (which in turns need to be protected from itself by the State) nor from freedom, but rather from the government. The running hypothesis, then, is that this political tradition translates in the digital age into information-distribution network implementations that empower the people, rather than the state, to control modalities of information distribution. THEORY-BUILDING RESEARCH OBJECTIVES This case study is both heuristic and theory testing. It is heuristic because it identifies a new variable 16 that explains the difference in design and implementation of digital information- distribution networks in the United States and in France, that is, the role that the two states place on speech-content control and on information-distribution control in their respective state-society covenants. It is theory testing because is assesses the validity and scope of a single theory, 17 that is, the established political economy theory that the French and American digital information-network design and implementations reflect different conceptions of capitalism in general, and of the role of the state in industrial policy and innovation development in particular. This dissertation does not contest this theory. Rather, it reinforces and sheds light on it by showing that it works in ways that parallel the 16 George and Bennett, Case Studies, 76 17 Ibid., 75 11 independent variable under study. In turn, the parallel establishes the role of the popular sovereignty concept in the state-society covenant as an overarching independent variable that in both countries guides the ways in which economic development should be generated, and in which information should or should not be controlled. SPECIFICATION OF VARIABLES Dependent variable The dependent variable is: the process of designing and implementing digital information- distribution networks and the results in terms of freedom to access and distribute information. Independent variables As a heuristic case study, this dissertation identifies three independent variables (IVs): - IV1: Macro political and cultural framework - IV2: State desire to foster innovation in the digital realm - IV3: Role placed by state on speech-content control and on information-distribution control in the state-society covenant 12 IV1 is held constant: both the United States and France are Western, constitutional democracies. IV2 is held constant: both the United States and France, as a matter of public policy, have actively fostered innovation in the digital realm. IV3 and DV will vary across cases and the hypothesis is that variation in IV3 (role placed by state on speech-content control and on information-distribution control in the state-society covenant) explains variations of the DV (the process of designing and implementing digital information-distribution networks and the results in terms of freedom to access and distribute information) accross cases. Theory testing and covariance As a theory testing case study, this dissertation identifies a fourth independent variable: - IV4: brand of capitalism The political economy literature has already identified the relationship between IV4 and the DV. Specifically, it has shown the differential impact on the DV of state capitalism in the case of France, and laissez-faire, market capitalism in the case of the United States, specifically in terms of conceptions by both countries of how and by whom innovation should be fostered. It has shown in particular that laissez-faire, market capitalism has led to networks being developed from the edges, even when they were funded by the state (such as the Internet), and where the choice of technology was left to the market. In contrast, state capitalism has led to micro design of technology and management of 13 networks by the French State. The literature has also identified which specific features of networks in both countries resulted from the difference in capitalist approaches. As a theory testing case study, this dissertation hypothesizes that IV3 and IV4 have a positive covariance. In turn, this relationship establishes the role of the popular sovereignty concept in the state-society covenant as an overarching independent variable that in both countries guides the ways in which economic development is generated, and in which information is controlled. CROSSCUTTING PERSPECTIVES 18 As Heidenheimer, Heclo and Teich have noted, "comparative public policy is located at a busy crossroads in the social sciences. The field has grown in recent years to provide a setting in which political scientists, sociologists, historians, economists, and many other specialists are learning from one another." 19 This remark also applies to the field of communication studies, in which this dissertation takes place. This dissertation is also grounded in the legal tradition in general and the comparative law tradition in particular, which also is cross-disciplinary in nature and borrows from multiple traditions in ways that relate and complement the foregoing two. 18 Heidenheimer, Heclo and Teich, Comparative Public Policy, 6 19 Ibid. 14 One perspective shared between communication studies, comparative public policy, and comparative law, and embraced herewith, is the cultural values approach, which places "special emphasis on the deeply embedded cultural ideas arising from the distinctive historical experiences of nations." 20 A second broad perspective embraced by this dissertation is the institutional-political process perspective. 21 As described by Heidenheimer, Heclo and Teich, "while other frameworks tend to treat policy as the result of outside pressures (socioeconomic, party demands, interest blocs, and so on) on governments, institutional analysts are at pains to put the ”state” at center stage. In practice this means paying particular attention to ... 1) the distinctive historical pattenrs through which different nation-states have been formed and their institutional structures distinguished from one another; 2) the way state structures and capacities interact with and affect the prospects of other social actors.” 22 Heidenheimer, Heclo and Teich suggest that answers to questions such as "how deeply should one delve into history and political culture for explanations of differences and similarities," "do not depend entirely on scientific theory or measurement and hence will always be in some degree a matter of interpretation and judgment." 23 The same observation is true in relation to the 20 Ibid., 8, citing Gaston Rimlinger, Welfare Policy and Industrialization in Europe, America and Russia (New York : Wiley, 1971) ; Anthony King, “Ideas, Institutions, and the Policies of Governments: A Comparative Analysis,: BJPS 3 (July October 1973), 293-313, 409-423; P.R. Caim-Caudle, Comparative Social Policy and Social Security (London: Martin Robertson, 1973) 21 Heidenheimer, Heclo and Teich, Comparative Public Policy, 9, citing Margaret Weir, Ann Orloff and Theda Skocpol, eds., The Politics of Social Policy in the United States (Princeton: Princeton University Press, 1988) 22 Heidenheimer, Heclo and Teich, Comparative Public Policy, 9. The authors also identify a third element of focus, “the feedback effects of policy on political alliances, party competition and other features of the policy-making landscape.” Ibid. This dissertation will however not focus on this third element for it seems less relevant to the topic at hand. 23 Heidenheimer, Heclo and Teich, Comparative Public Policy, 6 15 aforementioned two perspectives in general, because, as far as they are qualitative, they involve a strong element of subjectivity. It is not to say, however, that interpretation, for all subjective that it is, cannot be scientifically grounded. The comparative law literature, drawing amongst other from related field such as rhetoric, historiography, and critical studies, has elaborated a number of scientific canons that should guide the scientifically- minded cross-country comparatist and which will be followed in this dissertation. Leading comparative law theorists have demonstrated the need for a close cultural analysis of the societies at stake when performing cross-country case studies. Yale law school professor James Whitman, comparing French and US information-content-control regimes pointed out for example that in both countries the regulation of hate speech is only one aspect of a more complex cultural pattern." 24 Vivian Grosswald Curran, another American theorist, echoes Whitman by underlying "the degree to which underlying cultural phenomena, often considered extrinsic to law, influence legal analysis and the conception of law." 25 Pierre Legrand, the comparative law Chair at the Sorbonne (Paris I), as well as Grosswald Curran, group the qualitative approaches for comparative law under the overarching concept of "immersion." 26 Implicitly building on Roland Barthes, a leading 24 James Q. Whitman, “Enforcing Civility and Respect: Three Societies,” Yale Law Journal 109 (2000), 1281 25 Vivian Grosswald Curran, “Cultural Immersion,” American Journal of Comparative Law 46 (1998), 78-83 26 Pierre Legrand, “Comparer ;” Vivian Grosswald Curan, “Cultural Immersion” 16 semiotician, Legrand calls for the practice of legal hermeneutics that would require the study of politics, economics, and ethnography as integral to the understanding of any given legal system. 27 Semiotics Barthes, building on Ferdinand de Saussure's work, 28 indicated that in a system composed of a "signifier" (a symbol), and a "signified" (the meaning of the symbol), one had to move past the description of the signifier and reach for the signified in order to gain insights into the system. 29 For example, Barthes analyzed the content of the French guide book The Blue Guide beyond the first semiological system to decrypt how “by reducing geography to the description of an uninhabited world of monuments,” and by overstressing hilliness “to such an extent as to eliminate all other types of scenery,” the Guide becomes, “through an operation common to all mystifications,” the very opposite of what it advertises, an agent of blindness and of perpetuation of the Roman-Catholic tradition as a dominant frame through which French society plays out. 30 Legrand applies the same methods of interpretation to compare the French legal system to anglo-saxon legal systems. For example, he opposes the “monumental symmetry of the perspective” that characterizes the French gardens, to the English gardens and bouquets of flowers which are organized only 27 Julien Mailland, “The Blues Brothers and the American Constitutional Protection of Hate Speech: Teaching the Meaning of the First Amendment to Foreign Audiences,” Michigan State International Law Review (forthcoming, 2013), citing Roland Barthes, Mythologies(1957); Legrand, “Comparer” 28 Ferdinand de Saussure, Course in General Linguistics (1916) 29 Roland Barthes, Mythologies 30 Ibid. 17 as the result of impulse, in order to reveal the difference between the common law, marked by pragmatism, to the civil law, dominated by systems and rules that reflect the French quest for order and harmony. 31 Legrand's work offers more examples of the effectiveness of drawing from visual symbols to reveal state-society covenant features that provide insights into the law. For example, he suggests that that one who would want to understand the French system of government, a paternalistic, top-down model which stresses the role of the State as a protector of the people, should spend time looking at the 1812 portrait of The Emperor Napoléon in His Study at the Tuileries by Jacques-Louis David. Said portrait, herein reproduced, portrays Napoléon in his office, drafting the Civil Code only helped by the dim light of a candle – a fiction of course, since the Code was not itself drafted by Napoléon. 32 31 Mailland, “Blues Brothers,” citing Legrand, “Comparer” 32 Mailland, “Blues Brothers,” citing Legrand, “Comparer” 18 Figure 1.1: Jacques-Louis David,The Emperor Napoleon in His Study at the Tuileries, (oil on canvas, 1812) For the curator of the US National Gallery of Art, “David, in a letter to the patron of this portrait, Alexander Douglas, the tenth Duke of Hamilton, explained that his appearance was designed to show that Napoléon had spent the night in his study composing the Napoleonic Code, an impression enforced by details, such as the flickering candles that are almost extinguished, the quill pen and papers scattered on the desk, and the clock on the wall 19 which points to 4:13 a.m. David strategically placed the sword on the chair to allude to Napoleon's military success, while the prominent display of the word "Code" in his papers, suggests his administrative achievements. Other decorative details—the heraldic bees and the fleurs–de–lys—are symbols of French absolutism, and imply Napoleon's power as ruler.” 33 “Here is a portrait,” Legrand writes, “which acts as a ‘cultural intermediary.’” He concludes that iconography is not just “finery,” it is also a “great purveyor of lessons.” In this case, it helps contrast the civil law with the common law system, and helps understand that French law is not framed from the ground up, as in the common law tradition, but from the top, symbolized, in the portrait, by the Emperor drafting the Code. 34 Because technology is an applied social construction of science, as will be discussed with specifics in chapter 2, the insights provided by comparative law theorists also apply to information-networks development and implementation. This is especially true since such implementation and development constrain information distribution modalities, and that these modalities are at least as effective regulatory tools in the realm of speech as are content-control laws, something Lawrence Lessig pointed out clearly. 35 Semiotic analysis of symbols, particularly visual symbols, then, is one method used in this dissertation, which explains the high number of figures herein contained. 33 National Gallery of Art, Notes, Jacques-Louis David, The Emperor Napoleon in His Study at the Tuileries, <http://www.nga.gov/fcgi-bin/tinfo_f?object=46114&detail=note>, last visited August 29, 2012 34 Mailland, ”Blues Brothers,” citing Legrand, “Comparer” 35 See generally Lawrence Lessig, Code and Other Laws of Cyberspace (New York, Basic Books, paperback, 1999) 20 Language As part of "immersion," the comparative law literature has established the need for bilingualism, or, at the very least, high fluency, as a methodological prerequisite grounding valid cross-country comparisons. One reason is because bilingualism requires cultural competence, another methodological prerequisite. Also, legal traditions (on the macro level) and actual positive laws (at the micro level) are expressions of cognitive frames. 36 Different laws represent different "linguistic frames of reality.” 37 As German comparatist Bernhard Grossfeld points out, “there are no intercultural synonyms,” “there are no identical trains of thought in two languages,” and “several languages are not as many designations of one thing, they are different views of the same.” 38 Therefore, comparative legal analysis requires high levels of language competence: only by mastering the foreign language can one understand the cognitive framework under which the designer of the signifier has proceeded, which is a condition precedent to piercing beyond the signifier and revealing the signified. 39 Again, these methodological insights also apply to the cross- country comparison of different technological developments of the same scientific principles. This dissertation will therefore proceed under the linguistic framework provided by the comparative law theory literature. 36 Legrand, “Comparer” 37 Ibid. 38 Bernhard Grossfeld, Kernfragen der Rechtvergleichung (1996), translated by Vivian Grosswald Curran, Comparative Law: An Introduction (Durham: Carolina Academic Press, 2002), 32 39 Mailland, “Blues Brothers” 21 Historical comparisons The comparative law theory has long established the need for historical case studies as a means of grounding cross-country case studies, because culture is grounded in history. For example, the Egyptian law chapter in a leading American casebook, Law in Radically Different Cultures, opens: Muhammed was a merchant in Mecca, a trading city in what is now Saudi Arabia. During his thirties, he became interested in virtuous living and meditated extensively. Around the age of forty, following visions during these meditations, he became a prophet and called first his wife and friends and later a broader community to monotheism. 40 Here, legal theorists and social scientists converge again. Heidenheimer, Heclo and Teich describe the cultural values approach as placing "special emphasis on the deeply embedded cultural ideas arising from the distinctive historical experiences of nations." 41 In the international relations literature, Neustadt and May also lamented about sensing around them "a host of people who did not know any history to speak of and were unaware of suffering any lack, who thought the world was new and all its problems fresh," and 40 John Barton, James Gibbs, Victor Li & John Henry Merryman, Law in Radically Different Cultures (West, 1983), 16 41 Heidenheimer,Heclo and Teich Adams, Comparative Public Policy, 8 22 suggested instead in their seminal work that one should think "in time." 42 Since this dissertation is influenced by both the social science tradition (including international relations), and the legal tradition, it will therefore perform not only cross-country comparisons, but also historical comparison, therefore resulting in a two-by-two case table. CASE SELECTION On a horizontal level, the countries at stake are France and the United States. On a vertical level, the cases are sliced both historically, and depending on the network protocol used. Broadly speaking, a protocol is a convention, a standard, that allows parts of a machine, or different machines, to communicate. It is a mechanical symbol: just like the cultural institution of language, a protocol creates shared meaning for those who can interpret it. Digital communication protocols, therefore, are sets of standards that enable computers who can interpret them to communicate. As numerous authors have noted, digital communication protocols, like human protocols, are both conventional and political. Just like human language is man-made and has the political power to exclude from a community those who do not understand that community’s language, and to constrain, through its inherent limitations, what information humans who share the language can convey and how they can convey it, computer protocols can exclude from an information community those who cannot share them, and, within the same information community, constrain how and what users can transmit to one another through a data network. 42 Richard Neustadt and Ernest May, Thinking in Time(New York: Free Press, 1986), xi 23 Different protocols embody different political considerations and constrain data-network users differently. But one single protocol can also be implemented differently in different places, also in ways that embed different political values and differently constrain users. In order to make relevant comparisons, each horizontal dimension of this research matrix covers one historical period and one single protocol. First, we will analyze US and French networks from the late seventies, eighties, and early nineties, which relied on the X.25 network protocol, a protocol developed under the auspices of the United Nations’ International Telecommunication Union with the noted involvement of both France and key American players. The French network at stake is the Minitel network (Chapter 3). On the US side, we will observe a variety of X.25-based videotex networks, as unlike in France there existed in the US not one but a myriad of such networks with different designs and implementations (Chapter 4). The second historical layer will contrast the implementation of the Internet in France starting in the mid-nineties (Chapter 5), to that of the United States in the same period (Chapter 6). 24 Table 1.1: Summary of case studies Countries The United States and France are the two countries that have been picked for this case study because their features enable a scientifically-sound comparison, performed within the aforementioned methodological framework. First, “France and the United States start from such different assumptions regarding freedom of speech and the relationship between speech and other rights that it is virtually 25 impossible to reconcile their competing approaches.” 43 Practically, this means that IV3 will vary strongly across countries, which will enable the heuristic comparison. As mentioned earlier, IV4 also varies strongly across countries, which will enable the theory-testing comparison. IV1 and 2 are held constant across countries, as is discussed further below. Second, the choice of countries is relevant because France is one of the Western countries that have taken the most aggressive stance against American companies in the context of Nazi speech distributed globally over the Internet, which has resulted, in particular, in Yahoo!, Inc. and its executives being criminally prosecuted in France for violation of anti- hate speech laws. This clash makes the country selection particularly relevant for a dissertation that purports “to understand the different problem-solving approaches that nations adopt and the ways they interact with each other.” 44 Finally, the choice of countries meets the “immersion” requirement that the comparatist be proficient both linguistically and culturally when it comes to the countries and societies at stake. 43 Russell L. Weaver, Nicolas Delpierre and Laurence Boissier, ”Holocaust Denial and Governmentally Declared “Truth”: French and American Perspectives,” 41 Tex. Tech L. Rev. 495 (2009) 44 Heidenheimer,Heclo and Teich Adams, Comparative Public Policy, 2 26 Time periods The two time periods at stake have been picked because they are similar enough, yet different enough, to enable the comparison. They present enough similarities to enable historical control of all independent variables. Considering IV1, during both periods, the United States and France were Western, constitutional democracies: The United States has been a constitutional democracy since 1777 when it started ratifying the Articles of Confederation, and France's current run as a constitutional democracy has lasted since 1944 (its longest uninterrupted run), also encompassing both historical periods at stake. IV2 also remains constant in both countries throughout both periods: in both the US and France, the state has actively fostered innovation in the digital realm, albeit by different means, as evidenced by the cross-country variations in IV4. IV 3, the role placed by states on speech-content control and on information-distribution control in the state-society covenant, varies across countries, but remains constant over time in both countries in both historical cases at stake. Current American positive law in the realm of information- content control dates back to the nineteen forties and has been consistently reaffirmed through the courts since. They rest on political philosophy theories in the realm of state- society relations developed in the first part of the twentieth century and drawing from as far back as the Puritanical colonization of America. In France, the framework for information-content control has been in place since 1881 (it was suspended during WWII but re-implemented thereafter), and reflects a state-society covenant that originated around the 1789 revolution and was reinforced during the Third Republic (1871-1940). Therefore, while IV3 varies across countries, it is held constant in each country over the 27 two periods of time. While IV4 varies across countries (France exhibits a state-driven brand of capitalism while the US is a prime example of market capitalism), it also remains fairly constant during both periods. One might argue that French centralized dirigisme has weakened throughout the periods at stake. However, as will be explained in chapters 3 and 5, the French top-down, micro-management of society tradition remained strong enough throughout both periods to consider that IV4 remains constant enough in each country, for our purpose. Finally, the hypothesis is that while the DV varies across countries, it remains constant enough in each country throughout the two periods to reveal the influence of IV3, rather than circumstantial events, on the DV. Protocols The computer-science protocols involved are the same in each comparison. TCP/IP network implementation in the US is compared to TCP/IP network implementation in France. Likewise, X.25 network implementation in the US is compared to X.25 network implementation in France. This enables a scientifically-valid analysis of the impact of the state-society covenant on information-network design and implementation in both countries and through both periods because the physical science at stake remains constant in each comparison. 28 CHAPTER 2: LITERATURE REVIEW This dissertation aims at filling a gap in the literature which has generally not established an explicit and specific linkage between the architectural design and implementation of digital information distribution networks, and the political philosophy paradigms of the states in which they develop, especially in the realm of state-society relations and the role of freedom of speech in this respect. The meta-theoretical framework of this dissertation is resolutely social constructivist. It suggests that technology is not a direct byproduct of nature which design is inherently bound by physical constraints, but is rather largely the product of human activity that springs out of culture, in its broadest sense. This is not to say that technology is strictly conventional. As the product of the harnessing of natural forces, 45 technology is constrained by such forces as physics, for example. But technology is first and foremost the result of human choices concerning the directions in which to take such harnessing and how to bend physical necessities. It is, then, socially constructed; that is, it is the product of its social environment, which includes forces such as economics, politics, culture, and path dependence, not to forget human drama, personal interests, and petty jealousies. 45 On the general topic of the nature of technology, see W. Brian Arthur, The Nature of Technology: What it is and How it Evolves (New York: Free Press, 2009) 29 As such, this framework rejects technological determinism as a valid overarching construct. For John Street, technological determinism "contends that technology sets the conditions for the operations of the political system, including the political agenda." 46 While there exists various shades of technological determinism, one important aspect which leads us to discount this theory as a key explanatory construct is the focus by technological determinists on technology as an independent, imperative force, that is not itself shaped by society. 47 This is not to say that society is not shaped by technology. It is. However, whether new technologies create new possibilities thanks to the genius of their inventor, 48 or whether they shape society as the brainchild of successful social engineering endeavors, in all cases, technologies that shape society are themselves the product of society -- they are "both socially constructed and society shaping." 49 In all cases, unlike imperative natural forces, technology emerges from social activity which makes this “programming of nature” 50 possible. As the product of human activity, technology is fundamentally anything but natural. 46 John Street, Politics and technology (New York: Guilford Press, 1992), 30 47 On the various shades of technological determinism, see Ibid., 23s 48 For the French computer scientist and technology historian Jacques Vallée, “the real test of a new technology like computers is not that it performs the same task faster or cheaper than before: it must do something that one could not even conceive of doing before.” Jacques Vallée, The Network Revolution: Confessions of a Computer Scientist (Berkeley, Ca.: And/Or Press, 1982), 25 49 Wiebe E. Bijker, Thomas P. Hughes, and Trevor J. Pinch., eds, The Social construction of technological systems : new directions in the sociology and history of technology (Cambridge, Mass.: MIT Press, 1987), 51. 50 Arthur, Nature of Technology, 203. 30 The subtle variety in social constructivist approaches is laid out with clarity by Bijker, Hugues and Pinch. 51 They divide the social constructivist approach to technical systems into three sub-fields. One, broadly referred to as the "social constructivist approach," and theorized by Pinch and Bijker, suggests that "technological artifacts are open to sociological analysis, not just in their usage but especially with respect to their design and technical content." 52 The second, attributed mainly to Thomas Hugues, "treats technology in terms of a 'systems' metaphor [and] stresses the importance of paying attention to the different but interlocking elements of physical artifacts, institutions, and their environment and thereby offers an integration of technical, social, economic, and political aspects." 53 This idea of a systems metaphor and the focus on institutional constraints as a key shaping force of technology is also shared by Arnold Pacey. Spamming a period that goes from the invention of the printed book in Asia in the 8th Century, to World War II, Pacey highlights the role of institutions in fostering and orienting technological innovation, from legal institutions such as land ownership rights 54 or payments systems, 55 social institutions, religious, 56 and military institutions, 57 to geopolitical constraints as translated in the institutional system. 58 In all cases, we are reminded of the crucial influence of "the distinctive requirements of local institutions" on technological design. Finally, Bijker, Hughes and Pinch outline a third approach, which they associate with Michel Callon, Bruno 51 Bijkter, Hugues and Pinch, Social Construction, 51. 52 Ibid., 4 53 Ibid. 54 Arnold Pacey, Technology in world civilization : a thousand-year history (Cambridge, Mass.: MIT Press, 1990), 30 55 Ibid., 109 56 Ibid., 52 57 Ibid., 32 58 Ibid., 136 31 Latour and John Law at the French engineering school Ecole des Mines, which suggests that "the engineer attempts to mold society." 59 The common theme to the three approaches suggests that one needs to look into detail at the different forces that shape technology and that might not be apparent when observing the actual artifact itself, if one is to understand the whys of artifacts, and, beyond it, the why of social changes driven by technological change. If we are to understand why society is being shaped by technology in the ways that it is, we must first understand why technology is itself designed in the ways that it is. This framework then inherently calls for the conduct of case studies in technological design, to open the "black-box" 60 -- only through micro studies will technologies be understood at the micro level. Work by Sungook Hongon wireless technologies is a brilliant demonstration of such necessity for micro studies. 61 Further, if one is to side with Bryan Arthur's suggestion that "technologies are combinations of elements; that these elements themselves are technologies,” 62 one must conclude that macro-advances in technologies can themselves only be understood through such micro-case studies. This dissertation is concerned with the influence of state-society relations traditions on the design of communication networks. State-society relations traditions are themselves comprised of different forces and traditions which are entangled, including the force of 59 Bijkter, Hugues and Pinch, Social Construction, 5 60 Ibid. 61 Sungook Hong, Wireless: From Marconi’s Black-Box to the Audion (Cambridge, Mass.: MIT Press, paperback 2010) 62 Arthur, Nature of Technology, 203 32 history, political economy considerations, and political philosophy as expressed in particular through law and rhetoric. Together they determine the level of social control, the shape of institutions, and the shape of technology. The impact of political economy considerations on the development of digital communication technologies has been examined in depth by scholars, and the literature is rich. On the American side, the story is that of sectoral regulation of communication networks for the greatest part of the 20 th century. As far as the telephone was concerned, the regulatory model that was chosen for AT&Twas one of a protected monopoly, characterized by a common carrier requirement, meaning that the operator "is obligated to serve all on equal terms without discrimination," 63 and government-controlled prices. Other communication networks were also regulated. The post office was a government agency, also protected by a monopoly to prevent cream skimming: "American government in the nineteenth century was concerned that competition would impair its postal revenues and leave it with only the unprofitable part of the business." 64 The telegraph, which started fading as phone penetration increased, had also, while left to private enterprise, been regulated as a common carrier with a protected monopoly, just like railroad before it. 65 Broadcast has also historically been regulated, though for a different reason, that of spectrum scarcity. That is, there existed a limited amount of frequencies in broadcast. As a 63 Pool, Technologies of Freedom 64 Ibid., 83 65 Ibid., 103 33 result, if all wannna-be speakers were allowed to speak at the same time, cacophony would result. The solution to the problem of spectrum scarcity was "legislation providing for selective licensing of broadcasters in the public interest." 66 A limited number of broadcasters were therefore licensed, constrained by public interest requirements such as equal time, or the fairness doctrine, which have since been repealed. Finally, while "spectrum shortage is ... no longer a technical problem but only a man-made one," 67 cable television was also regulated and constrained by things like must-carry requirements. 68 Finally, it is important to remark, because it bears importance on our understanding of the deregulation process that has subsequently taken place, that in the first part of the 20th century, the spirit of the time was one that favors regulation. Ever since the end of the 19th Century, Brock writes, "there was widespread sentiment that some public control over critical infrastructure industries was necessary." 69 Then came the New Deal as a response to the Great Depression. "Many believed that laissez-faire capitalism had failed ... The resulting monopoly ... could charge high enough prices to provide job security to its unionized labor force without concerns that a company with lower labor costs would undercut its prices. The regulatory structure created an alliance of regulated company managers, unionized employees, and favored consumers that supported continuation of the 66 Ibid., 114 67 Ibid., 151 68 Ibid., 151-188 69 Gerald W. Brock, The Second Information Revolution (Cambridge: Harvard University Press 2003), 13 34 regulated monopoly. Throughout the half-century of regulatory development from early state railroad agencies through the New Deal, policies to promote technological progress played no role." 70 And then something changed, which prompted a change in regulatory paradigm. This story is well documented. For Brock, "the driving force in the story is the sustained rapid technological progress in electronic components that created continuous new opportunities in computers and communications." 71 Technological progress also led to "convergence of modes," meaning that "a single physical means - be it wires, cables, or airwaves - may carry services that in the past were provided in separate ways." 72 This had a couple of effects. First, "the fall in the price of electronic components introduced a major change in the relative price ratios for the relevant factors of producing communication service." 73 In other words, the cost of providing long distance phone service dropped significantly. Yet, that drop in cost was not reflected in AT&T pricing, and, as a result, "the increasing gap between the cost of supplying long distance service and AT&T's toll rates created interest in establishing alternative long distance transport systems." 74 Second, the monopoly and strict control of AT&T over its network stifled the innovation that was otherwise made possible by electronic advances. For example, "the development during the late 1960s of time-sharing computers that could be accessed remotely ... brought the unregulated data processing industry into close association with the regulated 70 Ibid., 15 71 Ibid., 7 72 Ibid., 83 73 Ibid., 19 74 Ibid., 290 35 communications industry. Computer manufacturers and users sought freedom to integrate their services with communication services in a more flexible way than was allowed by the then-existing regulations." 75 One of those regulations, for example, was the prohibition to attach unapproved devices to the network.What happened, then, was that pressure came "from the efforts of entrepreneurs who perceive opportunities available from the new technology that cannot be fully exploited because of the institutional framework. Those entrepreneurs seek to modify the framework to accommodate the new technological opportunities but encounter resistance from those who benefit from the implicit property rights associated with the existing framework." 76 The process of change, Brock tells us, "was messy and controversial... It is a complex story because of the interaction of technological opportunities, business decisions, and political decisions." 77 The relevant literature shows clearly how policy changes took place in "small incremental steps," 78 and how one of the policy tools used was to put boundaries on the monopoly "so that the core monopoly could not be stretched to encompass new technologies." 79 The literature shows how the FCC decided in 1969 to "add a little salt and pepper of competition to the rather tasteless stew of regulatory protection that [the] commission and Bell [had] cooked up." 80 What was designed as an experiment, Richard Vietor writes, "opened the floodgates." 81 Convergence had paved the way for a move from sectoral 75 Ibid., 19 76 Ibid., 290 77 Ibid., 7 78 Ibid., 296 79 Ibid., 297 80 Ibid., 197 81 Ibid. 36 independence, where "each communication industry had its own turf, and the boundaries were clear cut" 82 to an era of "cross-sectoral conflict and competition," 83 one where "IBM and AT&T, which once thought themselves giants of different industries, now compete." 84 In his analysis of the legacy of the Federal Communications Commission's Computer Inquiries, and their impact on Internet development, Bob Cannon, Senior Counsel for Internet issues at the FCC, suggests that the FCC, in response, "albeit not necessarily overtly, adopted a layered model of regulation." 85 The Commission, according to Canon, "made policy decisions ... based not upon the technology, but upon the markets within which the technology existed... 86 The Layered Model of Regulation generally divides communications policy into (1) a physical network layer, 129 (2) a logical network layer, (3) applications and services layer, and (4) a content layer… 87 These layers emanate from the first principal concern for markets. These differing layers demarcate natural boundaries between markets." 88 Overall, the fact that "the early evolution of the packet network industry … was influenced heavily by regulation and government policy" 89 has been thoroughly documented by American scholars, when it comes to understanding the impact of political economy on the development of communication networks. 82 W. Russell Neuman, Lee W. McKnight and Richard Jay Solomon,The Gordian Knot: Political Gridlock on the Information Highway (Cambridge: MIT Press, 1999), 12 83 Ibid. 84 Pool, Technologies of Freedom, 27 85 Robert Cannon, “The Legacy of the Federal Communications Commission’s Computer Inquiries,” Federal Communications Law Journal 55/2 (2003), 167-206, 194 86 Ibid., 174 87 Ibid., 130 88 Ibid., 195 89 Stuart L. Mathison, Lawrence G. Roberts, and Philip M. Walker, “The History of Telenet and the Commercialization of Packet Switching in the U.S.,” IEEE Communications Magazine, May 2012, 28-45, 44 37 The same conclusion holds true on the French side. In 1981, the seminal Nora-Minc report, which led amongst other things to the development of the Minitel network, performed a thorough political economic analysis of why France stood where it did at the time in the realm of digital communication, and placed this analysis in a global context. 90 What the report lacks in perspective is made up for by more recent literature. For example, Jacques Barrat penned an authoritative political and geographic economy of media. 91 In the realm of digital media, Marie Carpenter analyzed the impact of political economy on the post- Nora-Minc era leading up to the current period. 92 Insightful comparative work has also been produced which enables a better understanding of France’s take on developing communication networks from the political economy standpoint, including works by Jacques Attali and Yves Stourdze, 93 Chantal de Gournay, 94 Jean-Paul Simon, 95 and Thierry Vedel and David Motlow. 96 While political economists explain a great deal about why digital communication networks evolved the way that they did in the US and in France, they stop short of tying their analysis 90 Simon Nora and Alain Minc, The Computerization of Society (Cambridge and London: MIT Press, paperback, 1981) 91 Jacques Barrat, Géographie Economique des Médias (Paris: Litec, 1992) 92 Marie Carpenter, La Bataille des Télécoms: Vers une France Numérique (Paris : Economica, 2011) 93 Jacques Attali and Yves Stourdze, “The Birth of the Telephone and Economic Crisis: The Slow Death of Monologue in French Society,” Ithiel de Sola Pool (ed), The Social Impact of the Telephone (Cambridge: MIT Press, 1977) 94 Chantal de Gournay, “Telephone Networks in France and Great Britain,” Joel A. Tarr and Gabriel Dupuy (ed), Technology and the Rise of the Networked City in Europe and America (Philadelphia PA: Temple University Press, 1988) 95 Jean-Paul Simon, “Vers une Réglementation Européenne Unifiée? Généalogie de la Réglementation des Télecommunications (1973-1992),” Réseaux 12/66 (1994), 119-136 96 Thierry Vedel and David Motlow, “Information Highway Policies in the Industrialized Countries. A Comparative Analysis,” Réseaux 4/2 (1996), 351-368 38 to the broader field of political philosophy and to considerations such as the role of communication network design on social control. It is not to say that they pretend that economics exist in a vacuum, but they tend to simply lightly touch on political philosophy considerations, without explicitly detailing the link between political economy and broader political philosophy. Such analysis would require the use of methods from the field of rhetoric, but unfortunately the rhetorical tradition has not yet permeated political economy. This dissertation aims to be a starting point from which to bridge the traditions. More modestly, it aims at filling the aforementioned gap, by detailing the link between the development of digital communication technologies in France and in US from the late nineteen seventies until now, and broader considerations of political philosophy. Likewise, the human element has been analyzed in details. For example, the AT&T divestiture plan was very politically controversial. State regulators, Brock writes, “gained congressional support for their position in favor of continued sharing of long distance toll revenue with local telephone companies and forced the FCC to modify its access charge plan in order to avoid having it overturned by legislation. The post-divestiture policy towards long distance service was a political compromise.” 97 This also highlights what Brock calls issues of “distribution of power among the many different policy-influencing organizations.” 98 The story of AT&T before the divestiture was also itself full of human intrigue, something well documented. For example, Tim Wu demonstrated the influence of the circumstantial personality of Theodore Vail, "the incarnation of Bell, the Jack Welch of his time,” on the development of AT&T and on the economic orientations it decided to 97 See supra note 1 at 292 98 Id. at 298 39 pursue. 99 With regards digital networks, the human element is a central feature of works on the early American Intenet by Janet Abbate 100 and Jacques Vallée, 101 on the Web by Gillies and Robert Cailliau, 102 on The Well by Hafner, 103 by Turner 104 and by Rheingold, 105 on Minitel by Marchand 106 and Marti, 107 and on the French Internet by Chemla. 108 However, while these human stories are crucial in understanding the development of digital information networks, they do not explain why such development seems to follow patterns, including patterns that are different in different countries, but consistent domestically. Political economy does help us understand patterns, but works in this field have not tied policy to broader political philosophy considerations, not to other academic traditions which are relevant, including the law and rhetoric. It is in this gap that this dissertation places itself. 99 Tim Wu, The Master Switch (Knopf, 2010) 100 Janet Abbate, Inventing the Internet (Cambridge: MIT Press, 1999) 101 Jacques Vallée, The Network Revolution: Confessions of a Computer Scientist (Berkeley, Ca.: And/Or Press, 1982); Jacques Vallée, The Heart of the Internet (Charlottesville, Hampton Roads, 2003) 102 James Gillies and Robert Cailliau, How the Web Was Born (New York : Oxford University Press, 2000) 103 Katie Hafner, The Well: A Story of Love, Death, and Real Life in the Seminal Online Community (Carroll & Graf, 2001) 104 Fred Turner, From Counterculture to Cyberculture: Stewart Brand, the Whole Earth Network and the Rise of Digital Utopianism (University of Chicago Press, 2006) 105 Howard Rheingold, The Virtual Community : Homesteading on the Electronic Frontier (Reading : Addison-Wesley, 1993) 106 Marie Marchand, The Minitel Saga : A French Success Story…(Paris : Larousse, 1988) 107 Bernard Marti, De Minitel à Internet: 30 Ans de Services en Ligne, (Cesson-Sévigné: Armorhistel, 2011) 108 Laurent Chemla, Confessions d’un Voleur (Paris: Denoël, 2002) 40 When analyzing the influence of society, and specifically of state-society relations traditions, on the design of communication networks, one must turn to James Scott. In Seeing Like a State, 109 the political scientist and anthropologist demonstrates how certain traditions of control have influenced the design of roads and cities. Pointing specifically to the French focus on political centralization, derived from Roman tradition, Scott demonstrates how the French “hardwired” 110 this tradition in road and rail networks: these new “systems increasingly favored movement to and from Paris over interregional or local traffic,” 111 and “reflected the centralizing ambitions of local lords and the nation’s monarchs.” 112 These communication networks were “devised to maximize access and to facilitate central control.” 113 Pointing to a “centralizing aesthetic,” 114 Scott shows how the networks “defied the canons of commercial logic or cost-effectiveness” 115 and instead “severed or weakened lateral cultural and economic ties by favoring hierarchical links.” 116 Borrowing from Eugen Weber, Scott concludes that the layout was “designed to serve the government.” 117 Scott, therefore, shines a light on the ways in which communication networks have historically been designed in ways that reflect the political traditions of information control, and, more broadly, of state-society relations, in the states where they were built. But Scott only addresses an analog world and stops short of applying his 109 James Scott, Seeing like a state : how certain schemes to improve the human condition have failed (New Haven: Yale University Press, 1998). 110 Ibid., 73 111 Ibid., 112 Ibid.,74 113 Ibid.,75 114 Ibid.,76 115 Ibid. 116 Ibid. 117 Ibid.,75, quoting Eugen Weber, Peasants into Frenchmen : the modernization of rural France, 1870-1914 (Stanford, Calif. : Stanford University Press, 1976), 195. 41 theoretical framework to the design of digital communication networks. This dissertation will expand on Scott to fill the void in the digital realm, and argue for example in the case of France that the design of digital communication networks under state leadership can aptly be explained by the suggestion that “many state activities aim at transforming the population, space, and nature under their jurisdiction into the closed systems that offer no surprises and that can best be observed and controlled.” 118 I will argue, conversely, that the design of computer networks in the United States took a radically decentralized shape in part as a result of a different conception of state-society relations in that country, focused on popular sovereignty and decentralization, rather than on paternalism and centralization. Other authors have addressed the impact of state-society relations traditions, including that of their subcomponents that are the political traditions of information control, on other features of communication systems than network design. For example, Eley and Suny, quoting Deutsch, remind us of the importance of "specific political intervention" 119 and its interplay with communication systems, in the context of engineering national myths: "[w]hat counts is not the presence or absence of a single factor, but merely the presence of sufficient communication facilities with enough complementarity to produce the overall result. The Swiss may speak four different languages and still act as one people, for each of them has enough learned habits, 118 Ibid.,82 119 Geoff Eley and Ronald Grigor Suny, eds., Becoming national : a reader (New York : Oxford University Press, 1996), 8. 42 preferences, symbols, memories, patterns of landholding and social stratification, events in history, and personal associations, all of which together permit him to communicate more effectively with other Swiss than with the speakers of his own language who belong to other people." 120 And to conclude that "[t]his need to constitute nations discursively, through processes of imaginative ideological labor - that is, the novelty of national culture, its manufactured or invented character, as opposed to its deep historical rootedness - is probably the most important point to emerge from the more recent literature." 121 The impact of traditions of state-society organizational models, including the role of information control, on communication systems, through purposeful, targeted engineering, is particularly apparent on the literature on language and nation building. For example, the French Marxist philosopher Etienne Balibar shows how just like “the progressive formation of absolute monarchy brought with it effects of monetary monopoly, administrative and fiscal centralization,” 122 the “institution of language” is rooted in “the process by which monarchical power became autonomous,” that is, in France, through progressive extreme centralization, from the High Middle Ages to Louis XIV, the Sun King. James Scott remarks that “the imposition of a single, official language” 123 is a crucial element that supports the imposition of vertical state control, for “a unique language represents a formidable obstacle 120 Ibid.,quoting Karl Deutsch, Nationalism and Social Communication: An Inquiry into the Foundations of Nationality (Cambridge, Mass.: MIT Press, 1966), 97. 121 Ibid. 122 Etienne Balibar, “The Nation Form: History and Ideology,” in Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (London: Verso, 1991), 86-106; republished in Geoff Eley and Ronald Grigor Suny, eds., Becoming national : a reader (New York : Oxford University Press, 1996), 132-149. 123 James Scott, Seeing like a state : how certain schemes to improve the human condition have failed (New Haven: Yale University Press, 1998), 72. 43 to state knowledge, let alone colonization, control, manipulation, instruction, or propaganda.” 124 And to conclude, quoting Alexandre Sanguinetti, that as “[i]t was centralization which permitted the making of France despite the French,” 125 at the top of the pyramid sat “Paris and its institutions: ministries, schools, academies (including the guardian of the language, l’Académie Française).” 126 Here again, the contrast with the United States is striking and once again highlights the influence of state-society relations traditions, including that of information control, on communication policy. Unlike in France, where the state imposes a national language as part of its centralized control apparatus, there is no official language at the federal level in the United States, and state laws mandating the use of English in certain administrative processes such as taking a driver-license test have been struck by courts 127 as discriminatory, which shades light on a more bottom-up, popular-sovereignty centered mode of state-society organization. 128 The relevant literature, then, generally highlights the fact that traditions of control, including information control, as they relate to state-society modes of organization, have influenced key features of modern communication systems, such as language and communication-networks design. But this body of literature generally does not address digital information distribution networks. There are a few exceptions. For example, Harmeet Sawhney demonstrated how the USSR’s “ideological bias was reflected in a telephone network which allowed for centre-to-periphery connectivity but did not provide 124 Ibid. 125 Alexandre Sanguinetti, quoted in Le Figaro, Nov. 12, 1968 126 Ibid. 127 Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) 128 Christian A. Garza , “Measuring Language Rights Along a Spectrum”, 110 Yale L.J. 379 (2000). 44 direct linkages between regional centres.” 129 Monroe Price showed how during the cold war, the Eastern block adopted the French SECAM technology for television rather than the more common PAL standard, not because of French technological superiority, but to prevent its populace from decoding Western television shows broadcasted from West Berlin in the PAL standard. 130 But the exceptions are too few and far between and this dissertation aims at adding to this particular body of literature. We now turn to the four case studies: the French Minitel network (Chapter 3), US X.25- based videotex networks (Chapter 4), the French Internet (Chapter 5), and the US Internet (Chapter 6). 129 Harmeet S. Sawhney, "Circumventing the Centre: The Realities of Creating a Telecommunications Infrastructure in the USA," Telecommunications Policy 17/7 (September-October 1993), 574-597 130 Monroe Price, Media and Sovereignty: The Global Information Revolution and its Challenge to State Power (Cambridge: MIT Press, 2002) 45 CHAPTER 3: THE TELETEL NETWORK INTRODUCTION This chapter argues that the state-society organization tradition in France, characterized by centralization and the prominent role of the State as the organizer of French social and economic relations, which is already visible in the field of communication in the form of extensive content-control regulations, had a direct impact on the way that the Teletel network was designed and implemented. Not everything was controlled. The Teletel network was a hybrid architecture featuring decentralized servers, and theDirection Générale des Telecommunications(“DGT”), the telecom branch of the French Post, Telegraph and Telephone Ministry (“PTT”), actively fostered an entrepreneurial culture, internally and externally. But overall, the forces of centralization and control were strong enough that the Teletel network evolved to feature censorship mechanisms in the form of executive-branch authorization as a prerequisite to publication by service providers. Further, the DGT was established as a "must-go-through" centralized intermediary for all networked activity. Two specific questions are addressed. First, why were the content servers privately owned and decentralized to the edges of the network - an architecture that contrasts with the chosen British, German, Swiss, and Dutch videotex architectures? Second, why did the DGT, and later France Telecom, not apply full network neutrality when it came to the content they transported, as a monopolistic common carrier? The answers to these 46 questions will reveal the impact of the French state-society organizational model on network design and implementation, and specifically the importance of the political tradition of centralization and the central role of the state as organizer of economic and social relations in France as overarching concepts impacting the design and implementation of digital communication networks. Part I provides a technological overview of the Teletel network implementation choices. Part II addresses the economics of architectural choices. Part III discusses the reasons that led censorship to defeat common-carriage principles and network neutrality. Parts IV to VII demonstrates the visceral cognitive feeling, at all levels of French society and throughout the Teletel implementation story, that freedom can be dangerous and must be reined in by the state mainly through information content and distribution control mechanisms. I. TECHNOLOGICAL OVERVIEW The Teletel network was developed by the DGT, the telecom branch of the French PTT. It was developed and rolled to production in multiple phases and through multiple projects between 1979 and 1984, at which point it covered the whole geographic area of the French Republic, and began blooming thanks to an original billing system named “kiosk” (le kiosque). It peaked in 1993, when 6.5 million terminals were in use, supporting 90 million connection hours that year, 131 to 23,000 sites, 132 making France “the world’s most ‘wired’ 131 Antonio Gonzalez and Emmanuelle Jouve, “Minitel, Histoire du Réseau Télématique Français,” Flux 47, no. 1 (2002): 86 132 Ibid., citing Manuel Castells, L'ère de l'information. I. La société en réseaux (Paris: Fayard, 1998) 47 country”. 