The Emerging Right to Information

MARGARET S. DALTON

As the capacity of technology to deliver information expands, the idea that citizens have a right to information grows.^[482] Access to information is, in fact, an issue of the electronic age.

Like most of the newer rights that concern quality of life, the right to information is being defined by what is possible and by what is available, as well as by what is desirable. Issues that must be resolved range widely; they are philosophical, political, social, and economic. What information equity means is yet to be defined, who is to pay yet to be decided, and how abuses are to be prevented yet to be determined. How much of the promise and how many of the glowing predictions can be realized remains to be seen. Past experience offers only limited guidance because the world of computer-processed and digitally transmitted information is a quantum leap beyond the world of the telephone, the environment with the most similarities. From the confusion of conflicting views and countervailing actions definitive answers are slow to emerge. Trends tend to be of short duration, and the extent to which a right to information will be affirmed is in doubt. Both the United States and Germany are in the process of rethinking the theory and practice of the welfare state, and in neither is the climate receptive to the assumption of new responsibilities by government.

Although a right to information would seem to be central in a world already in the “information age,” it is not an idea that has received much public attention. When Americans were asked at the end of 1994 their opinion about the most important problems facing the United States, information was conspicuous in its absence from their responses. When they were asked to assign priorities for Congressional action, information was again absent.² Few individuals understand the difference that infor­mation can make in their lives, but they understand all too well the dif­ference decent housing, health care, education, or a job can make.

Admittedly, information is not an easy concept to grasp. One of the most indefinite, ambiguous, and multifaceted words in English, a word that changes its meaning with its context, and a word that has, moreover, changed over time, the term information is used to convey a variety of ideas. A particular source of confusion is that it is often used inter­changeably with such words as facts or knowledge. Information must be distinguished from its cousins, even if the distinctions cannot always be respected. As one witty summation puts it: “A kilo of data is as valuable as a gram of information; a kilo of information is as valuable as a gram of knowledge; and a kilo of knowledge is as valuable as a gram of under­standing.”³ Information, in short, is part of a continuum. It is, moreover, particularly complex today, when technological developments make it inseparable from the means of delivery, and those same means of com­munication are converging.

In terms of the concept of a right to information, the most useful def­inition probably is “decision-relevant data.”⁴ This definition tells us that

2 David W, Moore, “Crime Legislation, Deficit Reduction Top Public's Wish List,” Gallup Poll Monthly, no. 352 (Jan. 1995): 2—8.

3 Unidentified guest quoting “an American scholar,” “Talkrunde: �Aschermittwoch im Cyberspace: Lieber Onliner als Outsider? Erwartungen an die Informationsgesellschaft,' 21.02.1996,” in Infor- mationsgesellschaft: Kongress der FD-P-Bundestagsfraktion, Bonn, 21./22.

4 Manfred Kochen, “Information and Society,” in Martha E.Williams, ed., Annual Review of Infor­mation Science and Technology 18 (1983): 280. See also Manfred Kochen,“Evidence of Brainlike Social Organs,” in Manfred Kochen, ed., Informationfor Action: From Knowledge to Wisdom (New York, information is more than an abstraction, that it has consequences. Infor­mation can be translated into wealth, power, or a sense of well-being. It can benefit the individual. Collectively, it can benefit society.⁵

Information has been fundamental to the human race since before it was human; its essential properties, centrality, value, and adaptability are timeless. By its presence or absence information is critical in decision making. That a particular watering hole was a favorite gathering place of woolly mammoths was information that could make the difference between starvation and survival for a prehistoric family. Information has had value in every economy, no matter how primitive, even if it was left to the decade of the 1960s to call information a commodity.⁶ And par­ticular information has long been used by different people for different purposes. We have always lived in an information society, though we may not have realized it.