133 The Minitel, at that point, was ubiquitous in France, and a household name. 134 The invention of the World Wide Web by Tim Berners-Lee and his team, and the introduction of the Mosaic web browser in 1993, 135 marked the inflection point when the Teletel network started to decline about as fast as it had grown, leading to its ultimate demise on June 30, 2012, when Orange, the French PTT’s heir in the phone realm, pulled the plug. 136 Teletel’s network protocol was X.25, a protocol used to switch packets through a network using virtual circuits. The data “path is selected through the nodes and links, and all the data during the data transfer phase travels on this given route.” 137 X.25 was standardized in 1974 by the CCITT (Consultative Committee for International Telegraphy and Telephony), which is part of the ITU (International Telecommunications Union). X.25 was subsequently adopted by ISO (the International Organization for Standardization) to become the protocol used in the first three layers of the OSI (Open System Interconnect) reference model. 138 The physical layer -- the actual physical link that transmits the bit 133 James Gillies and Robert Cailliau, How the Web Was Born (New York : Oxford University Press, 2000), 109, 111 134 A number of Minitel-related cultural artifacts, ranging from postcards and stickers to pins and vinyl records, are on display in the author’s digital Minitel museum at www.minitel.us. Another website, www.minitel.org, contains a large list of links to videos illustrating the popularity of the Minitel in French society. 135 For a comprehensive account of the invention and launch of the World Wide Web, see Gillies and Cailliau, Web 136 For a comprehensive account of Minitel and Internet penetration in France up to 2009, see Julien Mailland, “Minitel and the French Internet: Path Dependence?,” TPRC 2009, (SSRN, September 2009), http://ssrn.com/abstract=1987225 137 Timothy Ramteke, Networks (Englewood Cliffs: Prentice Hall, 1994), 246 138 Ibid. 48 stream -- 139 was provided by TRANSPAC, one of the world’s first public data networks (PDNs). 140 The Teletel network could be accessed using standard computers, but, at a time where personal computers were scarce, Teletel achieved success through the introduction by the French PTT of a tiny, portable, dumb terminal 141 dubbed Minitel. Although the development of telematics in France was part of a much broader state-led effort to leapfrog into the digital age, the official goal of the Minitel project was to provide access to a national, online phone book maintained by the PTT, and to replace costly, regional, and inefficient paper phone books. The Minitel terminal also enabled the French to access the Teletel network and its array of services, ranging from email, chat rooms, bulletin boards, to administrative databases, online commerce, games, and, as the catalyst of many new communication technologies, pornography. 142 The PTT distributed the terminals for free to anybody who asked for it, to prime the pump and reach the critical mass of users necessary to attract service providers on the Teletel network, a move that proved effective. 143 139 Ibid., 16 140 Davies et al., Computer Networks and their Protocols (Chichester: John Wiley & Sons, 1979), 74 141 A dumb terminal is one that does not have a CPU. It cannot process calculations itself. However, using a dumb terminal, one can input data into another computer, located in the cloud, and receive processed data in return. 142 On pornography as the catalyst of new communication technologies, see generally Jonathan Coopersmith, “Pornography, Videotape, and the Internet,” IEEE Technology and Society Magazine (Spring 2000): 27-34 143 On network externalities and reaching critical mass, see generally Carl Shapiro and Hal Varian, Information Rules: A Strategic Guide to the Network Economy (Harvard Business Review, 1998); Hal Varian, Intermediate Microeconomics (W. W. Norton & Company, 5 th Edition, 1999). On how these concepts were successfully put to use by the French PTT, see generally Mailland, “Minitel” 49 It is useful at this point to introduce a distinction between the different networks in place in France by 1984, because the Minitel terminal became so ubiquitous in the country that the various networks and services related to the overall telematics project have become blurred in the public imagination under the name of the terminal itself, which could be used to connect to several different networks in place in France at the time, and, later, even to the Internet and various foreign networks. This dissertation only addresses in details the Teletel network, the world’s first mass market for email, online chat, online commerce, and online pornography, and the network that created enough excitement and disturbances in existing order that it focused many interests to attempt to shape its design and implementation on a national scale, the underlying reasons of which being the research topic of this chapter. However, the other aspects of Minitel, and the other networks, are worth mentioning, only if to better differentiate them from Teletel. In particular, the TRANSPAC network, the Digital Phone Book Network, and PSTN servers are addressed. TRANSPAC TRANSPAC provided the underlying physical layer for the Teletel network and for many other networks, and services. In the public realm, TRANSPAC supported the Digital Phone Book Network. In the realm of private networks supported by TRANSPAC, one example was point-to-point connections that were used by large corporations such as banks – by 1985, customer access links already totaled 31,000 lines, 144 reaching 98,000 in 1991. 145 144 ValérieSchafer, “Évolution du nombre d’accès directs commerciaux à Transpac (1979 - 1985),” Flux 62, no.4 (2005_ (n o 62), 75-80 50 Figure 3.1: Transpac growth 1985 to 1991, separating Teletel traffic from overall Transpac traffic 146 The non-Teletel Transpac activity is not relevant from our standpoint because it lacks the retail, layman aspect that caused an interest by various forces in France to control and drive the design and implementation of the Teletel network. The preceding chart helps explain how Teletel activity was only one part of the PDN’s traffic. The focus here is confined to the upper-layers of the Teletel network rather than on the overall traffic flowing through the PDN’s physical layer. 145 Rémi Després, “X.25 Virtual Circuits – Transpac in France – Pre-Internet Data Networking,” IEEE Communications Magazine (November 2010), 43 146 Ibid. 51 THE DIGITAL PHONE BOOK NETWORK (Réseau Annuaire Electronique) The second service, and network, supported by TRANSPAC, is the Digital Phone Book Network (Réseau Annuaire Electronique), which was the official motivation for the DGT to develop a practical application of telematics as well as the Minitel terminal itself. The official argument supporting the project was that the State would save money on printing costs by replacing a myriad of regional, paper-based phone books, with a national, digital phone book, access to which was free. 147 It also served as a hook to incite the population to claim the free terminals, which were also to be used to connect to the lucrative Teletel network. Figure 3.2: PTT customers lining up in a gym to pick-up their free Minitel terminal 148 147 Carpenter, Bataille des Télécoms, 538-540; Bernard Marti, De Minitel à Internet: 30 Ans de Services en Ligne, (Cesson-Sévigné: Armorhistel, 2011), 33-34 148 Marti, Minitel, 33 52 The Digital Phone Book Network was developed and rolled into production region by region between 1980 and 1987, at which point access was available from all French copper pairs. 149 Figure 3.3: 1984 projection of production roll-out dates for the Digital Phonebook network, based on requests by regional governments 150 149 Ibid. 53 However, although both Teletel and the Digital Phone Book networks were accessed using the same Minitel terminal, and both networks used TRANSPAC as the underlying physical layer, the digital phone book network, and the Teletel network, are separate networks, with different architectures. Figure 3.4: Digital Phone Book architecture 151 150 Ibid., 35 151 Ibid., 31 54 The digital phone book network is centralized, both in terms of points of access, and content servers. From a content standpoint, there exists a centralized database that feeds master content to regional databases to alleviate the load on a central server and reduce distance between users and servers. This decentralized aspect does not change the fact that the database system is, in fine, centralized, since the same operator controls all servers. It is comparable to the DNS system, where regional caches replicate the information fed by the central DNS for efficiency reasons, but ultimately always answer to a single root -- that is, no information other than the one issued by the root server is available to these local servers. This centralization aspect of the digital phone book network is less important from our standpoint, but does highlight that local phone access has traditionally been a monopoly in France. During the early years of Minitel service, local and long distance phone access was provided exclusively by the PTT (specifically, the DGT, maker of the digital phone book). Because local access was a monopoly, the monopoly operator could maintain an exhaustive list of users, in contrast with the current situation in the United States, where post- divestiture “baby-Bells” only maintain the directory of users in their region, not of all public switched telephone network (“PSTN”) users. In France it made logical sense that the local phone book also be maintained by the same monopoly operator, which led to a network architecture centralized in the hands of that monopoly operator. Such service, using the same centralized architecture, might as well have been implemented by AT&T pre- divestiture, had the American monopoly operator been allowed to provide content services at that point in history, and had it chosen to do so. 55 In short, the centralized architecture of the Digital Phone Book Network was born out of practical, not political, reasons, and will therefore be examined no further here. PSTN SERVERS (Serveurs RTC) Although Teletel servers were all directly connected to the TRANSPAC network, 152 PSTN servers refer to servers that were connected to the public switched telephone network (PSTN, or RTC, réseau téléphonique commuté, in French), rather than to the TRANSPAC network. Getting connected to the Teletel network, as a content provider, required both money and prior administrative authorization, something “the youth” was not always able to secure. These “youth,” mostly computer hobbyists some of whom became notable hackers and were later instrumental in the development of the early French Internet, devised ways to digitally communicate with each other, using the PSTN and repurposed Minitel terminals. Content servers were created using cheap personal computers, such as Apple Macintosh or Atari ST. 153 At a time where modems were prohibitively expensive for common retail users, Minitel terminals were free, and contained a miniature modem that could be reversed to connect the server to the analog copper pair, often in a college dorm room or a teenager’s bedroom. 154 At the other end of the PSTN, other young hobbyists would call the PSTN servers using the free Minitel terminal provided by the PTT, and 152 Maury, email no.1 153 On the history of RTC servers, see generally Godefroy Troude, “Pinky: histoire d'un micro-serveur,” last modified February 9, 2006, http://www.troude.com/pinky/index.html-ssi 154 Ibid. 56 paying only for a local call, assuming the PSTN server was hosted in the same city. Phone numbers of PSTN servers would be distributed via word of mouth, fanzines, or video games. 155 Figure 3.5: screenshot of Turbo GT, ATARI ST’s version of popular arcade game Super Sprint. The programmer, Christophe Andréani (known as “CHRIST” in French hackers’ circles), inserted the phone number for the RTC sever Pinky as an advertisement in the middle of the race track. 156 155 Ibid. 156 Ibid. 57 Figure 3.6: PSTN Servers network architecture, and screenshots of PSTN servers sites 157 The PSTN-servers adventure bonded together a generation of French hackers that became instrumental in the development of the early French Internet. This scarcely told story highlights the variety of “Minitel” networks and better distinguishes them from the Teletel network. PSTN servers, however, did not impact the design and implementation of Teletel network; neither did they impact Minitel history itself in significant ways, because they were too marginal from a quantitative standpoint. They never reached critical mass as a shaker of existing social, economic, or political order. Archival research did not uncover any reference to PSTN servers in official documents. Mainstream players such as former 157 Source of screenshots: Ibid. 58 DGT executives instrumental in the Minitel project shrug upon mention of PSTN servers as something insignificant, something pimply teenagers did and that was not worth thinking about. 158 To borrow from Katie Hafner’s description of contemporaneous and equally marginal American bulletin board services: they “were around, but they had about them the whiff of a lonely nerd’s hangout.” 159 Ironically, some of those pimply teenagers, who were not that lonely since networked digitally with other hackers, later become key players of the early French Internet, the network that caused the demise of Minitel. THE TELETEL NETWORK Architecture The Teletel network features hybrid architecture. Access to the network by users is centralized in DGT-controlled access points, or gateways, calledPoints d’Accès Videotex(“PAVI”) – the number of PAVIs varied over time to alleviate the load on each gateway, but this number is irrelevant: since all gateways are controlled by the monopoly operator, and follow the same access-control rules determined by the operator, the access is centralized. On the other hand, servers that host content are all privately-owned, and decentralized to the edges of the network. This stands in contrast to the other European videotex experiments, in particular those in England, Germany, and Switzerland, where all 158 Jean-Luc Beraudo De Pralormo, interview no.1 with author, Cesson Sévigné, France, June 25, 2012; Bernard Louvel, interview no.1 with author, Cesson Sévigné, France, June 25, 2012; Jean-Paul Maury, interview no.2 with author, Paris, France, June 27, 2012 Maury, interview no.2; Gérard Théry, interview with author, Paris, France, June 27, 2012 159 Katie Hafner, The Well: A Story of Love, Death, and Real Life in the Seminal Online Community (Carroll & Graf, 2001), 19 59 content was hosted on centralized servers operated by the monopoly PTT operator – users would rent space on the server and upload their content there. 160 In France, it was left to the content providers to purchase their own servers (something which encouraged entrepreneurship) and to lease a TRANSPAC line in order to set-up their servers on the edges of the network. In this sense, servers were decentralized. 160 On Prestel, see P. Troughton, “Prestel Operational Strategy,” Viewdata and Videotex, 1980-81: A Worlwide Report (White Plains: Knowledge Industry Publications, 1980), 51-62; K.E. Clarke and B. Fenn, “The UK Prestel Service: Technical Developments Between March 1980 and March 1981,” Videotex 81 (Northwood Hills, Online Conferences, 1981), 147-162. On the German BTX, see H. Mantel, “The Seltext Center for the German Bildschirmtext network,” Videotex 81 (Northwood Hills, Online Conferences, 1981), 179-188. On the Swiss network, see Peter A. Gfeller and Pierre E. Schmid, “Videotex Developments in Switzerland,” Videotex 81 (Northwood Hills, Online Conferences, 1981), 189-197 60 Figure 3.7: The Teletel Network architecture However, a major difference with the current Internet implementation of TCP/IP, is that the X.25 network protocol was implemented by the DGT in a way that did not allow servers to act as routers. The X.25 protocol, itself, enables all hosts on the network to act as routers, also called packet switches, or intermediate systems. 161 As figure 3.6 shows, this means that X.25 provides virtual circuit 3 with the potential to be established. However, 161 Ramteke, Networks, 17 61 the DGT deliberately implemented X.25 in ways that prevented the decentralized, privately-owned servers from acting as routers. 162 Only the operator-controlled nodes were allowed to route packets. This deliberate implementation choice by the DGT had major implications from the standpoint of economics and free speech. From a practical standpoint, the main implications are twofold. First, as figure 3.7 illustrates, for S2 to be accessible by the user, it had to establish a direct connection to the gateway. If the DGT decided not to allow a virtual circuit to be established from the PAVI to S2, then S2 remained voiceless. This would not have been the case, had the DGT allowed S1 to act as router and create virtual circuit 3. With regard to free speech, such technical choice enabled the implementation of the censorship system, because it gave power to the DGT to precisely control who was allowed to set-up a publishing operation on the network and to prevent lateral connections. Second, this implementation choice also means that for a content provider in S1 to embed content hosted in S2 (or use services provided by S2), into the service or content provided by S1, S1 could not pull said content or service directly from S2, but had to request assistance from the PAVI, which PAVI acted as intermediary. The actual rerouting process is described in the below figure, provided by France Telecom. This feature placed the DGT at the center of economic activity and enabled it to mediate what would otherwise have been uncontrolled lateral ties. 162 Jean-Luc Beraudo De Pralormo, interview no.1 with author, Cesson Sévigné, France, June 25, 2012; Bernard Louvel, interview no.1 with author, Cesson Sévigné, France, June 25, 2012. See also France Telecom, in Jean-Yves Rincé, Le Minitel, (Paris: Presses Universitaires de France, 1990), 122 62 Figure 3.8: Teletel rerouting process 163 163 France Telecom, in Jean-Yves Rincé, Le Minitel, (Paris: Presses Universitaires de France, 1990), 122 63 The Kiosk System One key feature of the Teletel network was the Kiosk billing system. At the time, electronic commerce did not exist as a mass market, and PTT operators, newspapers going online, and other content and service providers were struggling to find viable economic models for videotex. 164 For terminals, the DGT had already made the radical choice of absorbing their cost and distributing them for free to users, thereby creating the critical mass of users necessary to attract service providers. It was less clear how services would be financed, especially since, by law, only traditional press companies were allowed to distribute classified ads over the Teletel network. The British had opted for a subscription fee, a model that would later be adopted by 101 Online, the San Francisco ersatz of Minitel, a choice which, in both cases, led to commercial failure, because it was difficult to convince users to pay for services that are few and far between, especially when the technology is so radically new, and, to a large extent, scary. The DGT, instead, opted for a pay-as-you-play model, which did not require a subscription. In combination with the free distribution of terminals, this choice dramatically lowered the barriers to entry for retail users. Under the Kiosk system, the DGT would bill users directly, based on time usage, and add that fee onto the users’ phone bills, guaranteeing a high rate of collection, since a user who would not pay the often-exorbitant Teletel bill would have its phone line disconnected. The DGT would then rebate a portion of the fee (usually about two-thirds), to the Teletel service 164 This situation is not that different from the situation currently faced by newspapers. There however seems to lack comparative studies in this respect which could draw from videotex experiences around the world. 64 provider, a model later replicated by Apple for its App Store. 165 Over time, multiple billing levels were introduced. It was left tothe content providers to chose the applicable rate. Sites that handled customer service for brick-and-mortar operations usually were free to the user (the connection cost was paid by the service provider), whereas porn sites and high-end professional sites (such as corporate research) would charge the user fees of up to EUR 1.41 per minute. 166 The Kiosk system was convenient for the service provider, since no collection efforts towards the user were ever required. As far as the user was concerned, it ensured complete anonymity, since user information were never revealed to the service provider and “Teletel use”appeared on the phone bill, with no mention of the specific sites visited, be they train schedules, or more racy sites. The Kiosk system was widely credited for contributing to the Minitel success,which resulted in writings by authors interested in entrepreneurship and digital innovation. 167 The implications were significant. 165 This Minitel feature is not the only one borrowed by Apple. It has been acknowledged by Apple executives themselves that the Macintosh case, distinguished by its convenient handle atop the case, was a rip-off the Minitel 1 terminal which Steve Jobs had shipped to Cupertino. According to Jean-Louis Gassée, CEO of Apple France at the time Macintosh was launched, “Apple copied the Minitel as far as the physical shape of Macintosh is concerned. The top and the back of Macintosh are exact copies. I know this well because Steve [Jobs] has asked me to send him a Minitel. The back of Macintosh and the back of the first Minitel are identical. The top and the handle? Copied!” Marie Carpenter interview with Jean-Louis Gassée, June 23, 2009, in Marie Carpenter, La Bataille des Télécoms: Vers une France Numérique (Paris : Economica, 2011), 561 166 Orange, “Les tarifs,” accessed April 13, 2013, http://www.minitelfr.com/divers/tarifs.html 167 See generally Carpenter, Bataille des Télécoms; W.L. Cats-Baril and T. Jelassi, “The French Videotex System Minitel: A Successful Implementation of a National Information Technology Infrastructure,” MIS Quarterly 18/1 (March 1994); Gonzalez and Jouve, “Minitel” ; Mailland, “Minitel”; Marchand, Minitel Saga ; Marti, Minitel; Rincé, Minitel ; Ewan Sutherland, “Minitel: The Resistible Rise of French Videotex,” International Journal of Information Resource management 1/4 (1990) 65 Chapter 2 described the mostly-political-economy motivations that led to the development of Teletel. They included the need to leapfrog into the digital age and to support a vibrant hardware industry by placing massive orders on behalf of the State. Such considerations played out on a backdrop of international relations considerations, in particular the need to counter IBM, and generally American communication-technology and digital-content industries, perceived as hegemonic. 168 However, these motivations do not explain the architectural and implementation choices that were made, and it is in this realm that there exists a gap in the existing literature. Two specific questions arise with regards the design and implementation of the Teletel network. First, why were the content servers privately owned and decentralized to the edges of the network - an architecture that contrasts with the chosen British, German, Swiss, and Dutch videotex architectures? Second, why did the DGT, and later France Telecom, not apply full network neutrality when it came to the content they transported, as a monopolistic common carrier? In this respect, the design and implementation choices that were made were counterintuitive. It would be logical at first glance for a monopoly operator, fully controlling a network, to also control the servers by centralizing them, which is the choice made by the other European PTT operators that were experimenting with videotex at the time. Such a set-up would also have ensured extra revenues for the operator, in the form of licensing fees for use of space on the centralized server. In the second case, common carriage and network neutrality are typically corollaries of monopoly status in the realm of communication networks; 169 yet the DGT implemented a censorship system – an a priori authorization regime which appeared in several shades and varied in breadth and depth overtime, but a censorship system 168 See generally Nora and Minc, Computerization of Society, 169 See generally Pool, Technologies of Freedom 66 nonetheless. The answers to these questions will reveal the impact of the French state- society organizational model on network design and implementation, and specifically the importance of the political tradition of centralization and the central role of the state as organizer of economic and social relations in France as overarching concepts impacting the design and implementation of digital communication networks. II. THE ECONOMICS OF ARCHITECTURAL CHOICES The British, German, and Swiss monopoly PTT operators all opted for a fully centralized architecture where access to the local videotex network was controlled by the operator and content was hosted on servers owned by the operator. Space was leased on these servers by content providers, which would upload their pages on the state-run servers. 67 Figure 3.9: PRESTEL PANDA architecture 170 170 Clarke and Fenn, “UK Prestel Service,” 160 68 Figure 3.10: GERMAN BTX infra-network showing state-controlled hosts 171 It seems logical at first glance for a monopoly operator, which fully controls a network to also control the content servers by centralizing and owning them. Such a set-up also ensures extra revenues for the operator, in the form of licensing fees for use of space on the centralized server. Yet, a different option was chosen by the DGT. Why? 171 Mantel, “German Bildschirmtext,” 180 69 Three main reasons explain the architectural choice made by the DGT, all of which reveal the importance of the political tradition of centralization in France as an overarching concept impacting the design and implementation of digital communication networks. 2.1 The National Policy of Supporting the Hardware Industry First, Teletel was only one application of telematics, and telematics itself was part of a larger plan to digitize France, and put it at the forefront of the now-global hardware and digital content industries. The main enemy went by three letters, IBM, and the war played on the backdrop of intense Franco-American rivalry in many strategic sectors. 172 In the telematics field, France even had ambitions to becoming a leading player on the world scene, and even on the U.S. videotex market. 173 In this context, it was essential to enable a strong hardware manufacturing industry to grow. The hardware industry is subject to economies of scale, so that “the more you produce, the lower your average cost of production,” 174 which in turns increases the competitiveness of the manufacturer. To develop a strong French industry in this field, the State actively intervened. 175 Over a hundred thousand desktop computers made mainly by Bull and Thomson were dropped into French schools, under the Plan Informatique Pour 172 Louvel, interview no.1. See also generally Carpenter, Bataille des Télécoms ; Nora and Minc, Computerization of Society 173 Minutes of the meeting of the Telematics Commission, February 18, 1981 174 Shapiro, Information Rules, 21 175 See generally Carpenter, Bataille des Télécoms ; Nora and Minc, Computerization of Society 70 Tous. 176 For telematics, the DGT decided to subsidize the terminals and force them for free into each French household as a replacement for the telephone book, which was to be discontinued in its paper form. 177 This plan provided the State with the justification to place orders for hundreds of thousands and then millions of Minitel terminals from French manufacturers which it had helped organize 178 and with whom the DGT cooperated closely. 179 It therefore artificially created the economies of scale required to make the French industry viable and potentially successful on the international scene. 180 This story is well documented. 181 Less well understood are the reasons why the DGT decided to design Teletel with an architecture that featured content servers decentralized to the edges of the network. The reason for this choice was to stimulate demand for the manufacturing of host computers, and thereby create the economies of scale necessary to make the French industry competitive. Had Teletel content been hosted on a few mainframes maintained by the State, as in England, Germany, and Switzerland, the demand 176 Daniel Durandet, "Plan informatique : conférence de presse Fabius", Soir 3, FR3 (January 25, 1985), accessed April 14, 2013, http://www.ina.fr/video/CAC88029024/plan- informatique-conference-de-presse-fabius-video.html 177 It is only after opposition for the press lobby that the DGT made the terminal available on the voluntary, rather than mandatory, basis. 178 Carpenter, Bataille des Télécoms, 557 179 According to Bernard Louvel, one of the original Minitel terminal engineers, Minitel was a “very strong human and industrial adventure. There was a strong technical bond [between the DGT Minitel terminal team and the private hardware manufacturers], we trusted each other. This would not be conceivable these days.” Louvel, interview no.1 180 French manufacturer did have some success on the international scene. For example, in 1981, US-based TYMSHARE purchased 100,000 videotex terminals from MATRA. Minutes of the meeting of the Telematics Commission, February 18, 1981 181 See generally Carpenter, Bataille des Télécoms; Cats-Baril and Jelassi, “Minitel”; Gonzalez and Jouve, “Minitel”; Mailland, “Minitel”; Marchand, Minitel Saga ; Marti, Minitel; Rincé, Minitel ; Surtherland, “Minitel” 71 for host computers would have been insufficient to create the economies of scale. Instead, by requiring Minitel entrepreneurs to purchase their own servers (or lease space from other, more established, or perhaps more bold, entrepreneurs), the State stimulated demand. 182 The decentralized aspect of the Teletel network, then, is not the result of technological necessity. It was not designed to improve flow control, to provide redundancy in case of a nuclear war, or to make it easier to publish content. It was designed purposefully, by the centralized State, to fulfill the goals set by the Plan. Ironically, decentralization was the direct result of fully-centralized planning and the means to achieve the Plan’s goals. 2.2 Server Decentralization to Increase the Value of the State-Owned Network Although a centralized content architecture would have generated some revenue for the operator, in the form of licensing fee for leasing space on its mainframe, as was the case in England, Germany, and Switzerland, a decentralized content architecture also brought in revenue because it increased the number of leased data lines allowing access to the network. As noted, the telematics projects were only one stone in a grander plan to digitize France. In the mid-1970s, “the Frenchtelecommunication system was weak. Less than 7 million telephone lines served a populationof 47 million, a penetration rate comparableto that of Czechoslovakia. Customers waited four years to get a new line, and most rural areas 182 Beraudo De Pralormo, interview no.1; Louvel, interview no.1; Maury, interview no.2; Théry, interview. In contrast, according to Théry, the German BTX system “was in the hand of IBM.” Ibid. 72 werestill equipped with manual switches.” 183 In 1975, the government decided on a complete overhauland a digitization of the country’s phone network, and adopted the “A Phone in Every Home”plan. 184 The plan, however, had a cost. “The magnitude of the investment required to createthe telephone network raised questions of how to maintain its expansion and how to recuperate themodernization costs. In early 1978, with the telephone penetration rate growing rapidly,[government officials] realized that telephone traffic alone was insufficient to repay the investment in the telephone network and the public packet-switched network (TRANSPAC).” 185 In addition, the efficiency gains in the telephone network through digitization were such that many PTT workers’ jobs were at stake, and the government was inclined to avoid massive layoffs. 186 A key to making the new system viable was to increase traffic on the TRANSPAC network, as well as the number of direct subscribers to the network. Although there other reasons why Teletel evolved as it did, the implementation of the decentralized content-server architecture also resulted from the constraint of increasing the value of the network by creating customers. The decentralized architecture, and the necessity for content providers to provide their own servers, mechanically increased the numbers of servers, and thus the number of leased lines enabling connection by these content providers’ servers to the TRANSPAC network, 183 Cats-Baril and Jelassi, “Minitel,” 2-3 184 In French, “Un téléphone pour tous.” Carpenter, Bataille des Télécoms, 11-16 ; Marchand, Minitel Saga, 15-19 185 Cats-Baril and Jelassi, “Minitel,” 3 186 Carpenter, Bataille des Télécoms, 16; Rountable, La Cantine, “Minitel : La dernière séance"Rendez-vous à jamais,"” La Cantine, June 29, 2012, accessed April 15, 2013, http://www.youtube.com/watch?feature=player_embedded&v=KtXPTaSi8x8 La Cantine, “Minitel” 73 which would not have been the case, had all content been hosted on a central, State-run mainframe. Further, Gérard Théry thought decentralizing the servers to the edges of the network would catalyze innovation in terms of content. This, in turn, would make the network more appealing to users and again increase traffic. 187 In short, the decentralized architecture resulted directly from a conscious effort by the centralized State operator to create value for itself. It was designed by the centralized State to fulfill the goals set by the Plan. Ironically, decentralization was a direct result of fully- centralized planning intended to maximize value for the State. 2.3 The Kiosk System: Establishing the DGT as the Only Go-To Point for all Networked Activity In order for traffic to flow over TRANSPAC, Teletel users needed to be connected to Teletel content servers. The user base, created by the free terminal giveaways and the hook of the Digital Phone Book Network, was accessible through the same Minitel terminal by Teletel content providers. The existence of the customer base, however, did not solve the entire problem. The question of how content providers would make money remained. The printed-press industry lobbied so effectively that it managed to have the State grant it a monopoly over the electronic publication of classified ads, thus closing this source of 187 Théry, interview 74 revenues to other content providers. The option to offer services on a subscription basis was rejected because it created another critical mass issue, this time on the offer side: why would a user pay when services, at the inception of the system, were sparse and it was unclear to users what the new technology really might offer? Further, the Prestel experiment in England had demonstrated that a subscription model was hardly viable. The DGT decided instead to implement the Kiosk billing system. The Kiosk system was heralded, both by DGT members, 188 and by academics, 189 as one of the keys that made the overall system successful. According to Jean-Paul Maury, the head of the Minitel project from 1979 to 1991, who responded directly to Gérard Théry, the head of the DGT from 1979 until the Mitterrand election, and to Jean-Luc Beraudo De Pralormo and Bernard Louvel, both young engineers part of the Maury team, the Teletel architecture was required to implement the Kiosk system. 190 What was specifically required, Maury, Beraudo De Pralormo, and Louvel explain, was to implement the X.25 network protocol in a way that prevented content servers to act as switches, and rather to send all routing requests sent by the users back to the state-run-gateway (the PAVI), which would in turn establish a virtual circuit with the second host, which the user wanted to contact. 191 This explains why in Figure 3.7, virtual circuit 3 could not be established, even though the X.25 protocol, as such, enabled such possibility. 188 Maury, interview no.2; Théry, interview; Théry, Autoroutes 189 See generally Carpenter, Bataille des Télécoms; Cats-Baril and Jelassi, “Minitel”; Gonzalez and Jouve, “Minitel”; Mailland, “Minitel”; Marchand, Minitel Saga ; Marti, Minitel; Rincé, Minitel ; Surtherland, “Minitel” 190 Maury, interview no.1; Beraudo De Pralormo, interview no.1; Louvel, interview no.1 191 Ibid. 75 That the rerouting system implemented by the DGT was required from a technical standpoint to implement the Kiosk system may be so. It makes sense that it would have been more complicated for the DGT to bill the user adequately, if it received the flow from the second server through the first server - in figure 3.7, data from S2 would have flown through VC3 to S1, and then would have been switched by S1 through VC1 back to the PAVI. At that point, in order to allocate the revenue between S1 and S2, the DGT would have either had to open the packets – deep packet inspection being something the DGT always refused to do 192 - or the packets would have had to contain specific information about the source, meaning bigger packets – something opposed to the X.25 philosophy of minimizing packet size. In any case, from a neutral standpoint, if the simplest architecture is the best, then the implementation choice made by the DGT in this respect is neutral. What this story – and Maury - do not tell is that the choice of implementing the Kiosk system was not itself a neutral choice. It was designed to establish the DGT as the go-to point for all of networked activity, despite requests from the service-providers lobbying to the contrary. Early comments from the service providers’ association indicate that they did not want the DGT to be involved in billing and collection: “[b]illing and collection shall be handled by the service providers only, the DGT must only intervene as an information carrier.” 193 Rather, the service providers requested that the chip card payment technology be implemented instead. 194 Payments through credit cards could have been accommodated in an architecture where content servers were allowed to act as switches, 192 Maury, interview no.1 193 Utilisateurs de Tététel 3v, Association des Abonnés T3V, “TELETEL 3V: Le Témoignage des Utilisateurs,” Congrès de l’IDATE (undated document, circa 1980 194 Idib. 76 since all the payment information would have been included in the packets being switched. The chip card system, in other words, enables the implementation of a decentralized payment system. 195 Instead, the DGT decided to establish itself as the commercial center of the network for users and for content providers, through the implementation of the Kiosk system, which required banning rerouting by intermediate systems. 196 If the DGT had allowed S1 to act as a switch and connect directly to S2, this would have undermined the role of DGT as the “technically” required go-to point for billing. In the implementation that was chosen, the PAVI appears as a “natural” entry point not just for users but also for content servers – which further reinforced its influence as a “natural” partner for billing. In doing so, the DGT replicated the centralized model of French roads developed by Colbert in the 17th century under the rule of Louis XIV, where all traffic had to go through Paris. 195 Carpenter, Bataille des Télécoms, 522 196 The DGT did, however, embrace the chip card technology, in another project, that of the public pay phones. All French pay phones gradually became accessible only via a pre-paid chip card one would buy from the PTT, then through chip credit-cards. Carpenter, Bataille des Télécoms, 524. There is evidence that Gérard Théry had embraced the technology upon meeting Roland Moreno, its inventor, and internally pushed the DGT to find applications for the card. Ibid; Théry interview 77 Figure 3.11: Colbertist communication-network design featuring Paris as a centralized traffic hub and preventing direct connection between points A and B 197 According to the historian James Scott, such 17 th century communication-design was devised to “facilitate central control … ‘to serve the government’ 198 … Just as all documents had to ‘pass through the official legal language, so too did much of the commercial traffic have to pass through the capital.” 199 The “driving intellectual force behind this esprit géométrique was,” Scott points out, were the State engineers trained in the best the grandes écoles – the same prestigious Corps whose members would, three centuries later, run the Minitel project. It is easy to imagine how these engineers would later be trained to learn about the values of such centralized layouts. It was impossible for a 17 th century French merchant to travel from A to B without passing through Paris thus giving control to the 197 Scott, State, 75. Referring to the figure, the scheme, Scott writes, “was to align highways, canals, and ultimately rail lines to radiate out from Paris like the spokes of a wheel.” Ibid. 198 Ibid., citing Weber, Peasants into Frenchmen, 195 199 Scott, State, 75 78 centralized government over economic activity. This architecture also “severed or weakened lateral cultural or economic ties by favoring hierarchical links. 200 Similarly, the “centralizing aesthetic” 201 of the X.25 implementation, by preventing hosts from acting as routers, established the DGT as the “natural” point for all economic activity. Where the establishment of lateral virtual circuits by hosts would have enabled lateral economic ties and the development of billing system invented by operators at the edges of the network, the chosen DGT implementation enabled the Kiosk system and, to borrow from Scott, “empowered Paris and the state.” 202 Bernard Louvel confirms that the implementation was necessary in order to “enable the State to keep control [over the content of the network].” 203 Beraudo De Pralormo confirms: “the State was the boss… it is therefore logical that [the network was] centralized.” 204 The design choices resulted directly from the DGT’s decision to establish itself as the go-to point for all networked activity in line with the well-established French state-society relations tradition of centralization. Moreover, a look at a white paper issued a decade later confirms and strengthens this interpretation. In 1994, Gérard Théry, the former DGT head, was asked by the Prime Minister to prepare the first of many white papers about the Internet. Théry, who was no longer at France Telecom, and most at France Telecom at the time, did not believe that the Internet would be viable, and called for the development, 200 Ibid., 76 201 Ibid. 202 Ibid. 203 Louvel, interview no.1. Louvel, however, insists on the benefits for the user, and on the fact that the DGT was moved by the “spirit of public service.” The implementation enabled the DGT to ensure quality control, for example by ensuring that crooks would not bill users to access empty shells. Ibid. 204 Beraudo De Pralormo, interview no.1 79 under the leadership of the French State, of a distinct information highway, using super- broadband (fiber optics technology). 205 The first chunk of the highway would be a Frenco- German axis, something Théry had pushed for back in 1981 but which had failed for political reasons. 206 Théry opined that the Internet could not successfully develop on the mass market because of the lack of Kiosk-like billing system. 207 He further wrote that the limitations of the Internet, of which the lack of billing system was a crucial one, would prevent the Internet from becoming the core of a global information highway. He concluded that it would be an illusion to think that the information highway, in France, could develop outside of a State-led effort. 208 What Théry envisioned at the time is that there would be two internets: “one Franco-German internet, and another one.” 209 Théry’s position reveals that in his mind, there could not be a viable networked ecosystem unless it was designed and controlled by the State serving as a go-to point for all things networked. He would later admit that he had underestimated the Internet, and that by the time he realized his mistake, it “was too late to build [the Franco-German] internet.” 210 This reveals the influence of the political tradition of centralization directly on the design of digital communication network and also indirectly as a shaper of the cognitive frames of those – mostly high-level civil servants trained in the best State-run engineering and government schools, the grandes écoles – who in turn would design those networks 205 Gérard Théry, Les Autoroutes de l’information (Paris: Documentation Française, 1994) 206 Théry, interview 207 Théry, Autoroutes, 86 208 Ibid., 85 209 Théry, interview 210 Ibid. 80 To complete the story requires mentioning certain elements of openness. To help the hardware industry develop, the standards used in Teletel had to be open. X.25, as an OSI standard, was an open-source protocol. While the network was censored, the upper layers of Teletel also were open. The Minitel terminal specifications were freely provided the DGT to developers of both hardware and software. Figure 3.12: 315-page Minitel 12 terminal specifications printed on glossy- heavy paper, and distributed for free by France Telecom 211 211 France Telecom, Minitel 12: Spécifications Techniques d’Utilisation (Paris : France Telecom, 1990) 81 This choice enabled independent firms to develop a wide array of networkable hardware appendices for Minitel terminals, such as printers, credit card readers, and home automation devices such as heater or blinds controls. These, in turn, supported the French industrial efforts. Figure 3.13: Networking a heater 212 This level of openness, at the hardware level, stands in sharp contrast with certain Internet models, which, like the Teletel network, include centralized access points, but which also include an additional level of closedness, in respect to hardware -- for example, the iPhone/iPad model developed by Apple. 213 The Apple model, in the networked world, is the direct continuity of Apple’s long standing tradition of locking its hardware, and generally making it difficult for users to interact with the hardware in non-Apple-approved 212 Paul Youngster, “Graveside FAQ by Minitel,” Computer Magazine (Ukraine), August 15, 2011, accessed April 14, 2013, http://ko.com.ua/rekviem_po_minitelyu_v_forme_nadgrobnogo_faq_a_57778 213 Carpenter, Bataille des Télécoms, 522 ; Jean-Paul Maury, email no.1 to author, July 3, 2012 82 ways. 214 In this sense the Minitel model is much closer to the open IBM-PC model of disclosing hardware specifications to everyone, than an Apple model. The parallel stops there, however. IBM PCs and their clones became popular in part through their pairing with an easy-to-use graphic user interface (GUI) provided by Microsoft, called Windows. Microsoft Windows software, however, was as closed as it gets, with the source code veiled in a thick cloud of secrecy. In contrast, the Minitel hardware/software interface was an open standard and the DGT placed significant efforts in publishing those specifications in user-friendly format and distributing them for free on glossy paper, to support the efforts of entrepreneurs who wanted to enter the Teletel hardware and content businesses. Based on this level of openness, an independent Teletel developer industry, resembling the website creation industry which burgeoned from the mid-1990s, developed in France. The DGT was not shy in sharing tips on how to develop successful user interfaces and tree structure for Teletel services. For example, it published a guide sharing the results of its research on how to best use function keys available on the Minitel terminal and to best structure the arborescence of Teletel sites. 215 214 See generally Neal Stephenson, In the Beginning … Was the Command Line (New York: Avon Books, 1999) 215 Ministère des PTT, Recommandations aux Partenaires Télétel (Paris : Ministère des PTT, 1986) 83 Figure 3.14: Suggested Teletel site tree-structure and use of function keys 216 The goal of this effort was to incite content providers to harmonize the ways in which sites were structured. One should not, however, see the impact of the longstanding French tradition of centralization and content control in this effort to harmonize content. Rather, the effort to harmonize derived from the lessons learned from the T3V experiment, and likely from the British Prestel experiment, where usage studies had indicated that users were turned off by, and turned away from the network because of, the utter variety of layouts and structures of the respective databases. This specific effort by the DGT to harmonize was a way to support the growth of an independent service industry by making the overall service more user-friendly through consistency in user interfaces across databases. It was, in this respect, a success. 216 Ibid., 11 84 Openness and the shifting of service creation to the edges was a means to increase the popularity of the network, traffic, and revenue for the centralized operator. However, openness at the edges means nothing if the network is controlled by a monopoly operator acting as a central go-to-point for all networked activity, especially if such operator does not implement network neutrality, but, rather, censorship. In this case, the direct impact of the political tradition of centralization, and its free-speech subset, content control, on the implementation of the Teletel network, is manifest. The Teletel network was censored. The forces that led to this network-implementation feature are discussed next. Analysis will again show the impact of the French state-society organizational model on network design and implementation, and the importance of the political tradition of centralization and the central role of the state as organizer of economic and social relations in France as overarching concepts impacting the design and implementation of digital communication networks. 85 III. CENSORSHIP DEFEATS COMMON CARRIAGE PRINCIPLES AND NETWORK NEUTRALITY 3.1. A Censorship System Shades of censorship Throughout the life of the Teletel network, content providers were subject to censorship. The specifics of the legal regime varied over time, but the nature of the overall system remained constant. It was impossible to publish a service over the Teletel network without administrative authorization. This requirement for prior authorization, usually from the executive branch, is the prerequisite for an information distribution system to be qualified as “censored” by legal scholars. Although censorship can take various shapes and forms, it is accepted in the legal literature that this requirement of obtaining prior administrative authorization before publication of information is allowed, is the core element of censorship. The censorship system which Teletel was subject to took many shades and varied in depth and breadth over time: - From 1982 to 1986, Teletel publication was subject to a prior authorization regime. All proposals for services had to be filed with the Prefect, the local representative of the executive branch, who responds directly to the Prime Minister. If the Prefect did 86 not explicitly agree with the service coming into existence, the DGT would not connect the database at stake to Teletel. 217 Further, a monopoly was granted to the press industry for publishing classified ads, meaning that this source of revenue was not available to videotex entrepreneurs who were not a part of the traditional-press industry. - In 1986, the regime formally switched to a prior declaration regime, where one only had to declare to the service to the Prefect, rather than obtaining the official’s approval. However, the censorship regime remained and was enforced contractually through the DGT. That is, the would-be publisher had to declare the nature of the service to the DGT, and the DGT would conduct a review of such declaration. If the DGT considered that the proposed service was not in line with the code of conduct embodied in the Teletel-contract, and after obtaining an opinion from the Telematics Council, an administrative authority, the DGT could refuse to connect the would be publisher to the network. This set-up resorts to a contractual mechanism, but it still is censorship, since publication is subject to receiving prior authorization from the administration. 218 Further, only “press companies” were eligible to provide their services over the 3615 network, the flagship sub-network of Teletel, the one that rebated enough connection fees to content providers to make a 217 Although in this case the wannabe publisher could take the State to court 218 Pierre Huet, “Cadre Juridique de l’Audiotex en France et dans le Monde,” Droit de l’Informatique & des Télécoms 3 (1994), 57-62. The contractual mechanism, however, was validated by both French administrative and judicial tribunals. CE, March 29, 1991; Cour d’Appel de Paris, October 13, 1992, Midratel. 87 service sustainable without imposing a subscription to the user, or displaying classified ads, which was subject to a monopoly granted to the traditional press. From its inception until its death on June 30, 2012, the Teletel network was censored. The few legal scholars who have addressed this topic are in agreement. 219 Influential hackers in the Minitel and early-French-Internet community who have discussed this topic also agree. 220 However, others disagree. Because the qualification of Teletel as a censored system is a central starting point of the argument, and because not all agree with this qualification, it is essential to proactively address recurring counterarguments when identifying Teletel as a censored system. These arguments are addressed and rebutted before moving forward. Counterargument 1: That Teletel was the kingdom of online pornography is evidence that the network was not censored. This argument, usually put forward by American commentators, equates a French liberal attitude towards sexually-explicit materials, with the proof that the Teletel network was not censored. It reveals a misunderstanding of the concept of censorship. Censorship only 219 Pierre Huet, “Cadre Juridique de l’Audiotex en France et dans le Monde,” Droit de l’Informatique & des Télécoms 3 (1994), 57-62; Valérie Sédallian, Droit de l’Internet (Cachan: Net Press, 1997). See also Julien Mailland, “Freedom of Speech, the Internet, and the Costs of Control: The French Example,” New York University Journal of International Law & Politics, Vol. 33 (2001) 220 See generally Laurent Chemla, Confessions d’un Voleur (Paris: Denoël, 2002); Rountable, La Cantine, “Minitel : La dernière séance"Rendez-vous à jamais,"” La Cantine, June 29, 2012, accessed April 15, 2013, http://www.youtube.com/watch?feature=player_embedded&v=KtXPTaSi8x8 88 means that a speaker cannot publish until s/he has received prior administrative authorization. It does not imply that one cannot publish whatsoever. Typically, the content which the censor will prevent from being published is content that does not sound like music to the ear of the prince, while other, innocuous content, will pass administrative muster and subsequently be distributed. That such content is published does not mean that it has not been censored; it means that, having been subject to the censorship process, it was deemed acceptable by the politburo. In the case of France, Teletel was the kingdom of online pornography, and the world’s first mass market for pornography, one that made future Internet pioneers such as Xavier Niel (Free Telecom) rich, indicates that pornography was not considered by the French executive branch as something that should receive priority as speech that should be curbed. This being said, interviews with “pink Minitel” pioneers have indicated that close monitoring of the chat rooms was maintained 24/7 by the site operators, to avoid being shut down by the State if things got out of hand. Daniel Hannaby, owner of the popular 3615 SM site, who also leased space on its server to other pink Minitel services, pointed out that particular attention was paid to gay sadomasochist chat rooms. 221 Jean-Marc Manach, a man who, as his college job, used to pose as a female guest on multiple pink Minitel chat rooms in order to ‘liven up the discussions’ on behalf of the content providers, confirmed that his job was not just to get the discussions going in the chat rooms but also to monitor the chat rooms and to 221 Daniel Hannaby, interview with author, San Francisco, California, March 9, 2012 89 disconnect undesirables. 