Only recently, however, has information as such become an object of study. If you want a specific date, 1945, the year of Memex, is a favorite.⁷ Somewhat more slowly than scholarly study, popular interest began to grow. The concept of a right of access to information appeared - most often in connection with the availability of school computers - although

1975), 4-5.The National Commission on Library and Information Science had to wrestle with a definition. A 1976 document defined information as interchangeable with knowledge (Toward a National Programfor Library and Information Services: Goalsfor Action [Washington, D.C., 1975], ix). Its Public SectorZPrivate Sector Task Force that reported in 1982 did not define information, but identified the following characteristics: it is an intangible that can be made available in many media; it is not consumed by use, but can be resold or given away with no diminution of content; its price bears little relationship to the costs of making copies available and �first copy’ cost is likely to represent most of the costs; its value is often determined more by when it is available than by the costs for making it available or even by what the actual content of it is; its value increases as the amount of data involved and the degree of analysis provided by those data increases; and infor­mation has value in the marketplace.

5 Useful discussions of definitions of information include Michael K. Buckland, “Information as Thing,” Journal of the American Society for Information Science 42 (1991): 351-60; Anthony Debons, Esther Horne, and Scott Cronenweth, Information Science:An Integrated View (Boston, 1988), 1-8; and Fritz Machlup and Una Mansfield, “Cultural Diversity in Studies of Information,” in Fritz Machlup and Una Mansfield, eds., The Study of Information: Interdisciplinary Messages (New York, 1983), 3-56.

6 Donald M. Lamberton, “Preface,” Annals of the American Academy of Political and Social Science, vol. 412: The Information Revolution. (Philadelphia, 1974), ix.

7 Vannevar Bush, “As We May Think,” Atlantic Monthly 176 (1945): 101-8, is widely regarded as the analysis that launched the discipline of information science. Memex is the device that Bush envis­aged in which an individual would store his books, records, and communications, mechanically searchable with speed and flexibility; in short, an extension of his memory. Ernest J. Wilson III, “Introduction: The What, Why, Where, and How of National Information Initiatives,” in Brian Kahin and Ernest J. Wilson III, eds., National Information Infrastructure Initiatives: Vision and Policy Design (Cambridge, Mass., 1997), 1-23, offers an interesting description of the phases of the public policy debate on information.

no single term or phrase that succinctly expresses the idea of such a right achieved general acceptance. The phrase “right to information” itself is usually used for the legal right of an individual to obtain information from government records instead of for the more general idea of equal access to (computerized) information. The term information equity is used by those concerned with information policy in the United States, but it is far from the only phrase used.^[483] In Germany the idea of a right to information tends to be embedded in considerations of the informa­tion society.

the theoretical foundations of a right to information

The idea that someone has a right implies that someone else has a respon­sibility to satisfy that right: If there is a right to information, there must be a reciprocal responsibility to provide information.^{[485] [486] But who has that responsibility? The obvious answer is that provider of last resort, govern­ment or society. However, this responsibility is not one that appears in classical definitions of the role of government.Aristotle’s list of the respon­sibilities of government included religion, warfare, income and expendi­ture, the market, the town and its harbors, the countryside, the courts, registration of contracts, prisons, the exaction of penalties, computing and auditing of accounts, additional scrutinies of holders of office, and perhaps the regulation of private behavior in states where orderly behavior was an object of concern. But not information. Later writers added to Aristotle’s list here and subtracted there, but the basic list remained sub­stantially unchanged.11}

When information does appear in political theory, it is usually in con­nection with democracy, where it is far more prominent as a responsi­bility to be informed than as a right to information. The premise of democracy is that power is vested in the people; citizens are both the governors and the governed. In a direct democracy like that of Athens, citizens participated in passing judgment and holding office. In a modern representative democracy, they are expected, in some cases constitution­ally obligated, to vote. In both situations it is implicit that they will act in an informed and considered manner. Thomas Jefferson, who thought more deeply than most about democratic government, was one of the first to make explicit in a positive way the connection between democ­racy and information: “No one more seriously wishes the spread of infor­mation among mankind than I do, and none has greater confidence in its effect towards free and good government.”^[487]

Not until the nineteenth century did theory appear that accom­modates a right to information.

experience with government-provided information in the nineteenth century

Wilson’s examples were largely responsibilities that had been assumed by western governments in the course of the nineteenth century, during which the role of government changed and expanded greatly in Europe and the United States.^[489] A gradual extension of the definition of public good to include the sum of individual goods took place. By the turn of the century many aspects of economic life, such as the working condi­tions of women and children, were commonly subject to some sort of governmental regulation. Indications of positive, proactive governmental action, the provision of something that would benefit individuals as opposed to the group, also can be found. Bismarck’s groundbreaking social program that provided accident insurance, health insurance, and social insurance is a significant example of such positive action.