222 These undesirables included prostitutes who used the chat rooms for solicitation, something that could, and did at times, create criminal liability for the site operators. Counterargument 2: Any suggestion that Teletel was censored amounts to equating France to China, an extreme position that automatically discounts the qualification of censorship applied to Teletel Certainly France was never China. France is a constitutional democracy, which holds the rule of law, and individual freedoms, at the core of its operational code. However, just as a spade is a spade, censorship is censorship. That Teletel was subject to censorship does not mean that the people could not speak. It only means that they only could speak after having received prior administrative authorization. The depth and breadth of French Teletel censorship is not comparable to the Chinese one, and no one questions that France is a free country. However, even if among all the speeches submitted to the censor, no speech was actually blocked, much speech would still have been prevented from seeing the light of day, because of something known as “chilling effects.” 223 That is, a number of speakers, mostly fringe speakers, whose speech are usually of greater benefit to democracy than mainstream speech, 224 would not submit their speech to the censor, for fear of 222 Jean-Marc Manach, interview with auhor, Paris, France, June 29, 2012; Jean-Marc Manach, “J’ai été animatrice de Minitel Rose,” OWNI, June 28, 2012, accessed April 15, 2013, http://owni.fr/2012/06/28/jai-ete-animatrice-de-minitel-rose/ 223 The concept of chilling effect, including its origins and current case-law applications, is discussed in details in Chapter 6. 224 Ibid. See generally Alexander Meiklejohn, Free Speech and its Relation to Self- Government (New York: Harper & Brothers, 1948) 90 retribution. This had a chilling effect in France under the Teletel system. So although France is much less restrictive than China, in terms of content control and retribution of undesirable speakers, Teletel was still a censored information-distribution system. The Teletel legacy, and its influence on the ways Internet regulation is approached in France, meant that for years France has appeared in the list of “countries under surveillance” in the Enemies of the Internet list maintained by Reporters Without Borders, 225 along with other great liberal democracies such as Kazakhstan, Russia, Tunisia, and the UAE. True, France did not make the main list of ennemies, but among the 26 countries to make one of the two lists, France is only one of two Western countries. 226 Counterargument 3: Censorship is a system where speakers cannot distribute their content until they have received prior authorization to do so from the State. However, chat room users could post without the content being moderated a priori. This lack of a priori control means that the system was not censored. This argument, which has been brought forward in particular by Jean-Paul Maury, who headed the Minitel project within the DGT from 1979 to 1991, 227 is the strongest argument against qualifying Teletel as a censored system. However, although this argument creates valuables nuances, when a legal scholar comes to think of the general concept of 225 Reporters Without Borders, The Enemies of the Internet, accessed April 15, 2013, http://march12.rsf.org/en/#ccenemies 226 The other was Australia, well known for its radical approaches to policing the Internet and digital media such as video games 227 Maury, interview no.1 91 censorship, the argument does not invalidate the qualification of the overall system as a censored system. It does, however, require a brief discussion. When censorship systems originally developed, information, in written form, only flowed one way, from the publisher to the receiver. In that sense, the Teletel network is censored: a publisher cannot set-up a site and distribute information through it without the prior authorization of the government. But digital information transmission systems, and advances in computer science, made each receiver a potential concomitant publisher. Jurisprudence, however, did not consider a two-way system. A two-way system, such as videotex, and the Internet, allows the user to become a producer of content at the same instant that he receives content. On the Teletel system, censorship was only enforced in the traditional way on the “original” content producer, for example, the service provider setting up the chat room. However, users-turned-speakers were not censored, in the sense that one could publish on any chat room without the speech being subject to a prior review and authorization mechanism. Content posted by users-turned-publishers, and found by the site operators to be inappropriate, were only suppressed a posteriori. Likewise, users were only subject to being kicked out of chat rooms (disconnected by the moderator), 228 but could not be prevented from reentering the chat room (the complete anonymity of the user towards the service provider would have made such process impossible to implement). 229 In this sense, the Teletel system was not censored, because users could 228 Manach, interview 229 Maury, email no.1. However, Hannaby states that his service 3615 SM implemented a priori moderation of new users, whom they would recognize based on their online handle, rather than on the X.25 equivalent of an IP address. According to Hannaby, the a priori filtering for 3615 SM was only temporary for new users. In contrast, he states, all messages 92 publish on their favorite sites without prior administrative authorization, unlike many Internet sites in use today, where users’ comments on online articles, are moderated a priori – i.e., censored. This interpretation is accurate, especially since fringe speakers did indeed use Teletel chatrooms, for example, to organize demonstrations – as was the case of striking students in 1986. 230 However, the only reason speakers could speak on the digital fora was that the Teletel content providers, which provided the digital soapbox to the end-users, were had passed censorship before they could set up the fora at stake. In this sense, the end-users could only step on the soapbox because the State allowed it to exist in the first place, through the censorship system. But-for the censored soapbox, there would have been no ability to speak. This situation differs from an Internet model, where the soapbox can be set-up without having to pass administrative muster. In contrast, because the Teletel site had previously navigated through the censorship process, a prerequisite for end-users to exchanged on 3615 HG, a site that leased server space from Hannaby’s company, were subject to a priori control, for the site catered to the “hardcore gay community.” Hannaby, interview. While one could conceive that all messages could be filtered on a given site, it is unclear how the filtering worked on 3615 SM for new users only, since users were anonymous and nothing prevented a new user from using a handle belonging to a seasoned user not subject to filtering. 230 Yves Gueniffey, ”Drôle d'Époque?.com,” Drôle d'Époque 6, accessed April 15, 2013, http://droledepoque.lesdebats.fr/articles/n06/edito6.html; Antoine Guiral, Muriel Gremillet, and Paul Quinio, “La Droite Encore Ebranlée par les Etudiants,” Libération, March 11, 2006, accessed April 15, 2013, http://www.liberation.fr/evenement/010141799-la-droite-encore-ebranlee-par-les- etudiants 93 distribute content on the fora, one must conclude that Teletel was a censored system, despite the ability of end-users to spread content through the site having passed the censorship process. 231 Evidence of chilling effects The barriers to entry and the chilling effects created by the censorship system were significant. They took various forms for different types of speakers. An anecdotal exchange of letters highlights the severe difficulties speakers had to get connected to the network and distribute information, even after the network was fully rolled into production and the kiosk system was introduced, and even when the content to be provided was perfectly innocuous. Three jobless, enterprising individuals create a videtotex service, which they dub “Amphitel,” consisting of an online guide for the city of Grenoble, and including “a booking service and the ability to obtain further information through email.” They partner with the SOPRA corporation, a major IT services provider, 231 It is also important to remark at this point that Teletel left no possibility, for the content providers, to bypass the censor. In the analog world, it was possible for publishers to distribute content that had not been submitted to the censor. A perilous enterprise indeed, but one that was physically possible, at the publisher’s risk. In contrast, in the Teletel system, it was not possible, because of the kiosk architecture detailed in Figure 3.7, to actually distribute content through sites that had not been approved and connected to the system by the telecom operator. No occurrence of successful hacking of the system, in terms of potential forced self-connection, is known to the author. The closest equivalent to a rogue publication was the case of publishers who declared a particular (legal) service, and, once the site was connected by the operator, “repurposed” the service, to serve purposes that would not have passed administrative muster. Such cases have indeed been documented, and have led to subsequent disconnection by the DGT of the servers at stake. See Marti, Minitel, 47 94 and secure funding from Credit Agricole, one of the largest French banks. They are, however, puzzled by the process of getting approved to go online. They write their congressman, one Bernard Montergnole, to request assistance in navigating the Minitel regulatory framework. The congressman, not up to speed with that aspect of the law but eager to support digital innovation in his district, writes to the Minister of Communications, M. Georges Fillioud, on February 4, 1985, requesting an opinion as to what authorization must be secured by the enterprising gentlemen in order to roll out their service onto the Minitel network. The Communications Minister, however, is not himself up to speed, and has to request a legal opinion from his legal department. On March 26, 1985, almost two months from the congressman’s letter, the answer comes from Jacques Vistel, a State Council Justice delegated to the communications ministry, to explain the Minister that if the service is a mere email system, then no authorization is required, but that if the service uses electronics as a means of transmitting information to the public, then the three lads must retrieve official authorization forms from the local Prefect and formally request an authorization to provide their service over the network. 232 The archives do not indicate whether or not this politically-correct service ever went online. However, the story is indicative of the reality of chilling effects created by the censorship system, even for mainstream speakers. The story applies with more vigor to fringe, political speech. Jean-Baptiste Ingold, an online-media consultant and former activist with the MOC, the French conscience-objectors 232 Jacques Vistel, “Note à l’attention de M. Francois Xavier Gillier,” (Secrétariat d’Etat Auprès du Premier Ministre Chargé des Techniques de la Communication : Service Juridique & Technique de l’Information, March 26, 1985) 95 association, recalls attempting to create a Minitel site for the MOC, to inform French conscience objectors of their rights, at a time where the military service was mandatory in the country. 233 From 1963 to 1983, a law authorized young men to declare themselves conscience objectors and avoid the military service. 234 The same law, however, made it a crime to distribute information “inciting a third party to benefit from the provisions of the law,” lest one face up to three years in jail. 235 In 1983, the law changed to make it easier to claim the dispensation, and removed the incitement offense. 236 When the MOC subsequently attempted to obtain prior authorization from the Prefect to open its Minitel site in order to distribute information about the status of conscience objectors and assist young men in claiming dispensation from military service, however, the Prefect refused to deliver such authorization on the grounds that such incitement was illegal. 237 Regardless of whether the Prefect’s incorrect interpretation of speech-content-control laws was made in good or bad faith is irrelevant: in either case, the Teletel implementation regime, which required actively obtaining permission from the executive branch prior to being able to digitally distribute information over the network, led to silencing of fringe speakers whose speech was perfectly lawful. This was the direct result of the political tradition of state- society relations in France, which established the State as the protector of the people. In the realm of speech, this led to numerous substantive content control laws. In the realm of 233 Jean-Baptiste Ingold, interview with auhor, Paris, France, June 29, 2012 234 Loi n. 63-1255 of December 21, 1963, J.O. 22 December 1963 at 11456, accessed April 14, 2013, http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=19631222&p ageDebut=11456&pageFin=&pageCourante=11457 235 Id., art 11, 236 See generally Planète Non Violence, “Objection de Conscience,” accessed April 14, 2013, http://www.planetenonviolence.org/Objection-de-conscience_a132.html 237 Ingold, interview 96 digital speech, the control point shifted from substantive content-control to distribution- control mechanisms and led to a Teletel implementation erecting the executive branch at the central control point of the network. However, that Teletel was censored is, at first glance, counterintuitive. The logical stance which the state-run monopoly operator could have been expected to take, was that of a common carrier, applying full network neutrality, and leaving it to the courts to apply existing press laws. Yet, the regime that was implemented ran opposite to that expectation. The reasons for censoring the network are discussed next, and will demonstrate the impact of the French political tradition of centralization and content control on the implementation of the network. 3.2 Common-Carrier Principles as the pre-Mitterrand position Common-Carrier Principles That the Teletel network was censored runs counterintuitive, because telecommunication policy normally ties monopoly status in the realm of communication networks to the principle of network neutrality, expressed in the form of common carriage obligations for the monopoly operator. The French PTT was a monopoly telecommunications operator until 1990. 238 As such, it had a monopoly both over basic services, and communication 238 Valérie Sédallian, Droit de l’Internet (Cachan: Net Press, 1997), 25-26 97 services (added value, enhanced services), including Teletel. 239 Presumably, common- carrier principles should have applied, and no censorship should have taken place. The idea that the DGT should act as a common carrier as far as videotex services were concerned was widely shared throughout the French executive branch, leading up to the election of François Mitterand as President of the Republic on May 10, 1981. Early notes from the Prime Minister’s office focused on common carrier and content neutrality principles as cornerstones of the nascent network’s organization. F. Froment- Meurice, of the Government General Secretariat, asserted in 1980: “we do not find any legal basis under which the administration could impose to TELETEL’s ‘service providers’ a ‘code of conduct’ containing clauses relative to the content of data transmitted, to a right of reply, etc.” 240 He also asserted that while it is necessary to establish liability principles for the content transmitted over the network, the carrier, even though it holds a monopoly position, cannot, and should not, assume such liability. 241 Froment-Meurice suggested that in contrast, the carrier would assume such liability if it contractually imposed a code of conduct, since, as a party to the contract, it would be its role to control the compliance of service providers with such code. 242 Therefore, he concluded, “in order to ensure the necessary neutrality of the telecommunications public service, it is necessary that the 239 Minutes of the meeting of the Telematics Commission, April 15, 1981 240 F. Froment Meurice, “Principes Généraux Applicables au Videotex: Premiers Eléments,” (Premier Ministre : Secrétariat Général du Gouvernment, June 30, 1980) 241 Ibid. 242 Ibid. 98 videotex ‘service providers’ be in an objective situation (legal or regulatory situation) rather than in a contractual relationship with the public service.” 243 Similarly, one month before the election of François Mitterand, Pierre Huet, a State Council Justice, and the head of the ad hoc Telematics Commission, stated: “the administration must also respect the principle of equality of users.” 244 In June 1981, debriefing the new, Mitterrand-appointed PTT Minister, Huet reasserted and detailed the implications of this principle: “the PTT Code applies: it grants the telecommunications administration a monopoly of transmission of mail correspondence, and in turn the administration is bound by public service obligations (freedom of access, mail secrecy).” 245 The analogy used by the Justice rested on the traditional-mail common-carrier principle: a monopoly is granted to the carrier, which, in turn, cannot look into the content being transmitted over the network and cannot discriminate based on content or user group. The Justice went so far as suggesting that because of the importance of the neutrality principle, the carrier should be prohibited from providing, directly or indirectly, content to be distributed over the network. 246 This suggested prohibition for the carrier to also act as a content provider was not a legal requirement at the time, and Froment-Meurice in fact suggested that this “prohibition … could take the form of a solemn commitment by the Government.” 247 He also noted that such prohibition would carry even more weight, particularly towards the press, if it contained no exception, even regarding the content necessary to the telephone 243 Ibid. 244 Minutes of the meeting of the Telematics Commission, February 18, 1981 245 Pierre Huet, Letter to Telecommunications Minister M. Mexandeau, June 26, 1981 246 Ibid. 247 “Principes Généraux Applicables au Videotex: Premiers Eléments,” (Premier Ministre : Secrétariat Général du Gouvernment, June 30, 1980) 99 public service, that is, the white pages. 248 To conclude that if it were impossible, for practical reasons, for the white pages to be edited by a corporate entity distinct from the State (as represented by the DGT), then “what is necessary for the telecommunications public service to function should be the only exception.” 249 Press Laws and Content Control The press lobby, from the early days of videotex experiments, argued against common- carrier principles and network neutrality. In doing so, the press lobby asserted that videotex was a lawless electronic Far West, and that unless a specific code of conduct, restricting content of speech over videotex networks, was implemented, anarchy would result. The lawlessness argument, however, is not only flawed from a legal standpoint – it was not shared by the DGT and, generally, the executive, nor was it shared by those within the judiciary in charge of overseeing the early experiments. This suggests that implementing specific content rules, just like violating the network neutrality principle, ran counterintuitive to the people in charge, prior to the Mitterrand election and should raise questions about why a shift took place after the election. 248 Ibid. 249 Ibid. 100 The Press Act of 1881 250 is a criminal law that sets forth a number of speech-content- related crimes, such as libel, insults, and hate speech. It also grants freedom of access to the profession of information publisher. 251 The law applies to “publications,” 252 not simply paper-based publications. This led jurists from the executive and the judiciary to consider that the law automatically applied to videotex publishers, because a videotex service provider is an editor that publishes information. 253 Accordingly, on the side of the judiciary, Pierre Huet, State Council Justice, and the head of the ad hoc Telematics Commission, blasted mechanisms such as an “approvals’ commission” (a censorship authority for videotex), as being “deprived of legal basis,” since the press law grants freedom of access to the profession of information publisher. 254 Huet also suggested that the 1944 Ordinance, in contrast to the 1881 Act, only applies to the printed press, and therefore rebutted arguments from the press industry that it could claim a monopoly over Videotex. 255 250 Loi du 29 juillet 1881 sur la liberté de la presse, accessed April 16, 2013, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateTe xte=20080312 251 Ibid. See generally Emmanuel Derieux, Droit de la Communication (Paris: LGDJ, 3 rd Ed., 1999) 252 Ibid. Derieux, Droit Communication, 362-364 253 F. Froment Meurice, “Principes Généraux Applicables au Videotex: Premiers Eléments,” (Premier Ministre : Secrétariat Général du Gouvernment, June 30, 1980) ; Minutes of the meeting of the Telematics Commission, April 15, 1981. This analysis was codified by Parliament in 1986. Loi n° 86-1067 du 30 septembre 1986 relative à la liberté de communication, accessed April 16, 2013, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006068930 254 Archive 1 255 Archive 1 101 On the executive side’s, the general consensus seems to have appeared early on, to consider thatthe Press Act applied to videotex services, even though most considered that some adaptations would be needed, in particular in the field of the right to reply and the obligation to file copies of publications with the state, to accommodate the technical specificities of the new medium. A September 4, 1980 Note from the Legal Service stated “a clear orientation is being drawn in favor of the thesis that press law applies to videographic systems.” 256 In another note from the same period, the Service restated that the provisions of the criminal code having to do with public decency 257 “will apply without difficulty”, and concluded that “given the applicability of all the texts that govern press and edition, there is absolutely no legal emptiness surrounding the Velizy experiment.” 258 On December 11, 1980, Bertrand Cousin, Head of the Prime Minister’s Legal Service, pointed out before parliament that “it cannot be said that the birth of telematics is taking place in a completely empty legal framework.” 259 On March 5, 1981, the Legal Service again stated: “the general current of thought, supported by positive law, suggests that [press law] applies to videography.” 260 The trend continued until the election of François Mitterrand. On February 18, 1981, Mr. Cousin, Head of the Legal Service, and a member of the ad hoc Telematics Commission, reasserted “the rules applicable … to TELETEX (implementation of 256 Léorier, “Principes Juridiques Généraux Applicables à la Vidéographie,” (Service Juridique & Technique de l'Information, September 4, 1980) 257 bonnes moeurs 258 Unnamed note, (Service Juridique & Technique de l'Information, circa 1980) 259 Bertrand Cousin, “Exposé de M. Bertrand Cousin devant la Commission des Affaires Culturelles de l'Assemblée Nationale le 11 Décembre 1980 sur: Les Aspects Juridiques des Nouveaux Services du VIDEO-TEXTE” (Ministère de la Culture et de la Communication, December 11, 1980) 260 J.Y. Plouvin, “Aspects Juridiques des Nouveaux Services du Video-Texte” (Ministère de la Communication : Service Juridique & Technique de l'Information, March 5, 1981) 102 press laws).” 261 During the same Commission meeting, Mr. Ribes, Minister of the PTT, stated unequivocally: “the entire body of laws and regulations applicable to information and publication law will apply automatically to the service providers [part of the T3V experiment].” 262 During the last meeting of the ad hoc Telematics Commission before the Mitterrand election, M. Cousin, for a last time, restated: “press law is applicable either automatically or by analogy … what is at stake for the printed press are less legal considerations (press law will apply … to videography), than economic considerations.” 263 The implementation of a censorship system for videotex even more counterintuitive as key members of the judiciary and executive branch, prior to the Mitterrand election, promoted liberal principles such as network neutrality and the freedom to publish as cornerstones of videotex, and considered that existing press laws applied to videotex, making specific codes of conduct unnecessary. They blasted prior restraint through restrictions on access, and contractually-imposed “self-regulation” mechanisms such as codes of conduct 264 as deprived of legal basis. They considered that the PTT should remain a common carrier as far as videotex is concerned, which would preclude any involvement of the PTT in controlling either access or the content being transmitted over the network. 265 The election of François Mitterrand marked an inflection point, which led to the imposition of a censorship system implemented through Prefects from 1982 to 1986, and through the telecom operator from 1986 until the death of the network on 2012. The analysis of the 261 Minutes of the meeting of the Telematics Commission, February 18, 1981 262 Ibid. 263 Minutes of the meeting of the Telematics Commission, February 18, 1981 264 F. Froment Meurice, “Principes Généraux Applicables au Videotex: Premiers Eléments,” (Premier Ministre : Secrétariat Général du Gouvernment, June 30, 1980) 265 Ibid. 103 reasons which drove the implementation of such a system reveal the key influence of the political tradition of centralization on the implementation of the Teletel network. Ironically, the catalyst of the inflection point was the press industry; its motivation was economic, not ideological. 3.3 The Press Paradox As early as the regional press heard of the videotex experiments being conducted in France, it opposed such experiments, and the new medium in general, through relentless and brutal opinion campaigns. 266 Led by François Régis Hutin, the powerful owner of Ouest France, the country’s largest newspaper, the regional-press lobby demanded that the state refrain from participating in such experiments, and that videotex services be subject to a monopoly granted to the press industry through the implementation of a prior authorization regime. In creative, and somewhat incoherent ways, the lobby warned of the “big brother”being created by the state. 267 Through relentless references to “Moscow,” 268 it suggested that an electronic behemoth was being created as a state-run information outlet that would destroy the free press and lead to the demise of democracy. At the same time, it warned that the new information system was a space of lawlessness, which would lead to anarchy if specific codes of conduct enforced through censorship were not implemented, as 266 A detailed account is provided in Marchand, Minitel Saga, 37-47. Marti, Minitel, 16-43, provides a similar account, as well as copies of incendiary articles published in Ouest- France, attacking the Minitel project. 267 Marti, Minitel, 16-43, 268 See for example Philippe Gallard, “L’Annuaire Electronique: Un Gadget Coûteux pour l’Usager,” Ouest-France, August 3, 1980 104 new, non-traditional-print-press publishers would otherwise consider that “everything [is] permitted and possible,” 269 an undesirable outcome. The behavior of the press was paradoxical, because France is a free country, with a strong tradition of free press which has supported democracy through the majority of France’s post-1789 history. From a political-philosophy standpoint, in a liberal democracy such as France, the press should be expected to fight for the freedom to publish, including no prior restraints (in contrast to a censorship regime), and as few restrictions on content as possible (in contrast to state-sponsored codes of conducts that include content not to be distributed). Yet, paradoxically, the regional-press lobby demanded the implementation of specific restrictions on content for the new medium, a prior authorization regime, and a monopoly system. The paradox can easily be resolved by demonstrating that the real motivations of the press were strictly economic – something which was not lost on the key players in the executive and judicial branch, who were not fooled by the grand “we need censorship to save democracy” assertions of Hutin and his followers. This interplay is briefly addressed, which was successful from the perspective of the press. What matters from our standpoint, however, is not so much that the press mostly had its way, but the reasons behind this success, which are, in part, economically driven, but also, and this is the overall claim of this chapter, driven by political-philosophy consideration in general, and by the influence of the 269 “Contribution du SNPQR au Rapport de la Communission du Suivi Télématique: Les Expériences et leur Suivi,” October 18, 1982 105 political tradition of centralization on digital-information-network implementation, in particular. The motivation of the press in general, and of the regional-press lobby in particular, was economic. It was not lost on them that the new electronic medium threatened their business model and the economic equilibrium that they had achieved by selling their readers’ attention to advertisers in general, and people placing classified ads in particular. A few press companies, such as Le Parisien and Les Dernières Nouvelles d’Alsace, immediately embraced the new medium and started experimenting with new business models for publishing. The powerful Ouest France, however, and its regional-press followers, which formed the majority of the industry, demanded, as a move towards self- sustainability in the electronic age, that the freedom to publish, which they should have strived for from a philosophical standpoint, be abolished in the electronic realm. In the court of public opinion the regional-press lobby was careful to invoke the interest of the public, not their selfish, industry-specific concerns. But the situation behind the closed doors of Paris politics was quite different. The archives from this period makes clear that decision makers, both before and after the Mitterrand election, understood what was at stake. The minutes from the February 18, 1981, meeting of the ad hoc Telematics Commission, for example, recorded that “the representatives of the press communicated their reservations concerning possible free services: they consider that free services should only be allowed for public services, and that private services should only be allowed to be provided on a 106 pay-basis.” 270 During the same meeting, M. Bouzinac, General Director of the National Federation of the French Press, stated: “as a matter of principle, service providers can only distribute information tied to their corporate object, 271 which excludes any advertising for products or services provided by third parties.” 272 The barriers to entry to the electronic press industry market, in the form of monopolies, prior authorization regimes enforced by the state, and “self-regulation” mechanisms enforced by the carrier, were all requested by the existing press lobby for the purpose of maintaining the existing production and distribution structure of information goods in an increasingly electronic world. Bertrand Cousin, the Head of the Legal Service, explained in a speech before parliament’s Cultural Affairs Commission on December 11, 1980, “in effect, what is at stake for the printed press are not legal considerations, but economic considerations.” 273 Such economic considerations could not be preserved without implementation of monopolies and censorship models, since the executive and the judiciary considered that existing press laws applied, which implied, lest some drastic measures be put in place, the freedom to start publishing, and the freedom, in this context, to distribute any information not per se illegal, including, of course, classified adds. Hence the statement from the press lobby’s M. Bouzinac that “unless a specific regulation is passed, the rules of the games have to be implemented through the contracts entered into [between the carriers and] the content 270 Minutes of the meeting of the Telematics Commission, February 18, 1981 271 As stated in their bylaws and filed with the commercial register, the French equivalent of the US secretary of state, when incorporating the company 272 Minutes of the meeting of the Telematics Commission, February 18, 1981 273 Bertrand Cousin, “Exposé de M. Bertrand Cousin devant la Commission des Affaires Culturelles de l'Assemblée Nationale le 11 Décembre 1980 sur: Les Aspects Juridiques des Nouveaux Services du VIDEO-TEXTE” (Ministère de la Culture et de la Communication, December 11, 1980) 107 providers.” 274 Such considerations would later be echoed, after Mitterrand’s election, in a report from the Legal Service, stating that the code of conduct being imposed contractually “gives the press a number of assurances (exclusivity for classified ads, limitation of administrative services [present on the network].)” 275 As early as 1980 the Prime Minister felt heavy pressure from the press, 276 but it was not until after the Mitterrand election that the regional-press lobby had its way. By June 1981, Pierre Huet, the State Council Justice who continued to head the Telematics Commission until 1987, and who was the person who originally suggested that common-carrier principles should apply, so that content neutrality would prevail, 277 wrote an introductory report to the new Minister of PTT, Louis Mexandeau. He reasserted that “the PTT Code applies: it grants the telecommunications administration a monopoly of transmission of mail correspondence, and in turn the administration is bound by public service obligations (freedom of access, mail secrecy,” Huet argued: as far as this analysis can lead, one must observe that positive law is not sufficient in solving all the problems raised by the development of the new technologies nor is it sufficient in defining the place of the new technologies in the media ecosystem. This is why specific provisions have been established for Teletel, that will be imposed contractually to the participants 274 Minutes of the meeting of the Telematics Commission, April 15, 1981 275 Service Juridique & Technique de l’Information, “Note sur les Problèmes posés par le Développement de la Télématique,” Ministère de la Communication, September 28, 1981 276 Raymond Barre, Prime Minister, letter to Senate President Alain Poher, December 1, 1980 277 Maury, interview no.2 108 in the T3V experiment. These provisions have to do in particular with the conditions under which services can be offered by the providers within the limits of their corporate objects, with the space which will be allocated to classified ads, advertisements, administrative information, and local-services information … some of these problems can be settled within the working group itself; the group will report to the commission, and the commission will report to the Minister, who will make the final decision for those questions that require a decision to be made. 278 Huet’s June 1981 report to the PTT Minister seems to mark the first time that a restrictive regime was formalized in writing. Such freedom-of-speech-constraining regime, to be negotiated between the press lobby and representatives of the executive branch (the DGT) and the judiciary (State Council Justice Huet), and subsequently imposed on content providers through contracts – which had to be signed if one were to be allowed to publish over the network – had no legal basis, something which was later recognized by the Constitutional Council 279 and by Pierre Huet himself. 280 In September of 1981, the Communications Ministry’s Legal Service suggested that the debate be taken to parliament to “establish a satisfying balance between the protection of individual liberties, the safeguard of the press industry’s legitimate interests, freedom of 278 Pierre Huet, Letter to Telecommunications Minister M. Mexandeau, June 19, 1981 279 Cons. const., DC. No. 96-378 of July 23, 1996, J.O., July 27, 1996, p. 11400. 280 Pierre Huet, “Cadre Juridique de l’Audiotex en France et dans le Monde,” Droit de l’Informatique & des Télécoms 3 (1994), 59 109 initiative, and the respect of the principle of freedom of access to the profession of editor as guaranteed by the 1881 Act.” This Note placed “the safeguard of the press industry’s legitimate interests”, that is, the preservation of its industrial monopoly and, more generally its market share in the overall information business, on the same level of importance as constitutionally-protected civil liberties. It asked that the parliamentary debate answer the following question: “should we keep the liberal philosophy behind the 1881 Act when it comes to the [prior declaration] regime and apply it to the new media, whereas the press wants, instead, to benefit from privileged access, which would imply a regime of prior authorization?” At that point the executive branch embraced the press’ economic motivations as legitimate and equal in standing to the interests of the citizenry to distribute and receive information in relatively unfettered way, in order to appease the press. In an October 14, 1981 Note, the Communications Ministry’s Legal Service again underlined the “legitimate fears [of the press industry] of the menace posed by a quick and massive transformation of the means of access to information that would destabilize to its detriment the balance between media.” 281 These fears, the Note suggested, led to a lockout. In order to “prevent such lockout to hinder industrial choices … strategic choices regarding the development of telematics must be re-oriented, through the definition of a legal regime applicable to new media.” 282 and priority of access of the existing press industry needed to be granted to the new media. 283 281 Service Juridique & Technique de l’Information, “Projet de Communication sur la Télématique,” Ministère de la Communication, October 14, 1981 282 Service Juridique & Technique de l’Information, “Projet de Communication sur la Télématique,” Ministère de la Communication, October 14, 1981 283 Ibid. 110 The question is this: why was the press industry so successful at creating a shift in legal and regulatory approaches to videotex, which led to the implementation of a censored Teletel network? One reason was the weight of the regional-press lobby. The war waged by Ouest France and others on the Valérie Giscard d’Estaing administration was noted by the Mitterrand administration. The new Mitterand administration seems to have understood that the digital development of France had to remain a focus and also wanted to appease the powerful press, which had played a role in President Valérie Giscard d’Estaing’s failure to get reelected. This story has been well documented. 284 In addition, a socialist administration, like that of Mitterrand, was naturally more inclined to proceed via negotiation and to enforce distortions in competition through regulation than a right wing Giscard d’Estaing government. A parallel can be made to the recent entry in the French telecom market of a fourth mobile phone operator, whose license was granted by the right- wing Sarkozy administration. The entry of the new player severely threatened economically the three existing players, so much so that the new socialist administration of President Hollande, fustigated the right-wing Sarkozy government for failing to “coordinate” the entry of the new operator into the market. According to Fleur Pellerin, the new Minister for Innovation and Digital Economy, “the entry on the market of the fourth mobile phone operator has been handled by the previous government without paying any 284 Carpenter, Bataille des Télécoms; Marchand, Minitel Saga; Marti, Minitel. 111 thought to its consequences on employment.” 285 Further, the Mitterrand administration, as the first left-wing administration of the Fifth Republic, was eager to avoid being accused of recreating a “Moscow-like” regime, as the Giscard d’Estaing had been by Ouest-France. Such motives, however, while real, are not enough to justify such drastic departure from principles which, in the analog world, were so well established: freedom of the press, and common-carrier and network neutrality. The influence of the press lobby on the 1981election is not enough to explain such a drastic departure, especially over the long run, especially given that the executive and the legislative branch, under a right-wing government, would later – in 1994 - propose to extend the Teletel censorship system to the French Internet. The philosophical disposition of the socialist party to proceed through social-body-inclusive negotiations also fails to explain the consistency through which, since 1981, French governments of all stripes have approached digital information network design and regulation, be it in Teletel or Internet context. The remainder of this chapter argues that there are more deeply rooted influences that better explain the Teletel- network-implementation choices that were made in the production phase. These influences revolve around state-society relations traditions, and specifically the deeply- rooted political tradition of centralized command and control by the state as organizer of social and economic relations. As explained in Chapter 5, such influences were a constant over time in relation to the design and implementation of digital information networks in 285 “Télécoms : le gouvernement ne «tolèrera pas» de destructions d'emplois,” Le Parisien, July 17, 2012, accessed April 14, 2013, http://www.leparisien.fr/economie/telecoms-le- gouvernement-ne-tolerera-pas-de-destructions-d-emplois-17-07-2012-2093137.php 112 France. The remainder of this Chapter discusses four ways in which this tradition played out in the Teletel context. IV. THE FRENCH TRADITION OF CONTENT CONTROL, AND APPEAL TO FEAR BY THE PRESS The French constitutional order rests on assumptions different from those of the United States, especially in the ways in which liberties are balanced. In the field of free speech, for example, in contrast to the negative command, “Congress shall not . . .,” the positive role of the French government is striking: “Any citizen may . . . speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” 286 In France, there is no theory of popular self-government. Instead, sovereignty rests in the Nation, whose will is expressed by Parliament. Alexander Meiklejohn was describing the United States when he wrote “in a society pledged to self-government, it is never true that, in the long run, the security of the nation is endangered by the people . . .. Freedom is always wise. That is the faith, the experimental faith, by which we Americans have undertaken to live.” 287 By contrast, in France, the Declaration of the Rights of Man and the Citizen declares “[t]he Law has the right to forbid . . . those actions that are injurious to 286 Déclaration Universelle des Droits de l’Homme et du Citoyen, 1789, art 11 287 Alexander Meiklejohn, “Testimony on the Meaning of the First Amendment, Address before the U.S. Senate Subcommittee on Constitutional Rights,” Senate, Committee on theJudiciary, Subcommittee on Constitutional Rights,Hearings, 84th Congress, 1st Session, 1955 113 society.” 288 The Law protects the people against the arbitrary abuse of power. The relationship, therefore, is one of trust placed in Parliament by the people. It is a faith that Laws will protect the general populace against the abuses of liberties by some. With regard to hate speech, for example, which is protected in the United States because “the forefathers did not trust any government to separate the true from the false for us,” 289 the positive role of the French government is manifested in the Law of July 29, 1881 on the Freedom of the Press (Law on the Press of 1881), which criminalizes the expression of racist ideas. The prohibition of hate speech is a consequence of the belief that harm will result from such speech and that Parliament has a duty to protect the people against such harm. 290 French positive law offers many examples of broad content control, from the prohibition to express ideas over broadcast in any language other than French, to criminal libel (an offense often used by politicians to pressure journalists), to insult against the President of the Republic, to the prohibition to “present narcotics under a good light,” an offense used to prosecute proponents of marijuana legalization. 291 These content-control laws reflect the State’s positivistic view on expression control, an approach which is made more effective by the centralized feature of the French State. A key feature of the French civil-liberties and constitutional-law tradition is the faith placed by the people in a paternalistic, centralized state, to constrain freedoms to protect the people at large against abuses of freedom by some. It is this faith that was invoked by the press, when it warned of 288 Déclaration Universelle des Droits de l’Homme et du Citoyen, 1789, art 5 289 Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). 290 “[S]ince the 1789 Declaration of the Rights of Man and the Citizen, . . . each individual is to be protected against all forms of discrimination . . . .” French Republic Ministry of Justice, “The Development of Anti-Racist Laws,” accessed Oct. 2, 2001, http://www.justice.gouv.fr/anglais/europe/aantirac.htm 291 Mailland, “Freedom of Speech,” 114 the risk of anarchy that would result from the Teletel network if such network was not bound by new, specific laws, ensuring that service providers would not abuse freedom and hurt the people. Reacting to the T3V experiments, the press lobby warned of “the lack of a rulebook…which has led to a certain state of anarchy at the start, and created the illusion for many service providers that everything was permitted and possible.” 292 This is a far cry from the civil libertarian ideals that drove First Amendment jurisprudence in the United States in the post-WWII era and that were a crucial influence in the development of the Internet structure and implementation. So, the true motivations of the regional-press industry were of a business nature: rather than embracing digital information production and distribution technologies as an opportunity for its self-development, it considered it as an enemy that should be destroyed, or, at least, submitted to fit the existing information-economy order. But this selfish argument would have failed in the court of public opinion, so the press crafted its public rhetoric around an appeal to fear, 293 which invoked the necessary role of the centralized state to protect the people against abuses of freedom by a minority. Lest the government intervene to regulate Teletel and constrain in within a monopoly system for the press, or at least a prior authorization system, then service providers would risk 292 “Contribution du SNPQR au Rapport de la Communission du Suivi Télématique: Les Expériences et leur Suivi,” October 18, 1982 293 As explained by Tom Hollihan and Kevin Baaske, appeal to fear refers to an argument that “relies in fear to convince someone to agree … Such appeals do not provide real choice, and thus they are not really reasons for agreement – even if they are sometimes successful in gaining compliance.” Tom Hollihan and Kevin Baaske, Arguments and Arguing: The Products and Process of Human Decision Making (Long Grove: Waveland, 2 nd ed., 2005), 166 115 thinking that “everything [is] permitted and possible,” 294 an outcome that might sound like music to the ear of Alex Meiklejohn, but not to the French people Further evidence shows that the DGT, and the new Mitterrand administration, felt such angst from the people, created from the press’ relentless rhetoric of fear when it came to Teletel, that it felt it had no choice but to bring the debate before Parliament, which, in turn, subjected Teletel to the prior-authorization censorship regime in 1982. This underpins the subconscious need of the French to have social relations regulated from the top-down, and highlights the direct impact that the tradition of centralization and content control by the State had on digital information network implementation in France. Chapter 5 shows how this same rhetoric was used a decade later to suggest that the censorship system applied to Teletel should be extended to the French Internet. Indeed, approaches to controlling networks seems to confirm the argument that the implementation of digital information distribution networks in France result directly from a deeply rooted state-society relations tradition that places the state at the center of social organization, rather than just from circumstantial human, political, and economic factors. 294 “Contribution du SNPQR au Rapport de la Communission du Suivi Télématique: Les Expériences et leur Suivi,” October 18, 1982 116 V. THE STATE AS ORGANIZER OF ECONOMIC AND SOCIAL RELATIONS Notes from the executive branch, that discussed the new legal regime that should be applicable to videotex, highlight the central role of the State as organizer of French social and economic relations. The direct role of states, in this respect, is not specific to France. The Internet evolved from networks funded in major part by the U.S. government. 295 However, in France, this role went beyond funding to encompass micro-management. One note, for example, suggested that the State must engage into negotiations with the press “in order to determine the role it should have in the new media industry.” 296 Such determination was not seen as something that should be left to market forces. Likewise, the state shall create “legal limitations on competition” to protect the press, as well as grant the latter “priority of access” to the new media. 297 Here, we are not only observing the state promote a new industry, as, for example, the Clinton administration did when it took an active part in promoting e-commerce 298 - but also act in promoting certain industries over others within that new realm. To do so, the executive branch shaped the Teletel legal regime. In a November 5, 1981, letter to the Minister of PTT, for example, the Minister of Communication congratulates his PTT counterpart for promising to « cooperate with the 295 See generally Janet Abbate, Inventing the Internet (Cambridge: MIT Press, 1999) 296 Service Juridique & Technique de l’Information, “Projet de Communication sur la Télématique,” Ministère de la Communication, October 14, 1981 297 Ibid. 298 Jack Goldsmith and Tim Wu, Who Controls the Internet?: Illusions of a Borderless World (New York: Oxford, paperback, 2008), 40-43 117 press » in the context of Teletel – and to remind the PTT Minister of his wish that the press be afforded a “privileged place in the development of videotex.” 299 Network implementation, then, through censorship and monopolies (classified ads, commission paritaire) directly resulted from the central role of the executive as the micro- manager of French social and economic relations. In this case, arbitrages occurred between different ministries, and the results of the arbitrages were implemented through regulation that affected market forces through subsidies and created barriers to network entry in favor of certain parts of the constituency. VI. CENTRALIZATION AND COGNITIVE FRAMES The tradition of centralization in France is old and permeates so many aspects of lives that it appears to have contained cognitive frames of the people at all levels of society in ways that constrains the imagination of what is possible.Cognitive psychologists and linguists argue that the environment in which one grows up defines one’s perception of the world and what one thinks is possible and not possible. This principle has been applied in the 299 George Fillioud, Communication Minister, letter to Louis Mexandeau, PPT Minister, November 5, 1981: “J'ai pris note avec intérêt de votre allocution au VIDCOM 1981, de votre soucis d'éviter tout risque de déstabilisation de la presse et d'assurer même une coopération avec elle ci en matière de télématique. En effet, en tant que Ministre de la Communication j'ai déjà eu l'occasion d'exprimer mon souhait que l'appréciation des expériences en cours prenne en compte les besoins de la presse écrite, afin notamment de lui assurer une place privilégiée en matière d'information dans le développement du vidéotex et du télétexte." 118 field of communication by legal scholars. Lawrence Lessig talked of an Internet “architecture ... that structures and constrains social ... power." 300 James Boyle argued that the information ecosystem constrains our social behavior. In reference to the current intellectual property enclosure movement, he suggested specifically that the trend leads to "the enclosure of the intangible commons of the mind," 301 meaning that the shape of the information ecosystem by large corporations and states has created a "cognitive bias, one that the behavioral economists have not yet identified. Call it openness aversion. Cultural agoraphobia. We are systematically likely to undervalue the importance, viability, and productive power of open systems, open networks, and nonproprietary production." 302 That cognitive bias means that the information ecosystem constrains what we think we can do. Finally, Yochai Benkler suggested that the current legal battles surrounding the Internet, because they affect “the institutional ecology of the digital environment … will likely have a significant effect on how we come to know what is going on in the world we occupy, and to what extent and in what forms we will be able – as autonomous individuals, as citizens, and as participants in cultures and communities – to affect how we and others see the word as it is and as it might be.” 303 The same principles apply also to the development and implementation of the Teletel network, as can be demonstrated by examples that illustrate that the tradition of centralization constrained what high-level civil servants thought was desirable, and also what civil society thought was desirable. 300 Lawrence Lessig, Code and Other Laws of Cyberspace (New York, Basic Books, paperback, 1999), 5 301 James Boyle, The Public Domain: Enclosing the Commons of the Mind (New Haven: Yale University Press, 2008), 45 302 Ibid., 231 303 Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven: Yale University Press, 2006), 2 119 From a top-down standpoint The extreme importance of the tradition of centralization in French society, and its impact on network design, is highlighted in a November 1983 report from the Prime Minister’s Information Office, which, ironically, discusses the role that videotex should play in supporting decentralization. 304 “Telematics must become the instrument of a true regional, departmental, and local information politics, and serve decentralization,” the report writes.” 305 Further, local entities are themselves responsible to “conceive, implement, and manage their own information systems.” 306 But, in France, unlike in the United States, decentralization is not built from the edges. In the United States separate colonies came together to form a federal union, which, from the standpoint of international law theory is an upward integration movement. Conversely, in France, decentralization was imposed from the top and responsibilities move downwards by the grace of the centralized State. In doing so, the centralized State makes sure that uniformity remain the rule, despite the move towards decentralization, which can be contrasted to the American situation where federalism has created conflicts of laws and forum shopping among individual states that are part of the same country. 307 The impact of the tradition of centralization on videotex implementation is evident in the report: “The State has initiated or supported experimental 304 “Le Rôle du Service d’Information et de Diffusion en Matière d’Information Administrative par Vidéotex,” Premier Ministre, Service d’Information et de Diffusion, November 1983 305 Ibid. 306 Ibid. 307 Unlike in France where conflicts of laws and jurisdiction are taught with foreign countries as the element of externality, in the US, the first cases taught in this field involve cross-states, but U.S.-domestic, contracts and torts. 120 projects. It is now desirable, in the interest of all, that [the State] be present in the development phase. It is also necessary that each region harmonize the different initiatives that will come to light. In this respect, the Republic’s Commissioners 308 and the external services of the State 309 [both local representatives of the centralized State]can be the leaders of a regional cooperation of the various projects, in order to avoid a disorganized development, which would create waste and inefficiencies.” The difference with U.S. philosophy is again quite striking. However, also note that the Internet developed in part because DARPA wanted to avoid waste and inefficiencies resulting from redundancies of super computers installed in various locations and not networked. 310 The French tradition of centralization, in the domain of innovation in general, and of videotex in particular, suggests that entrepreneurship needs to be harnessed by the State. This echoes the overall belief that the people need to be protected against the abuses of freedom, which stands in sharp contrast with American traditions. In this case, the press must be protected from the invasive new medium. This tradition has had a direct impact on the ways in which access to videotex, from the standpoint of content providers, was regulated. Where under the July 29, 1982 Act, parliament established a general principle of freedom of access, subject only to a prior declaration obligation, the same law instituted a transitional regime of prior authorization, to apply until January 1, 1986. “In instituting a 308 Commissaire de la République 309 Services exterieurs de l’Etat 310 See generally Abbate, Inventing the Internet 121 temporary prior-authorization regime,” a 1983 note from the DGT points out, “parliament meant to give the communications sector the time to define and organize itself.” 311 From a bottom-up standpoint Evidence indicates that members of civil society also saw centralized governance as absolutely necessary. This highlights the importance of political traditions in defining cognitive frames, which in turns impact the design of networks. The people do not seem to imagine a world where innovation runs free and is not pacified by a central, organizing force. In this sense, even when the State does not take the initiative to centralize, the people, whose thought is framed by centuries of centralization, ask for the implementation of a familiar governance model within the network. Remember the earlier comparison between the architecture of the Teletel network and the architecture of 17 th century Colbertiste communication networks. Borrowing from James Scott, such design “severed or weakened lateral cultural or economic ties by favoring hierarchical links,” 312 and such links seem to have created a lasting impression on the French layman regarding imagining social organization possibilities. The labor unions, for example, who generally saw telematics as a driver of industrial growth and job creation, also insisted on the importance that telematics be driven by centralized forces. In an October 18, 1982 note, the Confédération Force-Ouvrière 313 311 Archive 21 312 Scott, State, 76 313 FO is a communist-leaning union 122 demanded that telematics be part of the Plan. To reinforce the skill level, and therefore the international competiveness of the French industrial sector in the realm of telematics, the union demanded that the National Education ministry be involved in training at all levels of telematics (systems architecture, research, development, network operations, service providing). Finally, it warned that neo-liberal "laissez-faire" would be dangerous and that authorization to provide services should be granted based on common good considerations. 314 More important, the need for centralization of governance was shared within civil society far beyond the bolshevist circles, which intrinsically favor state planning. Users’ associations agreed explicitly, albeit more tamely. One example is found in the report by the association of users of Teletel 3V, dated October 14, 1982. Faced with the complexity of grasping databases put together by so many different sources, the association states that the organizational logic of databases and the means of accessing them needs to be harmonized, “which is incompatible with total freedom left to service providers. A central organization stating minimum common rules seems to be required.” 315 This radical statement went beyond the choices that were eventually taken by the DGT, which chose to support Teletel service providers with its expertise in organizing sites’ arborescence, use of function keys, and look and feel, but never mandated any particular structure or aspects. 314 Archives 9 315 Archive 10, emphasis added 123 VII. “WE WERE AFRAID TO GO TO JAIL!” Technology histories are full of human intrigue as a driving factor for the paths that science takes on its way to becoming technology and the ways in which technologies are themselves implemented. 316 The Minitel story is no exception, something Gerard Théry summed up well: "systems are not systems, they are men." 317 Francois-Régis Hutin was a key player in successfully pushing the regional-press' lobby's interests in Paris. The Ouest France Minitel story is detailed elsewhere. 318 The personality of President Giscard d'Estaing, Gerard Théry, and Jean-Paul Maury played an integral part in the Minitel success story, and as did that of other players in the nascent digital-information-distribution industry. As Théry and Maury pointed out in interviews, the Minitel story is that of "the DGT against everybody." 319 Théry recalls how Jean Autin, the head of the PTT's "hereditary enemy," France Broadcasting (Télédiffusion de France, "TDF"), paid him a visit. 320 TDF was under the umbrella of the Ministry of Information and its culture of censorship. At the time, TDF, and its research lab, the CCETT, was promoting its own digital information system, a one-way broadcast equivalent of videotex called teletex, based on the related Antiope video technology it had developed. The story of the battle between TDF and the DGT is one of industrial and political antagonism. As the battle played out, its players brought with them their organizational culture and regulatory traditions. Where the PTT had always operated as a common-carrier that applied network neutrality, TDF operated 316 See e.g. Bijkter, Hugues and Pinch, Social Construction; Hong, Wireless 317 Théry, interview 318 Carpenter, Bataille des Télécoms; Marchand, Minitel Saga; Marti, Minitel 319 Maury, interview no.2; Théry, interview 320 Théry, interview 124 under a diametrically opposed operational code. Broadcast was a then state monopoly, and the broadcasting offices, TDF and its predecessor, the ORTF were the kingdom of self- censorship. France was never Bolshevik Russia, but the counterculture had not exactly reached the ORTF and TDF either. For Théry, “the television lobby could not conceive of anything besides administered images.” 321 To top it off, some of the broadcast administration leaders previously served in the French colonies, where the rule of law and openness seldom applied. Both Maury and Baujard insist that the background of key ORTF leaders as former French-colonies-administrator played a key role on shaping their views of Minitel. 322 Jean Pierre Autin, the man who paid Gerard Théry a visit, was one such man. "They came to lecture me, Théry recalls. They wanted to place Minitel under broadcast law... If you open the Pandora’s box, they said, it will be smut. You will transform France into one giant porno theatre!" 323 TDF, Théry recalled, teamed up with Hutin and Ouest France and made such a fuss that Théry's successor, Jacques Dondoux, had to negotiate a truce with the press industry in the form of a monopoly granted to the press for displaying classified ads and for access to the lucrative 3615 network. 324 Another human interaction that carried with it the weight of state-society relations tradition, and particularly the one of protection of the people by the state through criminal content-control laws, was the one between Jean-Paul Maury and Jean-Jacques de Bresson, head of the Telematics Commission from 1987 to 1999. In several interviews with Jean- 321 Théry, interview. Théry also points out that in contrast to two-way information networks, today’s digital television “does not produce any innovation.” Ibid. 322 Baujard, interview; Maury, interview no.1; Maury, interview no.2 323 Théry, interview 324 Théry, interview 125 Paul Maury, one fear recurred in the conversation, that of “going to jail.” 325 When pressed about why the DGT implemented a censorship system, Maury repeated several times that De Bresson kept threatening him to end up in jail if there was any illegal content flowing through the network. In Maury’s own admission, such incentive had a direct impact on the level of care with which the DGT implemented censorship in the post-1986 period through the contractually-imposed codes of conduct and prior review of declaratory documents filed by wannabe content providers, as well as on the level of a posteriori monitoring performed by the DGT and later France Telecom. De Bresson seems to have made quite an impression on Maury, given the recurrent insistence of Maury of justifying his own Teletel implementation actions with a loud cry: "De Bresson kept telling me: 'Monsieur Maury, you will end up in jail'... We did it because we were afraid to go to jail!” 326 Théry described De Bresson as "the old guard of the ORTF," while Maury underlines his background as being one "from the colonies." 327 Both comments imply the weight that the tradition of control De Bresson brought with him played on the ways in which politics, and behind them, the Teletel implementation, played out. Michel Baujard, a former member of the Telematics Commission and former president of the National Syndicate of Telecommunications Media, 328 corroborates this analysis, and describes De Bresson's personality as a "key" to understanding the ways in which the DGT implemented Teletel after 1986. De Bresson made a career as a lawyer in the colonies, in the Ministry of the Interior, in the Ministry of Information, then as Director of the ORTF, Baujard recalls: "he 325 Maury, interview no.1; Maury, interview no.2 326 Maury, interview no.1; Maury, interview no.2 327 Maury, interview no.2; Théry, interview 328 Syndicat Professionnel des Médias de Télécommunications 126 was a guy immersed in censorship. He could not reason in any other way than through censorship." 329 De Bresson was later instrumental in efforts to extend jurisdiction of the Telematics Commission - and the censorship regime - to the French Internet, a move analyzed later. In a 1996 Le Figaro interview, De Bresson declared: "With Internet, the French authorities can, if they want to, exert control. What can we do? First off, regulate everything that originates from France. Then, take the necessary technical measures in order to control the information that is flowing. And finally, jump start international cooperation. This should lead to international treaties." 330 Such outlook adequately sums up the French attitude to digital-communication-network-regulation, and to French state-society relations organization in general: a concentric ripple from the center towards the edges. Chapter 5 considers how this tradition impacted the development of the French Internet. CONCLUSION To conclude, French state-society relations traditions are deeply embedded in the design and implementation of the Teletel network. The network was subject to other influences. The entrepreneurial spirit that reigned within the DGT teams and at the edges were also important to Teletel's success. Minitel would not have succeeded without, in Gerard Théry's words, "a bunch of crazies," an adjective that included himself.Yet, those crazies 329 Michel Baujard, interview with author, Paris, France, June 29, 2012 330 Jacques De Bresson, interview, Le Figaro, February 21, 1996 127 were constrained by the powerful forces of tradition. The visceral cognitive feeling, at all levels of society, that freedom can be dangerous and must be reined in by the state, in particular through information content and distribution control mechanisms, enabled the regional-press lobby, through an effective appeal to fear, to successfully push for a censorship system that was, as far as the press was concerned, only a means to preserve its industry’s existing economic structure. The central role of Paris as a must-go-through point for all economic activity was reflected in the Kiosk system and the X.25 implementation that prevented hosts from acting as switches. As the Colbertist road design had once done, these implementation choices “severed or weakened lateral cultural or economic ties by favoring hierarchical links.” 331 The hybrid architecture of decentralized servers and centralized switches mechanically increased traffic and the value of the state- owned physical layer, and generally supported the aims of State Planning at its finest, in this case the digitization of the country and the creation of a competitive digital information industry able to compete with IBM. Chapter 5 discusses how the same forces came to play, albeit much less successfully, in the development of the French Internet and its regulatory scheme. But first, chapter 4 examines how X.25 networks were implemented in the United States, and what forces shaped such implementations. 331 Scott, State, 76 128 CHAPTER 4: AMERICAN VIDEOTEX NETWORKS The American videotex implementation is the direct result of a market-based approach to innovation and a commitment by the US government to technological neutrality, meaning that the state fostered not only competition between firms but also between standards, as a means of achieving the best possible result. It stands in sharp contrast with the dirigiste French approach, which shaped the French videotex ecosystem as a unified market that quickly reached critical mass and achieved high penetration rates. In contrast, the American approach to developing videotex, which happened in the context of the Computer Inquiries and the divestiture, that is, the breaking of the telephone monopoly that had existed for almost a century, led to a fragmented series of incompatible ecosystems that failed largely because no one system achieved critical mass and became viable for a long period of time. A few PC-based closed gardens such as AOL were successful but later interconnected with the Internet and opened their gates to survive. The direct impact of the American tradition of leaving it to market Darwinism to decide what implementation will result, and which system will triumph, is visible at several levels of the videotex ecosystem. This chapter first provides an overview of the U.S. videotex market as a series of fragmented, mostly closed, ecosystems, and breaks down these ecosystems into market layers to better analyze the impact of market laissez-faire on the U.S. implementation of videotex networks. Two case studies -- one of an unbundled ecosystem and one of a bundled system follow. These cases reinforce the thesis that American political philosophy played a strong role in shaping American X.25 information networks during the 1980s. The chapter concludes with the transition from X.25 to TPC/IP in the United States. 129 I. THE U.S. VIDEOTEX MARKET: FRAGMENTED ECOSYSTEMS The result of the market-based approach to X.25 networks in the United States was a set of fragmented markets, in which none of the operators or conglomerates reached critical mass and beat the competition. The impact of the American political tradition of state- society relations is visible at various levels of the networks. An overview of the regulatory context is provided before addressing the reasons behind the fragmented nature of the hardware, public data networks, service, interface, and privacy markets. 1.1 Overview: a layered approach to regulation; unbundled vs. bundled videotex ecologies In his analysis of the legacy of the Federal Communications Commission's Computer Inquiries, and their impact on Internet development, Bob Cannon, Senior Counsel for Internet issues at the FCC, suggested that the FCC, "albeit not necessarily overtly, adopted a layered model of regulation." 332 The Commission, according to Canon, "made policy decisions ... based not upon the technology, but upon the markets within which the technology existed... 333 The Layered Model of Regulation generally divides communications policy into (1) a physical network layer, 129 (2) a logical network layer, (3) applications and services layer, and (4) a content layer… 334 These layers emanate from 332 Cannon, “Legacy,” 194 333 Ibid., 174 334 Ibid., 130 130 the first principal concern for markets. These differing layers demarcate natural boundaries between markets." 335 From a technical standpoint, Cannon suggests, "the FCC implicitly identified that within the different layers are different markets and different regulatory concerns: •The physical network (layers 1 and 2 of the OSI reference model) is “basic services” provisioned by telephone carriers regulated under Title II. •The logical network (layers 3 and 4) is TCP/IP or Internet access provisioned by ISPs, directly and intentionally benefiting from the Computer Inquiry safeguards. •Above the logical layer are services, applications, and content provisioned by applications service providers, content providers, and a host of other players, all generally removed from communication regulation." 336 Canon explicitly addresses only the impact of the FCC's approach on the Internet, but his conceptual framework also throws light on the structure of the U.S. X.25 networks markets, because the only major difference between the Internet and X.25 networks is the network protocol itself (OSI layer 3), while the layer types are conceptually similar. At the physical layer of both the U.S. X.25 ecosystem and the early Internet are telephone carriers. Above, the logical network operators control the nodes through which digital bits transit and which route the packets, regardless of whether the packets are routed under the TCP/IP or 335 Ibid., 195 336 Ibid., 196 131 the X.25 protocol. Above the logical layers are, in both cases, information providers in their various forms, some of which (e.g., Compuserve and AOL) enjoyed relatively successful (albeit temporary) transformations from the X.25 to the Internet. In the United States, the layers above the logical layer (service, application, and content providers) usually were bundled even in otherwise unbundled models,. In contrast, there was a sharper break within the upper layers in the French model because the DGT acted as both logical network operator and service provider, but not as content provider. The assessment of the impact of political traditions on digital information networks development reveals important differences between the FCC's approach and the French government's approach. As in the United States, the layered model of analysis based on market considerations was the regulatory framework that prevailed in France. Yet, these two countries ended up with quite different digital network ecologies. There was never a single videotex system model in the United States because the State did not intervene and allowed the market to develop and reach an equilibrium point through competition, both between firms, and between standards. The FCC worked hard to create barriers between basic and enhanced service providers to encourage vertical competition, which ironically led to an American videotex world where different operational layers were bundled so that leading actors could retain more control over their respective products and horizontal markets. This can be explained by the fact that the early systems were managed by competing content providers who were competing against each other, and therefore had an interest in ensuring the lack of interoperability of the systems, so that one user would be 132 locked-in the system and would only keep accessing that provider's content. 337 For example, "Knight-Ridder's Viewtron and Times Mirror's Gateway took on the burden of creating the system' content, services, marketing, and billing themselves, with some specialized services added on from the outside." 338 Other systems were built by consortia, not by individual content providers, but business decisions still led to bundled systems because the consortia only included one player from each horizontal market. As Jerome Aumente noted in 1987, "we still see completely bundled videotex systems under development, many seeking a national market, but often they are consortia of different industries (publishing, communication, computer, banking retailing, or merchandising interests) providing their own information and transactional services but also leaving shelf space and aisles for outsiders to buy into these electronic supermarkets." 339 The vertically- bundled nature of those systems came about because although the system operators were consortia, they were vertical, and still did not allow for any significant horizontal competition. Lock-in effects are better achieved in the absence of interoperability, which is one reason consortia developed bundled vertical systems, something Apple later reproduced with its iOS ecosystem. The 101 Online venture, examined below, is one such vertically-integrated, closed, network. The contrast with France shows how the American bundled videotex implementation is the direct result of the U.S. market-approach to 337 These strategies failed because the content providers turned network operators could never attract enough critical mass to make their business financially sustainable: "These system ... were predicated on an advertising support base that could not function until a sufficient number of subscribers were on board." Jerome Aumente, New Electronic Pathways: Videotex, Teletext, and Online Databases (Newbury Park: SAGE, 1987), 16 338 Aumente, Videotex, 15 339 Ibid.,16 133 innovation development, and more broadly of the conviction that it is better to let the people decide themselves than for the state to micromanage society. Bundled, centralized, and censored systems were created by competitive markets and were not open systems. Jerome Aumente argues that by 1986, the American trend shifted to more unbundling and less centralization: The home consumer market had been battered with the shutdown of Knight- Ridder's Viewtron and Times Mirror's Gateway, but the announcement of at least three new major videotex ventures that would be national in scope counterbalanced the industry gloom ... A trend in viewdata was toward more-decentralized operations with many information providers utilizing national networks, major attention to the personal computer owner, and the deemphasize of the single-use videotex terminal. There was also less resistance to the interactive potential of viewdata services and fewer of the barriers that existed when highly centralized operations dominated by print publishers single-handedly set the tone for the new electronic text services. It was a shift from the top-down, classic videotex systems with central control by single operator to more distributed systems, gateways for many information and transactional providers, and the realization that PC owners would tap in to many different online services, not remain the exclusive property of a single videotex system operator. 340 340 Ibid., 44-45 134 PC owners started tapping into many different online services as did owners of terminals manufactured by independent companies, which did not bundle the terminal with certain content providers. Such was the case of the Quazon Quik-Link 300. Users seemed inclined to enjoyed content diversity. Wally Baer, Director of Advanced Technology at Times Mirror Co., correctly noted: the Gateway enterprise showed there is no 'magic bullet' - any single service that will be itself get the educated consumer to spend $30 a month for home services. Some of us in the news business thought it might be news and information. That is not the case – there was huge amounts of of news and information, but this was not the driving factor ... The banks would like to think it is home electronic banking and they are taking a shot at it now and maybe the will prove correct. But from our experience, while home banking is of interest to a group of consumers, it is not enough of a driver to make this a viable service. Messaging was heavily used, and games came on strong in the earlier trials and continued to be used heavily. But neither was strong enough to carry the service alone. The most important thing we learned is that today there isn't any single service that is the driving force to make a videotex service successful. 341 Quazon and other actors decided to build cheap videotex terminals that would be compatible with any X.25-compatible service-provider platform. Some formed information service companies that offered a broader variety of content – e.g., The Source and Compuserve.But the fragmentation also led to severe complications for the end users. With 341 Ibid., 62 135 Teletel, because the whole vertical chain was in one way or another either controlled or under the influence of the State, the resulting system was integrated and simple to use. In contrast, Steve Case, founder of AOL, recalls his experience with buying a Kaypro computer in 1982 and attempting to go online: It took me months, and lots of money, to finally get this computer hooked up to a modem. I remember buying a modem, but then I realized that you needed a cable to connect the modem to the computer, and I finally got that. Then you needed this thing called communication software to load on your Kaypro to talk to things. Then you needed something to talk to, so you had to subscribe to The Source, which is one I picked, and they sent their information. So it took me months to finally get this stuff to work. When I finally did, it was exciting that I finally got connected, sort of magical that I could talk to people all over the world, get information from people all over the world. At the same time, it was maddening that it was so hard to do, so slow, so ugly, so boring, so expensive. There was a lot left kind of lacking. 342 342 Steve Case, “Steve Case Oral History,” interview by Darniel S. Morrow, Computerworld Honors Program International Archives (May 15, 2000), http://www.cwhonors.org/archives/histories/Case.pdf, 16 136 Yet, despite this early setback, Steve Case realized the value of open hardware, and of services cutting through hardware platforms: As we were moving to the end of the decade, 1989, 1990, we recognized that the world was changing and that having a unified service that cut across all these different computers made sense, and our deal with Apple was unraveling. Nobody was really happy with it. So we decided that instead of developing a service for each computer, we needed to develop a service for every computer, and instead of having it be a custom service with each computer company, we needed to create our own brand. 343 Ironically however, despite efforts of hardware companies to create open hardware which could connect to a variety of online services, and efforts by entrepreneurs such as Steve Case to create services that took advantage of such openness and could be accessed by users regardless of the hardware platform they used, the American videotex market, at the service, application, and content layers, did not embrace the openness movement for itself, and rather remained closed and censored. Competition led to a series of fragmented, closed, censored gardens that did not interconnect, a business decision that led to their demise. 343 Ibid., 19 137 The remainder of this section focuses on the impact of American political traditions on the organization and implementation of the various layers of the U.S. videotex industry. It addresses the fragmentation of the hardware, public data networks, service, interface, and privacy markets and then presents two case studies, one of an unbundled ecosystem, and one of a fully-bundled ecosystem. 1.2 A fragmented hardware market In the United States, "videotex and teletex development was hampered by competing standards that left manufacturers way of producing hardware that might soon become obsolete. It made it difficult for IPs to design databases when faced with different electronic text coding and access procedures. All this, in turn, impeded the faster growth of potential mass markets needed to drive down hardware costs with economies of large- scale production." 344 Certain manufacturers, like Quazon, managed to build terminals that were compatible with a multiplicity of electronic database interfaces. Even then the access procedures for each database remained fragmented. As late as the early 1990s, certain videotex service and content providers still offered their services over a single-use terminal. For example, France Telecom: eager to dump the 50,000 American Minitels it had ordered, offered the 101 Online service over that machine. By then, however, consumer were already equipped with, and preferred, the multi-purpose, open source PC, which could multi-task as a micro-computer and connect to a variety of databases, such as The Well, Compuserve, AOL, or the upcoming privatized Internet. 344 Ibid., 121 138 The fragmentation of the U.S. hardware market was a direct result of an open competition policy and of the absence of unified U.S. government action on standards which reflected a commitment to technological neutrality by the state. This contrast between the United States and France supports the claim that the two different state-society relations approaches led to two different implementations of the same technology, and to two different sets of digital environments for the citizenry to distribute and receive content. 1.3 Multiple, un-interconnected public data networks At the logical layer, different public data networks existed, that never fully interconnected. 345 The the two main U.S. public data networks, Telenet and Tymnet are discussed next. 345 Just like the discussion of the French videotex experience ignored private networks, this chapter focusis on public data networks. There existed a myriad of private X.25 networks, many of them built by companies such as Telenet that also operated a public network: “Hughes Aircraft was Telenet’s first corporate packet network system customer, followed by Citicorp, ManufacturersHanover, Bankers Trust, the Union Bank of Switzerland, Dun and Bradstreet, the Federal Reserve Bank of Chicago, GM, NASA, the U.S. Secret Service and others. Many turnkey packet networks were global in scope. Some were hybrid satellite/packet networks, such as K-Mart’s, which linked 2,000 Kmart stores across the U.S. to headquarters via Very Small Aperture Satellite Terminals (VSATs) and packet switching equipment at each store.” Mathison, Roberts, and Walker, “Telenet,” 38 139 1.3.1 Origins of Telenet and Tymnet A brief history: 346 In 1971, Larry Roberts, ARPANET manager, met with both AT&T and Western Union to try to convince them to own and operate the ARPANET, for the benefit of the academic community and the public at large. Both attempts failed. 347 In parallel, in 1972, Bolt Beranek and Newman, Inc. (BBN), the company that manufactured the ARPANET’s routers, approached AT&T in an effort to convince them to build a public data network based on packet-switching technology that would create a commercial market for its routers. This attempt also failed. 348 BBN decided to build the network itself, and formed a subsidiary, Telenet Communications Corporation, in December 1972. 349 The next year Larry Roberts joined Telenet. 350 Tymnet and Telenet became the two largest public data networks in the United States. Telenet operated as a regulated common carrier. 351 At the physical layer, its switches interconnected using wideband digital lines leased from AT&T and other 346 A detailed history of Telenet was published by three of its founders. See Mathison, Roberts, and Walker, “Telenet.” On Tymnet, see Mischa Schwartz, “Tymnet: A Tutorial Survey of a Computer Communications Network,” IEEE Communications Society 14/5 (1976), 20-24 347 Mathison, Roberts, and Walker, “Telenet,” 29 348 Mathison, Roberts, and Walker, “Telenet,” 32 349 Ibid. 350 Ibid., 33 351 Ibid.,33; Stuart Mathison, “Telenet Inaugurates Service,” Newsletter ACM SIGCOMM Computer Communication Review, Volume 5 Issue 4, October 1975, 24 140 carriers. 352 Telenet’s gateways could be accessed either through the PTSN, private digital lines leased from AT&T’s Dataphone Digital Service, or through private analog lines. 353 In contrast, Tymnet came from the computer world, not from the ranks of network operators. Originally a computer time-sharing corporation, Tymshare, which launched commercially in 1971, 354 developed its network to allow users to remotely connect to its mainframes, so it could sell computer time instead of data-exchange time. 355 Tymshare, a proprietary network, “began using virtual circuits in 1969, although no one had coined the term yet,” 356 says LaRoy Tymes, the designer of the Tymnet supervisor. 357 Tymnet also used the X.25 protocol 358 after its specifications were finalized in 1976 under the auspices of the ITU. Tymshare soon“began to sell ‘excess capacity’ on its private data communications network to data base firms,” 359 in effect becoming a public data network: “such a service presumably provides higher efficiency at less cost than would be possible if the customer were to set up his own network using leased lines, for the network in this 352 Mathison, “Telenet Inaugurates Service,” 24 353 Ibid., 27 354 La Roy W. Tymes, “Routing and Flow Control in Tymnet,” IEEE Transactions on Communications, Vol. Com 29, No. 4 , April 1981, 392, citing L. Tymes, “TYMNET – A Terminal oriented communications network,” in Proc. AFIP Nat. Comput. Conf., Spring 1971, 211-216 355 Schwartz, “Tymnet,” 20 356 LaRoy Tymes, email no1 to author, June 3, 2013. 357 The supervisor was the system that established the virtual circuits between users and mainframes 358 Ibid. 359 Mathison, Roberts, and Walker, “Telenet,” 36 141 case is shared with the other TYMNET customers. The customer also shares in the increased dependability and reliability made possible through network rerouting and error detection capabilities.” 360 Regulatory impact on the competitive framework "The early evolution of the packet network industry,” according to Mathison, Roberts and Walker, “was influenced heavily by regulation and government policy." 361 Such policy focused on fostering competition rather than on state-driven micromanagement combined with monopolies. Ironically, Telenet used the regulatory framework as a tool for creating barriers to entry for others, to impair competition, and to control its customers. In doing so, it also affected the corporate structure of the Tymnet network. Telenet’s decision to file with the FCC as a regulated common carrier took place at a time of great uncertainty. Computer Inquiry I promulgated in 1966 required that packet network carriers be regulated. Computer Inquiriy II which followed shortly thereafter in 1980 decided that service involving protocol conversions were deemed to be “enhanced services” and therefore unregulated. 362 Telenet concluded in 1973, when it filed its FCC application, that it would be providing regulated services “under the Communications Act of 1934.” 363 The situation was not clear cut, however, and Tymshare, Telenet’s main competitor, took the opposite position and operated its packet-switched public data 360 Schwartz, “Tymnet,” 20 361 Mathison, Roberts, and Walker, “Telenet,” 44 362 Ibid., 33, footnote 19 363 Ibid., 33, footnote 17 142 network for several years without being regulated or filing tariffs. 364 LaRoy Tymes, suggested that “there was no question that what we were doing was illegal. But until Telenet came along … [n]obody really cared.” 365 Tymes’ analysis is corroborated by his Telenet colleague Norman Hardy, another key engineer at the company: A more broadly agreed violation was a fairly explicit regulation against subdividing AT&T services—in particular leased circuits. One could not lease from AT&T and subdivide the capacity and sell that to others. This was precisely what Tymnet and ARPA net were doing. You could argue that [the Department of Defense] was buying the service from AT&T and was the only user. Perhaps this was part of the ‘Authorized Usage Policy’ strategy that supposedly limited usage of ARPA net. Tymnet was clearly violating this precept but the special MCI decision by the FCC set the course for liberalization of shared usage. Someone high up in FCC understood the future. 366 Telenet, in contrast, supported the regulation of public packets networks. Its motives, however, were not the public good. Telenet took position because obtaining FCC authorization would enhance Telenet’s credibility with prospective investors and discourage entry into the packet network business by larger corporations reluctant at that time to enter regulated businesses (e.g., GE, IBM, and Xerox). Telenet also believed that tariffs filed with the 364 Ibid., 36 365 Laroy Tymes Oral History, 36 366 Norman Hardy, email no.1 to author, June 1, 2013 143 FCC would give Telenet leverage with large customer organizations when setting prices, as well as offer the ability to modify or increase prices to all customers merely by filing tariff changes. 367 In addition to using the regulatory framework to create market barriers to entry and to discourage new companies from entering the market, Telenet used the legal framework to attack existing competitors, affect their structure, and hamper the implementation of their networks. When Tymshare, as an ancillary service to its mainframes time-sharing services, began running a public data network to resell its excess network capacity, it “argued that it was providing such services under the “joint use” provisions of AT&T’s tariffs. Although Tymshare was providing a network service similar to Telenet’s, and the FCC found that Telenet’s service was a regulated common carrier service, Tymshare continued to provide network service on an unregulated basis for several years. In 1975, Telenet filed a complaint with the FCC and in 1976 the FCC ordered Tymshare to file a Section 214 application. Tymshare then set up its network services division as a separate, wholly owned subsidiary called Tymnet, and Tymnet filed an application with the FCC which was approved in 1976.” 368 Tymnet’s LaRoy Tymes corroborates Telenet’s executives account of the motives behind the litigation: “Telenet made it an issue as a way to limit Tymnet.” 369 This corporate and regulatory intrigue demonstrated how market self- micromanagement impacts the development of networks in ways that are different than 367 Ibid., 33, footnote 17 368 Ibid., 36 369 Laroy Tymes Oral History, 36 144 when the same technology is implemented by a monopolistic state administration. In contrast, the market remained unified and monopolistic in France, because the State micromanaged innovation, and the development of digital network infrastructure and did not leave it to the market to organize itself. AT&T’s internal inherency: One reason for Telenet and Tymnet’s growth was that AT&T did not enter the public data network (“PDN”) business. It could have been otherwise, however: Mathison, Roberts and Walker suggest that one reason the proposal before BBN's board of directors to build and operate a public packet network was rejected was that "AT&T's plans to provide packet network services were unclear ... Telephone companies in the UK, Canada, France and other countries indicated an interest in providing public packet switching services. Although AT&T was not receptive to Larry Robert's proposal to take over the ARPANET, it was likely that AT&T would eventually offer a public packet network service." 370 In the end, AT&T's decision not to engage in that business left the door open for private firms to develop their own networks, which coexisted, in a fragmented market. The lesson was that although AT&T was a monopoly operator subject to a number of regulatory restrictions, its business strategy was left mostly to private decisions. The unified character of the French PDN market resulted from a dirigiste state decision. In the United ,States the market-based approach taken by the state led to a fragmented market. 370 Ibid., 32, footnote 9 145 Private budgets vs. public budgets The Telenet and Tymnet implementations provide more evidence of the differences in implementation that result from different state-society organizational models. Telenet’s public data network was built on a market-based approach and did not receive U.S. government funding. One Telenet's executive noted, "Telenet's network plans and rate of expansion reflected the investment funds, which were available ... [Further,]the strategy for designing and developing the Telenet network reflected its small staff." 371 One example of budget-driven implementation decisions was the choice of type of computer to use for Terminal Interface Processor ("TIP"). Telenet "determined that the most cost-effective minicomputers to use for TIPs were Prime minicomputers, which were software compatible with the Honeywell 516 computers used in the ARPANET. Telenet would then be able to use portions of the ARPANET software (developed by BBN but funded by the U.S. government and therefore in the public domain) in its network... Telenet ... initially used the routing algorithms of the ARPANET." 372 Like Telenet, Tymnet was constrained by market realities, unlike TRANSPAC and even the ARPANET. LaRoy Tymes, 373 and Ann Hardy, another early key employee of Tymshare, recall how Tymshare’s first office “had a bathroom that didn’t have a roof. Barbara Mennell [the secretary] complained bitterly about using the bathroom when it was raining.” 374 The reason for such poor amenities was 371 Ibid., 34 372 Ibid. 373 LaRoy Tymes, “Oral History of LaRoy Tymes,” interview by Luanne Johnson and Ann Hardy, Computer History Musem, Reference number X3800.2007, accessed May 29, 2013, http://archive.computerhistory.org/resources/access/text/Oral_History/102657988.05.0 1.acc.pdf, 3 374 Ibid., 15 146 the market reality: “Cheap rent. They had no money, so cheap rent made sense.” 375 Just like with Telenet, such market realities impacted the network implementation and are especially apparent in contrast with government-funded networks such as the ARPANET. Contrasting Tymnet’s speeds, which served 300 baud devices, to that of the ARPANET, Tymes points out: “The differences were that Tymnet had to be profitable right from the very beginning. ARPANET had no constraint; in fact, it consumed very large amounts of money. ARPANET was able to use 50 kilobyte lines, so the data rates were much higher.” 376 Regarding the topology of the Tymnet network, it resulted directly from constraints similar to the ones Telenet was subject to when it decided to make of use minicomputers as nodes: budget reasons (minicomputers were cheaper). Norman Hardy explains: “the original reason for centralization was that the minicomputers of the day were far too small to have a global view … Internet routing assumes that the 32 bit IP address contains geographic hints … that is simpler in some ways but the nodes are more complex.” 377 The impact of budget constraints on network implementation is well summed up by Norman Hardy, in his explanation of why the Internet supplanted Tymnet: Perhaps the most glaring reason that Tymnet is dead and Internet lives on is that Tymnet was a technology to make money fast and the money spent on development was always in light of a short financial planning horizon. While 375 Ibid. 376 Ibid., 31 377 Hardy email no.4 147 available raw bandwidth was doubling every year, there was little development investment for Tymnet to exploit the resulting opportunities. Tymnet started out serving 110 b/s customers and never got much beyond 1200 b/s customers. Tymnet paid its way nearly from the beginning. I think it made a lot of money for its investors, originally Tymshare. Internet, by contrast, was highly subsidized with little attention to economy. Internet succeeded also because it was open and various organizations made money by advancing the foundational technologies. Tymnet was always proprietary; if someone else had seen a way to spend $1,000,000 on developing a new switching node, there would have been no possible business plan to do so. The polycentrism of Internet won. Tymnet developers were smart but few. We did not think in terms of multi million dollar projects. We were hard pressed to respond to all of the available business opportunities. We had neither the temperamental inclination nor the money to become big... [Internet] technology was largely dominated by the best of the providers some of whom had much more money than Tymshare or those who operated Tymnet towards the end of the century. Internet was limited only by the money and imagination of the best of many entrants. Tymnet remained limited by a single organization... Tymnet had become a very successful cash cow and a technological dead end. 378 378 Norman Hardy, Tymnet Retrospective, 2007, visited June 8, 2013, http://cap- lore.com/Tymnet/Retrospective.html 148 So, it is clear how implementation of technology is constrained by the market environment within which it evolves; differences in state-society organizational models impact network design and implementation. The Internet, in this context, appears as an oddity; the fact that is was largely funded by the US military for its own purpose up until the point where it reached critical mass explains why it was not subject to the market forces that rule in the popular sovereignty state-society model: the military command-and-control organizational structure is much closer to the French state-society model than it is to the American one. 1.3.2 Lack of interconnection between the public data networks Other aspects of the story of fragmented PDN development in the United States reflect an active rejection of dirigisme at the highest levels of the US executive branch, not just a laissez-faire attitude. In France, the press lobby raised the red flag of "big brother." In the United States, it is then Vice President, Gerald Ford who intervened: In the early 1970’s, many federal agencies wished to build and operate a single shared packet network, called FedNet, to replace the multiplicity of private networks operated by each federal agency and to eliminate the need for duplicate data bases. The U.S. Department of Agriculture (USDA), with offices in every county of the U.S., was to be the lead agency for FedNet. Telenet lobbied against FedNet, on the theory that the government should not enter into businesses, which could be better handled by private enterprise. While 149 the FedNet issue was pending, Vice President Gerald Ford was invited to speak at the National Computer Conference in Chicago, and he took this opportunity to question the wisdom of creating a “big brother state” run by computers all linked together. VP Ford’s comments turned the tide against FedNet, and the proposal for a single government computer network was dropped. In 1979 USDA issued an RFP for public packet network services and awarded Telenet the largest packet network contract to date — $250 million over eight years — to provide data communication services to USDA’s six data centers and more than 10,000 terminals throughout the U.S. Over time, many other federal civilian agencies would become customers of Telenet, Tymnet and other packet carriers. 379 This story shows that active executive-branch decisions kept the network market fragmented and awarded packet-switching contracts to different firms competing in the market, making a fragmented market viable for many years. Through a spiraling effect, competition encouraged fragmentation. Former Telenet executives remarked, "Telenet and Tymnet would ... grow very rapidly, in parallel, sometimes even servicing the same customers. Both companies benefited from this competition. If either company failed or provided poor service, the other company was available as 'back-up'." 380 379 Ibid., 37 380 Ibid., 37 150 The interconnection landscape for U.S. public data networks is filled with business intrigue. The U.S. public data networks generally did not interconnect on a domestic level. 381 They did, however, interconnect at the international level, and used the same nodes to do so. For example, TRANSPAC connected to U.S. networks through the four U.S. international record carriers (IRCs), RCA, ITT, WUI, and FTCC. 382 Each of these four intermediate nodes connected to both Tymnet and Telenet, but Tymnet and Telenet themselves were not interconnected commercially. 383 381 Ibid., 39, footnote 37 382 Ibid., 39 383 Telenet, however, connected to Tymshare mainframes through Telenet, for its internal computing needs: “Tymshare provided accounting services through Tymnet for Telenet.” Tymes email no.1 LaRoy Tymes finds it ironic, then, that Telenet complained about Tymshare’s lack of license to the FCC: it “was rather peculiar because Telenet was completely dependent on Tymnet to do all of its accounting, access control, and to provide universal access. So without a gateway to Tumnet, Telenet could not have done anything.” Tymes Oral History, 37 151 Figure 4.1: International Public Data Networks interconnections 384 Similarly, after divestiture, the Regional Bell Operating Companies (RBOCs) "deployed packet networks within their franchised local exchange areas. Initially they operated as islands, not interconnected to the major intercity packet networks, and failed to attract significant traffic." 385 Both Tymnet and Telenet refused to interconnect with the RBOCs in order to isolate them. 386 Why AT&T "did not become the national backbone for the RBOC local packet networks" 387 remains a puzzle. This situation led to the emergence birth of other public data networks, such as Data America and Globnet, specifically designed to 384 Rémi Després, “X.25 Virtual Circuits – Transpac in France – Pre-Internet Data Networking,” IEEE Communications Magazine (November 2010), 45 385 Mathison, Roberts, and Walker, “Telenet,” 30 386 Ibid., 44 footnote 53 387 Ibid., 44 152 interconnect the RBOC. 388 To counter these start-ups, Tymnet and Telenet in 1988 agreed to interconnect the RBOCs; when this happened, "the raison d’être for Data America and Globnet disappeared and these companies ceased operations." 389 In short, market-considerations were key drivers of implementing X.25 network interconnection in the United States and also played a key role in the ways that corporate consolidation took place through mergers and acquisitions. 1.3.3: Impact of International Relations on network implementation Ironically, the implementation of the Tymnet network was also influenced by international relations considerations, French-American relations in particular. Just like with TRANSPAC, Tymnet was centralized; that is, the routing decisions were made centrally by the lone network operator that was sole in charge of establishing the path through the network (the virtual circuit). 390 The machine in charge of such routing decisions was called the “Supervisor” (the Teletel equivalent was the “PAVI”). The Supervisor architecture was actually composed of a multiplicity of “supervisors running at one time and sharing the load.” 391 Just like the French architecture was composed of multiple, centrally-controlled PAVIs, in Tymnet, “from the beginning there had to be backup Supervisors ready to go because the SDS 940 machines [which ran the Supervisor software 392 ] and their operating 388 Ibid., 44. 389 Ibid., footnote 53 390 Hardy email no.2 391 Hardy email no 5 392 http://www.computerhistory.org/revolution/mainframe-computers/7/181/730 153 systems frequently went down without warning.” 393 In other words, for strictly technical reasons, the whole network map, and all access-control data (the customer identity and login credentials) had to be centralized. In this case, the data was centralized with an American corporation, the one that ran the network. Further, each back-up supervisor (the decentralized nodes) also held the same information. When Tymnet started servicing clients in Europe, including in France, the fact that French clients’ personal information had to be stored in the United States created a political clash. LaRoy Tymes recalls that “the French people were aghast at our proposal that the names of all the French customers had to be in the MUD that was to be stored in the United States. And they said you wouldn’t conceive of putting the names of American customers on a supervisor in France. And Norm Hardy was in the meeting and Norm said, “Why not?” A supervisor is a supervisor; its geographic location really isn’t material. If it’s controlling the net it does have to have all the information of all the users to function.” 394 The French may have suggested, in order to test Tymnet, that since each back-up supervisor had to contain all information, and that since “its geographic location really isn’t material,” that Tymnet put its money where its mouth was and install a back-up supervisor in France. Says Tymes: “[a]t first the French were appalled at the concept of storing the names and passwords of French customers on Supervisor machines running in the United States. They were certain that we (Tymshare) would never let the names and passwords of American customers be stored in France. The French were somewhat mollified, but still suspicious, when we agreed to locate one of the backup Supervisors in Paris. After the Paris installation was up 393 Tymes email no.3 394 Tymes oral histody, 33 154 and running, I never heard another word about it. I got along just fine with the operations staff at the Paris office.” 395 Tymes to conclude: “[s]o to us it was a pure technology problem. But to the French it was matter of pride.” 396 Hardy adds: “sometime about 1970 Le Monde Diplomatique had a long front page article “Reseaux sans Frontiers” [sic] which was written with a mixture of fear of loss of cultural control (German and French TV was strategically incompatible) and wonder about the future. Tymnet was one of the points. Our Paris office had just switched to service via U.S. computers.” 397 This story demonstrates how certain network implementation decisions result directly from political constraints. In this case, these constraints were not simply from a political economy nature, but revolved around broader issues of sovereignty, and the concern for France to maintain control over its top-down state-society relations model. In this case, one issue was that control over French activities were shifted to a US corporation. The French concern in generalwas made explicit by Nora and Minc in their seminal report on the computerization of society. “In a country shaped by centuries of centralization, publicly criticized and secretly craved,” 398 telematics will not only “affect the economic balance” but also “modify power relationships, and increase the stakes of sovereignty.” 399 Well aware that the development of cross-border networks, by empowering the people directly 395 Tymes email no.2 396 Tymes oral history, 33 397 Hardy email no.3 398 Nora and Minc, Computerization, 4 399 Ibid. 155 without mediation from the State, threatened “the social consensus,” 400 and that France should “avoid excessive pressure from foreign governments or groups whose objectives may run counter to hers,” 401 the authors suggested that France: has to take into account the renewal of the IBM challenge. Once a manufacturer of machines, soon to become a telecommunications administrator, IBM is following a strategy that will enable it to set up a communications network and to control it. When it does, it will encroach upon a traditional sphere of government power, communications.In the absence of a suitable policy, alliances will develop that involve the administrator of the network and the American data banks, to which it will facilitate access. Only action by the authorities, standardizing the networks, launching communication satellites, and creating data banks, can give an original model for society with room to develop … Care must be taken to prevent any portion of the computer industry from dominating any other part and to prevent any portion of the computer industry from dominating any other part and to prevent the industry as a while from dominating business and the citizenry… In some cases, to improve France’s position in a contest with competitors not under her sovereignty, the authorities must make unrestrained use of their trump card, which is to decree. 402 400 Ibid., 1 401 Ibid., 2 402 Ibid., 6-7 156 The reference to the “original model for society” and to the risks not just to business but also to “citizenry” indicate that what is at stake here goes beyond economic issues; IBM, which the authors use throughout their report not just as a reference to that actual company but as a reference to the entire US digital information industry, and as a metaphor to American power in general, is seen as a threat to the French state-society ecosystem at large. This vision explains the pressures by the French government on Tymnet to implement the Tymnet network in certain ways. So, the implementation of the Tymnet system was influenced by a vision of state-society relations that empowers the state in top- down fashion, rather thanempowers the people (represented at times by private corporations) from the bottom up. 403 403 Technical considerations did play a role in the story. However, they do not seem to be the controlling factor in the resulting implementation. For Tymes, another "reason for this supervisor was to provide backup in case the trans-Atlantic links all failed and Europe became isolated from North America." LaRoy Tymes, email no.2 to author, June 3, 2013. However, Hardy adds, underlying the fact that from a technical standpoint, the Paris supervisor was not a requirement: "If both trans-Atlantic lines went down (NY-London and WashingtonDC-Paris) Paris could supervise the European Tymnet load. Our 940 maintainer had started a successful company in Paris and he was in a board meeting one day when our 940 broke. He fixed the machine as agreed but told us that we would need some new arrangement. That is when we decided that the submarine cables were sufficiently reliable that we did not need a European Tymshare host." Norman Hardy, email no.7 to author, June 4, 2013 157 1.3.4 Mergers and competition Larry Roberts writes that his “strategy for Telenet was to grow as fast as possible and to capture market share before other larger organizations began providing competitive services … However, rapid growth came at the expense of profitability and a continuing need for increasing amounts of capital.” 