The augmented governmental activity of the nineteenth century, although it did not include acceptance of responsibility for information as such, itself generated additional information. Max Weber has described records as the bureaucrat’s “tools of production,” and there is a strong correlation between the expansion of government functions, a larger centralized administration that accompanied the expansion, and an increase in government publishing.^[490] In many cases the need of govern­ments for information outran their bureacracies’ capabilities, and ad hoc information-gathering bodies were created with increasing frequency in western countries to supplement routine channels. There is, for example, some evidence that Bismarck’s efforts at social reform were hampered by a dearth of information; certainly, he sponsored numerous inquiries into labor conditions in the 1870s.^[491]

This kind of special-purpose information was in addition to information that states already collected and published on a regular basis. Nineteenth­century governments might not have seen themselves as engaged in the provision of information, but they were in reality providing their citizens with a wealth of it. Census results were among the earliest information ventures to become common. Article 1 of the Constitution of the United States mandated a decennial census that has, from the first census of 1790, been published for public dissemination.^[492] A modern census of Prussia dates from 1810. Other nineteenth-century series of government publica­tions include, in both Prussia and the United States, parliamentary debates, budgets, registers of legislative and executive actions, laws and statutes, and assorted statistical series.

Governmental collection of information could be dismissed as a nec­essary aspect of administration, were it not that collected data were in many cases published and disseminated. Although this publication and dis­semination were partly in the governments’ own interests, it suggests a de facto recognition that citizens had a right to be informed about their gov­ernments’ activities and, increasingly, their societies’ conditions. That there was some sense of obligation to the public, as well as recognition of the importance of informed citizens to a democracy, is confirmed by the prac­tice of depositing publications in the libraries of the nation. In the United States the 1813 resolution that regularized the printing of congressional documents provided that each college and university library in each state, and each historical society as well, would receive a copy of each docu- ment.An 1886 resolution to expand the depository library system brought statements like the “general use and information of the people” and asser­tions of the relationship of information to democratic government: “The theory of this bill is that this is a Government of this Republic by the people thereof, and that the people thereof are entitled to have and... should have access to everything which is important that shapes the leg­islation of this country.” In Germany the depositing of documents came in 1927 with the Weimar Republic, the country’s first democratic gov­ernment, although the utility for the general public of some government publications was acknowledged much earlier.^[493]

Another very obvious way in which governments were involved in the dissemination of information was through the creation and maintenance of public libraries. “Information” was most likely to be used in terms of increased opportunity for individuals to become informed voters, but almost all the motivations of early founders of public libraries are infor­mation-related in some sense.^[494] The information was, in this case, created or published by commercial publishers, and the government, here a local rather than national body, facilitated dissemination. By the end of the nineteenth century major cities in the United States, and many of the smaller towns as well, had libraries open to the public that were free of charge and supported by tax revenues. Germany followed the American lead, but the same level of public assumption of responsibility for library service came only during the era of National Socialism, and German public libraries have never been so large or so heavily used by the public as their American counterparts.^[495]

early information policy initiatives

Provision of information or provision of access to information are not, however, the same as formal recognition of an obligation to provide infor­mation. Lacking the perception that they were engaged in information activities, until very recently governments saw no need for any policy on the subject. This failure has been particularly unfortunate because only within the context of a comprehensive and systematic information policy can a comprehensive right to information be asserted. To the extent that governments could be said to have had any information policies, they were, like the information policy in Europe today, “a patchwork of reg­ulations and practices.”^[496] Not that this muddle is exceptional. A demo­cratic government’s policy in almost any area is likely to be a composite, influenced by a wide range of interests and implemented by different gov­ernmental units that are often in competition with each other. Henry Kissinger once commented, “There is no such thing, in my view, as a Vietnam policy; there is a series of programs of individual agencies con­cerned with Vietnam.”^[497]