404 To sustain its effort in the face of the large sunk costs inherent in the communication-infrastructure market, Telenet had to merge with a larger company, GTE. Antitrust consideration determined the corporate implementation of the merger: "the FCC and Justice were concerned that GET would cooperate with AT&T, as it did in telephony, rather than compete ... [The deal was eventually approved] subject to the condition that Telenet should operate as a separate subsidiary of GTE, that only Telenet could market its services, that no part of GET could participate in any other packet network service (such as [AT&T's ACS] and that Telenet had to obtain any services, facilities or equipment from GTE on an arm's length basis available to non-affiliated parties." 405 Tymnet also was consolidated with larger companies. First, it was sold to McDonnell Douglas in 1984; that,asset, in turn, was acquired by British Telecom in 1989; next it was taken over by MCI in 1993 and finally by Worldcom in 1998. 406 Eventually, through a series of complex mergers and acquisitions, Telenet became Sprint. Sprint introduced a TCP/IP service in 1992 and maintained both standards in parallel operations until 2000, when it shut down its X.25 service for business considerations. 407 In contrast, through the dirigiste hand of the French state, TRANSPAC and Teletel remained active for another twelve years. 404 Ibid., 40 405 Ibid., 41, footnote 43 406 Ibid. 407 Ibid., 41. 158 Even when strictly-market based considerations did not justify the continued maintenance of the networks, the dirigiste tradition produced results on networks implementation that diverged from the competition-driven United States. 1.4 Service and content providers, interfaces The American videotex market was balkanized: "during the first six months of Telenet's operation,” for example, “33 customer host computers were connected to the Telenet network. Most customers were computer service companies and companies providing business users access to data base services. Each computer service had a unique interactive, text-based command/response interface. A unified interface with graphics would not emerge until the World Wide Web was developed in the 1990s." 408 X.25 based public services in the United States included Covidea (a consortium made of AT&T, Time Inc Chemical Bank, and Bank of America), formed in 1985; a Citicorp, Nynex and RCA venture, formed in 1986; Trintex (managed by IBM, CBS and Sears; Venture One (CBS/ATT); Knight-Ridder's Viewtron; Times Mirror's Gateway; Keycom (including the Chicago Sun-Times, Centel, and Honeywell), The Source, Compuserve, Delphi, Dow Jones, 409 and a variety of other online databases that relied on other protocols, such as The Well, and AOL. In addition, France Telecom failed four times at creating viable American X.25-based ventures: A Kansas experiment 410 was followed by a Kansas venture. What that failed, the 408 Ibid., 37 409 Aumente, Videotex, 44-74 410 Michel Landaret, Rountable, La Cantine, “Minitel : La dernière séance"Rendez-vous à jamais,"” La Cantine, June 29, 2012, accessed April 15, 2013, http://www.youtube.com/watch?feature=player_embedded&v=KtXPTaSi8x8 159 terminals were sent to San Francisco to support the 101 Online venture. Finally, the terminals found their resting place in Minnesota, where they were given to school childrens’ parents to help them communicate with teachers. 411 With no venture managing to gain critical mass, the hand of the market drove away confused customers. In France, by contrast, dirigisme led to uniformity in the upper layers and helped support the creation of a user-friendly consumer product. 1.5 Privacy regimes The privacy regimes that applied to US virtual-circuit networks were market-based. In contrast to France, where regulation resulted in one unified privacy regime, in the US, the reliance on market mechanisms to reach equilibrium and the “best” privacy regimes, again resulted in fragmentation. Some systems granted outstanding privacy protections, while some others did not.On the end of the spectrum most protective of privacy was Tymnet. According to Norman Hardy, “[s]ometimes divisions of large companies trusted us with their data more than they trusted their own corporate data centers because our data protection policies were clearer. The[y] feared loss of their secrets to other divisions within their company… The default, even unspoken assumption was that the customer's data belonged to the customer. Google, Facebook, Twitter have the opposite default assumption.” 412 But not all providers applied the same privacy principles to their customers’ data. Any privacy protection in force in US digital information-distribution 411 Jean-Eudes Queffelec, interview no.1 with author, San Francisco, CA, October 5, 2012 412 Hardy, email no.5 160 ecosystems resulted from its voluntary embrace by the videotex operator at stake. 413 And because “profiling is possible and was willingly accepted by households in videotex trials," 414 Aumente noted in 1987 that" the potential for invasion of privacy and misuse of the data in videotex and online database services is of growing concern.” 415 The concern was warranted. Short of any regulatory-mandated privacy protection, the US market- based approach to privacy would later give rise in the Web age to companies such as Facebook that would come to drastically reshape people’s expectations of privacy. II.THE QUAZON QUIK-LINK 300: A1983 AMERICAN UNBUNDLED VIDEOTEX EXPERIENCE To better grasp the fragmented nature of the American videotex market three decades ago and its practical implications, consider the landscape facing an actual videotex user. In 1983, an American consumer was tempted by the promise of access to “thousand of databases … that contain everything from encyclopedias and stock market information to up-to-the-minute news and sports … without any special computer skills.” 416 Users could purchase an unbundled videotex terminal compatible with a variety of service, application, and content providers for $249. 417 413 Aumente, 127 414 Aumente, Videotex, 127-129 415 Ibid, 416 Quazon Quik-Link 300 package, Quazon Corporation, 1983 417 Hutton Opts for Quazon Terminals, Information Today, Jan1984, Vol. 1 Issue 1, p21; New Products, InfoWorld, November 7, 1983, Volume 5, No. 45, p.96 161 Figure 4.2: The Quazon box promised fast, simple, and inexpensive access to information. Photo credit: Jeff Jamison The ease of installation of the hardware seemed comparable with the ease of installation of the Minitel system. 162 Figure 4.3: Quazon terminal installation diagram Figure 4.4: Minitel terminal installation diagram 163 That is where the similarities end, however. The next step for the Quazon user would be to select a service/content provider to connect to. The terminal came with free trial offers from Dow Jones News/Retrieval, Comp-U-Store, The Source, CompuServe, and Delphi. 418 Figure 4.5: A glimpse at the Quazon’s free trial offers. Photo credit: Jeff Jamison Here, the fragmented nature of the ecosystem is reinforced because these databases were closed gardens. Although not mutually exclusive, since a user could purchase multiple subscriptions to multiple databases, the result was a high cost for users in search of a broad 418 It is possible that the tech-savvy user could have connected to other databases using the same terminal; however, the user manual does not mention that possibility. 164 information ecosystem because each database only offered certain types of content. In addition, distinct pricing models for each service providers made the choice less user- friendly. In contrast, the State-run Teletel was a unified, open platform: for the cost of one monthly local phone subscription, the Minitel user could access all content providers’ servers, and was not limited to the content made available by a given service provider. The pricing model was a simple tiered, pay-by-the-minute system, conveniently billed at the end of the month on the phone bill from the State administration. Once again, less state control did not translate into more openness, and often more state involvement resulted in greater openness for both users and speakers. Figure 4.6: One terminal, but fragmented service offers. Photo credit: Jeff Jamison 165 As shown in the figures that follow, once a service was selected, the user entered a password on a complex set of keys to log in. To further complicate matters, once logged onto the host computer, each service provider featured its own interface, from simple Minitel-looking number-based interfaces to more arcane MS DOS-like command-line based interfaces. 166 Figure 4.7: Host log-on procedure 419 419 Quazon Corporation, Quazon Quik-Link 300Owner’s Manual, 1983, p.15 167 Figure 4.8: Interface for The Source, featuring a simple, number-based interface reminiscent of that of Minitel services 420 420 Quazon Corporation, Quazon Quik-Link 300Owner’s Manual, 1983, p. A-13 168 Figure 4.9: In contrast to The Source, the Delphi interface requires input of more complex text-based command lines 421 Finally, although the terminal could automatically select which data network through which to channel packets, the manual notes that “in some areas, the network available to connect a particular host may not be the one programmed into memory at the factory. In this case, it will be necessary to enter a new log-on sequence before entering the I.D. and password.” 422 Assuming the average user read and understood these directions in the 74- page user manual that contained a significant amount of arcane technical language, the 421 Quazon Corporation, Quazon Quik-Link 300Owner’s Manual, 1983 pp. A-18 – A-19 422 Quazon Corporation, Quazon Quik-Link 300Owner’s Manual, 1983, p.13 169 user still would need to choose between connecting through the Compuserve Network, GTE Telenet, Tymnet, and, in the case of the Dow Jones service, an extra network, UNINET. Nothing in the manual indicates the criteria to be used in the selection process. The choice was left to the user’s educated, or not so educated, guess. Once that decision is made, the user would then need to enter a complex sequence of keys to log-onto the network’s gateway to have the packets routed to the selected service provider. 170 Figure 4.10: Accessing the same host via different networks required different log-on procedures. This Quazon Owner’s Manual page features the various procedures required to connect to Compuserve, depending on whether the underlying logical network is The Compuserve Network, GET Telenet, or Tymnet. 423 423 Quazon Corporation, Quazon Quik-Link 300Owner’s Manual, 1983, p. A-5 171 This case study of an unbundled videotex ecosystem strongly suggests that the American political philosophy, as it relates to popular sovereignty, can lead to chaos, while the ease of use of the Minitel and the relative openness of the Teletel platform (once censorship was passed) was enabled by a monopolistic market and micromanagement of digital information distribution systems by the administrative branch of the State. This was a direct result of the French tradition of centralization and of State micromanagement of social behavior. The same conclusion can be reached by examining a bundled ecosystem, 101 Online. III.101 ONLINE : A BUNDLED ECOSYSTEM The 101 Online ecosystem features one terminal, one PSTN, and a few gateways all controlled by 101 Online, a dedicated, private data network enabling connection through X.25 circuits to one central mainframe controlled by 101 Online and hosting content databases promoted by third-parties but edited by 101 Online. 424 A case study of 101 Online highlights ways in which the diverging traditions of state- society relations impacted network development. 101 Online was the child of Intelmatique, a company "created in 1980 as the international marketing and promotional service of the French to push its technology worldwide ... [and] headed by George Nahon as managing director." 425 Both 101 Online and Teletel were French, but the way they were implemented differed substantially. The comparison between 101 Online and the Minitel 424 Queffelec, interview no.1 425 Aumente, Videotex, 35 172 ecosystems both of which were promoted by the same core operator, France Telecom, shows the impact of local political traditions on the development of networks. 426 While the development of Minitel proceeded under the logic of state planning, 101 Online was pushed by more hybrid interests. The State’s willingness to project its technology abroad was strong, but when the venture was launched in 1991, local market-economics interests played in full. Ecosystem overview The network architecture of 101 Online stands in sharp contrast to that of Teletel; it is more closed, and even more censored. At first glance, this appears paradoxical. But, on further analysis this architecture is the direct result of the tradition of popular sovereignty in the United States, and leads to the conclusion that more state involvement does not automatically mean less openness. Moreover, less state involvement can lead to closed and controlled networks that leave little openness for users. 426 There were a few difference which should be noted. First, the Minitel was developed by the French PTT, while 101 Online was launched at the time that France Telecom was being privatized. Second, it was not exactly the same corporate entity that was involved, one was the PTT then France Telecom, the other one was a US subsidiary. But for all intensive purposes, the actors running each project knew each other and all came from France. George Nahon, in particular, the head of Intelmatique, France Telecom's arm in the United States, began with France Telecom in the 1980s. 173 Figure 4.11: The 101 Online network architecture The contrast with the Minitel ecosystem indicates that the 101 ecosystem was bundled, not unbundled like Minitel. 101 Online provided and controlled everything: the terminal, the gateway, the data network, the mainframe, and the editing services. user phone network (PSTN) (analog network) – Pac Bell gateway central mainframe virtual circuit 101 Online-administered content 174 Figure 4.12: 101 Online network architecture vs. Teletel architecture This architecture was influenced by market economics motivations: just as Knight-Ridder's Viewtron and Times Mirror's Gateway were designed as bundled, closed systems because the content providers wanted to lock-in the users to their content, 101 Online aimed to of maximize profit. According to Jean-Eudes (John) Queffelec, a venture capitalist who was 101 Online’s VP of Sales and Marketing, "we did not create an ecosystem enabling anyone but us to make money." 427 In contrast, the Minitel ecosystem was unbundled to enable several layers of private operators to develop a viable industry and counter IBM: the hardware manufacturers (at the level of the terminals and servers), and the content industry. The PTT was to profit, but only through operation of the physical and logical layers, which was the only stack of the Minitel ecosystem where a general monopoly was enforced. In contrast, because the 101 Online ecosystem was completely bundled, its promoter profited at all levels of the chain, and implemented the architecture to maximize its profit. 427 Queffelec, interview no.1 175 Terminals It was possible to access the 101 Online content via a PC, 428 but the terminal was actively marketed as an integral part of the service, and the PC-option was not mentioned. One marketing pitch presented the terminal as a key element of the system. The 101 Online "chat box" was promoted through advertisements. Even when advertisements focused on the service , 101 Online insisted that there was no equipment to buy, that the terminal would be leased as part of the service: “Because 101 Online is a complete service – your subscription includes everything you need in one compact box that’s as easy to use as your telephone.” 429 428 Queffelec, interview no.1 429 101 Online advertisement, circa 1991, courtesy of John Coate 176 Figure 4.13: 101 Online advertisement, circa 1991. Courtesy of John Coate 177 Figure 4.14: 101 Online advertisement, circa 1991. Courtesy of John Coate 178 The box was a central feature of lavish parties in San Francisco during French holidays Jon Coate also remembers going to rave parties, such as Oakland’s legendary Woopy Ball in the summer of 1992, to demonstrate the system -- the machines were then used by ravers dispersed around a large party for finding their friends, or simply chatting as a “chill activity.” 430 In retrospect, Queffelec, reflects, "we focused too much on the terminal and not on what one could do with the system." 431 Michel Landaret, who pioneered chat and email Minitel applications in France and claims authorship of the 101 Online business plan, concurs: “we tried to push the 1B [terminal] where we should instead have pushed the 10 [terminal], which in contrast was a great telephone.” 432 Coate agrees that the focus on an ancient terminal was a major factor that doomed the 101 Online ecosystem. 433 One important reason for the focus on the terminal, which in contrast to France only came in one version, was strictly petty business. France Telecom bought 55,000 terminals from Alcatel to support its first U.S. experiment a few years back, a venture created with US West and implemented in Omaha, Nebraska. Michel Landaret, then representing France Telecom, recalls asking his US West counterpart why Omaha was chosen for the experiment. The response, given late at night around a glass of whiskey, was: “If it works 430 John Coate, interview no.1 with author, Boonville, California, March 10, 2012 431 Queffelec, interview no.1 432 Landaret, Roundtable 433 Coate, interview no.1 179 here it will work everywhere. If it doesn’t work, no one cares.” 434 The experiment did not work, an nobody cared except France Telecom, that was stuck with the 55,000 machines in the middle of the United States. France Telecom then shipped the terminals to San Francisco intending to dump them on the 101 Online users. This is why there was only one terminal model was offered to users, not a variety of sometimes revolutionary machines that Minitel offered to its users in the late 1980s and early 1990s. These included the Sillage, with a miniaturized modem and powerful internal database; the Magis, with its embedded credit card reader; and the Minitel 2, that featured a high-speed modem and color graphical interface able to display JPEG images. This business interest explains why the terminal came bundled with the overall ecosystem. Ironically, the U.S. videotex market was driven mostly by a rejection of state intervention and an embrace of market economics. Existing market forces produced a more closed information ecosystem than in France, where dirigisme created a vibrant competitive hardware market leading to technological innovation by the private sector and a high level of choice for users. The business was launched in 1991 and collapsed roughly two years later. The remaining terminals, from the original batch of 55,000, were dispersed. Some went to Minnesota, where real estate taxes supported local schools to build communication systems between the teachers and parents. France Telecom sold some terminals for installation in parents' 434 Landaret, Roundtable 180 homes to communicate with the teachers. 435 Other terminals went to Florida, where UNITRON introduced the MOON Communication system in 1998 to enable patients to communicate with their doctors. 436 Physical and logical layers The physical and logical layers resemble the French model, mostly for regulatory reasons. There was only one PSTN, in this case, Pac Bell, 437 because of the monopoly granted by the divestiture decree to the Baby Bells. The situation was similar to France where there was one PSTN operating under a State monopoly, but the local PSTN in the United States always was a private entity. The PSTN connected to a few 101 Online gateways spread around the Bay Area. 438 At the logical level, the X.25 virtual circuits were established by 101 Online, just as Teletel established the circuits in France. The circuits were established over a private backbone of data lines leased from Pac Bell, and Pac Bell handled the billing on behalf of 101 Online. 439 By contrast in France the virtual circuits were established over a public data network, TRANSPAC. However, for the customer, the result was practically the same, because in France, Teletel, which established the circuit, was operating under a censorship model: a customer's database would only be recognized after the censor approved the business (and content) plan. Moreover, servers were prohibited from acting 435 Queffelec, interview no.1 436 http://www.thefreelibrary.com/TAMPA+BAY+AREA+HOSPITAL+AND+TELEMEDICINE +FIRM+JOIN+TO+LAUNCH+MOON+--...-a017630835, http://thoxx.com/students/sabratek/invest/ir072197.html 437 Queffelec, interview no.1 438 Ibid. 439 Ibid. 181 as intermediate nodes – as a result, the network implementation was such that even though the physical network was public, Teletel was practically a private, closed network, until original recognition of the customer by the PTT. A central, closed mainframe vs. Decentralized, open servers The main differences between 101 Online and Teletel occurred at the edges of the network. While Teletel was censored in that servers were only recognized by and connected to the network once their operator passed the censorship process, once they were recognized, they could act independently, under the control over the content provider, at the edges of the network. Content providers were freely able to edit their content, and the only recourse of France Telecom at that point was a posteriori. Independent content providers could freely (under their responsibility) sublease server space to smaller content providers. 440 Servers were privately owned. This led to the development of a vibrant entrepreneurial spirit that embraced competition between the various content providers, promoted innovation, and led to a strong variety of contents even within the same realm. 441 In contrast, all content available over 101 Online was hosted within the same mainframe, located in San Francisco's financial district. 442 To contrast, on the British Prestel network, content was hosted on a British Telecom mainframe but edited directly by the content providers who leased space on the mainframe, while on the 101 Online ecosystem, all of 440 Daniel Hannaby, interview with author, San Francisco, California, March 9, 2012 441 Hannaby, interview 442 Queffelec, interview no.1 182 the content was edited by 101 Online, 443 resulting in complete control by the network operator over what content could be distributed, and a level of openness close to zero. Again, the motivation that justified that architecture was profit driven: "we did not create an ecosystem enabling anyone but us to make money," concluded Jean-Eudes Queffelec. 444 Conclusion The reasons for the spectacular failure of 101 Online are beyond the scope of the present research, but a few reasons are suggestive. First, the focus on a stagnant terminal rather than on content, meant that the service could not reach critical mass. When the Minitel emerged, few people owned PCs, but the situation in the Bay Area in 1991 was different. PC users were already able to access other content ecosystems, including The Well, Compuserve, AOL, and The Source and to accomplish other computing tasks with their machine. In contrast, the bundled aspect of the 101 Online system, the incapacity of the terminal to evolve, and its lack of capacity as a dumb terminal to compute anything doomed it. Second, the control imposed by 101 Online over content hampered the development of a vibrant content industry. Even now Bay Area entrepreneurs involved with the project 443 Queffelec, interview no.1 444 Queffelec, interview no.1. Queffelec, however, also invokes two other motivations behind this business decision. First, he says, all the content was hosted on one mainframe so content providers would not have to face high costs of entry in the form of servers. Second, the mainframe ran a piece of editing software called "PIC", that was made in France and which, he argues, "the locals" were not familiar with, which also explained why 101 Online edited the content itself. Queffelec, interview no.1. One can question the validity of this explanation however, for electronic content producers in San Francisco were seasoned IT entrepreneurs with experience handling various systems; it is illusory, and patronizing, to think that they could not easily have adapted to the French editing software. 183 speak bitterly of the level of control imposed by France Telecom’s envoys. 445 Dusty Parks, a pioneer of online astrology services, recalls getting into a fist fight over it with one of the Lenoir brothers, the infamous 101 Online managers. 446 Such control, imposed for business reasons, resulted in a closed market. In contrast, the dirigiste French State primed the pump and decided on an open (albeit censored) central infrastructure designed to support the development of a vibrant private content industry and counter IBM’s hegemony. The result was greater openness than in the profit-driven American Minitel experiment. Solving the apparent contradiction this way supports the claim that less state does not necessarily mean more openness, and that more openness can sometimes result from more state. IV. TRANSITIONING FROM X.25 TO TCP/IP The different fate of the X.25 implementations in both countries was also the result of state-society traditions. In the United States, market interests predominated. Because of the economic characteristic of communication networks, which feature high sunk costs, low marginal costs, a progressive decline of margins because of competition, consolidation progressed at rapid pace in the United States. The need for consolidation was furthered by network effects, since "in some respects, competition among domestic X25 carriers limited the utility of the service, in contrast to the open and fully interconnected network 445 Dusty Parks, interview with author, Richmon, California, March 11, 2012;Coate, interview no.1 446 Parks, interview 184 architecture of the TCP/IP services." 447 In contrast to U.S. X.25 systems, the French X.25 services, through the dirigiste State, exhibited a unified architecture (it was not "interconnected" since there was only one network), and much more open characteristics than the U.S. X.25 networks. “In hindsight,” Mathison, Roberts and Walker reflect, “a major strategic failureof both [Telenet and Tymnet] was their unwillingnessto fully interconnect with oneanother, and with smaller domesticpublic packet networks, and to create afully interconnected public data networkwhereby any terminal or computercould obtain economic access to anyother computer on the interconnectednetworks. But even if the X.25 networkswere fully interconnected, it would havebeen by means of virtual circuit interconnection.With the advent of theTCP/IP based Internet, it is unclear ifthis virtual circuit strategy would havehad much long term success.” 448 A rapid movement of mergers and acquisitions occurred simultaneously with a shift of these networks towards the TCP/IP protocol. Through a series of mergers and acquisitions, Tymnet became the property of MCI Worldcom which was well positioned to provide TCP/IP services. The company was involved in NSFNET, the TCP/IP-based research and education successor to the ARPANET, and Worldcom had acquired UUNet in 1996, one of the leading TCP/IP service providers." 449 Not surprisingly, then, "MCI Worldcom gradually phased out the domestic Tymnet in favor of an IP-based network in the early 2000s. 447 Mathison, Roberts, and Walker, “Telenet,” 44 448 Ibid., 37 449 Ibid., 37 185 In contrast, when Jean-Paul Maury attempted to convert Teletel to a TCP/IP-based network, the bureaucratic, state-administration culture of the incumbent was too strong to budge. 450 Maury resigned in 1991, and the Minitel system functioned until the summer of 2012, when, as the last X.25-based communication system in the world, it was shut down. Some French State interests explained the resilience of the X.25-based Minitel network in the face of growing Internet adoption in France. France Telecom unsuccessfully attempted to slow down Internet adoption and preserve its cash cow. However, as French citizens switched to the Internet, the State, eager to both milk the golden goose and continue control over information distribution through censorship mechanisms enabled by the Teletel X.25 implementation, forced continued Minitel use through a number of mechanisms. When Internet users uploaded French railroad schedules on the Internet, where they could be viewed free of charge, they were prosecuted for violating a monopoly of publication of schedules granted to the French state train company, which was making the schedules available at a high cost through its Minitel information service. Similar stories occurred with regards to other monopolies, such as the one granted to digitally publish laws and regulations, materials in the public domain. Further, certain actions required from citizens under penalty of stiff criminal sanctions, such as registering for mandatory military service, or otherwise a practical necessity for many, such as registering for classes at public universities, could only be performed over the Minitel network. Although TRANSPAC was shut down in 2012, Teletel access points, "PAVIs" still remain active as support for Minitel-to-Minitel texting services that still function as part of a State 450 Maury, interview no.1 186 plan to facilitate communication between deaf people. 451 Today, X.25 gateways still operate as peons of top-down, bureaucratic State planning. In contrast, U.S. X.25 systems have long suffered the invisible hand of market economics. 451 The terminals are outfitted with bright lights that flash to signal reception of messages. A visual version of AOL’s “you’ve got mail.” 187 CHAPTER 5: THE FRENCH INTERNET How did the political tradition of centralization and top-down planning and micromanagement of social relations play out in the development and implementation of the Internet in France in the 1990s? Two forces were at play in parallel. First, the State counter-intuitively embraced the Internet and its openness. France Telecom, as a corporation, fought vigorously to slow down Internet penetration and save Teletel, the goose that laid the golden eggs. Such efforts were circumstantial, driven by a monopoly incumbent threated by competition, but were not representative of the position of the State as a whole. Second, the State embraced various forms of openness and modernity brought by the Internet. However, although the State embraced the Internet, it did not abdicate its top-down position as a centralized micromanager of social relations. Most extreme forces of centralization were still at play and manifested themselves through Internet partitioning and censorship projects, some of which succeeded, while others failed. The concluding section suggests that the French experience with the Internet in the 1990s shows once again that openness is a shaded, not binary, concept. More state activity does not mean more control and less state intervention does not necessarily mean less control. Furthermore, the same prima facie implementation does not translate to similar cultural underpinnings. 188 I. FRANCE TELECOM: KEEPING MINITEL ALIVE France Telecom, as a company, took active steps to slow down Internet penetration in France. Such efforts, however, were not reflective of the State as a whole. They took place in a period of transition while the telecom operator transitioned from a State agency, subject to no administrative regulation other than through the PTT Ministry, 452 to a private company subject to the regulatory power of an administrative agency, called ARCEP. The executive branch of the French Republic actually embraced the Internet and took steps to promote a quick transition from Minitel to the Internet. But, before that transition France Telecom, acting independently from the State, tried to hinder Internet penetration. According to former France Telecom executives, some of whom still work at Orange, the key period was 1992 to 1995. During that period, executives discussed among themselves whether the company should become an Internet service provider and actively engage in a Minitel-to-Internet transition. This was more than a technical issue. Jean-Paul Maury considered moving Minitel to IP before he left the company in 1991, 453 but he hit a wall of inertia, and a disinterest from those in charge of digital networking 454 . The question was a 452 According to former Minitel team engineers, the start-up like environment that was pervasive through the Minitel teams was enabled by this lack of regulatory authority: « There was no regulatory authority at the time ; we did what we wanted, the decision circuits were short ; we feel like we worked as a start-up company. » Beraudo De Pralormo, interview no.1; Louvel, interview no.1 453 Maury, interview no.1 454 Maury, interview no.1. Maury suggests that Dondoux, Théry’s sucessor, loved technology and only slowed down the project for political reasons. Ibid., see also Carpenter, Bataille des Télécoms. In contrast, Maury suggests that Dondoux’s successor was « un régional, » a thinly disguised pejorative word for someone who is not from Paris. Maury, interview no.1 189 commercial one, not a technical one: should France Telecom develop a new business model that embraced the Internet and risk its profitable business, or should it hold on to what it had, even at the risk of missing the next digital train? The issue became more acute and relevant after 1993, when Minitel penetration and use, in terms of number of terminals in existence and number of connection hours, started dwindling. 455 The answer was to allow Internet access, for show, but to hold on to Minitel and to artificially hinder Internet’s appeal. One strategy was hardwarebased. France Telecom had Alcatel develop a hybrid machine, capable of connecting to both Teletel, using X.25, and the Internet, using TCP/IP. Dubbed Web Touch Easy, it featured a tactile screen and Java software. According to former France Telecom engineers, it was locked to connect to the Internet only through Wanadoo, France Telecom’s Internet service provider, and resorted to its own, proprietary miniature DNS, something that further hindered actual Internet access. 456 Whether anyone actually unlocked these machines to use them to connect to the open Internet is uncertain and unlikely. At the hackers´ Minitel wake on June 29, 2012, in Paris, Louis Pouzin, inventor of the datagram and proponent of TCP/IP over X.25, asked if anyone had experience with the hybrid machines, but nobody stepped forward. 457 The machines were never rolled into production, for the regulator stepped in, and, through soft power, blocked the project. 458 France Telecom was attempting to use its monopoly power to subsidize the terminal and 455 Mailland, “Minitel” 456 Off-the-record interview no.1 with Orange executive, 2012 457 Louis Pouzin, Rountable, La Cantine, “Minitel : La dernière séance"Rendez-vous à jamais,"” La Cantine, June 29, 2012, accessed April 15, 2013, http://www.youtube.com/watch?feature=player_embedded&v=KtXPTaSi8x8 458 Off-the-record interview no.1 190 provide it at a dumped price to customers. Since the terminal was locked for Internet access through France Telecom’s own Internet service provider Wanadoo, the subsidy would have given the incumbent an unfair advantage while deregulation proceeded and competition slowly increased. Off the record, Current Orange executives acknowledge that ARCEP effectively killed the project. 459 Hardware was not the only ploy France Telecom used to delay the Internet from reaching critical mass in France. PSTN tariffs, as well as infrastructure manipulation, also were employed. Figure 5.1: Alcatel Web Touch Easy terminal. Author’s collection. 459 Ibid. 191 FrenchPSTN tariffs, in relation to local calls, differ from those in the United States. Historically, French users paid for local and long-distance calls by the minute. Until recently, there was no flat rate or unlimited plans for local calls. That situation was an early impediment to Internet access, since until broadband access became possible by cable or DSL connections, a user would connect to its local Internet service provider’s gateway using a 28 or 56k modem dialing over the PSTN. The more the local telephone company charged for local access, the higher the barrier to entry to the Internet. For this, France Telecom was criticized for actively impeding Internet development. The incumbent offered 65% discounted rates for local calls from 10:30 P.M. to 6:00 A.M. As the Internet menace loomed, however, it recalled such preferred pricing. Patrice Martin-Lalande, a French Parliament member commissioned in 1998 by the Prime Minister to identify the “challenges” presented to France by the Internet, identified the behavior of France Telecom as an impediment to the growth of the Internet, while restating the strategic importance of the development of the network: "It easy to be convinced that the Internet is a wonderful tool. In reality, users are faced with financial ... issues ... France Telecom's project to get rid ... of its [tariffs] that offers a 65% discount between 22:30 and 06:00 will be a new financial impediment against the Internet." 460 France Telecom failure to embrace for the Internet was criticized as early as 1997 in the Falque-Pierrotin report: “France Telecom has not organized any real retail commercial launch of [its Internet access] product, [by contrast with] the launch of the “T on Line” service by Deutsche Telekom a year ago already. Certain France Telecom sales 460 Patrice Martin-Lalande, L'Internet : un Vrai Défi pour la France : Rapport au Premier Ministre (Paris: La Documentation Française, 1998), 8, 41 192 outlets do not seem to be aware of the existence of this product.” 461 In other words, France Telecom had an Internet service offer, for show, but did not promote it. In addition, there were many suggestions that France Telecom used the infrastructure it controlled, as the incumbent, to actively hinder Internet penetration. Martin-Lalande again criticized France Telecom for the way it provided broadband access to the Internet in France, and for the disappointing levels of service provided by cable companies: “the generalization of the Internet-access offer through the cable networks is difficult to implement, and the negotiation [between the cable operators that lease infrastructure from France Telecom] and the technical operator of these networks, [France Telecom], do not seem to be going anywhere.” 462 This modest statement by the Congressman is best understood when put into context for a lay audience by Laurent Chemla, a respected French hacker, French-Internet-access pioneer, and founding member of the French Internet Users Associations (AUI). 463 Discussing his disappointment at observing the low bandwidth offered by the emerging cable services, Chemla wrote: [I contacted one of the cable company’s project managers,] who confirmed to me that the anticipated bandwidth would be even smaller than with our old dial-up modems. Most importantly, ‘upon a political decision,’ the future network would prohibit any uploads: it would be strictly forbidden for users to turn their computers into a server. The clients would be able to surf the web, but nothing 461 Isabelle Falque-Pierrotin, Internet: Enjeux Juridiques, Rapport au Ministre Délégué à la Poste, aux Télécommunications et à l’Espace et au Ministre de la Culture (Paris : La Documentation Francaise, 1997) 462 Martin-Lalande, Internet, 43 463 Internet site 193 else… In my opinion, this decision can simply be explained by commercial considerations on the side of France Telecom, a company that has no interest in offering retail customers technical solutions that would enable such customers to bypass France Telecom’s services. A technology that would have enabled France to enter the information age ahead of other European countries was purposefully restricted for purely mercantile reasons. [The cable service] was finally marketed to the public two years later … but the prohibition to set up servers was still included in the contracts. The quality of service quickly turned out to be obnoxious, service breakdowns accumulated because the deal between the Parisian cable operator and France Telecom did not authorize the former to sell Internet access over the infrastructure leased from the later. It took a year for the first customers to finally get a service worthy of the name. It started to function well as soon as France Telecom purchased a 41% interest in [the cable operator]… The first customers were quite surprised when … the speed of the service got arbitrarily divided by four even though the price remained the same. At the same moment in time, the [cable operator’s] new partner, France Telecom, announced its upcoming ADSL service, the speed of which – but it is of course purely coincidental – would be exactly the same as the newly arbitrarily-limited speed of the cable network. 464 464 Laurent Chemla, Confessions d’un Voleur 67-69 (Paris: Denoel, 2002) 194 Nonetheless, as comments in official State reports suggested, France Telecom’s actions were circumstantial, reflective of a monopoly incumbent fighting for its survival, as opposed to reflective of the position of the State as a whole. In contrast, as shown next, the executive branch of government pushed for rapid Internet development in Franc. Yet, the tradition of State micromanagement lived on. II. THE STATE EMBRACES NETWORK CULTURE: THE INTERNET VS. “INFORMATION HIGHWAYS” In surprising ways, the network culture made possible by the Internet, openness, and decentralization, was embraced at several high levels of the State. Patrice Martin-Lalande argued, for example, that in the educational domain, a traditional playground for top-down micromanagement and a symbol of French centralized planning, a “decentralized approach is necessary” to break with previous practice. 465 He also lauded the impulse of the highest levels of the State in this respect: “[I am] happy to note that access to new technologies has become a priority, included all the way up into the speeches of the President of the Republic.” 466 Further, the rhetoric developed by the parliament members and ministers involved in drafting white papers and laws during this period explicitly addressed the rhetoric of fear to better combat it. Martin-Lalande urged the State to define a clear message about new technologies, in order to publicize and “un-demonize” the 465 Martin-Lalande, Internet, 16 466 Ibid., 10 195 Internet. 467 Industry Minister Christian Pierret took up the cry: “Let us not fear the world … Ladies and Gentlemen, this is not a time for nostalgia, or dogmatism of certitude: this is a time for movement!” 468 As with Minitel, forces of modernity were at play. Key players coalesced around the implementation of the French Internet, specifically in reference to open government, access by citizens, the development of a network culture and networked labor, and competition. The reasons why the State embraced the Internet on its face contradict the tradition of centralization and state-led control. Subsequent sections then will reconcile traditions with modernity, to explain implementation choices and highlight the mark of centralization and State micromanagement of social relations. Open government: “@dministration / citizens” The development of telematics had long been considered in the context of the development of open government. 469 In this respect, 1990s white papers and executive and legislative approaches take place in the continuity of Minitel. Martin-Lalande, for example, noted that the Internet will "increase the quality of life" by enabling "an improved public service ... [and] improved education." 470 Under the heading “@dministration / citizens,” he presented a modern vision of public service, one that should be at the service of citizens, something not every Frenchman felt was self-evident. 467 Ibid., 14 468 Christian Pierret, Concluding remarks, “Quelles Stratégies industrielles pour aborder le 21ème siècle?,” 469 NORA MINC QUOTE. 470 Martin-Lalande, Internet, 6 196 Quoting the 1995 Langenieux-Villard 471 reports to the Prime Minister, Martin-Lalande restated shortcomings of the administration: lack of information distributed to citizens, access issues, and complex procedures. One key step toward the goal of providing a better service to citizens, Martin-Lalande suggested, was to leverage new communication technologies. Keywords of the Martin-Lalande plan are access, transparency, and openness. Martin-Lalande suggested, for example, that all public servants be assigned an email address, 472 which shall be visible in a public directory. 473 Mayors should leverage networked labor. 474 Hypertext links should be used to make navigation between different administrations more efficient. 475 Governmental and administrative websites should integrate user-friendly search engines. 476 Access to the administration would then be possible even outside of office hours. 477 Access by citizens The concern for universal access is omnipresent throughout the Martin-Lalande report. After all, with Minitel, the State had achieved such penetration that arguably France was “the most wired country in the world.” 478 Remaining a leader in the Internet era required a 471 Philippe Langenieux-Villard, Rapport au Premier Ministre, Feburary 1995 472 Martin-Lalande, Internet, 22 473 Ibid., 23 474 Ibid. 475 Ibid., 24 476 Ibid. 477 Ibid. 478 James Gillies and Robert Cailliau, How the Web Was Born (New York : Oxford University Press, 2000) 197 revised plan and renewed action, however, because of technological differences between the two systems. After all, convenient access to the Internet was not available through the Minitel terminal: more evolved computers were necessary for efficient Internet access as was a set of access-credentials provided by an Internet service provider. Recognizing the small rate of computer penetration in French households, Martin-Lalande suggested that the State develop free Internet public access points in easily-accessible public spaces such as post offices, railroad and subway stations, and airports, to support equality between citizens and to enable people to familiarize themselves with the Internet “and discover its advantages both in terms of content, and services.” 479 This approach was reminiscent of the Minitel experience and its omnipresent public access points. Figure 5.2: “A woman uses the Minitel, France's online system, at a post office in Paris on Jan. 29, 1996.” 480 479 Martin-Lalande, Internet, 24 480 Photo credit: REMY DE LA MAUVINIERE / AP. In Bruce Crumley, “France Bids Adieu to Minitel, its Internet Forerunner,” Time, June 27, 2012, accessed April 16, 2013, 198 In addition to addressing public access points, Martin-Lalande suggested measures that would support private access to the Internet, in particular in the form of tax credits and zero-interest loans for individuals buying computer hardware, 481 and the decrease of the VAT rate from 18.6% to 5.5% for Internet access. 482 This move was meant to put Internet access at par with such knowledge-related consumer goods as books. As noted, he also criticized France Telecom for suppressing the low cost access rates that used to apply at night, 483 and called for experimentation of flat rates by operators in order to make the Internet appealing to the masses, “as was the case in the USA and in Canada where telecom operators offer a flat rate plan for local communication.” 484 The congressman urged France Telecom to further promote digital lines that would enable customers to simultaneously use both voice telephony and Internet access. 485 Finally, to promote nation-wide broadband penetration, especially in rural areas, Martin-Lalande suggested that the State experiment with satellite delivery to “guarantee the possibility of accessing the Internet via a broadband connection anywhere” in the country. 486 Such satellite-delivery systems had already been put in place by the State in order to provide French overseas territories equal access to the Teletel network. 487 http://world.time.com/2012/06/27/france-bids-adieu-to-minitel-its-internet- forerunner/#ixzz2Bez4HRDI 481 Martin-Lalande, Internet, 40 482 Ibid., 42 483 Ibid., 41 484 Ibid., 42 485 Ibid. 486 Ibid., 44 487 Beraudo De Pralormo, interview no.1; Louvel, interview no.1 199 Network culture Installing computers in schools and universities is not enough, Martin-Lalande notes: this effort “must be accompanied with measures designed to develop a ‘network culture.’ Communicating technologies give a new dimension to school exchanges, to the mutualization of experiences” 488 This was a clear departure from a top-down, centralized model of control to deserve being highlighted. Networked labor The Martin-Lalande report embraced the Internet and the network society it enables. It suggested, for example, that "by opening practically unlimited collaboration opportunities, [the Internet] will tend to transform the remote worker into a networked worker ... This is a fundamental positioning for the future of our country." 489 To assist with such a transition, the congressman suggested that the State give companies significant tax breaks for each employee who transitions from on-company-premises work to remote labor. 490 488 Martin-Lalande, Internet, 19 489 Ibid.,6 490 Ibid., 39 200 Competition France Telecom came under multi-front criticism for its practices, which were deemed to artificially slow down Internet penetration. The Martin-Lalande report restated the need for increased competition in the sector and the need to support Internet access providers, “which should be able to benefit from a properly dimensioned French backbone that would be efficiently connected to the European backbone.” 491 Further, to keep traffic within France and gain in efficiency, he suggested that Internet Exchange Points (IXPs) be set-up in all major French cities. 492 He was ahead of his time; the discussion on the role of IXPs reemerged in similar terms as a hot topic at the 2012 TPRC conference. 493 Martin-Lalande also suggested that existing national communication infrastructures such as subways, trains, electrical networks, and highways, be made accessible to telecom operators, in exchange for a commitment by operators to open up such infrastructures. This proposal was aimed “at creating alternative French telecommunication infrastructures, which are necessary in order to ensure the regulation of market prices through competition.” 494 Such a network eventually was created along railroad lines by the train company’s subsidiary, Cegetel, and opened up to competition, 495 which brought a burst of fresh air in the stuffy PTT-like environment of the times. 491 Ibid., 30 492 Ibid.,31 493 See e.g. Laura DeNardis, “Governance at the Internet's Core: The Geopolitics of Interconnection and Internet Exchange Points (IXPs) in Emerging Markets,” TPRC 2012 (March 27, 2012),: http://ssrn.com/abstract=2029715 or http://dx.doi.org/10.2139/ssrn.2029715 494 Martin-Lalande, Internet, 41 495 Beraudo De Pralormo, interview no.1; Louvel, interview no.1 201 Motivations There are two main reasons why the executive branch embraced and took steps to develop Internet penetration in France. One was economic; the other concerned international communication and cultural policy. Boosting the economy Apparently, there was a realization that French economic development, in a global age, needed to embrace the Internet rather than hold onto a domestic network such as Minitel. The Martin-Lalande report, for example, pointed out that the Wall Street Journal "attributes a third of last year's growth in the USA to [new technologies]. More recently, a Booz Allen & Hamilton study estimates that Europe's lag in the information technologies field cost one million jobs." 496 The Congressman acknowledged the economic opportunity provided by the Internet: 497 “Our small and medium companies" cannot ignore this new tool that allows them, at a modest cost, to reach a worldwide market and cooperate with business partners from afar." 498 The worldwide market was considered more than a market for goods and services; it is also seen as what Monroe Price called the “market for loyalties.” 499 496 Martin-Lalande, Internet, 3 497 As opposed to the “information highways” envisioned by Théry, which were not the Internet. 498 Martin-Lalande, Internet, 3 499 Monroe Price, Susan Haas & Drew Margolin, “New Technologies and International Broadcasting: Reflections on Adaptations and Transformations,” The Annals of the American Academy of Political and Social Science 616 (2008), 151. See also, generally, Monroe Price, 202 Placing France back at the center of the world France’s embrace can be understood in the context of international communication theory, especially to free flow and contraflow theories. Free flow theory, Dayah Thussu writes, “reflected Western, and specifically US, antipathy to the state regulation an censorship of media by its communist opponents… Complementary to the doctrine of ‘free flow’ in the post-war years was the view that international communication was the key to the process of modernization and development for the so-called Third World. Modernization theory arose from the notion that international mass communication could be used to spread the message of modernity and transfer the economic and political models of the West to the newly independent countries of the South.” 500 Ironically, a “privatized and deregulated broadcasting and telecommunication environment has enabled an increasing flow of content from the global South to the North, for example, the growing international visibility of telenovelas, while the Indian film industry is an example of a non-Western production centre making its presence felt in a global cultural context.” 501 Thussu suggests that these “contraflows” can be largely explained by discontentment of non-Western countries with the West, “partly as a reaction to perceived Westernization of their cultures and partly as a reaction to the alleged distortion in representations of non-Western cultures in the global media,” something referred to in terms such as “westoxication,” or “McWorld. 502 “ France’s newfound embrace of the Internet can also be seen as part of the projection of contraflow, Media and Sovereignty: The Global Information Revolution and its Challenge to State Power (Cambridge: MIT Press, 2002) 500 Daya Kishan Thussu, International Communication: Continuity and Change ( London: Hodder Arnold Publication, 2006), 42 501 Ibid., 180 502 Ibid., 183 203 even though France is a Western country. France had pinned down the United States, as represented by IBM, as the digital-world cultural enemy, that telematics would battle. 503 With the rise of the Internet, the new symbol of U.S. hegemony became Google. “Cocacolonization,” a term pinned by the French communists in the 1950s, 504 became "omnigooglization," a term coined by Minister of Culture Frederic Mitterrand. Omnigooglization refers to the diffusion of American ideology through language and culture in the digital age: the Minister was referring to the free online distribution by Google of books written in English, an action the director of the French National Library, Jean-Noel Jeanneney, called the "confirmation of the risk of crushing American domination in the way future generations conceive the world." 505 State Council Justice Falque-Pierrotin argued, “[t]he best way to protect ourselves against the Internet … is to be there!.” 506 She suggested that an offensive, rather than defensive, policy, be adopted to develop French Internet services 507 and that France should build on the Minitel experience to develop French content. It was important, the Justice wrote, to pursue the development of “francophone spaces for those are the means to favor the respect of personal rights and freedoms we are attached to.” It also was critical to 503 Nora and Minc, Computerization of Society 504 The term was coined by L'Humanité’s editor in chief Pierre Hervé. See Richard F. Kuisel, “Coca-Cola and the Cold War: The French Face Americanization, 1948-1953,” French Historical Studies Vol. 17, No. 1 (Spring, 1991), pp.96-116. 505 “Letting the Net Speak for Itself,” San Jose Mercury News, April 17, 2005; Owen Gibson, “Coming soon: Googling the truth,” The Guardian, 18 June 2005. 506 Falque-Pierrotin, Internet 507 Ibid., 204 “reinforce the role of the French language as the communication language between Internet users in order to move beyond the current 2% rate of exchanges in French.” 508 Shortly thereafter, the Martin-Lalande report recognized that "the Internet is a wonderful tool to contribute to the influence of France at an international level for our culture and our language." 509 It presented the Internet as "a major cultural tool, especially in the context of francophonie," 510 an international organization of 56 states and a key tool of French global influence and noted “[d]istance learning is a ‘global market’ where the French content industry must be present and where francophonie must be well represented. Therefore, synergies between Radio France International, the [distance learning center], TV5, … and [other public service broadcasting organizations] must be encouraged.” 511 France positions itself as part of the contraflow movement, as a spearhead of the fight against the American behemoth. In a global digital world, this fight requires the free flow of information. This explains France’s embrace of a more open, global Internet, in contrast to a more closed Teletel. It is not that the Internet itself was always considered as the open, global information highway through which to push French culture. In a 1993 official report, Gerard Théry, the former DGT head who pushed the Minitel project, suggested that France embrace, and act, as a catalyst of information highways. By “information highways,” however, Théry does not 508 Ibid. 509 Martin-Lalande, Internet, 1 510 Ibid., 10 511 Ibid., 20 205 mean “the Internet.” In an interview Théry indicated that the Internet was not then considered as a medium that had a future. From the early 1980s Théry pushed for a French-German super-broad-band, all fiber, backbone, for a new European digital network that would enable such novelties as videoconferencing, 512 an application that had been an obsession of Théry and other technocrats since the 1970s. 513 The Internet was seen as doomed to fail because of the lack of a “kiosk-like billing system.” 514 This view reflected French technocrats’ faith for innovation pushed from the top-down rather than in innovation at the edges and by the private sector. Ultimately, official reports, parliament members, executive ministers, and even the President of the Republic, embraced the Internet as the medium of choice. The invention of html language, the World Wide Web, and the Mosaic web reader provided critical mass to boost the Internet globally. The State realized that its open government goals could properly be achieved using the Internet, and that now that the world of commerce was on the Internet, economic competition had to be pursued over the same medium. All official reports after 1993 address the Internet specifically, rather than “information highways.” This pragmatic acceptance of critical mass and embrace of the “American network” is reflected in the State’s approach to regulation of the Internet. 512 Théry, interview. According to Théry, the Franco-German axis project failed to develop because of lack of involvement of the German government and its embrace of the IBM model. Ibid. 513 Nora and Minc, Computerization of Society; Théry, Autoroutes ; Théry, interview 514 Théry, Autoroutes 206 A pragmatic approach to online speech regulation: regulation “almost from the edges” This sense of pragmatism is apparent in a 1998 State Council report, Internet andDigital networks, 515 which addresses conflicts of law and jurisdiction created by the international character of the network, and the cultural and political clashes that occur now that information flows across borders relatively freely without particular regard for the content-control laws of the countries where information is received. The Council discussed applicability of the 1994 Toubon Act 516 on the French language, the one that has had France derided on the international scene as instituting a “language police.” Under the law, “[t]he use of French shall be mandatory for the designation, offer, presentation . . . of goods, products and services, ” 517 and is “compulsory in all the programs . . . of radio and television broadcasting organizations.” 518 This rule led to the establishment of minimum quotas of French music for broadcasters. And, under the law, “[a]ny inscription or announcement posted or made . . . in a place open to the public . . . must be expressed in French.” 519 Because a large part of the Internet is accessible to the public and is used to present goods, products, and services, the law applies to activity 515 Conseil d'Etat, Section du Rapport et des Etudes, Internet et les Réseaux Numériques : Etude Adoptée par l'Assemblée Générale du Conseil d'Etat le 2 juillet 1998 (Paris: La Documentation Française, 1998) 516 Law No. 94-665 of Aug. 4, 1994, J.O., Aug. 5, 1995, p. 11392 517 Ibid. art 2 518 Ibid., art 12 519 Ibid., art 3 207 conducted over the Internet. Furthermore, the Council remarked, a strict interpretation of French conflicts of law rules should lead to jurisdiction of French courts, and applicability of the law, to the entire public Internet, regardless of where sites are hosted, because the Toubon Act is a criminal law, and that French rules mandate the applicability of criminal laws, in the realm of speech, based on a reception criteria. 520 As long as content is received in France, then criminal laws regulating content are applicable to the speaker and publisher, regardless of their location. The details of these rules are more specific when addressing judicial reaction to the Internet in the context of the Yahoo! case. The Council, France’s, highest administrative jurisdiction, recognizedthe issues created by the reception criterion as applied in an Internet age. “It is important,” the Council writes, “to “pay attention to [the law’s] scope. Too wide a scope would lead to systematic violation of the law by foreign sites, the majority of which are currently in English, but which now are, because of the transnational nature of the network, accessible from [France]. It is therefore likely that an absence of sanction would take place in practice, along the lines of the declaratory obligation [of online services which is a legacy of the Minitel era and] which is neither applied nor sanctioned since there are so many violators and the obligation is clearly ill-suited [to the Internet].” The Council goes on to suggest that the conflicts of law and jurisdiction criterion should be revised, and become an intent criterion, rather than a reception criterion: “the violation of the [obligation to set the terms of any business transaction in French] should only be sanctioned if the consumer has been solicited … In the same vein, it seems difficult to impose the use of the French language for 520 Conseil d’Etat, Internet 208 advertisements when the messages were not conceived with the French consumer in mind … in practice, the obligation to use the French language should only apply to advertising expressly targeting French consumers.” And, to conclude: “In the end, it appears necessary to clarify the scope of the [Toubon Act] and to choose a realistic solution when it comes to online services, that would take into account the target destination of messages. An amendment of the law along these lines would enable an effective enforcement of the obligation to use the French language.” The Council also suggested suppressing the prior declaration obligation, which was part of the Minitel censorship apparatus, acknowledging one more time that applying the law designed for Minitel, in the Internet age, was unrealistic. 521 At a micro-level a strong sense of pragmatism prevails over theoretical dogmatism in the Councils’ report. When addressing regulation at the macro-level, the Council is also generally pragmatic. It notes that “the collective imaginary takes hold of the diffuse fear created by a little know phenomenon, and justifies a nervous isolationism, and sometimes even a restrictive interventionism.” The Council suggests, in response, that “the reality of what is at stake be approached in serene, rather than emotional ways.” Noting that the current regulatory approach “does not well match the logic and the practices of this new world,” that “the world of networks does not easily lend itself to classical state regulation [because] its international character makes any strictly-national approach illusory,” and pointing out that “the volatility of content and the decentralization of the network makes control a bit illusory,” the Council suggests we “imagine other solutions,” including self-regulation and 521 Conseil d’Etat, Internet 209 co-regulation as new avenues that the State should embrace. It further criticizes projects that would use “labels” or otherwise subject the Internet to administrative regulation of the kind Teletel was subject to; such proposals, the Council notes, would display “statist connotations” and would “appear on the international level as the classical illustration of French administrative centralism.” 522 The Council’s suggestions were positively commented upon in the Martin-Lalande report 523 and on November 15, 1999, Prime Minister Lionel Jospin embraced the coregulation approach. While requesting from congressman Christian Paul a report on Coregulation, the French Contribution for a Global Regulation, 524 Jospin wrote: the future coregulation organism “should be independent from the administration 525 and not be vested with any constraining power … a ‘coregulation structure’ can only be set up with the active cooperation of the various internet actors.” 526 The Paul report embraces a new approach to regulation, which was “almost from the edges.” Its technical analysis of the Internet was sharp and accurate, suggesting that the regulatory approach by synched with the logic of the Internet. It noted, “the time of the legislator and of the judge is not and generally cannot be that of the Internet” 527 and recognized that numerous viewpoints needed to be must be taken into consideration, 522 Conseil d’Etat, Internet 523 Martin-Lalande, Internet 524 Christian Paul, Du Droit et des Libertés sur l’Internet: La Corégulation, Contribution Française pour une Régulation Mondiale:Rapport au Premier Ministre (Paris: La Documentation Française, 2000) 525 les pouvoirs publics 526 Lionel Jospin, Lettre de Mission à M. Christian Paul, November 15, 1999. 527 Paul, Corégulation 16 210 before concluding “the Internet forces us to rethink the manner in which “the law is produced.” 528 The coregulation structure, the so-called Forum of Internet rights, 529 required a new type of structure, Paul writes; one that was “particularly open and flexible.” 530 Referring to the ways in which the Internet evolved through “permanent dialogue,” Paul suggested that the Forum be organized in “concentric circles.” Figure 5.3: The 3 concentric circles of the Internet Rights Forum 531 The widest circle featured an “open debate” in which anyone could participate. Even though the early Minitel experiments involved consultations with industry representatives and consumer groups, the level of openness featured in the Paul report were 528 Ibid., 16 529 Forum des Droits de l’Internet 530 Paul, Corégulation, 20 531 English adaptation by author, original figure in French in Paul, Corégulation, 20 211 unprecedented. The efforts to map out the new regulatory approach over the Internet architecture were notable, but still fells short of “regulation from the edges.” It was instead regulation “almost from the edges,” but really regulation of the edges from the center, in ways that made it appear as though the edges had a say. The approach fell short of embracing the Internet philosophy because of the ways in which the ripples were directed. 532 With the Internet, the movement came from the edges. With “coregulation,” the approach was also concentric, but the ripples originated at the center. Paul makes clear that only the central Council could raise the issues to be debated. The public, at the edges, was free to chime in, but had no power to frame the terms of the debate. The transition was from a top-down vertical model to a concentric model that recognized that there was value in the edges. However, the State remained at the center, pushing its influence in ripples towards the edges, where power and control now lay. The next section presents evidence that the French political tradition of centralization and of top-down micro-control of social relations, in an Internet age, took form as centralized micro-management of the edges. 532 In contrast, see the discussion about « reversing the information arrow » by Jacques Vallée, in Chapter 6. 212 III. OPENNESS, INNOVATION AND DECENTRALIZATION: DRIVEN BY THE STATE AS MICROMANAGER Under the heading Political Will: to build the French information society, Martin-Lalande suggested that "[i]n all cutting-edge countries, the impulse comes from the state, or, at the very least, the State shows by example and creates the dynamics." This statement sets the tone for the role of the State as the driver of openness and decentralization enabled by the Internet. In many ways, the French aim were similar to the U.S. goal: boost innovation, help job growth, and support the global free flow of information. But the approach is crucially different. In the United States, from the micro-economic standpoint, the state leaves it to private enterprise to drive growth. The people, as sovereign, take the initiative when it comes to actually develop the network. By contrast, in France, the State still sees itself, in the Internet age, not just as the motor pushing society towards a networked shape from a macro standpoint, but also from a micro standpoint. The network’s shape will and ought to be modeled by the State in ways that reflect local traditions of State-society relations. In the United States, the network’s shape also reflects local traditions of State-society relations, because the sovereign people build it from the edges, without much micro- intervention from the state. The political tradition of State-society relations directly impacted the ways in which Internet implementation and regulation was approached in France. This was substantiated in two reports in particular: a 1997 report by State Council Justice Falque-Pierrotin on 213 behalf of the telecommunications and of the culture ministries, 533 and the 1998 report by the State Council writing as an institution and acting in its advisory duty rather than as a judicial body. 534 Falque-Pierrotin writes that the rapid development of online services “do not simply constitute the development of a new technology; their success, their universality, make them a new social space that justifies the development of new behavioral rules, that of a ‘new civility.’ The French tradition is one of humanist values, that respect the rights and freedom of individuals; it is therefore important to favor the repossession of those values by the Internet, so that the Internet be a tool of progress and enrichment rather than a synonym of danger.” 535 A year later, the State Council, writing as an institution, denounced the international negotiations taking place on Internet governance as something taking place “largely per the initiative of public and private north-American interests; there is a risk that [these negotiations] might structure … behavior on digital networks. It will be too late tomorrow to defend a different conception of human or consumer rights. We must therefore take an active part in this global debate, lest we see [this debate] be organized along a strictly economic logic.” 536 The State Council offered that the Internet must be designed and implemented in ways that embed the French State-society traditions model: This is what is at stake: ensure that the world which is being born before our eyes, that carries enrichment, growth, and exchanges between peoples, accompany the dynamism of companies, but in line with the respect of the human person. Political and ethical choices must tally with economic globalization. These choices must 533 Falque-Pierrotin, Internet 534 Conseil d’Etat, Internet 535 Falque-Pierrotin, Internet 536 Conseil d’Etat, Internet, 214 illustrate the type of society, of relationship between actors, and ultimately of value scale, that we want to see implemented in the virtual world. The idea is not to militate in favor of a ‘romantic’ approach to the Internet around a European humanist idealism, but to prove, one more time, the capacity of our Old World to imagine the world of tomorrow, taking into account its cultural diversity and its attachment to the defense of human rights. 537 The French State impulse is to consider that there is a need for State micromanagement of innovation and social relations mediated by digital information-distribution networks. By contrast, the United States always has had a tradition of macro impulsions by government in the area of digital communication technologies. For example, DARPA provided major funding major for research projects, but left it to the scientists to figure it out. Similarly, President Bill Clinton worked with his Internet czar Ira Magaziner to privatize the Internet and left it to private enterprise to develop it. 538 In contrast, in France, the tradition has been that of micro-control, as in the Minitel experience. What is different with the Internet is that the tradition seems to move from one of centralized micro-control from within, to one of centralized micro-management of the innovation that emerges from the edges. 539 The 1998 Pierret speech showed a recognition 537 Ibid. 538 Jack Goldsmith and Tim Wu, Who Controls the Internet?: Illusions of a Borderless World (New York: Oxford, paperback, 2008), 40-43 539 Premises of this approach are also visible in the context of the Teletel experience. Beraudo De Pralormo, interview no.1; Louvel, interview no.1 215 that innovation would come from the edges, 540 and that this state of being should be embraced, as the Minister celebrates the “culture of calculated risk-taking, of innovation and competition, and anticipation and cooperation.” 541 This embrace, however, in no way meant that the State would disengage itself from micromanagement of innovation: “it is the responsibility of politicians to contribute to the enrichment of a real industrial culture … the State has legitimacy in participating to the financing of ‘positive externalities’ … the State’s action for industry accompanies all steps: from the conception of a company to its birth, from its infancy to its maturity.” 542 The centralized micromanagement of openness, innovation, and decentralization, is visible in a number of micro-proposals contained in the Martin-Lalande report: - The Congressman suggests that the State “create a prize rewarding the best site on the Internet, the most visited, etc.” 543 Such a prize, Martin-Lalande suggested, would be modeled after “the American Oscars.” 544 The author forgot, however, that the Oscars are given out by a private, industry-organized, entity, the Academy of Motion Picture Arts & Science, 545 not the State. Here lies a fundamental distinction between the French and American approaches. 540 Pierret, “Quelles Stratégies?” 541 Pierret 98 542 Pierret 18 543 Martin-Lalande, Internet, 15 544 Ibid. 545 www.oscars.org 216 - Martin-Lalande suggested that the State provide each French person an email address and allow Internet users to keep their email address when they change Internet access providers. 546 This was not an embrace of a “big-brother” approach. The Congressman seemed concerned with openness, access, and suggested addresses lock-in effects for email addresses, in ways that might be more effective than state-mandated portability of cell-phone numbers in the realm of voice communication, which was implemented through regulation in France and the United States. Similarly, Martin-Lalande addressed access by suggesting that Internet users could use their Minitel terminals to access their email boxes. 547 - The Congressman suggests that the State sponsors an « Internet party, » along the lines of the popular Music Party which takes place every summer solstice, where municipalities make available for free to citizens power generators so that they can play music in the street all night. 548 The micromanagement of access is stunning. - He suggested that the State make available a toll free number, which citizens could call, 24/7, to obtain information about new technologies. 549 Such service would also be accessible via a toll-free Minitel number. - Building on the Minitel experience, Martin-Lalande noted that “public spaces are desirable places to enable access by all to these technologies,” especially given the 546 Martin-Lalande, Internet, 11 547 Ibid. 548 Martin-Lalande, Internet, 15 549 Ibid.,14 217 costs involved with accessing the Internet related to hardware purchase, ISP subscription, and phone communication. For these reasons, the State should install “cyberyouth” terminals in public spaces related to education, science, or access, such as youth hostels and guidance offices. The involvement of the State would be reinforced in “cyberyouth spaces” by the presence of “multimedia counselors” who would be hired by the State to fulfill their National Service duties. These counselors would enhance the “efficacy of such a program is based on support.” 550 The role of the State as a guide of the populace was evident in the Congressman’s vision and underlines a state-society tradition in which the State provides an overall impulse while micro-managing social activity. Thus, while the State embraced openness, innovation, and access to the decentralized Internet network, it did not abdicate its traditional centralized role of micromanager of social and economic relations. The next section argues that while strong forces pushed for embracing the decentralized network, other forces worked in parallel to attack decentralization and reassert the tradition of centralized control through centralized design. Instead of mapping management approaches onto the new structure of the networks, as the Paul report suggested, these forces attempted to re-shape the network into a more familiar, centralized one. 550 Ibid., 18 218 IV. PARTITIONING AND CENSORING THE INTERNET Pragmatism, modernity, and the rejection of “French administrative centralism,” 551 were some of the forces at play. In parallel, the top-down control remained influential. Parliament, always eager to reassert its role as a protector of the masses, decided in the spring of 1996 to replicate on the Internet the censorship scheme that was set-up for Teletel. The Amendment Fillon, named after the future Prime Minister who introduced it, amended the 1986 telecommunications act and extended the jurisdiction of the CST to the Internet. 552 It mandated that the CST elaborate a code of conduct with restrictions on speech content that all French Internet service providers would be required to contractually impose on their clients. Content could only be uploaded onto the Internet if it met content-quality criteria set by an administrative authority, outside of the legislative or judicial process. Many, including Pierre Huet, the former CST president and State Council Justice, deemed the law unconstitutional. 553 Some parliament members requested review of the law by the French constitutional court suggesting that the law in essence set forth a prior authorization regime for speech that was censorship. The constitutional court agreed and struck down the law. 554 551 Conseil d’Etat, Internet, 552 Loi no 86-1067 du 30 septembre 1986, art 43 553 Huet, “Cadre Juridique” 554 Cons. const., DC. No. 96-378 of July 23, 1996, J.O., July 27, 1996, p. 11400. 219 The constitutional court decision, however, was not the end of the centralized command and control story. A few months after the court’s decision, Isabelle Falque-Pierrotin, a State Council Justice, wrote in a report on behalf of the telecommunications minister and the culture minister 555 “ the post-sixties libertarianism” spirit of the Internet, and the standards and regulatory choices made to date “did not correspond to French and European approach nor to its values.” She described the network as a place of danger, and called for State action to “civilize” the network. 556 She noted that the Internet “sometimes escapes French Cartesian logic,” and rejecting technological determinism, concluded: “[t]he best way to protect ourselves against the Internet … is to be there!” The Justice suggested that the government step up its effort, started by the Amendment Fillon, even though it was deemed unconstitutional by the high court. Cynically, she argued that “contracts [entered into between users and service providers] can give a legal ground to content filtering without creating negative reactions such as in the case of censorship.” 557 Although the Falque-Pierrotin report did not become law – after all, parliament had just been censored by the high court – its inspiration lived on. In 1999, the Pierret report, discussed earlier in the context of openness, mixed modernity and a significant dose of old methods, by suggesting steps to guarantee an administrative partitioning of the Internet, and the creation of a French “safety bubble” through censorship. The report suggested: 555 Falque-Pierrotin, Internet 556 Ibid. 557 Falque-Pierrotin, Internet, 220 The various segments of the general public must be allowed to protect themselves against certain types of site content. In the case of children, for example, web filter software is available today which makes it possible to select the types of content that they are allowed to access. To accomplish this, sites must first define the target audience for their content, using a standardized “label.” Such tools are particularly important where Internet access in schools is concerned, and more generally provide one answer to the problem raised by the Internet’s ability to provide immediate access to any kind of site content. Site labeling is essential if self- regulation by private-sector players is to succeed. It will also make it possible to adopt a shared approach at international level to cover different legal systems. In order to ensure that the most vulnerable cybernauts are protected, the authorities will continue to support, as they have in the past, the development of French Web filter and site labeling software, as well as the testing of such systems. Alongside this, work will be done with industry players in order to encourage them to adopt a satisfactory site labeling policy. In particular, the authorities will seek to ensure that the various labels are allocated with due regard for the rules of fair competition. 558 Don’t be misled by references to “self-regulation.” Regulatory rhetoric in France traditionally does not classify contract-based censorship as censorship, but rather as a “voluntary” acceptance of quality-control mechanisms. 559 In discussing ways to “give a legal ground to content filtering,” for example, Falque-Pierrotin suggested that contracts between Internet hosting services and users -- between a speaker and a distribution outlet 558 Pierret 559 CE, March 29, 1991; Cour d’Appel de Paris, October 13, 1992, Midratel. 221 -- which included content restrictions mandated by the administrative authority, would “enable placing content obligations in voluntary fashion.” 560 The idea that users voluntarily embrace burdens matches the cynical nature of her second suggestion: “contracts [entered into between users and service providers] can give a legal ground to content filtering without creating negative reactions such as in the case of censorship.” 561 In this context the Pierret report’s suggestion that “sites must first define the target audience for their content, using a standardized ‘label,’” that “the authorities will seek to ensure that the various labels are allocated with due regard for the rules of fair competition,” but that the whole system would be a bottom-up, not a top-down system where the State works “with industry players in order to encourage them to adopt a satisfactory site labeling policy,” should be taken with a grain of salt. The Pierret report in essence suggests is that the French Internet be isolated through the use of a censorship system where only speakers who have received a “quality label” granted by an administrative authority can upload content, and where French ISPs would block, by default, any site without French quality labels. This system suggests Internet implementation that resembles Teletel, where any site without stamp of approval from France Telecom would be blocked so it could not trickle down through the gateway to users. In the proposed system the administrative authority granted approval and censorship would be “voluntarily” imposed by all French ISPs, therefore recreating the traditional France Telecom bottleneck of Teletel. 560 Falque-Pierrotin, Internet 561 Ibid. 222 Figure 5.4: Comparison of Minitel and proposed French Internet implementation. 562 The influence of the forces of top-down, centralized control, in parallel to the forces of openness and embrace of the new network architecture, are manifest in the Pierret report. The State Council report is another example of an apparent bicephalous inspiration, for the report, while pointed towards pragmatism, also sought partitioning of the Internet. The State Council suggests that the international character of the Internet makes necessary a progressive harmonization of exceptions to copyright. It notes, however, that the “very sensitive nature and the symbolic impact” of the copyright exceptions regime makes it likely that harmonization will be “very slow and difficult, even at the level of the European Community.” “As a result,” the Council suggests, “given the fact that each site is accessible from any country, it is imperative that each State mandate that each site owner that resides 562 Charts have previously appeared in Mailland, “Freedom of Speech.” For a more in-depth discussion of Pierret report. 223 on its territory implement technical means that would limit the benefit of copyright exceptions (in particular those related to ‘fair use’) to these users that reside in that country.” 563 It is unclear what this proposal would mean in practice, or how it would be implemented, but the overall spirit sounds like reverse-partitioning of the Internet, where a state would isolate its servers from being accessed from abroad, to prevent foreign users from benefiting from its own content rules, not to protect itself from receiving illegal content. A similar suggestion was subsequently imposed by Judge Gomez on Yahoo!, when it ordered the U.S. company to block access by French residents to Nazi-related content hosted on its U.S. servers. The U.S. company was prosecuted in a French court for displaying Nazi items on its auction pages and for hosting several xenophobic pages on Geocities, Yahoo’s free webpage hosting service, in contravention of Article R 645-2 of the French criminal code. The court based its decision to exercise territorial jurisdiction on Article 46 of the New Code of Civil Procedure, which grants territorial jurisdiction to the court sitting in the jurisdiction in which the prejudice is suffered. The judge declared that the Paris Tribunal had jurisdiction over the case because the prejudice (“the offense to the country’s collective memory”) was suffered in France. In denying that a foreign court could exercise jurisdiction, Yahoo! argued that the anonymous nature of the Internet rendered it impossible for a host to restrict access based on the location of the viewer contacting the server. They contended that an “effects”- based theory of jurisdiction was inappropriate given Yahoo!’s inability to monitor access in the first place. In response, the French tribunal analyzed reports submitted by technical 563 Conseil d’Etat, Internet 224 experts during the summer of 2000 and found that Yahoo!’s claim that viewer and location anonymity in cyberspace precluded access control was questionable. Quoting the reports, the court noted that servers have the ability to locate viewers based on their IP addresses with an effective rate of approximately 70%. The tribunal added that Yahoo! could improve this rate by mandating the receipt of a pledge of honor from the viewer regarding his nationality. The combination of these and other techniques could achieve a filtering rate of approximately 90%. The tribunal concluded that Yahoo! could locate the viewers relatively effectively and ordered the company to install such filtering devices within three months. 564 In the end, Yahoo! did not install the devices but removed all neo-Nazi materials from its servers. Attempts by the French plaintiffs to have the French judgment enforced in the United States were quashed in a San Francisco federal court, 565 but the affair did not go further in France, for the company had effectively complied with the order by making its services “French-compliant.” Judge Gomez’s decision is internally consistent even though it seems extreme and far from pragmatic. By contrast, the U.S. Supreme Court decision in the Reno case, 566 applied the letter of the law, albeit with great zeal. But, the State Council’s reverse partitioning proposal seems contradictory with its own position on the French language. The Toubon Act is no less sensitive and symbolic that copyright regimes. In one case, the Council pragmatically suggested that the French law be modified to acknowledge its practical 564 Mailland, “Freedom of Speech,” 1208-1209 565 Yahoo! Inc., a Delaware Corporation, Plaintiff-appellee, v. La Ligue Contre Le Racisme et L'antisemitisme, a French Association; L'union Des Etudiants Juifs De France, a French Association, Defendants-appellants. 433 F.3d 1199 (9th Circuit, 2006). 566 Reno vs. ACLU, 521 U.S. 844 (1997) 225 inapplicability in an Internet context. In the other case, the Council suggested that “each State” implement filtering mechanisms preventing foreign users from benefiting from its local legal regime. This inherent internal contradiction seems irreconcilable, and thus supports the claim that multiple forces were acting in parallel in France when approaching Internet design and implementation. The contrast with the United States also highlights the difference in approaches. The State Council suggested “such access filtering mechanisms based on the place of residence of the receiver already exist on certain sites even though the efficacy is not yet full proof.” The Council was correct. Fifteen years later such mechanisms are commonplace. However, in OECD countries they have mostly been implemented by the content industry on its own accord, not by governments. Such mechanisms are the digital equivalent of the time- honored business practice in the content industry called ’versioning’ 567 or more specifically, ‘geographical versioning’. As implemented by the content industry, geographical versioning consists of using certain location-identification techniques and blocking content based on the location perceived by the server. For example, Netflix uses IP-geolocalization to prevent foreign users from accessing its content: only users identified as being in the United States can view the content, even if they properly purchased a Netflix subscription. For example, I can only use my Netflix subscription when connecting from a U.S. IP address. I am blocked if I try to use the same subscription while in France, unless the Netflix server is tricked into thinking that I am in America by using proxy servers or VPNs. 567 Defined by Carl Shapiro and Hal Varian, versioning “means offering your information product in different versions for different market segments.” Shapiro and Varian, Information Rules, 54 226 The content industry uses such techniques even for domestic content. In the United States Major League Baseball traditionally partitioned the country into territories, where each franchise (team) has certain exclusive rights that other teams cannot infringe upon. The digital implementation of geographical versioning system relies on credit card registration addresses. So, if a San Francisco Giants fan with a credit card registered with an address in San Francisco, purchases an online total access package to watch Giants games on his computer, he will get full access … except that the Giants games will be blacked out, when using his mlb.com login, when the Giants play in San Francisco. If the same Giants fan had paid for his subscription using a credit card registered in New York, however, then he would get full access to games online except for days where the Giants are playing in Queens against the New York Mets. 568 These techniques resemble the State Council proposal. In both cases, they prevent remote users from accessing a local computer. Both techniques also protect certain local copyright regimes, but their implementation is driven by different factors different in the United States and in France. In the United States the content industry was the driver that micromanaged its own interests and its own relationships with other members of civil society. The state did not intervene directly. This reflects a horizontal conception of society, where the people, as sovereign, have the freedom to experiment with social relations, including economic relations. In contrast, in the French model, implementations of filtering techniques result from a top-down effect: “each State must mandate” implementation of such techniques. This implementation reflects a political tradition of 568 In this case the restriction can be bypassed by changing the physical address tied to the credit card and updating one’s profile on the MLB online system. 227 state-society relations where the state micro-manages relationships between the state and civil society and within civil society itself, as a protector of a people considered weak and unable to organize themselves. This echoes remarks by Gérard Théry about the bleak future of the Internet in which the content and service industry could not alone develop a viable business model, therefore making the Internet doomed without State micro- management of its payment systems. Ultimately, the tradition of centralization and control had some impact. The filtering systems were never implemented, and the Teletel censorship system cohabited with a regime of openness and freedom for the Internet, until Orange killed Teletel on June 30, 2012, which also put an end to French digital censorship. The reverse partitioning suggestions by the State Council did not produce effects. However, judicial decisions in the Yahoo! case did, as the American company placed its business interests before its nonetheless-honest 569 appreciation for the First Amendment to the U.S. Constitution. Even today, the fear rhetoric, and the gut feeling that the State should micro-manage the network and control the content being distributed over it, remains. Regarding the French three- strike law for copyright law violators, which adopted a graduated response leading up to cutting off Internet access, Trisha Meyer noted: “[t]his was … often accompanied with a strong discourse on the dangers of the Internet. The French Ministry of Culture and Communication, the president, and the culture industry have described the Internet as a jungle and as an uncivilized environment where only the fittest survive. They strongly urged regulation of the Internet, something that the following quote illustrates well: “Art is 569 Yahoo! executive, off-the-record interview with author, Sunnyvale, California, 2003 228 the highest expression of civilization. It is up to us to make sure that a civilized Internet exists.”” She concluded: “[t]he discourse on the dangers of the Internet in France is strong and not limited to the debate on copyright. President Sarkozy has continued to use the term “civilization of the Internet” in Internet governance discussions.” 570 The discourse about the dangers of the Internet that require State-imposed control remains omnipresent. A recent controversy surrounding the distribution of election polls is indicative. On election days in France, it is illegal to disclose exit polls before 8:00 pm. This rule was challenged in the 2007 presidential election, when Swiss and Belgian news websites started disclosing results during the afternoon, to the delight of French Internet users, and the dismay of French media outlets, that could not compete with their foreign colleagues for fear of prosecution. In the 2012 presidential election, faced with rumors that French media outlets might disclose exit polls before 8:00pm, the State since the election code was, at that point, a joke, the State made clear that it would prosecute any offenders. It warned not just the media but also all Internet users that any leaks over social networks such as Facebook or Twitter would lead to prosecution. As a result, the twittosphere filled with humorous and not-so-cryptic messages, celebrating such things as the increasing smell of roses, a reference to the flower that is the symbol of the socialist party of victor Francois Hollande. More recently, the press industry lobby demanded that Google be taxed for indexing news articles to prevent this evil American behemoth from destroying a fledging press industry. As it had in 1981, the appeal to fear worked on the government. 570 Trisha Meyer, “Graduated Response in France: the Clash of Copyright and the Internet,” Journal of Information Policy 2 (2012), 120-122 229 Demands by the press were embraced by the communication and culture minister. And, when Google threatened to stop indexing French news articles, Francois Hollande summoned Eric Scthmidt, CEO of Google, to the presidential palace. Once again, the press paradox, that plays on the traditional fear of decentralized networks, which is built from the bottom up, is working in full. CONCLUSION The State embraced the various forms of openness and modernity brought by the Internet. While doing so, it did not abdicate its top-down position as a centralized micromanager of social relations, something that even at times translated into Internet partitioning and censorship projects. These observations underscore several important lessons of this dissertation. First, openness is a shaded, not binary, concept. Second, more State does not automatically mean more control, and less State does not mean less control: the Netflix and baseball Internet partitioning and versioning scheme bring as much third-party control over information flow as do court orders like the one imposed by Judge Gomez over Yahoo!, Inc. Third, the same prima facie implementation does not translate into similar cultural underpinnings, something that will become more apparent as American private sector implementations are considered in the next chapter. 230 CHAPTER 6: AMERICA’S INTERNET INTRODUCTION The Internet from the 1960s until its privatization in 1995 was characterized by the prevalence of a countercultural spirit that largely celebrated civil libertarian ideals and the theory of popular sovereignty. This occurred while U.S. government agencies funded and owned the networks, but ironically after a wave of unabashed freedom the privatization of the Internet led to more external control over what users can do and what content producers can distribute. The analysis of this trend suggests that it was in large part also caused by the implementation of the popular sovereignty philosophy. The importance of libertarian ideals throughout American society at times led to the rejection by the courts of Congressional efforts to control Internet content. However, the influence of the same ideals also empowered Internet operators to implement control mechanisms including Internet partitioning mechanisms that French politicians and judges only dreamt of. Part I examines how American political thought since the Puritans impacted the pre-privatization network design, both through the actions of engineers and of the courts. Building on case studies of network implementation by Apple, Google, Yahoo!, Netflix, and Major League Baseball, Part II shows how this political tradition is leading to network implementation that gives private parties greater control over online users what than the French State ever considered. These case studies reinforce the conclusion that less government does not mean less control, that popular sovereignty and freedom can mean freedom to privately control, and that openness is a shaded and polyform concept. 231 I. POPULAR SOVEREIGNTY IMPLEMENTED IN NETWORKS: FROM GOVERNOR WINTHROP TO RENO V. ACLU, AN ERA OF FREEDOM FROM GOVERNMENT The original design of U.S.-funded digital communication networks was influenced by ideals of the counterculture. 571 Jack Goldsmith and Tim Wu note that the TCP/IP protocol, "and other aspects of the Internet's architecture, rested on the founders' self-consciously revolutionary beliefs about networks. In technical jargon, they created a network with "open architecture," or "end-to-end" design. In nontechnical terms, the founders embraced a design that distrusted centralized control. In effect, they built strains of American libertarianism, and even 1960s idealism, into the universal language of the Internet." 572 Jacques Vallée, a former ARPANET principal investigator, notes that "[i]t has often been observed that communication systems reflect the structure of a society to the same extent as architectural concepts do." 573 In 1982, Vallée suggested that "[t]he modern stage of the builder's art is represented by the geodesic dome, [a staple of the counterculture and communautarist life] 574 where tension literally pulls the structure outward. In a geodesic dome, each polygonal segment is a source of both support and tension for its neighbors ... Societal structures, however, have yet to evolve which approach the beautiful distribution of tension realized in the dome. The hierarchic stage remains, with occasional incursions into arches. A geodesic organization would demand an information system that could 571 See generally Fred Turner, From Counterculture to Cyberculture: Stewart Brand, the Whole Earth Network and the Rise of Digital Utopianism (University of Chicago Press, 2006); Jacques Vallée, The Heart of the Internet (Charlottesville, Hampton Roads, 2003) 572 Goldsmith and Wu, Who Controls?, 23 573 Vallée, Heart, 118 + network revolution 574 See generally Turner, Counterculture 232 instantly tie together all its segments when a collective decision was required." 575 Further developing his argument in 2000, Vallée continued: "[t]his is what network conferencing, in its finer forms, could realize ... the geodesic structure requires an information medium in which participants can join the dialogue at any time ... It requires a medium where the arrow of information has been reversed. This is the medium Doug Engelbart was dreaming about. Computer conferencing, as we implemented it at InfoMedia, was a first step towards the creation of such a system: a revolutionary network where each node is equal in power to all others... The arrow of information needed to be reversed, with power turned over to network users everywhere. That was the dream of Paul Baran, [one of the inventors of packet switching] speaking of "building a better planet"; that was the dream of Doug Engelbart [whose teams invented the computer mouse, hypertext, and early graphical user interfaces] aiming at augmenting human thought ... that was the dream of all those who had participated, in one way or another, in building the Internet and developing applications for it." 576 As a result, "[t]he Arpanet was designed to grow organically. As such, it had no center," 577 in contrast to Teletel, "a closed system with no ability to grow organically," 578 the structure of which "is actually the exact opposite of the Internet." 579 575 Jacques Vallée, The Network Revolution: Confessions of a Computer Scientist (Berkeley, Ca.: And/Or Press, 1982), 198, citing Anthony Judge, “A lesson in organization from building to design: transcending duality through tensional integrity,” Transnational Associations 5, Brussels, 1978 576 Jacques Vallée, The Heart of the Internet (Charlottesville, Hampton Roads, 2003), 118- 119 577 Vallée, Heart, 76 578 Vallée, Heart, 105 579 Vallée, Heart, 54 233 In this context, perhaps by historical accident, the Department of Defense let its engineers roam free, and their aesthetic was not a centralizing one. One incident exemplifies this situation of funding with loose oversight, and helps explain why the fathers of the Internet were able to implement the resulting network architecture. Jacques Vallée recalls working on ARPA at the Stanford Research Institute (SRI): ARPA officials never knew all the details of what happened after they pushed SRI-ARC onto the Arpanet: they weren't there to see it, and they were only interested in technological results anyway. The social side of things was of no lasting concern to them. But I was living with the project and saw the most important part of the ARPA experiment from the inside - the human part. Again, it was easy to see that any information network was a social system. Lenin had told his Soviet cadres to electrify the countryside. The Pentagon decided to computerize it... Its orders would now spur the spread of the Wired Nation. But the folks at SRI were torn once again by their identity crisis: why should they take instructions from an organization they regarded as the "Masters of War," when as individuals they were fighting the draft in California, demonstrating against the war in Vietnam, and seriously thinking of moving the ARC computer to the woods of Mendocino to start a programmers' commune? The confrontation became obvious one afternoon when the group, riddled by conflict, wheeled all the terminals into the corners and spread a carpet in the middle of the main room. The time had come for a real brainstorm. The programmers, in their blue jeans and 234 colored shirts, took off their sandals and sat in a circle ... Once the staff members had assembled, someone stated the issues and invited comments. In the spirit of the time, a bottle of wine and a few joints had been produced; and a serious encounter session had begun when the stairway door opened without warning. Who should walk in but the director of SRI himself, in his gray suit and striped tie, followed by several high-ranking officers from the Pentagon. They were on an official site visit, checking the expenditures of public monies under their jurisdiction. "And here is our project for the augmentation of human intellect," the director is said to have told his distinguished guests, without even looking. Then he looked, and saw, and smelled, and realized what the unmistakable odor was. He made up some sort of excuse and left in a hurry. 580 The literature that ties the story of pre-privatization Internet implementation to 1960s counterculture and generally to American political philosophy traditions -- including popular sovereignty and self-government -- however, stops short of showing how the frames of thought within which the original Internet designers acted reflected the tradition of American political thought as it relates to state-society relations and the role that freedom of speech plays in that organizational system. Next we examine that lineage to strengthen the claim that the original design of the Internet reflects American political traditions, especially with regards to the interplay between information ecology and state- 580 Vallée, Heart, 58-59 235 society relations. After demonstrating this claim in relation to the Internet’s pre- privatization history, the remainder of this chapter shows the same relationship remained since 1995 in the post-privatization era. The capacity for the edges of the network to speak to each other in relatively unrestrained ways was a key feature of the original Internet design. It contrasted with the Minitel design where the ability to speak requires the establishment of a speech pathway by the centralized operator and therefore is controlled from the center. To understand the philosophy behind the original Internet implementation, which enabled the free distribution of ideas from the edges rather than powered from the center, one must turn to the role devoted to free speech in American state-society relations and go back as early as 17th century America and the Puritans. "[T]he development of a distinctively American political thought began almost as soon as the first settlers arrived in the New World."581 This may at first sound counterintuitive, for John Winthrop, "the Brave Leader and famous Governor" of Christian Tribes 582 was "hardly a democrat." 583 He considered “democracy to be the meanest and worst of all forms of Government." 584 Yet the Puritans developed a body of political philosophy which grew into a particular brand of state-society relations in force in America and defined the role of free speech in this context. The Puritans "came to 581 Alpheus Thomas Mason and Richard H. Leach, In Quest of Freedom : Americal Political Thought and Practice (Englewood Cliffs : Prentice-Hall, 1959), 26 582 John Winthrop, A Model of Christian Charity(1630) 583 Mason and Leach, Quest of Freedom, 31 584 Ibid., 28, footnote 4 236 America to found a more autonomous religious order," in which the State was "a lesser sphere." 585 Three constructs of Puritan thoughts had a direct influence on the evolution of American state-society relations. First, the "concept of covenant" came "to be heavily relied on ... when a number of early separatists, Robert Brown chief among them, began to assert that the proper basis of the church was not an organization, a hierarchy, or a dogma, but a compact made between individual believers joining together to worship God ... Here the idea was joined with another principle which had been slowly developing in England for a century or more, the principle of free consent. The combination was to become a vital force in colonial political thinking. 'It's free for any man to offer to joyn with another who is fit for fellowship, or to refuse,' Thomas Hooker wrote in The Summe of Church-Discipline." 586 These ideas built on by 18th century thinkers to legitimatize the break from England in the declaration of independence. From the standpoint of the role of free speech in a self-governed society, the role of free consent is also crucial and will be discussed shortly in connection with First Amendment history and Alexander Meiklejohn's scholarship. A second construct of Puritan practice came to support the First Amendment's negative command directed towards the centralized government, not to stifle speech. This in turn supports distributed and decentralized information-distribution networks and their local autonomy. By historical and geographical accident the Puritans benefited from minimal "effective English supervision or control, and the distances between New England towns, 585 Ibid., 27 586 Ibid., 30 237 magnified as they were by the Indian menace and lack of good roads, worked against any great degree of centralized control... Also, Puritan theology emphasized independent congregational control of ecclesiastical matters ... There is much to be said for the assertion frequently made that the congregational form of worship provided the seedbed for free government in America. Certainly nowhere else in Western Europe or in the American colonies were so much political independence possible." 587 Third, "[p]herhaps even more important for the development of American political thought ... was the vigorous and finally victorious body of clerical dissent the Bible Commonwealth stimulated. Puritanism itself was the result of a process of dissent." 588 Alpheus Mason and Richard Leach point to Roger Williams (1603-1683) and Thomas Hooker (1586-1647) as among the most influential of these dissenters. 589 For Williams, "[n]o single doctrine had been proved necessary for the salvation of men's souls or for the safety of the state." The contrast with modern France is striking. The French State established a number of truths that cannot be contested, lest one be criminally penalized. For example, marijuana is deemed to be dangerous, and that danger is elevated to the level of a state truth. As a result, presenting the use of marijuana "under a favorable light" is punishable by five years imprisonment and a substantial fine. 590 To clarify, the use of the drug is a crime, but the expression of the idea that smoking marijuana can have benefits also breaks the law. In other words, in modern France, worshiping idols deemed by the state to be false is a crime. In contrast, America learned with Roger Williams that "'Gods people were and ought to be 587 Ibid., 32 588 Ibid. 589 Ibid., 32-38 590 Article L3421-4 Code de la Santé Publique 238 Non-conformitants, not daring either to be restrained from the true, or constrained to false Worship.' 591 There was thus no justification whatever for using civil power to enforce religious beliefs, to persecute for conscience's sake." 592 Thomas Hooker laid the groundwork for a different evolution of the concept of social covenant in America and in France. This "fork effect" helps explain the different evolution of both the free speech regime and generally of state-society relations in the United States and in France. The concept of popular sovereignty inherent in the covenant, Mason and Leach explain, "had for Hooker, as for Williams, a great deal of vitality even after the people had entered into it... Hooker's belief that the body of the church, the congregation, was sovereign, and that the church officers owed more in the way of responsibility to the people than the people owed in the way of submission to them." 593 In contrast, French citizens seem to abandon their autonomy and sovereignty when they elect their representatives. Instead, they submit themselves to a State that seems to know better and will forever protect the people from itself. This contrast between the United States and France is critical. France is a democracy, which rests on the idea of a covenant, framed by Rousseau as a social contract. 