Only in 1975 were the first actions taken toward creating a national information policy in the United States.Vice President Nelson A. Rock­efeller convened a Roundtable on Privacy and Information Policy to examine information issues and to discuss the need for a national infor­mation policy. The following year President Gerald R. Ford directed Rockefeller, in his capacity as chair of the Domestic Council Commit­tee on the Right of Privacy, to review and clearly define the informa­tion policy issues that confronted federal policy makers and to determine the status of the various information policy studies that were then under­way within different agencies of the executive branch.^[498] The final report of the committee stressed the need for a unified approach, recommended the creation of an office of information policy, and asserted basic principles. The first of these principles aimed to encourage access to information and information systems by all segments of society, to improve the quality of life, and to enable the responsibilities of citizen­ship to be met. This set of principles carries the seed of the idea of a right to information.^[499]

The committee’s recommendations, however, had minimal impact on what followed. The popular pressure to “reduce government” that was such a feature of the 1980s and 1990s in the United States began to make itself felt in the late 1970s, and it has been within that political context that information policy has evolved. A major step was the Paperwork Reduction Act of 1980, an act that aimed to minimize the Federal paper­work burden for both private and government bodies, to reduce the cost to the government of collecting, maintaining, and disseminating informa­tion, and to establish federal information policies and practices. This act was applied with great enthusiasm by the Reagan administration, and additional policies were designed to supplement it. The overall effects have been that, as of 1997, the United States government collects less infor­mation, that less of the information the government collects is published, and that if government information is collected and published, it is increasingly likely to be published in cheaper and more difficult to access electronic formats.^[500] Trends in public library services are somewhat more ambiguous, but there also have been significant reductions.^[501]

There is a certain irony in the fact that this overall reduction of infor­mation has occurred at the same time that the perception has grown that American society was becoming an information society. By the 1970s terms such as information revolution and information age were in common use.^[502] The outlines of the nascent information society could be discerned. The exponential increase in the volume of information flow, the shrink­age of time and distance constraints on communications, the greater dependence on information and communication services, the increase in the interdependence of previously autonomous institutions and services, conceptual changes in economic, social, and political processes induced by increased information and communications, the decrease in the inter­val between social and technical changes and their impact and conse­quences, and the global shrinkage that characterize an information society were all identified in the 1976 National Information Policy report.^[503] The work that probably did the most to explain the brave new world of information and encourage acceptance, Daniel Bell’s The Coming of Postindustrial Society, appeared in 1973, and within two years the first translations, including one into German, had come out.^[504]

In the 1960s and 1970s many regarded the arrival of the information age with some apprehension because information technology’s best- known customer was the government of the United States. Increased gov­ernment efficiency raised the specter of George Orwell’s 1984, and a possible threat to privacy was a source of great anxiety. Intellectuals were caught between their faith in progress and their fears of the future. The following passage conveys their uneasiness well:

It is notorious that adopting new means in order better to accomplish old ends very often results in the substitution of new ends (inherent in the new means) for old ones. Computers and associated intellectual tools can thus, for example, make our public decisions more informed, efficient, and rational, and less subject to lethargy, partisanship, and ignorance.Yet that possibility seems to imply a degree of expertise and sophistication of policy-making and implementing procedures that may leave the public forever ill informed, blur the lines between executive and legislature (and private bureaucracies) as all increasingly rely on the same experts and sources of information, and chase the idea of federalism into the history books close on the heels of the public-private separation.^[505]

the information society of the 1990s

In the 1990s the concerns were quite different, but then much about the information society of the 1990s was quite different.Technological advances and the rapid spread of new products and services have made the promise of the 1960s and 1970s a reality, and all forms of activity, economic, social, political, cultural, and intellectual, have been deeply affected. As of 1995 in the United States there were thirty-four personal computers per hundred inhabitants, in Germany nineteen, and computers are only one aspect of the information society.^[506] The question is not whether we will have an information society, but what kind of a society it will be.