594 The people freely elect their representatives. However, the will that is expressed in parliament by these representatives is not deemed to be the will of the people, but the will of the Nation, a distinct, overarching and all powerful body, which can never be wrong. The protective National will as expressed by parliament, "has the right to forbid . . . 591 Mason and Leach, Quest of Freedom, 35 footnote 22 592 Ibid., 35 593 Ibid., 36 37 594 Jean Jacques Rousseau, The Social Contract: Or Principles of Political Right (1762, translated 1782 by G. D. H. Cole), accessed April 17, 2013, http://www.constitution.org/jjr/socon.htm 239 those actions that are injurious to society;” 595 in the realm of speech, “[a]ny citizen may . . . speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” 596 The omniscient, infallible Nation was the traditional justification for the lack of any form of constitutional review by the French courts: since the Nation cannot be wrong, its laws do not need to be reviewed by judges. Even today the existing form of judicial review is strictly limited and stands in stark contrast with that of the United States. One reason invoked to support the non-existence of judicial review was to prevent "the dictatorship of the judges", in which a few robed men could overrule the National will. In contrast, in the United States political philosophy does not support the idea that the people transfers sovereignty to a superior, overarching body, by electing representatives. The people retain the power (even though it is bound by laws and decrees enacted by its representatives as long as they are constitutional). For this reason, because the people remain in charge, it keeps the ability to receive all opinions, not just the opinions that "the Nation" would have deemed safe. So, it remains the sovereign, making informed decisions. The decision-making process takes place in the marketplace where, as long as all ideas can be expressed free from government interference, the best ideas will prevail and the sovereign people will discover the “truth”. Theories of marketplace and popular sovereignty, in relations to the distribution of speech, emerged in the early 20th century and became law in the second half of the 20th century, strongly influenced by Justices 595 Déclaration Universelle des Droits de l’Homme et du Citoyen, 1789, art. 5 596 Déclaration Universelle des Droits de l’Homme et du Citoyen, 1789, art. 11 240 Holmes, Brandeis, and Douglas, and by the theorist Alexander Meiklejohn. 597 Justice Holmes, dissenting in Abrams v. United States, 598 noted "the best test of truth is the power 597 Courts' interpretation of the First Amendment, however, was not always a panacea for civil libertarians. As But Neuborne summarizes, "[f]or the first 140 years of the Republic, the free speech clause played a relatively minor role in the nation's life. Early political struggles were marred by censorship and intolerance, culminating in the Alien and Sedition Acts and the jailing of dissenting newspaper editors; censorship was widespread during the Civil War period in both the North and the South; labor organizers were routinely jailed during the late nineteenth and early twentieth centuries; opponents of World War I were jailed or deported for their opposition to conscription; political radicals were jailed or deported during the 'Red Scare' of the early 1920s; public school teachers were prosecuted for teaching Darwinian evolution; James Joyce's Ulysses was banned from the United States during the 1930s, and the system of free expression was badly battered during the McCarthy era of the 1950s. It was not until 1927 that the Supreme Court reversed the first state criminal conviction on free speech ground, Fiske v. Kansas (reversing conviction of political radicals for advocating industrial revolution); and it was not until 1965 that an act of Congress was invalidated under the First Amendment. Lamont v. Postmaster General, (invalidating statute interfering with receipt of controversial material mailed from abroad." Burt Neuborne, “An Overview of the Bill of Rights,” in Alan Morrison (ed), Fundamentals of American Law, (Oxford University Press, 1996). One central tenet of this restrictive view of speech had been articulated by Justice Holmes, when the majority opinion he drafted for the Schenck ruling stated that "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic." The speech that Holmes metaphorically equated to a false statement of fact: "falsely shouting fire in a theater" was actually political speech, that is, the statement of an opinion. The speech at stake was contained in a leaflet passed by Charles Schenck, the Secretary of the Socialist Party of America. It "recited the first section of the Thirteenth Amendment [to the US Constitution], said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. It impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, 'Do not submit to intimidation,' but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed 'Assert Your Rights.' It stated reasons for alleging that any one violated the Constitution when he refused to recognize 'your right to assert your opposition to the draft' and went on, "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.'" What the Holmes opinion did was to condone the establishment of government- defined "truths," and in turn justify the banishment of "false" ideas and the criminal prosecution of those who worship these false idols. If a certain interpretation of the constitution (in this case by Charles Schenck) can be determined by the government as being equal to "falsely" shouting fire in a theater, then certainly the government can legitimately prevent the spread of false ideas, since they are false and harmful to society. 241 of the thought to get itself accepted in the competition of the market." Justice Brandeis added "[i]f there is time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." This body of jurisprudence was restated and further developed in 1948 by Alexander Meiklejohn who suggested, in Free Speech and it Relation to Self-Government, that [w]hen men govern themselves, it is they - and no one else - who must pass judgment upon unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as sage, un-American as well as American ... Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning for the general goo. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed." 599 These theories became law under the pen of Justice Douglas writing in Terminiello v. Chicago, 600 where Father Terminiello, a bigot, had been convicted for an inflammatory speech that led to a breach of the peace by counter-demonstrators, the responsibility for which had been placed by the state on Father This rhetoric supports a model of state-society relations which is in force in France, where it is the state that defines what ideas are "true" and which are "false," and in turns criminally bans the expression of false ideas, such as the presentation of the use of marijuana under a favorable light. In such a system, speech from the edges is unnecessary, since the determination of what is right and wrong has already been made from the center and is being pushed towards the edges by the state. In this state-society relations model, then, freedom of speech from the edges is unnecessary. Meiklejohn himself admitted that "[t]he principle of the unqualified freedom of public speech is ... valid only in and for a society which is self-governing." 598 Abrams v. United States, 250 U.S. 616 (1919) 599 Alexander Meiklejohn, Free Speech and its Relation to Self-Government (New York: Harper & Brothers, 1948), 25-26 600 Terminiello v. Chicago, 337 U.S. 1 (1949) 242 Terminiello. The Supreme Court found that no matter that the speech provoked a protest riot, the government could not properly prevent the speaker from speaking. Justice Douglas memorably wrote that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute … is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest… There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas.” 601 In recent history, this jurisprudence was used by the courts to protect the expression of extreme ideas, the expression of which is a criminal act in most other Western countries, including racist speech, and Nazi-speech. 602 The difference in legal regimes between the United States and the rest of the Western world, regarding hate speech, is one factor that put issues of Internet implementation, including issues of filtering, partitioning, and censorship, into the Western-European public eye, in the late 1990s. 603 In the United States, however, it is the "porn scare" 604 that first triggered 601 Ibid., 4 602 On the US constitutional protection of hate speech in a comparative context, see Mailland, “Blues Brothers” 603 See generally Mailland, “Freedom of Speech” 604 Lessig, Code, chapter 12, footnote 32 243 litigation. Before examining the impact of political philosophy on Internet implementation through judicial orders, however, its impact on implementation by the early Internet designers is examined. Popular sovereignty and Internet computer scientists The absolutist, civil libertarian view developed by theorists such as Alexander Meiklejohn and embraced by the U.S. Supreme Court after World War II is reflected in the ways in which the Internet was designed and implemented until the privatization of the network, when cyber-libertarians started losing control over design and implementation. Explicit linkages, however, are scarce; 605 therefore, textual analysis is a proper tool of analysis. For example, the content of Vallée’s description of the philosophy behind early Internet implementation closely echoes the rhetoric developed by Alexander Meiklejohn, who considered free speech as a tool of social organization, not as a natural right. Meiklejohn argued that freedom of speech is a tool that supports self-government: "that the destruction of freedom is always unwise, that freedom is always expedient ... is not a sentimental vagary about the 'natural rights' of individuals. It is a reasoned and sober judgment as to the best available method of guarding the public safety. We, the People, as we plan for the general welfare, do not choose to be 'protected' from the 'search for truth.' On the contrary, we have adopted it as our 'way of life,' our method of doing the work of 605 The impact of pre-revolutionary thinkers on John Perry Barlow is clear from the wording of his Declaration of Independence of Cyberspace. However, Barlow cannot be considered a father of the Internet. John Perry Barlow, A Declaration of the Independence of Cyberspace, accessed April 17, 2013, https://projects.eff.org/~barlow/Declaration- Final.html 244 governing for which, as citizens, we are responsible." 606 As such, free speech is part of "our understanding of the relations between an individual citizen and the government of the United States." 607 This utilitarian view of free speech regulation echoes Vallée's view of information distribution networks as tools of social organization. In both cases, the focus is on ensuring that the people, rather than a centralized entity, can share information in unfettered ways, for it is beneficial for sovereignty to remain at the edges. For Vallée, in an ideal organizational state decisions are made by various decentralized players who possess information and come together to share that information: if you were "in charge of emergency services for a part of Ohio that has just been hit by the worst storms and floods in years ... wouldn’t you like to be able to tie all these people together in an around-the- clock conference and keep them posted on developments?" 608 Vallée continues: "[a] geodesic organization would demand an information system that could instantly tie together all of its segments when a collective decision was required ... Computer conferencing is a first step toward the creation of such a medium: a revolutionary network where each node is equal in power to all the other." 609 Vallée's words were not just wishful thinking. The creation of decentralized organization allowing for distributed decision making and the sharing of information at the edges also was a goal of the fathers of the Internet: “[t]his is the medium Doug Engelbart was dreaming about. Computer conferencing, as we implemented it at InfoMedia, was a first step towards the creation of 606 Meiklejohn, Free Speech, 65. This vision contrast with that of another influential 20 th century First Amendment theorist, Emerson. Burt Neuborne, “An Overview of the Bill of Rights,” in Alan Morrison (ed), Fundamentals of American Law, (Oxford University Press, 1996) 607 Meiklejohn, Free Speech, i 608 Jacques Vallée, The Network Revolution: Confessions of a Computer Scientist (Berkeley, Ca.: And/Or Press, 1982), 194 609 Ibid. 245 such a system: a revolutionary network where each node is equal in power to all others... The arrow of information needed to be reversed, with power turned over to network users everywhere. That was the dream of Paul Baran, speaking of "building a better planet"; that was the dream of Doug Engelbart aiming at augmenting human thought ... that was the dream of all those who had participated, in one way or another, in building the Internet and developing applications for it." 610 As a result, "[t]he Arpanet was designed to grow organically. As such, it had no center." 611 This utilitarian view of computer network design as a tool to promote information flow on a circular basis rather than from a top-down standpoint, as a catalyst of participatory networks, is explicit not only in Vallée’s account but also in the rhetoric put forth by some of America’s most prominent computer scientists and internet entrepreneurs themselves. Doug Engelbart saw computer networks as a tool that would help organizations “boost their collective IQs.” 612 Through his work at the Stanford Research Institute, Engelbart soughtto achieve “the maximum transfer of knowledge.” 613 Vinton Cerf, also known as “the father of the Internet,” notes that when internet protocol were first designed, “the whole idea was, if you follow the following rules you can build your own piece of internet and connect to it, and it should work. That’s basically all the philosophy was, let anybody build anything they want to as long as it meets these requirements… 614 I hope that openness 610 Vallée, Heart, 118-119 611 Vallée, Heart, 76 612 Engelbart oral history, 10 613 Ibid. 614 Vinto G. Cerf, “Vinto G. Cerf Oral History,” interview by Daniel S. Morrow, Computerworld Honors Program International Archives (November 1, 2001), http://www.cwhonors.org/search/oral_history_archive/vinton_g_cerf/oralhistory.pdf, 21 246 wins because openness is the essence of innovation. And in its absence the internet wouldn’t be where it is today… 615 Openness is really important to allow contributions to come from any place. I mean, why would you not want a kind of philosophical base which invited everyone to contribute their best ideas. If you look at Jimmy Wale’s Wikipedia, it’s as good an example of that philosophy at work as any I can think of … why would you not want to assure yourself that there is an avenue for creativity, not matter where it comes from, to enhance the value of a project that you’re working on.” 616 The WELL, a small but influential online community founded in 1985 in the San Francisco Bay Area was purposefully implemented in ways that “gave users the power of self-rule through information technology… 617 the WELL’s early developers built both a countercultural conception of community and a cybernetic vision of control into the system.” 618 The Well, which stood for Whole Earth 'Lectronic Link, had been co-founded by Stewart Brand, a member of the Merry Prankster, and also the founder of the influential Whole Earth Catalog, Global Business Network, and Hackers’ Conference. Its “crowning principle … was to give online discourse the lowest possible threshold to entry.” 619 As a result, the WELL’s underlying software, PicoSpan, “had a lot of features that didn’t simply foster openness but forced it on users.” 620 615 Ibid,, 22 616 Ibid, 31 617 Turner, Counterculture, 145 618 Ibid., 143 619 Hafner, The Well, 14 620 Ibid. 247 For Steve Case, founder of AOL, “the legacy of this medium is that it really helped bring people together, create a new sense of community, empower people in ways that weren’t possible.” 621 A key idea shared by these scientists and entrepreneurs, then, was that computer networks should be a tool to support a form of social organization characterized by decentralization, where unrestrained information flow would empower the people and support of popular sovereignty mode of state-society relations This rhetoric closely echoes Meiklejohn's utilitarian view of freedom of speech as a tool that supports the effective implementation of popular sovereignty. Meiklejohn argued that Free speech is intended to give effect to a model of popular sovereignty; it is not a natural right. Rather, it is intended to give effect to a model of popular sovereignty, derived from Thomas Hooker in particular, where the people, while it has elected representatives, remains in power, and therefore needs to receive all available information to make informed decisions, as the ultimate ruler. "In that method of political government," writes Meiklejohn: the point of ultimate interest is not the words of the speakers, but the minds of the hearers... The welfare of the community requires that those who decide issues shall understand them... And this, in turn, requires that so far as time allows, all facts and interests relevant to the problem shall be fully and fairly presented ... As the self-governing community seeks, by the method of voting, to gain wisdom in action, it can find it only in the minds of its 621 Case, “Oral History,” 24 248 individual citizens. If they fail, it fails. That is why freedom of discussion for those minds may not be abridged … [citizens] may not be barred [from speaking] because their views are thought to be false or dangerous. No plan of action shall be outlawed because someone in control thinks it unwise, unfair, un-American ... And the reason for this equality of status in the field of ideas lies deep in the very foundation of the self-governing process. When men govern themselves, it is they - and no one else - who must pass judgment upon unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as sage, un-American as well as American ... Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill- balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. 622 How closely the rhetoric developed by these Internet scientists and entrepreneurs match Meiklejohn’s is striking. "Equality of status in the field of ideas" takes form in the digital age in "a revolutionary network where each node is equal in power to all others." Where Meiklejohn warns of a [French] system where government, through control of the content of speech, "is seeking to protect the minds of the citizens of this free nation of ours from the 622 Meiklejohn, Free Speech, 25-26 249 influence of assertions, of doubts, of question, of plans, or principles which the government judges to be too 'dangerous'" 623 and suggests that the First Amendment, instead, "protects men [and not the government] as they [and not the government] engage in the oral endeavor to advance [society's] welfare," 624 he is met, in the digital world, by Vallée's metaphor of the information arrow: "the arrow of information needed to be reversed, with power turned over to network users everywhere," and by Cerf’s metaphor of Internet as a possible bonsai tree: “as beautiful as they are, it’s not clear to me that we would want to apply bonsai philosophy to the Internet, because cutting off branches to satisfy one person’s aesthetic view is not necessarily the most beneficial way to harness everybody’s knowledge and experience.”Meiklejohn had stressed that “[w]hen men govern themselves, it is they - and no one else - who must pass judgment upon unwisdom and unfairness and danger;” 625 this ideology is reflected in Cerf’s anxiety that stems from “the image of trimming off pieces of the [bonsai] tree,” which for him “immediately suggested that somebody has to decide which pieces to trim off.” 626 Both the Internet scientists and entrepreneurs and Meiklejohn view information- distribution ecology as a tool to achieve the American meaning of the "self-governing community" 627 already tied back to Thomas Hooker and the Puritans. Meiklejohn's focus, in an analog age, was on speech content regulation. In the digital age, implementation of 623 Ibid., xiii 624 Ibid., 79-80 625 Ibid. 626 Cerf,“Oral History,” 36 627 Ibid., 75 250 freedom revolves more closely around network design and implementation, and generally around information-distribution regulation. In both cases, the explicit aim is "the freeing of the minds." 628 Civil libertarian ideals influenced the fathers of the Internet. It was also central to the Supreme Court’s approach to assessing Congress’ attempts to regulate the networks. Popular sovereignty and the courts The impact of civil libertarian ideals on the Supreme Court’s approach to Internet implementation was tested shortly after the Internet was privatized. In the landmark 1997 case of Reno v. ACLU, 629 the Supreme Court reviewed the constitutionality of the 1996 Communications Decency Act ("CDA"), a law aimed at limiting access by minors to "cybersmut." 630 The law criminalized "the 'knowing' transmission of 'obscene or indecent' messages to any recipient under 18 years of age... Affirmative defenses are provided for those who take 'good faith, ... effective ... actions' to restrict access by minors to the prohibited communications ... and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult verification number." 631 From a constitutional standpoint, there were so many things wrong with the Act that Lawrence Lessig dubbed it a "law of extraordinary stupidity [which] practically 628 Ibid., 103 629 Reno vs. ACLU, 521 U.S. 844 (1997) 630 Lessig, Code 631 Reno vs. ACLU, 521 U.S. 844 (1997) 251 impaled itself on the First Amendment." 632 Significantly, "the CDA's heavy burden on adult speech" 633 would have led to the suppression of more speech than the government is entitled to suppress. The Act regulated indecent speech, a type of speech, which, unlike obscene speech, is constitutionally protected. The CDA required that speakers not make that constitutionally-protected content accessible to minors. Theoretically this was within the constitutional power of Congress (the state is authorized to “zone” the distribution of indecent speech through means that restrict access by minors, but not by adults.) However, at that time implementing the law would have required that speakers, by default, block access to all users, not just minors. The speech could only be released on the Internet when the receiver proved, through affirmative actions (e.g., use of a credit card or an adult verification number), that he was not a minor. Such methods were "not economically feasible for most noncommercial speakers." 634 Because of the burden on the commercial speaker,more speech would have been suppressed than the state was entitled to suppress, a phenomenon dubbed "chilling effects." Further, on the receivers' end, the affirmative steps would have prevented more recipients than the government could legitimately "protect" from receiving the speech, because the requirement to verify its age with a credit card "would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material." 635 As a result of these chilling effects, the relevant provisions of the Act were deemed unconstitutional. 632 Lessig, Code, 174 633 Reno vs. ACLU, 521 U.S. 844 (1997), 847 634 Ibid. 635 Reno vs. ACLU, 521 U.S. 844 (1997), 856 252 The contrast with French judicial rulings that impact Internet implementation helps to show how different implementation choices of the same network in different countries are the direct result of different political traditions in the realm of state-society relations. In Reno, the Supreme Court ruled that "the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." 636 The underlying rationale was that less restrictive alternatives lead to more speech being expressed, leading to a more vibrant marketplace of ideas, leading to a fuller implementation of the principle of popular sovereignty. In contrast, Judge Gomez ruled in the French Yahoo! case that a potential 90 percent success rate in filtering implementation by Yahoo! was sufficient to justify mandating that a foreign company, Yahoo, Inc., implement Internet partitioning techniques at the behest of the French state, even though speech that is otherwise constitutional in France might be blocked to French users. 637 A 90 percent success rate in blocking meant a 90 percent success rate in protecting the French from speech they should not receive; regardless of the chilling effects. What was decisive was that the protective role of the state succeeded for a great majority of the populace. In Yahoo!, the French court "burned the house to roast the pig." 636 Ibid. 637 T.G.I. Paris, May 22, 2000 (UEJF et Licra c/ Yahoo! Inc & Yahoo France); T.G.I. Paris, Nov. 20, 2000 (UEJF et Licra c/ Yahoo! Inc & Yahoo France) 253 This approach, which values the protection of the populace by the state over protecting free speech – directly parallels the executive's implementation of the Teletel network. When confronted with the General Auditor’s suggestion that limiting speaker access to the 3615 network to press enterprises registered with the Commission of Press Organizations was illegal, the Ministry of Telecommunications responded that abuse of the network by service providers would have been “much worse if access [to this function] had been made free.” 638 Jean-Paul Maury later commented that “the prerequisite [for speakers to be registered with the Commission of Press Organizations] was requested in order to apply the existing legal regime [of the Press Act].” 639 This analysis ignores the legal reality, that the Press Act always applied to all speakers, including the fringe speakers standing on soap boxes at street corners, private-radio operators, bill posters, demonstrators, and other riff- raff that for ages has made the public sphere vibrant and the Pecksniffians uncomfortable, not just to speakers registered as “press enterprises.” That the executive had a proper understanding of the applicability of the Press Act to behavior conducted over Teletel without the need for a licensing scheme is evident from the pre-Mitterrand notes from the Prime Minister’s Legal Service. Jean-Paul Maury insists, however, that the licensing system and the prior administrative review of declared content ensured that “the service provided subjected itself to the general conditions imposed to the press.” 640 In reality, those regulations applied to all speakers regardless of their affiliation. Maury surmises from these chilling-effects creating restrictions the conclusion that “Minitel was developed under the Rule of Law, as opposed to the Internet, which is global, and exonerates itself from 638 Cour des Comptes, Rapport au President de la République (1989) 639 Maury, email no.1 640 Ibid. 254 regulation (but for how long?)… In the end, the idea that Minitel is a more centralized system than the Internet does not appear to be pertinent: it is better to say that Minitel benefited from a set of regulations, as opposed to the Internet [which does not yet benefit from a set of regulations].” 641 In the United States, the focus is on limiting the suppression of “a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." 642 In contrast, in France, the focus is on ensuring control, on making sure that the network can “benefit from a set of regulations,” no matter that the cost of that focus was, in the case of Minitel, the implementation of a constitutionally-questionable censorship system and the prevention of the distribution of a lot of speech that was otherwise protected. What was at stake, besides the protection of the people, was the enforcement and implementation in the digital world of a state-society organization model where social micro-management vests in the State rather that in the people. The CDA case exemplifies an opposite conception, where sovereignty rests in the people, and where the role of the state is more limited - especially in the field of ideas, resulting generally in state macro-management, but not micro-management. Since the CDA "threatens to torch a large segment of the Internet community” 643 - as did the Yahoo! ruling - it is unconstitutional. This ruling of unconstitutionality is directly linked by the Supreme Court to the ideas developed by 641 Ibid. 642 Reno vs. ACLU, 521 U.S. 844 (1997) 643 Ibid., 882 255 Holmes, Brandeis, Douglas, and Meiklejohn, which were in turn derived from Winthrop, Hooker, and Madison: "[a]s a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." 644645 644 Ibid., 885 645 The concept of chilling effects, and their triggering unconstitutionality of statutes, is not new to Reno. Already tying them to Meiklejohn's rhetoric - and especially the claim that free speech is not a natural right but a tool of effective implementation of popular sovereignty, Harvard law professor Paul Freund wrote in 1951: "In order not to chill conduct within the protection of the Constitution and having a genuine social utility, it may be necessary to throw the mantle of protection beyond the constitutional periphery, where the statute does not make the boundary clear. The public interest in freedom of expression may serve to invalidate an overbroad statute that casts a cloud on expression both within and without the constitutional boundary." Thinking in the broader context of checks and balances, and of the role of the judicial system in protecting popular sovereignty, Freund suggested that the court's function "is basically to keep that ... unfettered process of rational exploration ... clear and clean." Fifteen years after the Freund article, in 1965, the Supreme Court addressed the licensing schemes of the kind put in place in Reno in Lamont v. Postmaster General. In Reno, the CDA had asked that Internet speakers do not distribute protected materials unless the potential receiver had taken affirmative steps to receive them and identity himself as an adult. In Lamont, the court struck down a statute that required potential receivers of "communist political propaganda" (otherwise protected speech) to identify themselves as such with the post office and to affirmatively request that the post office deliver such materials to them, lest the post office block and destroy such materials addressed to the receiver. The Supreme Court invalidated the statute "since it imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment." To support the ruling, Justice Douglas, who had penned the landmark Terminiello opinion, stressed that the affirmative "requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions ... The regime of this Act is at war with the 'uninhibited, robust, and wide-open' debate and discussion that are contemplated by the First Amendment." The Lamont concurring opinion, penned by Justice Brennan, can again be contrasted with the French approach: "inhibition ... is a power denied to government ... we cannot sustain an intrusion on First Amendment rights on the ground that the intrusion is only a minor one." 256 II. POPULAR SOVEREIGNTY IMPLEMENTED IN NETWORKS: PRIVATE CENSORS TAKE OVER The influence of civil libertarian thought on the fathers of the Internet and on the post- World War II judicial approach to the First Amendment is insufficient to explain the development of the Internet after its privatization. The post Net-95 story of the Internet is one of progressive takeover of the networks by governments and corporate interests. 646 It is "the story of the death of the dream of self-governing cyber-communities that would escape geography forever. It is also the story of the birth and early years of a new kind of Internet - a bordered network where territorial law, government power, and international relations matter as much as technological invention." 647 But, although "in the process, the basic notion of the Internet as a universe of liberated intellectual exchange and increased communication freedom is radically compromised," 648 the impact of American political philosophy on the post Net-95 period was real. The current trend towards partitioning of the Internet can largely be explained by the influence of libertarian ideals and the theory of popular sovereignty on American society. To understand how American political philosophy and ideals since John Winthrop influenced the recent history of digital information-distribution networks, one needs to examine the relationship of the U.S. executive and legislative branches with the Internet, and corporate behavior. 646 This is something Lawrence Lessig warned about early: the Internet “has to potential to be the most regulated … antithesis of a space of freedom.” Lessig, Code 647 Goldsmith and Wu, Who Controls?, xi 648 Jacques Vallée, The Network Revolution: Confessions of a Computer Scientist (Berkeley, Ca.: And/Or Press, 1982), 128 257 Wikileaks, and the First Amendment right not to be associated with ideas The outcome of the CDA case did not forever preclude the U.S. legislative and executive branches from regulating Internet activity. A continuing struggle between American ideals of freedom from government and governmental action towards more control ensued. "In the name of national security," Goldsmith and Wu write, "the United States has continued to force search engines and Internet Service providers to turn over information needed for law enforcement, about using credit card intermediaries to regulate banned Internet transactions, and about employing spyware and related technologies to monitor illegal Net activities. These top-down pressures continue the trend toward a balkanized Internet." 649 As a Swedish gambling website operator once commented, "there are two countries I cannot travel to, France and the United States." 650 The recent Wikileaks case illustrates this tension and demonstrates how the U.S. libertarian and popular-sovereignty tradition, when it is upheld, can produce an effect opposite to the outcome of the Reno case. The result may be more controlled networks than in countries where a top-down tradition of state-society relations prevail. Yochai Benkler provides a concise summary of the Wikileaks case: On November 28, 2010, WikiLeaks, in cooperation with The New York Times, the Guardian, Der Spiegel, Le Monde, and El País, began to release a set of leaked U.S. embassy cables. The following is a condensed version of a 649 Goldsmith and Wu, Who Controls?, ix 650 Swedish gambling website operator, off-the-record interview with author, 2006 258 detailed and fully documented event study of the response to that disclosure. WikiLeaks, a site dedicated to making materials leaked by whistleblowers public, had published a series of items from the Pentagon and the State Department between April and November 2010. The first release, a video showing American helicopters shooting a Reuters’ photographer and his driver, exposed previously hidden collateral damage incurred in the pursuit of insurgents. The video was followed by the release of thousands of war logs in which field commanders described conditions on the ground in Afghanistan and Iraq. The disclosures were initially described by the administration as highly damaging to the security of troops and human rights workers, but as time passed, formal Pentagon assessments sent to Congress suggested that no such harm had occurred. On November 28, WikiLeaks and its traditional-media partners began to release documents selected from a cache of about 250,000 classified cables that U.S. embassies around the world had sent to the State Department. In late November and December they published, in redacted form, a few hundred of these cables. WikiLeaks’s decision to publish the materials, including when and how they were published, was protected by First Amendment law. Indeed, precedents established at least as far back as the PentagonPapers case support the proposition that a U.S. court would not have ordered removal or suppression of the documents, nor would it have accepted a criminal prosecution of WikiLeaks or any of its editors and writers. 651 651 Yochai Benkler, "A Free Irresponsible Press: Wikileaks and the Battle Over the Soul of 259 Although the legal jurisprudence community generally agrees that publication of the materials at stake was fully protected by the First Amendment under the landmark New York Times vs. United States case 652 (the Pentagon Papers case), key actors at the highest level of the executive and legislative branches suggested that Wikileaks and its founder Julian Assange were criminals. Secretary of State Clinton “called the release of the cables ‘an attack on the international community.’ Vice President Joseph Biden stated that Julian Assange, the founder of WikiLeaks, was ‘more like a high-tech terrorist than the Pentagon Papers.’ Senator Dianne Feinstein wrote a Wall Street Journal editorial calling for Assange’s prosecution under the Espionage Act. Some right-wing politicians called for his assassination on the model of U.S. targeted killings against Taliban and Al Qaeda leaders.” 653 As a result of these attacks, private network operators took steps to deprive Wikileaks of its right to speak, something they could lawfully do since private actors are not subject to the First Amendment prohibition to regulate speech: “[t]he Bill of Rights, standing alone, does not protect individuals against misuse of private power. With the important exception of the prohibition against slavery in the Thirteenth amendment, the provisions of the Bill of Right protect the individual against the government, not against other individuals.” 654 Amazon removed Wikileaks materials from its servers. 655 Wikileaks.org’s DNS registrar stopped pointing the domain name to the Wikileaks’ the Networked Fourth Estate," Harvard Civil Rights-Civil Liberties Law Review 46, Summer 2011, 311 652 New York Times Co. v. United States, 403 U.S. 713 (1971) 653 Benkler, “Wikileaks” 654 Burt Neuborne, “An Overview of the Bill of Rights,” in Alan Morrison (ed), Fundamentals of American Law, (Oxford University Press, 1996), 83-84. 655 Benkler, “Wikileaks” 260 servers. 656 Finally, “Apple remove[d] a third-party app created to allow iPhone users to access and search Wikileaks embassy cables … However, apps for the Android smartphone were not removed.” 657 This situation is the result of America’s libertarian tradition and reinforces the conclusion that less government does not lead to less controlled networks. The courts have construed the First Amendment in the United States as including a right not to be forced to speak by the government. This right enables private suppression of speech in fora which have de facto become a public space, but which remain privately maintained. Relevant case law shows how the establishment of the right not to speak enabled the suppression by private network operators of controversial content. It also reveals the influence of the tradition of not allowing the state to organize social relations on both case law and on the implementation of U.S. digital information distribution networks. In several leading cases, the Supreme Court made clear that the First Amendment precludes the government from forcing one to speak or to be associated with certain state- sponsored ideas. In West Virginia State Board of Education v. Barnette, 658 “a young Jehovah’s Witness was suspended from school for refusing to participate in the compulsory flag salute that began each school day. In words that continue to resonate today, Justice Jackson wrote:” 659 “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, 656 Ibid. 657 Ibid. 658 West Virginia State Board of Education v. Barnette , 319 U.S. 623 (1943) 659 Neuborne, “Overview,” 93 261 or other matters of onion or force citizens to confess by word or act their faith therein.” 660 The right not to be forced to speak or be associated with ideas by the government was tested again over three decades after Barnette by another Jehovah’s Witness who, ironically, did not want to live free or die. “New Hampshire required that noncommercial vehicles bear license plates embossed with the state motto, ‘Live Free or Die.’ ‘Refus[ing] to be coerced by the State into advertising a slogan which I find morally, ethically, religiously, and politically abhorrent,’ appellee, a Jehovah’s Witness, covered up the motto on his license plate, a misdemeanor under state law. After being convicted several times of violating the misdemeanor statute, appellee sought federal injunctive and declaratory relief.” 661 In Wooley v. Maynard, 662 the Court held that the requirement to display the slogan on the license plate violated the First Amendment right to refrain from speaking: The freedom of thought protected by the First Amendment [includes] both the right to speak freely and the right to refrain from speaking at all. See Barnette. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.” This is illustrated [by] Miami Herald Publishing Co. v. Tornillo, where we held unconstitutional a Florida statute placing an affirmative duty upon newspapers to publish the replies of political candidates whom they had criticized … Compelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state 660 West Virginia State Board of Education v. Barnette , 319 U.S. 623 (1943), 64, emphasis added 661 William Lockhart et al, Constitutional Rights and Liberties (West Publishing Company, 1991), 728. 662 Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) 262 motto on a license plate, but the difference is essentially one of degree. Here, as in Barnette, we are faced with a state measure which forces an individual as part of his daily life – indeed constantly while his automobile is in public view – to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State ‘invades the sphere of intellect and spirit which is the purpose of the First Amendment [to] reserve from all official control.’ Barnette 663 The last sentence, “the State ‘invades the sphere of intellect and spirit which is the purpose of the First Amendment [to] reserve from all official control,’” demonstrates the importance of the concept of popular sovereignty in First Amendment jurisprudence. In France the focus is on balancing various interests to protect the populace from harm, but in the United States the focus in on preventing the state from interfering with that “sphere of intellect and spirit,” this marketplace of ideas where, Alexander Meiklejohn noted, “conflicting views may be expressed, not because they are valid, but because they are relevant … To be afraid of ideas, any idea, is to be unfit for self government.” 664 Some limited exceptions to the principle that government cannot force speech exist. In Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 665 the Supreme Court held that “[t]he First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others.” 666 In 663 Ibid. 664 Meiklejohn, Free Speech, 79-80. 665 Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (1969) 666 Ibid., 368, 390-392 263 doing so, the Court reasserted “a ‘fairness doctrine,’ requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage.” 667 However, the fairness doctrine, under which broadcasters would be required to carry certain content, was subsequently abolished by the FCC because “[t]he intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists..." 668 The same rationale, which highlights the direct impact of the tradition of rejection of governmental interference with the marketplace of ideas, was used by the Supreme Court in Miami Herald Publishing Co. v. Tornillo 669 to make clear that the fairness doctrine, even when it applied to broadcasters for reasons of spectrum scarcity, did not apply to newspapers: “[Tornillo] rests on the principle that the State cannot tell a newspaper what it must print. [There was also a danger in Tornillo that the invalidated statute requiring a newspaper to publish a political candidate’s reply to a previously published criticism would deter] editors from publishing controversial political [statements]. Thus, the statute was found to be an ‘intrusion into the function of editors.’” 670 The contrast with France is again striking. In France, the "droit de réponse"provides any person who has been named or designated in a medium with the right to force that medium to publish a reply. This right was originally consecrated in the 1881 Press Act, in which the 667 Ibid., 367 668 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) 669 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) 670 Lockhart, Constitutional Rights, 731 264 State established a balance between freedom of speech and other interests, such as society’s interest in preventing harm. In the early days of Minitel, the newness of the technology, and the rhetoric of fear developed by the press lobby for mercantile purposes, led to the explicit and express extension of this droit de réponse to telematics, through article 6 of the 1982 Act. Finally, 2007 law 671 explicitely made the droit de réponse applicable to the Internet. In contrast, in the United States, the scarcity rationale eventually bowed before the fear of “intrusion by government” 672 into the marketplace of ideas. Today, the prohibition for the government from forcing private speakers and distributors of speech to distribute certain types of speech or to be associated with particular ideas is well established and broad in scope. This prohibition helps explain the outcome of the Wikileaks affair and its significance for digital communication networks in the United States. On December 20, 2010, Apple removed the app enabling access to Wikileaks content over the closed iPhone network. 673 However, a similar app was not removed by Google from the Android marketplace, and Wikileaks still appeared in Google search results. 674 The disparity in treatment of the speaker by the two competing network operators cannot be explained by different legal regimes applicable to the two. Both actions (or lack of action, in the case of Google), took place within the framework where the First Amendment generally grants content producers and network operators a right not to distribute speech, 671 Loi n° 2007-297 du 5 mars 2007 relative à la prévention de la délinquance, accessed April 16, 2013, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000615568 672 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) 673 Benkler, “Wikileaks” 674 Ibid. 265 not to be associated with certain speakers. The decision “depends on service providers’ concern about being perceived as helping the targeted site; this concern must outweigh the providers’ interest in maintaining their image as providers of robust, incorruptible services to the Internet-using public.” 675 In other words, the decision to distribute or refrain from distributing certain content is a business decision. The business-decision-making process rests in the people, in this case represented by two large corporations. This process is explained directly by the tradition of self-government, which, in the field of ideas, leaves it to the self-governing people to decide which ideas are good and which are bad, and, in the field of information distribution, leaves it to private network operators to make that decision, rather than to a protection-oriented state such as France that acts through top- down decisions and can force certain content-related decisions onto network operators, either as banned speech or forced speech. It was not the first time that a US network operator viewed recipients of information as consumers and implemented their networks in ways which maximized what they perceived as consumer desire, for strictly-business, rather than ideological, purposes. Ted Leonsis, then Vice-Chairman of AOL, explicitly tied democratic governance mechanisms to marketing, to explain the implementation of the AOL network: I actually was Mayor for 6 years and again, I learned a lot about consumers. Every experience amalgamates into your worldview. Being Mayor of my town helped me enormously when I was running the main branding at AOL. I was 675 Benkler, “Wikileaks” 266 President of the AOL brand for three-and-a-half years, and being the President of Brand is like being Mayor of a town. You have this population explosion, people are moving in and the infrastructure sometimes fails you. Now that I own sports teams, it’s the same thing. You have constituents who vote by buying season tickets from you. The real thing that I learned from being Mayor is that the silent majority is really who matters. That in politics, in sports teams, at AOL, there’s 80% of the audience that for the most part is happy. Then there’s the 10% of people who will have comments on something. In Vero Beach it might be, if you lived on the beach it might be, “We need to protect the beaches and bring more sand in after the storm.” If you lived west of town it was, “You can’t help the wealthy people. They shouldn’t be living on the beach.” The 80% in the middle didn’t care. With my hockey team, I will literally get e- mails that say, “I hate everything about going to the games. The music is too loud.” That will be followed, literally by an e-mail that says, “Why are you playing organ music? You should be playing Marilyn Manson.” If you overreact or lurch in between those two fringes you forget about that 80% which is the mass market, the silent majority. So politics and working with people is like selling your ideas to a consumer. So I have always looked at it being parcel and parcel of what my career has been about, which is really trying to hone in and find out what motivates a consumer, and taking things that are very complicated; either technology or public policy, and packing it up in a very easy to understand, 267 easy to assimilate fashion and then getting people results. I think that’s what we’ve done with AOL. I think that’s what we’ve done with our sports team, and that’s what I think I did in City Hall. 676 Popular sovereignty, then, is clearly of concern to Leonsis. However, as opposed to cyber libertarians, Leonsis does not view network implementation as something that should support a particular view of political philosophy; rather, Leonsis is concerned of what emerges from the marketplace only because the AOL users “vote” by continuing – or discontinuing – their subscription to the service. What matters, then, is not to implement the networks to pursue progress, but to keep the apathetic 80% happy. At times, Leonsis attempts to frame its motivation as something akin to what the cyber libertarians were doing, that is, build communities, share knowledge, allow innovation to come from the edges. But his slogan, “We’ll create a community because it’s really your team, not my team,” 677 is easy to debunk as a simple marketing gimmick. Statements such as “I’ll communicate to you and you’ll help and give us input,” 678 or “the best way to succeed at something in a consumer business is to give it back to them,” 679 are framed in the context of a top-down model where decision-making – including in terms of what information should flow – is centralized and directed towards the edges. Leonsis’ view on network design echoes that of his boss, Steve Case, the founder of AOL, and then Chairman of AOL Time Warner. Just like Leonsis, Case attempts to tie his vision for AOL to that of cyber libertarians, and to ideas of popular sovereignty as well: 676 Ted Leonsis oral history, 13-14 677 Ibid., 14 678 Ibid., 14, emphasis added. 679 Ibid,, 15 268 It's a very interactive, participatory medium. You have to understand that and really internalize that. You do have an unusual ability to have a sense of what people are thinking and what they want and what they like and what they don't like, because they can tell you. And the questions are, are you going to be listening well, are you going to be responding well? I think to a large extent, AOL's success over the years has been just that factor, that we really have recognized that it was a participatory medium. Our members, and we call them members, not subscribers, because we wanted them to feel part of this community, part of helping us build this thing, were really working with us to shape this. It was not something that we were imposing on them. It was something that we were kind of jointly building. I think that mentality, and that recognition that you constantly have to enhance what you're doing and be very responsive to what people are saying, has been a kind of core principle for the company and served us very well. 680 But the reality is that in AOL’s world, popular sovereignty, for the users and recipients of information only exists insofar as “the customer is always King.” The real power is centralized in the corporation. The irony, however, is that this power itself derives from the implementation of popular sovereignty ideals in the First Amendment by the Supreme 680 Case, “Oral History,”11-12 269 Court, because with Reno, the Supreme Judiciary empowered the edges, that is, large telecommunication conglomerates such as AOL, to determine the shape of the networks and the ways in which information can flow through these networks. Two conclusions emerge. First, the same American tradition of self-government can lead down opposite paths in the ways in which digital communication networks are implemented and in which digital speakers are constrained. It protected Wikileaks and websites of newspapers, such as the New York Times, that re-distributed Wikileaks content, from prior restraint, liability, and a posteriori direct state suppression when these speakers published controversial materials online, because the government can generally not infringe on the distribution of political speech. However, it also enabled private network operators such as Apple to deny Wikileaks’ ability to distribute content over the Apple iPhone network, because the government can generally not force speech onto speech distributors. A second lesson is that less government in the area of speech distribution does not mean more freedom for speakers to distribute content or for users to receive it. Because Apple is free to close its iPhone network, and because the government cannot force speech onto Apple, Apple, as a part of the self-governing American people, is free to deny speakers the ability to distribute content over its private network. Even though the iPhone network is in large part modeled after the Teletel network with respect to its censorship process and its billing system, it is more controlled than Teletel was, because it is private, not public. In the Teletel model, anyone mentioned by one speaker over Teletel was granted, by the State, a right to reply (droit de réponse). This right could be opposed directly to both the content providers (the sites hosting the content at stake) and to the 270 network operator (the PTT, then France Telecom), through the judicial system if necessary. In contrast, the theory of popular sovereignty as it evolved through judicial interpretation directly leads to a more closed system in the Apple model. Less government does not mean more freedom for speakers to distribute content over digital information networks. The Reno case exemplifies what John Perry Barlow and Johnson & Post were mostly concerned about, that is, government controlling networks in a top-down fashion. Top- down actions by states, including the US, are real. However, what was originally overlooked by new-frontier libertarians were the risks for openness and freedom that are created by freedom itself. These risks are exemplified in the Wikileaks case. Goldsmith and Wu note that Barlow "recognized that cyberspace had 'real conflicts' and 'wrongs,' but insisted, 'we will identify and address them by our means. We are forming our own Social Contract.'" 