What has been achieved in the last two decades has served to demon­strate the potential of the future, and predictions today are more specific and even more optimistic than those of the past. A report by the German Federal Ministry of Economics declared that the new technologies “not only make work and life easier, they take us out of isolation.”The National Information Infrastructure Agenda for Action asks people to imagine the dramatic changes in their lives:

• if the best schools, teachers and courses were available to all students, without regard to geography, distance, resources, or disability;

• if services to improve health care were available online, without waiting, regardless of location;

• if telecommuting enabled them to live almost wherever they chose;

• if small manufacturers could get orders electronically from all over the world;

• if they could see the latest movies, play the hottest video games, bank, or shop from the comfort of home;

• if they could obtain government information directly, apply for and receive government benefits electronically, and get in touch with government offi­cials easily;

• if individual government agencies, businesses, and other entities could all exchange information electronically, thus reducing paperwork and improv­ing service.

The so-called Bangemann report defined the basic information policies of the members of the European Community and envisioned many of the same possible applications: telecommuting, distance learning, networks for universities and research centers, telematic services like e-mail, video­conferencing, and file transfer, traffic management, air traffic control, health-care networks, electronic payment, trans-European public admin­istration, and city information systems.^[507]

The context of these glowing visions is the evolving information infrastructure. Economists define infrastructure as the basic structural foundation of the economy as a whole, including everything from its transportation network to its educational system. The information infrastructure is “a series of components, including the collection of public and private high-speed, interactive, narrow, and broadband networks that exist today and will emerge tomorrow.” It is the satellite, terrestrial, and wireless technologies that deliver content; it is the infor­mation and content that are conveyed in a wide range of formats, the computers, televisions, telephones, and other products used by people to obtain access to the networks and their content; it is the people who provide, manage, and create new information; and it is the individuals who use these networks.^[508] The shift in focus from isolated information processing units to the interconnected, interacting totality affects not only what can be done technologically - the whole is considerably greater than the sum of its parts - but the terms in which the issues are discussed.

Predictions of the future are overwhelmingly positive, but some reser­vations have been expressed. Just as the accomplishments of the informa­tion revolution have brought a more sophisticated appreciation of the potential of the future, they have brought a more sophisticated apprecia­tion of possible pitfalls. There is concern that the privacy of individuals is seriously threatened by the too-ready accessibility of electronic records that were never intended for public consumption. Freedom of expression, a thorny problem already, has been immensely exacerbated by the speed of dissemination, the possibility of worldwide distribution, and a lack of control in the electronic environment. The new media are readily accessible, and any participant can be both a producer and a consumer of information. Such communication can be seen as a threat to a nation’s sense of community because it facilitates and strengthens the development of like-minded groups, whether quilters or right-wing radicals, at the expense of the larger group.^[509]

Other concerns focus on the individual as a seeker of information. Individuals may find themselves overwhelmed by unimportant informa­tion, they may be manipulated by the unscrupulous, or they may risk an increase in mental passivity. They may be unable to make use of what is available because they lack the skills to find what they need or the knowl­edge to evaluate what they find; the Internet is not for amateurs. Still worse, they may not be seekers of information because they are unwill­ing to participate. There is ample evidence that individuals do not use the abundance of information that is already available; why should electronic information be different?^[510]

information equity

Few would disagree that the greatest problem of the information age is that of equity. The immense promise of the new world has made the question of access to it a matter of considerable consequence, and no one can ignore the possibility that the development of a national information infrastructure will increase rather than decrease inequality. The National Information Infrastructure Agenda for Action pronounces: “Because infor­mation means empowerment - and employment - the government has a duty to ensure that all Americans have access to the resources and job creation potential of the Information Age.” The European Commission’s Information Society Project Office is more matter of fact: “There is a particular preoccupation about the possible creation of a two-tier society in which part of the population can handle the techniques for a success­ful exploitation of all that the society can offer, while the other part is marginalized and disadvantaged by alienation from the information culture.” Today virtually every politician who addresses the topic of infor­mation technology verbally genuflects before the precept that a two-class society, information haves and information have-nots, must not be permitted to develop.^[511]