681 Nonetheless, Barlow overlooked the Darwinian nature of a free marketplace, that may not embrace the equalitarian, 'everyone is happy' dream of communautarists and hippies. Freedom and equality in a libertarian world does not just mean freedom to listen to the Grateful Dead and drop acid. It also means freedom for the fittest to organize and rule the market in ways that furthers its own interests. And private firms tend not to err on the side of benevolence. Control in this case rests on the popular sovereignty theory of American society. Private corporations may implement the networks in ways that compromise the original vision for the Internet because the Internet is mostly, at least in the United States, run from the edges. In the process, self-governing Internet actors have removed constitutionally-protected content and embedded new borders from the bottom 681 Goldsmith and Wu, Who Controls?, 20 271 up in ways that the French State Council could not impose from the top-down. The Yahoo!, Netflix, and MLB.TV cases provided evidence for this point and illustrate the array of partitioning techniques hitting the Internet. The Yahoo! case led to worldwide suppression of content that is constitutionally protected in the United States but not elsewhere; as a result, Americans were deprived of content otherwise deemed “relevant” in the marketplace, in this case, hate speech, thus distorting the marketplace of ideas. The Netflix case showsbarriers around national borders can be erected to reflect outcomes sought by the French State Council. And the MLB.TV case indicates that partitioning can be fine grained: there, the United States is partitioned by zip codes. All three cases show how the American political tradition in the realm of speech, and more broadly state-society relations traditions, impact digital information-networks implementation. They also lead to the conclusion that less state does not mean less third-party control over what speakers can say and users can receive. Yahoo!: global content suppression The French Yahoo!case was reviewed earlier. It determined that Yahoo! could partition the Internet and prevent French users from accessing its U.S. service. The French judged ordered Yahoo! to implement such partitioning measures. Instead, Yahoo! took a more drastic stance, and removed all materials deemed illegal under French law from it U.S. service, preventing access to the content by both French residents, and everybody else, this giving worldwide effect to a French court ruling that targeted users located in France through a blanket removal of content. The was also the choice of Compuserve, following 272 the 1995 German court decision reviewed earlier. It is unclear why Yahoo! preferred to suppress the content at stake from its U.S. servers rather than blocking access to servers by French users using geolocalization techniques. Perhaps these techniques were too costly or burdensome to implement. Perhaps it did not want to cut off French users from otherwise French-compliant U.S. services. In either case, it seems well established that the French parties involved could not have had the French judgment enforced in the United States. In 2006, after years of litigation, the U.S. 9 th Circuit Court of Appeals declined to enforce the French judgment in the United States. 682 Yet, the constitutionally-protected content had been removed. Today, Yahoo! Community’s guidelines state: Don’t use hate speech. Hate speech is speech that attacks a person or group on the basis of race, ethnicity, religion, disability, gender, age or sexual orientation/gender identity. We are a community of people with diverse beliefs, opinions, and backgrounds, so please be respectful and keep hateful and incendiary comments off of Yahoo!. Please read tips for confronting hate speech from the Anti-Defamation League. 683 682 Yahoo! Inc., a Delaware Corporation, Plaintiff-appellee, v. La Ligue Contre Le Racisme et L'antisemitisme, a French Association; L'union Des Etudiants Juifs De France, a French Association, Defendants-appellants. 433 F.3d 1199 (9th Circuit, 2006). Unfortunately, the decision was made on technical grounds, rather than on First Amendment grounds. However, most analyst agree that a decision of the merits would have precluded enforcement of the French ruling based on existing U.S. case law, including the Skokie case. See also Henry Weinstein Yahoo's Nazi Suit Tossed, Los Angeles Times, January 13. 2006, <http://articles.latimes.com/2006/jan/13/business/fi-yahoo13> 683 http://info.yahoo.com/guidelines/us/ 273 The current policy stands in sharp contrast with the pre-French-litigation situation. According to a senior Yahoo! lawyer, who spoke off-the-record, Yahoo! used to be inclined to give substance to the First Amendment and the concept of marketplace of ideas, including to the principle that allowing hate groups to speak provides an effective opportunity to confront these groups’ ideas under the light of day, which is the most effective way to demonstrate the wrongness of said ideas. Yahoo! used to track the chat rooms and bulletin boards where neo-Nazis would distribute their ideas, and provide free add space in these digital fora to the Southern Poverty Law Center to confront the hate groups’ ideas. This resulted in a game of cat and mouse where the hate groups felt forced to vacate the fora at stake, and relocate elsewhere within the Yahoo! universe. When they were found once more, the Southern Poverty Law Center’s content would again be pushed by Yahoo!, free of charge. 684 At about the same time that Yahoo! was shifting its position on content, and applying a European-conception of content-control to its U.S. servers, Yahoo! also entered the Chinese market. In 2002 to win Chinese government approval to set-up shop Yahoo! agreed to censor the Chinese version of its services and to sign the “Public Pledge on Self-Discipline for the Chinese Internet Industry. It promised to ‘inspect and monitor the information on domestic and foreign Websites’ and ‘refuse access to those Websites that disseminate harmful information to protect the Internet users of china from the adverse influences of 684 Yahoo!, off-the-record interview 274 the information’ … By 2005 Yahoo had come full circle. The darling of the Internet free speech movement had become an agent of thought control for the Chinese government.” 685 Goldsmith and Wu ask “whether the company searched its libertarian soul before deciding to go forward.” 686 These authors equate libertarianism with a system where private parties agree to be bound by speech rules that constitutionally only bar the government from hindering expression. By asking: “How did Jerry Yang, the one-time champion of Internet freedom, explain his company’s new role? ‘To be doing business in China, or anywhere else in the world, we have to comply with local law,’ explained Yang,” 687 Goldsmith & Wu suggest that there is an internal contradiction between promoting freedom and privately censoring content. There would be, if the person conducting both activities was the government. But there is no contradiction where the censor is a private party controlling a private infrastructure, as Yahoo! does. The suppression of certain content by Yahoo!, free from governmental interference and free from forced speech is a manifestation of the American libertarian tradition. Because the U.S. government, unlike the French government, can generally not force private information-distribution networks to favor certain type of speech based on its content, Yahoo! is free to suppress content that it has determined, for strictly mercantile reasons that it does not want to carry. This, also, is the meaning of free speech as constructed through civil-libertarian principles. 685 Goldsmith and Wu, Who Controls?, 9-10 686 Goldsmith and Wu, Who Controls?, 9 687 Goldsmith and Wu, Who Controls?, 10 275 Freedom from government also means freedom to conduct business along privately- determined lines. Even in the United States, the state has historically had a strong role in supporting the development of certain industries. For example, Bill Clinton subscribed to Ira Magaziner’s suggestion that “’commercialization of the Internet’ would be a boon to the U.S. economy that should be a top priority for the United States government.” 688 Certain structural decisions were made by the state regarding governance and taxation (where e- commerce benefited from sales tax waivers in particular) to help jump-start the nascent industry. However, state action mostly took the form of impulse. Implementation was left to private actors, who could experiment to identify the best course of action for developing their online businesses. This state-society interaction exemplifies the broader American tradition of state-society relations. It enabled Yahoo! to make its own, private decision, as to whether or not to suppress Nazi content from its U.S. servers. The French State, through executive actions based on the State Council report (let’s convince other governments to force-partition the Internet), or through unenforceable court decisions, would have had difficulty physicallycoercing Yahoo! to prevent French users to access Nazi content located on U.S. servers. 689 But, both France and China provided Yahoo! with business incentives to alter its Internet implementation. And the American political tradition of state-society relations allowed the edges to experiment with business models, so Yahoo! was free to experiment with Internet implementation, which led to suppression of content. Therefore there was no internal contradiction in Yahoo!’s behavior for sometimes championing the 688 Goldsmith and Wu, Who Controls?, 40, footnote 40 689 Such coercion would have been possible in practice through measures such as jailing executives of Yahoo! France, or hitting assets of Yahoo!’s French subsidiary, but it is unclear whether these methods would have been legally permissible. France did criminally prosecute Yahoo!’s CEO Tim Koogle in abstentia for being an accessory of hate promotion, but the judges did not convict him. 276 distribution of fringe content while at other times suppressing such content. Both behaviors were enabled by the same traditionof U.S. state-society relations and followed from the same logic -- freedom of action from U.S.-government coercion. NETFLIX: country-based network partitioning According to its website, “[w]ith more than 30 million streaming members in the United States, Canada, Latin America, the United Kingdom, Ireland and the Nordics, Netflix, Inc. (NASDAQ: NFLX) is the world’s leading internet subscription service for enjoying movies and TV programs.” 690 Netflix has implemented the kind of geolocalization-based Internet partitioning that was referred to in the French State Council report, and that was order by Judge Gomez in the Yahoo! case. That is, Netflix assesses the location of users that attempt to connect to the URL www.netflix.com, and prevent certain users, based on their location, from accessing its service. While Netflix does not provide specific details as to the type of techniques it uses, and did not return requests for comments, tests suggests that IP localization is the most likely technique used: even when attempting to login with a valid Netflix login and password, purchased in the United States by a United States resident using a United States credit card, a French user would only return the following error screen: 690 “Netflix company profile,” accessed January 3, 2013, http://ir.netflix.com/# 277 Figure 6.1: Attempt to connect to Netflix using an IP located in Toulouse, France, January 31, 2013, returned this screen message It appears that Netflix will, by default, block users, unless their IP indicates that they are located in a country where Netflix actively conducts business, that is, “the United States, Canada, Latin America, the United Kingdom, Ireland and the Nordics.” Netflix states its policy as follows: Geographic Limitation: You may instantly watch a movie or TV show through the Netflix service only in geographic locations where we offer our service and have licensed such movie or TV show. The content that may be available to watch will vary by geographic location. Netflix will use technologies to verify your geographic location. 691 Netflix does not clearly state why they adopted such Internet implementation policy, and did not return requests for comments. However, it is likely that in contrast with the Yahoo! case, the policy decision rests around intellectual property licensing considerations, rather than illegal content considerations. Certainly, some of the content pushed by Netflix, even 691 “Netflix Terms of Use, last modified September 14, 2012, https://signup.netflix.com/TermsOfUse 278 when rated PG-13 in the United States, is likely to be illegal in places like Saudi Arabia. But as far as France is concerned, for example, it is unlikely that Netflix’ content would break French law, as Netflix only carries content that is relatively politically correct – for example, no pornography, and no hate content, is carried by Netflix; Netflix also closely polices the content of the reviews posted by users: “Reviews should not be posted that contain: harsh, profane or discriminatory language; illegal, obscene, threatening, defamatory or otherwise objectionable content.” 692 Further, the story of Netflix is one that is riddled with conflicts with the Hollywood content industry over licensing. It is therefore likely that Netflix’s policy is mostly the result of business considerations that revolve around a well-known economic strategy called information versioning. Defined by Carl Shapiro and Hal Varian, versioning “means offering your information product in different versions for different market segments.” 693 In this particular case, the market for Hollywood content is segmented around geographic lines. As a result of this business decision the Internet becomes geographically partitioned. Where around 1995, anyone in the world with an Internet connection could access any web content, this is hardly the case anymore, in particular under the influence of the Hollywood industry. Apparently, the capacity for users to receive content is dependent on business decisions made by private parties. This Internet implementation is again the result of the American state-society tradition that, in the field of commerce, limits government intervention and leaves it to the private sector to experiment with business models. It leads to the conclusion that less state does not mean less third-party control over what users can receive. 692 “Netflix Terms of Use,” accessed February 3, 2013, https://signup.netflix.com/TermsOfUse?fdvd=true#intellectual 693 Shapiro and Varian, Information Rules, 54 279 The last case study reveals that geographic partitioning of the Internet is not limited to a “US v. the rest of the world” setting. Ironically, Major League Baseball’s implementation of the network provides users located in foreign countries with more freedom to receive U.S. content than it does U.S. residents. MLB.TV: fine-grain partitioning MLB.TV is the online streaming service of Major League Baseball, the American professional baseball league. Users can purchase a subscription to watch their favorite teams online rather than over broadcast or cable television. Like Netflix, MLB.TV has implemented geolocalization techniques. 694 MLB calls its brand of partitioning a “blackout 694 MLB used to base its geographical filtering based on the user’s credit card address on file. Its current policy, however, suggests that it has switched mostly to an IP localization system: “MLB.com live game blackouts are determined in part by IP address. MLB.com At Bat live game blackouts are determined using one or more reference points, such as GPS and software within your mobile device. The Zip Code search is offered for general reference only … I have been Blacked Out of a game but I am in a location that should not be blocked from viewing either of the teams playing, and the game is not being nationally televised. How can I watch this game? If you are traveling and are accessing the Internet through a VPN connection (or other secure network connection), you might be getting a blackout message because the host IP Address for the VPN is within the restricted range for the game that you are trying to access. In this case, we suggest that you try the following: log off of the VPN connection (or other secure network connection) and access the Internet through a local connection. You should also disable any proxies that you are using. If you feel that you are still being blacked out incorrectly, please update your Payment Profile. If that does not work or apply, power cycle your modem and/or router. To do this, unplug your modem, as well as any wired or wireless router you are using, for about 10 seconds. Then re-plug the device(s). Wait a few minutes as your Internet connection resets and, then, try to view the game again. If you believe you are still incorrectly blacked out, contact our Customer Service Department toll free at 866-800-1275 (International Customers call 512-434-1542).” “MLB.com Blackouts FAQ,” accessed April 15, 2013, http://mlb.mlb.com/mlb/help/faq_blackout.jsp 280 restriction.” Under MLB’s policy, “[a]ll live games on MLB.TV and available through MLB.com At Bat are subject to local blackouts. Such live games will be blacked out in each applicable Club's home television territory, regardless of whether that Club is playing at home or away. If a game is blacked out in an area, it is not available for live game viewing.” 695 MLB’s Internet partitioning, then, is not based on country lines, but on an MLB-specific concept of “Club's home television territory.” Under League rules, team franchises are given marketing exclusivity over certain territories, including exclusive rights to broadcast its games over a local network affiliate. Because of exclusivity rules negotiated with teams and broadcasters, the League prevents users located in a given territory from watching the team that has exclusivity over that territory over an Internet stream. Fans are forced to watch the game either at the ball park or on television. For example, a user located in Berkeley, CA, is in the territory of the Oakland Athletics. Therefore, as long as he accesses the Internet from Berkeley, he cannot stream A’s games, regardless of whether the A’s are playing at home or away. If this user, however, crosses the bay and attempts to stream the game from a computer located in San Francisco, the user could stream the A’s game, for San Francisco is outside of Oakland’s reserved market. However, this user would be prevented from streaming San Francisco Giants’ games. Other, more arcane blackout rules revolving around licensing exclusivity issues also apply, and they also. For example, “[d]ue to Major League Baseball exclusivities, live games occurring each Saturday with a scheduled start time after 1:10 PM ET or before 7:05 PM ET and each Sunday with a scheduled start time after 5:00 PM ET, will be blacked out in the United States (including the territories of Guam and the U.S. Virgin Islands). Live Audio of 695 http://mlb.mlb.com/mlb/subscriptions/index.jsp?c_id=mlb 281 such games is available as part of any MLB.com At Bat™ subscription. Each game may be available approximately 90 minutes after the conclusion of the game as an archived game (archived games are blackout free).” 696 Ironically, because no MLB team has exclusivity outside of the United States, Canada, Guam, and the U.S. Virgin Islands, 697 users located anywhere else are free to watch all of MLB.TV’s content without any blackout restrictions, whereas north-American users are subject to MLB’s censorship practices. Note, unlike Yahoo!, MLB only censors its own content. Figure 6.2: MLB TV Blackout test screen, accessed from USC, Los Angeles, California 90089 January 31, 2013. Red lining added. USC is located in two teams’ home markets: the Los Angeles Angels of Anaheim, and the Los Angeles Dodgers. 696 http://mlb.mlb.com/mobile/atbat_blackouts.jsp. Emphasis added. 697 http://mlb.mlb.com/mobile/atbat_blackouts.jsp 282 Figure 6.3: MLB TV Blackout test screen, accessed from Paris, France, January 31, 2013 (French ZIP Code 75001). Red lining added. No blackout restrictions apply. A user located in France is freer to receive content than a U.S. user. A few lessons can be learned from comparing the MLB’s Internet implementation with that of Netflix. First, geographical partitioning need not revolve around country lines. MLB has implemented a fine-grained Internet partitioning based on licensing considerations that divide the United States into a myriad of geographical zones, in which users are treated unequally. Second, it reveals shades of openness. Under the MLB scheme, a user within a given market area is neither free to receive content, nor not-free to receive content. Rather, at times a user can receive content and at other times he cannot. Third, foreigners in the MLB implementation receive more favorable treatment, from the standpoint of access to information, than U.S. users. Once again, this finding again demonstrates that less state does not mean less third- party control over what users can receive. 283 CHAPTER 7: CONCLUSION Both the United States and France were pioneers in building modern Western democracies at the same time in history. Both place civil liberties in general, and freedom of speech and the press in particular, at the center of their state-society covenants. From the early nineteen seventies on, both countries aggressively pursued digitization policies which fostered information exchanges within their societies and with the outside world. Yet, the process of designing and implementing digital information-distribution networks and the results in terms of freedom to access and distribute information have taken different paths. Why? This dissertation has suggested that a key variable that explains the difference in design and implementation of digital information-distribution networks in the United States and in France is the role that the two states place on speech-content control and on information-distribution control in their respective state-society covenants. It is not to say that this is the only variable. The political economy literature has already identified the relationship between network design and implementation, as a dependent variable, and different brands of capitalism, namely laissez-faire market capitalism in the case of the United States and state capitalism in the case of France, both of which lead to different conceptions by both countries of how and by whom innovation should be fostered. It has shown in particular that laissez-faire, market capitalism has led to networks being developed from the edges, even when they were funded by the state (such as the Internet), and where the choice of technology was left to the market. In contrast, state capitalism has led to micro design of technology and management of networks by the French State. However, as a heuristic case study, this dissertation identified a new variable that explains 284 the difference in design and implementation of digital information-distribution networks in the United States and in France, that is, the role that the two states place on speech-content control and on information-distribution control in their respective state-society covenants. Further, as a theory testing case study, this dissertation suggested that the brand of capitalism and the role that the two states place on speech-content control and on information-distribution control in their respective state-society covenants have a positive covariance. In turn, this relationship establishes the role of the popular sovereignty concept in the state-society covenant as an overarching independent variable that in both countries guides the ways in which economic development is generated, and in which information is controlled. Chapter 3 demonstrated how top-down micro-management of network development and implementation by the French State led to the implementation of a network that counter- intuitively was both censored and fairly open in other ways. This paradox was reconciled by showing how the openness features furthered State planning and strengthened the place of the State as the central organizer of French social relations. The role that the France place on speech-content control and on information-distribution control in its state- society covenant did not explain why the Teletel network was centralized to start with. Centralization was in part the result of technical constraints which become more apparent when contrasted with US implementation of virtual circuit networks, which were also centralized. The technical reason behind the centralization of the routing function in virtual circuit networks was, according to American engineers, that ”minicomputers of the 285 day were far too small to have a global view.” 698 In other words, each node in the network would have needed to know the routing tables for the entire network, which was not practical because the networks at stake were far too big, and the computers far too small. It was easier to centralize the routing function, which also meant giving a centralized authority right of death over which provider can push content through the network. In the United States, the choice of virtual circuit over packet switching protocols were then explained by financial reasons: in contrast to the Internet which benefited from military funding and was a rather small network until the nineteen nineties, networks such as Telenet and Tymnet suffered from strict budget constraints which partly explained the centralization aspect of these networks. The French DGT had no such constraints; however the centralization aspect can be explained by the general dirigiste tradition and by the fact that the Teletel project was implemented by the PTT Ministry. Virtual circuit networking places power in the hand of the centralized operator, which culturally matched the PTT culture. Further, packet-switching engineering culture was participatory, something that did not fit well with the command and control environment of the PTT. According to Jean- Paul Maury, Teletel could not have been up and running as early as it did had it adopted TCP/IP networking; 699 the centralized virtual circuit architecture was a better match for a dirigiste environment. The role that the France places on speech-content control and on information-distribution control in its state-society covenant did, however, explain a great deal about the ways in which access control was implemented in Teletel. Because the network was operated by the PTT, one would have expected to see full network neutrality implemented. Further, one would have expected that access control be granted strictly on 698 Hardy, email no.4 699 Maury, interview no.1 286 neutral technical terms (or ability to pay), rather than on a content-based basis. Such an implementation would have matched the post office and the telephone company tradition, where access is granted to speakers based on neutral technical and financial standards (the address must be written on a certain way on the envelope, a stamp of appropriate value must be used, a phone subscription must be paid, the phone attached to the network must be of a certain kind, etc). However, the centralization aspect of the network enabled a priori content-control by the State, and a strict system of censorship was implemented. This system resulted from communication campaigns that appealed to fear, and played on the visceral cognitive feeling, at all levels of French society, that freedom can be dangerous and must be reined in by the state mainly through information content and distribution control mechanisms. This dissertation showed with specifics the cultural grounds for such implementation, as they relate to traditions of information-flow control. These grounds are more apparent when contrasted with the American tradition in this respect. Vint Cerf, the “father of the Internet,” could state that ”you wouldn't want to have a rule which says that the tel-cos can decide what applications you're allowed to put up on the net. I like this permission-less network idea, which has allowed companies like Amazon and eBay and Google and Yahoo and Skype and others, to exist, as opposed to somebody trying to decide which ones should be allowed on” 700 -- such a statement would come quite naturally in the US context of the post-seventies. In contrast, the French Teletel implementation resulted from a cultural legacy, in the realm of information-distribution control, dating back centuries, which valued a strong role for the State in micromanaging society, including by controlling speech content and distribution mechanisms. 700 Cerf,“Oral History,”27 287 In Chapter 4, we observed that the US videotex networks implementation, in contrast to France, was driven by market economics and an active technological-neutrality stance by the government. Ironically, the result was a series of networks which overall were more closed than in France. The contrast with France helps understand the cultural underpinnings of such US implementations. Both in the US and France, the state unbundled the various network layers. For example, the FCC forced AT&T "to unbundle the basic from the enhanced service." 701 However, where in the United States, the FCC introduced competition at all levels of the network stack, in France, the State closely micromanaged each layer, including through monopolies granted at the physical network, logical network, and service provider layers. This implementation was the direct result of the dirigiste French tradition, first expressed, in the world of the digital information economy, in the Nora Minc report. The report, many aspects of which were implemented by President Giscard d'Estaing and his administration, identified several industry sectors that should be actively developed by the State; andthe State developed integrated plans to develop these sectors. The Minitel system is one result of such plans, where the layered division of responsibilities matched the industries to be developed. First, the phone network was digitized, leaving the Direction Générale des Télecommunications (“DGT”) DGT in charge of developing the physical layer (TRANSPAC) and to run the network layer that would create demand for that physical layer. One such network was Teletel, another was the digital phone book (for the digital phone book, the DGT also managed all of the upper layers, including the application and content layers). Second, a strong hardware industry was needed to counter IBM's hegemony. To an extent, the State left it to the market to 701 Cannon, “Legacy,” 190 288 make micro-decisions about hardware development; but the State also actively micromanaged market choices, by placing large orders that created economies of scale to enable the manufacturers to evolve. For example, it ordered more than 100,000 micro- computers to equip French schools (Plan Informatique Pour Tous), a decision that enabled Thomson and Bull to manufacture and sell personal computers that otherwise never found a retail market.With regard to Teletel, Telic (Alcatel) won the first contract for 110,000 machines, but soon other manufacturers such as Matra and Philips also received orders. DGT engineers and hardware manufacturers’ engineers also worked hand-in-hand in quasi-integrated teams, with a level of cooperation never seen since by DGT engineers. 702 Third, a vibrant content industry was needed to counter American cultural hegemony. By providing free terminals to the populace, the hook of the online phone book as a free, starter service, and a state-of-the art digital network, the State created the conditions where critical mass was already in place when the first private content provider entered the market. This incentive for content-producing entrepreneurs lured them to risk entering the nascent market. The Teletel videotex system, then, was unbundled and consisted of three separated operational and market layers: the content producers, the service provider/network operator/physical layer operator, and the hardware manufacturers selling both terminals and servers. The hardware-manufacturer level was competitive, but organized in practice through state micromanagement. In other words, in contrast to the US, the French government did not embrace technological neutrality as its overarching approach, quite the opposite. The content providers level also was competitive. However, there was no choice of networks to push content through because 702 Beraudo De Pralormo, interview no.1; Louvel, interview no.1 289 the State locked in the physical, logical, and service-provider layers through monopolies. In this sense, the market was relatively unified. It was also unified because the State had picked the X.25 protocol as the applicable standard throughout the ecosystem.Finally, in France, the State granted a monopoly to the network layer (Teletel) and the service provider function (e.g., the 3615 service), which resulted in a single and unified, and yet open, service. Political censorship over Teletel was undemocratic, but from the standpoint of competition and economic innovation, the State’s micromanagement of these layers created an open platform for content providers to plug into and push their services through. Ironically, network uniformity at the middle layers led to more diversity in content since any content provider could tap into the State-run open platform. Further, the State-invented-and-managed billing service was convenient for both users and content providers, enabling the development of an ecology that solved the problem of convincing the consumer to pay $30 a month for a service. This also led to more content for users, which is ironic since a precondition of the implementation of the Kiosk system was the implementation of a censorship system managed by the network operator, which made it impossible for edge servers to act as intermediate nodes. By contrast, the U.S. market-approach did not enable any X.25 player at any layer to become self-sufficient. The market-based approach led to market fragmentation at all layers of the network. Some services were unbundled, but many were bundled and offered proprietary content. For the user, it meant that accessing a wide array of content required many subscriptions to different services, and sometimes required a use of multiple hardware platform. Each computer service had a unique interactive, text-based 290 command/response interface. As opposed to France, where centralization meant a single, streamlined platform, the US market-approach led to balkanized systems that were the opposite of user-friendly. Because of this, services failed to attract the critical mass that was necessary to build successful services. Short of a state-imposed monopoly over videotex network and service operations and dirigisme when it came to the other aspects of the Minitel ecosystem, and short of a policy of network interconnection and a spirit of cooperation and interoperability that in contrast made the Internet win the game, the U.S. market-approach did not enable any X.25 player at any layer to become self-sufficient. This is evidence that different political-economy traditions in the field of state-society relations led to different implementations, and different fates, the same technology. However, the political economy traditions do not help explain Vint Cerf’s observation that “the walled garden notions of AOL, forexample, are clear instances of attempts to control content and access and to bring people into a placewhere they only see what you want them to see.” 703 If America is about freedom to distribute and receive information, why was the story of US networks, in the nineteen eighties, dominated by these “attempts to control content and access and to bring people into a placewhere they only see what you want them to see”? This dissertation suggested that this implementation is the direct result of the American First Amendment tradition, which protects the people from government control over information distribution. In doing so, the tradition empowers the sovereign people to decide which ideas are good, and which are bad. As a result, the power to control information, which in France is largely vested in the State, is in the US vested in 703 Cerf,“Oral History,”37 291 the people. In the realm of information network design and implementation, this translates into a constitutional protection for corporations to privately censor the networks they operate, if they so chose. Such decisions rest in part on a determination by the corporation of what the people, turned consumer, wants. In this sense, then, private censorship of networks, which was observed with details through the 101 Online case study in Chapter 4, is the direct result of the political philosophy tradition of popular sovereignty in the United States. Turning to chapter 6, this dissertation established that the Internet implementation in the United States is also the result of the political philosophy tradition of popular sovereignty in the United States. In practice however, this has led at times to different results in terms of freedom for the people to access and distribute information. When networks were implemented by people influenced by the communautarist and New Left traditions of the nineteen sixties, this has led to a degree of freedom never seen for users of virtual circuit networks in the nineteen eighties. Even Steve Case, who started the AOL closed garden, would tout the power of the Internet in libertarian terms: Certainly the Internet has really created this diversity of ideas, that almost everybody is becoming a publisher. Everybody has their own website and things like that. So it's fascinating to be participating in that. I think it really is a magical time, in terms of changing the way people get information, and how they communicate, and how they buy products, and how they're informed and things like that. It's exciting... That's really when the coin dropped for me that the power of the idea was significant, that some day people would be 292 living in a more connected world... That the legacy of this medium is that it really helped bring people together, create a new sense of community, empower people in ways that weren't possible 704 This capacity for people to share information through a “permission-less network”, as Vint Cerf called it 705 was supported by the US Supreme Court in the Reno case, the underlying rhetoric of which helped establish a clear lineage between US positive law and long standing political philosophy traditions in the realm of information control, which vest power in the people. The contrast with France help strengthen the conclusions of Chapter 5, where it was argued that attempts by the French executive, legislative, and judicial branches of government to control the Internet are the direct result of French political philosophy traditions, which in the realm of information, vests power in the government to protect the people, by establishing information content and distribution control mechanisms. In particular, all branches of government attempted to affect the implementation of the network in France in ways that would make the Internet more “Minitel-like,” that is, more amenable to French traditions in the realm of state-society relations. Such efforts included attempts to partition a ”French internet,” the content of which would be put in line with French press laws. But it also included suggestions that the French State engage in negotiation with foreign states, including the US, to force foreign operators to block access to their part of the Internet by nationals not residing in their own country. Such suggestions, if applied, would have meant in practice that the US government would have mandated US Internet operators to block access to their servers 704 Case, “Oral History,”16-24 705 Cerf,“Oral History,”37 293 for non-US residents. This dissertation established in Chapter 6 that the First Amendment to the US Constitution would have prohibited such a scheme because of the political tradition of popular sovereignty. Yet, Chapter 6 also showed how numerous US content providers have privately implemented such information-distribution control mechanisms (Netflix, MLB), as well as suppressed constitutionally protected content (Yahoo!, and the Apple reaction to the Wikileaks affair). Chapter 6 demonstrated that this Internet implementation on the American side is also the direct result of the political tradition of popular sovereignty in the US. This tradition, in the field of ideas, leaves it to the self- governing people to decide which ideas are good and which are bad, and, in the field of information distribution, leaves it to private network operators to make that decision, rather than to a protection-oriented state such as France that acts through top-down decisions and can force certain content-related decisions onto network operators, either as banned speech or forced speech. Freedom and equality in a libertarian world does not just mean freedom to listen to the Grateful Dead and drop acid. It also means freedom for the fittest to organize and rule the market in ways that furthers its own interests. And private firms tend not to err on the side of benevolence. Control in this case rests on the popular sovereignty theory of American society. Private corporations may implement the networks in ways that compromise the original vision for the Internet because the Internet is mostly, at least in the United States, run from the edges. In the process, self-governing Internet actors have removed constitutionally-protected content and embedded new borders from the bottom up in ways that France could not impose from the top-down. 294 This dissertation addressed the reasons behind the particular network designs and implementations that resulted, at multiple points in time, in the US and in France, and analyzed a variable that has seldom been researched. It does not, on the other hand, suggest that one implementation is better than another, or that an implementation is immovable and permanent. The Minitel network was in several ways more open than American videotex networks, but it eventually collapsed and was replaced by the Internet, a network that developed in the US and was more open by Minitel. While innovation is in flux, this dissertation did not address the future but rather the reasons that lead to a certain implementation at a particular time in a given country. Three themes emerged throughout the study, however, that have the potential to help us understand current developments in digital information distribution technologies, and the potential results that a given policy, if adopted now, could have on digital information-distribution networks in the future. Shades of Openness First, openness of information ecosystems is not a binary, but rather a shaded concept. Various ecosystems can concomitantly exhibit features of openness, and features of closedness, and the researcher must conduct fine grain analysis in order to assess the potential for innovation, information flow, and democratic discourse, of a given information distribution implementation. In contrast to the current Internet implementation, the U.S. Department of Defense’s Internet was freer for speakers and receivers with the credentials to access the network. However, access controls existed. One critique of Jacques Vallée's account of the equalitarian spirit of the early Internet is: it 295 neglects that few people had Internet access before privatization. The Internet was available for the elite, but not accessible to the layman. In contrast, the government- censored Minitel imposed access control on content providers, but not on receivers. Users with a subscription to the phone system (which could only be denied based on financial considerations), could not be prevented from accessing the Teletel network. This situation was made possible by the inexistence of access controls for receiver, and a privacy implementation that made it impossible for content providers to obtain information about the user. Cookies were not enabled, and information regarding a user’s phone number (the equivalent of IP localization) was not provided by the access provider (the State) to the content provider. As a result, content providers could disconnect abusive users from chat rooms, but only after the abusive content was posted and they also could not prevent a user from returning later. So, for example, users used chat rooms for subversive purposes to organize massive student demonstrations in 1986. Even in a popular-sovereignty system, the state-funded network was not open to the people in the same way as the network was in the national-sovereignty-based country, where the government decided that all of its citizens could access the network on an equal and unrestrained basis. Openness, in the pre-privatized Internet, meant almost complete freedom for those who could access the network, but only a few had access. In France, openness meant unrestrained access to the network for the maximum amount of people, but restrictions on the content that could be distributed, implemented mostly through access control for content producers and constant monitoring. In addition, the state imposed technical choices that prevented users from networking independently and forced 296 them to go through the centralized state bottleneck. Although a network society existed in France, it did not take the form of a geodesic dome. These comparisons clarify the complexity, nuances, and shades of the concept of network openness. Less government does not mean less control over speakers’ ability to speak and receivers’ ability to access information Second, less government does not mean less control over speakers’ ability to speak and receivers’ ability to access information; conversely while dirigisme in the field of information network design can lead to censorship, it also has the potential to at time ensure more openness for the user. Post-privatization Internet-implementation trends show that less government does not mean less control over speakers’ ability to speak and receivers’ ability to access information. Yahoo!, Netflix and other firms implemented partitioning systems beyond what the French government dreamt of. Apple took the Teletel design to the next level by suppressing content that the U.S. government could not legally suppress, as in the Wikileaks case. This situation resulted from a system where top- down state intervention is generally frowned upon by society and where the government permits the edges to experiment with business models; or, rather, where the sovereign people retains the power to experiment from the edges. This state-society relations model may not always, however, result in more freedom for speakers to speak and users to receive content. Freedom is a double-edged sword. The MLB Internet implementation scheme, where French users are freer to receive content in unrestrained ways than Americans, is an ironic reminder of this lesson. Going forward, this conclusion should be 297 kept in mind in the context of current debates such as the one surrounding network neutrality, and the role that governments and the private sector should respectively take in internet governance in general and network-interconnection implementation in particular. The same prima facie implementation does not imply similar cultural underpinnings Third, the same prima facie implementation does not imply similar cultural underpinnings. At times, digital-information networks have been implemented in France and the US in ways that on their face are similar, but which further different cultural and political purposes. The fact that US firms have privately implemented Internet partitioning mechanisms that French government only dreamt of is a good example of this observation. It is a lesson to keep in mind as we assess other countries’ policy propositions, especially on the international scene. Even when alliances are forged between certain countries over a particular policy does not mean that these countries are sharing the same goals for the global information ecosystem. 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D. H. Cole), http://www.constitution.org/jjr/socon.htm 305 Ferdinand de Saussure, Course in General Linguistics (1916) Harmeet S. Sawhney, "Circumventing the Centre: The Realities of Creating a Telecommunications Infrastructure in the USA," Telecommunications Policy 17 :7 (September-October 1993), 574-597 ValérieSchafer, “Évolution du nombre d’accès directs commerciaux à Transpac (1979 - 1985),” Flux 62:4 (2005), 75-80 James Scott, Seeing like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998) Mischa Schwartz, “Tymnet: A Tutorial Survey of a Computer Communications Network,” IEEE Communications Society 14:5 (1976), 20-24 Valérie Sédallian, Droit de l’Internet (Cachan: Net Press, 1997) Carl Shapiro and Hal Varian, Information Rules: A Strategic Guide to the Network Economy (Harvard Business Review, 1998) Jean-Paul Simon, “Vers une Réglementation Européenne Unifiée? Généalogie de la Réglementation des Télecommunications (1973-1992),” Réseaux 12:66 (1994), 119-136 Neal Stephenson, In the Beginning … Was the Command Line (New York: Avon Books, 1999) John Street, Politics and technology (New York: Guilford Press, 1992) Ewan Sutherland, “Minitel: The Resistible Rise of French Videotex,” International Journal of Information Resource management 1:4 (1990) “Télécoms : le gouvernement ne «tolèrera pas» de destructions d'emplois,” Le Parisien, July 17, 2012, http://www.leparisien.fr/economie/telecoms-le-gouvernement-ne-tolerera-pas- de-destructions-d-emplois-17-07-2012-2093137.php Daya Kishan Thussu, International Communication: Continuity and Change (London: Hodder Arnold Publication, 2006) Godefroy Troude, “Pinky: histoire d'un micro-serveur,” last modified Feburary 9, 2006, http://www.troude.com/pinky/index.html-ssi P. Troughton, “Prestel Operational Strategy,” Viewdata and Videotext, 1980-81: A Worlwide Report (White Plains: Knowledge Industry Publications, 1980), 51-62 Fred Turner, From Counterculture to Cyberculture: Stewart Brand, the Whole Earth Network and the Rise of Digital Utopianism (University of Chicago Press, 2006) 306 LaRoy W. Tymes, “Routing and Flow Control in Tymnet,” IEEE Transactions on Communications, 29:4 (April 1981), 392 LaRoy Tymes, “Oral History of LaRoy Tymes,” interview by Luanne Johnson and Ann Hardy, Computer History Musem, Reference number X3800.2007 (June 11, 204), accessed May 29, 2013, http://archive.computerhistory.org/resources/access/text/Oral_History/102657988.05.0 1.acc.pdf LaRoy Tymes, “TYMNET – A Terminal oriented communications network,” Proc. AFIP Nat. Comput. Conf. (Spring 1971) 211-216 Hal Varian, Intermediate Microeconomics (W. W. Norton & Company, 5 th Edition, 1999) Jacques Vallée, The Network Revolution: Confessions of a Computer Scientist (Berkeley: And/Or Press, 1982) Jacques Vallée, The Heart of the Internet (Charlottesville, Hampton Roads, 2003) Thierry Vedel and David Motlow, “Information Highway Policies in the Industrialized Countries. A Comparative Analysis,” Réseaux 4:2 (1996), 351-368 Stephen G. Walker, Mark Schafer and Michael D. Young, “Profiling the Operational Codes of Political Leaders,” Jerrold M. Post, ed., The Psychological Assessment of Political Leaders: With Profiles of Saddam Hussein and Bill Clinton (Ann Arbor: The University of Michigan Press, 2005) Russell L. 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Interviews Michel Baujard, interview with author, Paris, France, June 29, 2012 Jean-Luc Beraudo De Pralormo, interview no.1 with author, Cesson Sévigné, France, June 25, 2012 Jean-Luc Beraudo De Pralormo, interview no.2 with author, Cesson Sévigné, France, June 30, 2012 John Coate, interview with author, Boonville, California, March 10, 2012 Daniel Hannaby, interview with author, San Francisco, California, March 9, 2012 Norman Hardy, email no.1 to author, June 1, 2013 Norman Hardy, email no.2 to author, June 1, 2013 Norman Hardy, email no.3 to author, June 1, 2013 Norman Hardy, email no.4 to author, June 4, 2013 Norman Hardy, email no.5 to author, June 4, 2013 Norman Hardy, email no.6 to author, June 4, 2013 Norman Hardy, email no.7 to author, June 4, 2013 Norman Hardy, email no.8 to author, June 5, 2013 Jean-Baptiste Ingold, interview with auhor, Paris, France, June 29, 2012 Bernard Louvel, interview no.1 with author, Cesson Sévigné, France, June 25, 2012 Bernard Louvel, interview no.2 with author, Cesson Sévigné, France, June 30,2012 Jean-Marc Manach, interview with auhor, Paris, France, June 29, 2012 Jean-Paul Maury, email no.1 to author, July 3, 2012 308 Jean-Paul Maury, interview no.1 with author, Paris, France, December 2011 Jean-Paul Maury, interview no.2 with author, Paris, France, June 27, 2012 Orange executive, off-the-record interview with author, 2012 Dusty Parks, interview with author, Richmond, California, March 11, 2012 Jean-Eudes Queffelec, interview with author, San Francisco, CA, October 5, 2012 Swedish gambling website operator, off-the-record interview with author, 2006 Gérard Théry, interview with author, Paris, France, June 27, 2012 LaRoy Tymes, email no.1 to author, May 31, 2013 LaRoy Tymes, email no.2 to author, June 3, 2013 LaRoy Tymes, email no.3 to author, June 3, 2013 LaRoy Tymes, email no.4 to author, June 4, 2013 LaRoy Tymes, email no.5 to author, June 4, 2013 Yahoo! executive, off-the-record interview with author, Sunnyvale, California, 2003 3. Unpublished ocuments from the French Republic’s National Archives, copies on file with author - Documents are listed in chronological order F. Froment Meurice, “Principes Généraux Applicables au Videotex: Premiers Eléments” (Premier Ministre : Secrétariat Général du Gouvernment, June 30, 1980) Léorier, “Principes Juridiques Généraux Applicables à la Vidéographie” (Service Juridique & Technique de l'Information, September 4, 1980) Unnamed note (Service Juridique & Technique de l'Information, circa 1980) Raymond Barre, Prime Minister, letter to Senate President Alain Poher (December 1, 1980) Bertrand Cousin, “Exposé de M. Bertrand Cousin devant la Commission des Affaires Culturelles de l'Assemblée Nationale le 11 Décembre 1980 sur: Les Aspects Juridiques des 309 Nouveaux Services du VIDEO-TEXTE” (Ministère de la Culture et de la Communication, December 11, 1980) Utilisateurs de Tététel 3v, Association des Abonnés T3V, “TELETEL 3V: Le Témoignage des Utilisateurs,” Congrès de l’IDATE (undated document, circa 1980) Minutes of the meeting of the Telematics Commission (February 18, 1981) J.Y. Plouvin, “Aspects Juridiques des Nouveaux Services du Video-Texte” (Ministère de la Communication : Service Juridique & Technique de l'Information, March 5, 1981) Minutes of the meeting of the Telematics Commission (April 15, 1981) Pierre Huet, Letter to Telecommunications Minister M. Mexandeau (June 19, 1981) Pierre Huet, Letter to Telecommunications Minister M. Mexandeau (June 26, 1981) Service Juridique & Technique de l’Information, “Note sur les Problèmes posés par le Développement de la Télématique” (Ministère de la Communication, September 28, 1981) Service Juridique & Technique de l’Information, “Projet de Communication sur la Télématique” (Ministère de la Communication, October 14, 1981 ) George Fillioud, Communication Minister, letter to Louis Mexandeau, PPT Minister (November 5, 1981) “Contribution du SNPQR au Rapport de la Communission du Suivi Télématique: Les Expériences et leur Suivi” (October 18, 1982) “Le Rôle du Service d’Information et de Diffusion en Matière d’Information Administrative par Vidéotex” (Premier Ministre, Service d’Information et de Diffusion, November 1983) Jacques Vistel, “Note à l’attention de M. Francois Xavier Gillier” (Secrétariat d’Etat Auprès du Premier Ministre Chargé des Techniques de la Communication : Service Juridique & Technique de l’Information, March 26, 1985) 4. French Laws (in chronological order) Déclaration Universelle des Droits de l’Homme et du Citoyen, 1789 Loi du 29 juillet 1881 sur la liberté de la presse, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateTe xte=20080312 310 Loi n° 63-1255 du 21 Decembre 1963, J.O. 22 Decembre 1963 at 11456, http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=19631222&p ageDebut=11456&pageFin=&pageCourante=11457 Loi n° 86-1067 du 30 septembre 1986 relative à la liberté de communication, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006068930 Loi No. 94-665 du 4 Aout 1994, J.O., 5 Aout, 1995, p. 11392 Loi n° 2007-297 du 5 mars 2007 relative à la prévention de la délinquance, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000615568 5. French court decisions (in chronological order) Conseil d’Etat, March 29, 1991 Cour d’Appel de Paris, October 13, 1992, Midratel. Cons. const., DC. No. 96-378 of July 23, 1996, J.O., July 27, 1996, p. 11400 T.G.I. Paris, May 22, 2000 (UEJF et Licra c/ Yahoo! Inc & Yahoo France); T.G.I. Paris, Nov. 20, 2000 (UEJF et Licra c/ Yahoo! Inc & Yahoo France) 6. United States court decisions (in chronological order) Abrams v. United States, 250 U.S. 616 (1919) West Virginia State Board of Education v. Barnette , 319 U.S. 623 (1943) Terminiello v. Chicago, 337 U.S. 1 (1949) Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (1969) New York Times Co. v. United States, 403 U.S. 713 (1971) Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) 311 Reno vs. ACLU, 521 U.S. 844 (1997) Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) Yahoo! Inc., a Delaware Corporation, Plaintiff-appellee, v. La Ligue Contre Le Racisme et L'antisemitisme, a French Association; L'union Des Etudiants Juifs De France, a French Association, Defendants-appellants. 433 F.3d 1199 (9th Circuit, 2006) 7. French official reports Conseil d'Etat, Section du Rapport et des Etudes, Internet et les Réseaux Numériques : Etude Adoptée par l'Assemblée Générale du Conseil d'Etat le 2 juillet 1998 (Paris: La Documentation Française, 1998) Isabelle Falque-Pierrotin, Internet: Enjeux Juridiques, Rapport au Ministre Délégué à la Poste, aux Télécommunications et à l’Espace et au Ministre de la Culture (Paris : La Documentation Francaise, 1997) Patrice Martin-Lalande, L'Internet : un Vrai Défi pour la France : Rapport au Premier Ministre (Paris: La Documentation Française, 1998) Christian Paul, Du Droit et des Libertés sur l’Internet: La Corégulation, Contribution Française pour une Régulation Mondiale:Rapport au Premier Ministre (Paris: La Documentation Française, 2000) Gérard Théry, Les Autoroutes de l’information (Paris: Documentation Française, 1994)
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Mailland, Julien
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The impact of state-society relations on the design and implementation of digital-communication networks: a Franco-American comparative perspective
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