The emphasis on individual rights that is characteristic of modern America and is increasingly common in other societies encourages the assumption that anything as important as information must be a matter of right, but there is no basis for such an assumption. The Constitution of the United States protects the rights of producers of information with copyrights and patents, but, in terms of access to information, comes no closer than the guarantee of free speech in the First Amendment. The German Basic Law is not much better, although Article 5, which asserts that everyone has the right freely to inform himself through generally accessible sources, at least mentions information. Both of these are no more than vague statements of general principles; there is certainly no legally enforceable right to information. Any “right” to information is rooted in the political reality that if enough people demand information strongly enough, politicians will attempt to deliver it. By so doing they strengthen the presumption of right until it is eventually perceived as a right. Education, to which information is closely akin, is well on the way to acceptance as a fundamental right. It is asserted as a right in the United Nations’ Universal Declaration of Human Rights of 1948, and most nations, including the United States and Germany, act as if it is a right, even if adjudication on the subject is somewhat equivocal.^[512]

Information has begun its journey to righthood. In 1992 Bill Clinton and Al Gore campaigned on the need for a high-technology infrastruc­ture for the United States, one that would be accessible to all. Gore extended this principle to the global information infrastructure: “The final and most important principle is to ensure universal service so that the Global Information Infrastructure is available to all members of our soci­eties. Our goal is a kind of global conversation, in which everyone who wants can have his or her say.” No Republican interest in the issue could be found, but much discussion is taking place outside the party structure. Groups like the Electronic Freedom Foundation are active, and librarians have been particularly prominent in advocating information equity.^[513]

In Germany political discussion appears to have been more limited and to have taken place largely within the formal political structure. The emphasis has been on the information economy, and information ques­tions have been treated as economic questions. Each German party had detailed printed documents to offer on the subject of the information society, in which they attempted to interpret the new issue in terms of their existing philosophical frameworks and traditions. They universally affirm the idea of information equity, although the emphases they place on other aspects of the creation of an information infrastructure make it clear that the Christian Democratic Union’s version of a right to infor­mation would be quite different from the Bundnis ’90-Green Party

39

version.

What is noticeably absent from discussions of the individual and the information society in both countries is individual responsibility, the re­ciprocal of individual right. There is no suggestion that the individual must seize opportunities that are made available, no expectation that indi­viduals should use information for socially useful purposes, as well as for personal advancement and individual gratification. This absence is part of the far more general problem, the disappearance of the idea of the public good from political discourse, that affects decision making at all stages of the political process. In the context of information, at the lowest level, voters choose not to exert the effort to use the information resources that exist. At the highest level, when the public interest is not a priority, gov­ernments can limit expenditures of public monies on information systems and services and can avoid the unpopular regulatory actions that would

• 40

protect it.

Without the realistic possibility of exercising a right, political endorse­ment does not mean much, and translating the rhetoric of information equity into reality is a formidable task. The issues are wide-ranging, complex, and interdependent. A conference on the development of a national information infrastructure in the United States identified four strands in the information structure - hardware, services, applications, and the people served; at least three ways of approaching development of an appropriate policy - by experts, by bureaucrats, and through the political processes; conflict in three different realms - social and economic goals

39 Bundnis ’90/Die Grunen, Die Zukunft der Medien ist Sache alter BurgerInnen (Bonn, 1996); CDU, Wirgestalten Zukunftilnformationsgesellschaft (Bonn, 1996?);Junge Union Deutschlands,Jugend online (1995?); SPD, Die Informationsgesellschaft von morgen (Bonn, 1995); Informationsgesellschaft: Kongress der F.D.P.—Bundestagsfraktion, Bonn, 21./22. Februar 1996.

40 JohnV Pavlik and Mark A.Thalheimer,“Roundtable: Sizing Up Prospects for a National Infor­mation Service,” in Williams and Pavlik, eds., The People’s Right to Know, 94; Herbert I. Schiller, Information InequalityiThe Deepening Social Crisis in America (New York, 1996), 28. and values; relevant goals and values at three different levels - national, local, and international; and various stakeholder goals and values.

Miller analyzed information structure in terms of three simultaneous levels of conversation: the visions and goals, the strategies to be used to reach those goals, and the technologies that will serve our purposes in a manner that is cost effective.^[514]

technological and economics issues in information equity

Technological choices affect the realization of a right to information. Without interoperability, the interconnection of switched networks, indi­viduals will have access to only one network rather than to all. One example of an important decision already made is the adoption of TCP/IP (Transmission Control Protocol/Internet Protocol) by ARPANET, the precursor of the Internet. This was the precondition for the commu­nication of different computers that made possible the Internet. How an individual home is connected to the system, whether by fiber optics or an alternative, will influence affordability. What system architec­ture is employed, if it is distributed or not, will decide the amount of capacity and whether the connection that exists in theory is available in practice.

Often technological issues are simultaneously economic issues. Band­width, for example, is an object of competition. In terms of the NII (National Information Infrastructure) the bandwidth problem can be summarized as follows: “There is a three-way tension in the evolution of the network between the research needs which require very high band­widths (gigabits for individual applications); scholarship, education and public information needs that require gigabits but which can be aggre­gated; and everybody else’s needs for high bandwidth with an emphasis on multimedia applications and use.”^[515] How bandwidth is distributed will determine what the different interested parties can do. When the United States government auctioned off a section of the radio spectrum, it turned over to the giant telecommunications-cable corporations who purchased it the decision of how this resource will be used.^[516]

This auction of bandwidth is one indication of the answer that has been given to the economic question that underlies every aspect of the information infrastructure: How will it be financed? Vice President Gore, while still Senator Gore in 1992, had argued that the private sector wouldn’t gamble on such a risky investment, and if it did, “it would build not a superhighway available to all, but a kind of private toll road open only to a business and scientific elite.” He urged that it “should be a public network constructed and regulated by the Government for all Americans.” The financial weakness of the United States government and the politi­cal weakness of the Clinton-Gore administration forced the substitution by private development.⁴⁴

It is an indication of the strong American influence and perhaps of European governments’ own financial weaknesses that Europe has fol­lowed this lead. In 1994 the Bangemann report, which defined an infor­mation policy for the European Community, was unequivocal: “In this sector, private investment will be the driving force............................................................................ The market will

drive, it will decide winners and losers........... The prime task of govern­

ment is to safeguard competitive forces and ensure a strong and lasting political welcome for the information society, so that demand-pull can finance growth, here as elsewhere.” The 1996 German telecommunica­tions law opened telecommunications, an area previously monopolized by the government, to competitive service providers.⁴⁵

universal service

The role a government plays greatly influences what kind of information infrastructure emerges and the extent to which information equity is achieved. Government can provide producer subsidies. It can regulate. Governmental priorities will determine the choices, but such priorities are at odds. Yes, United States government policy, like German govern­ment policy, is one of equal access. But the building of the respective national information infrastructures also is government policy, and respon­sibility for building the infrastructures has been turned over to private

44 Al Gore, “Remarks Prepared for Delivery... International Telecommunications Union, Monday, March 21, 1994,” www.nlc-bnc.ca/ifla/documents/infopol/us/goregii.txt, 5; John Markoff, “Building the Electronic Superhighway,” New York Times, Jan. 24, 1993, sec. 3, 1; Miller, Civilizing Cyberspace, 78; see Brian Kahin, “The U.S. National Information Infrastructure Initia- tive:The Market, the Net, and the Virtual Project,” in Kahin and Wilson, eds., National Informa­tion Infrastructure Initiatives, 150-89, for a discussion of the governmental-private sector interaction in development.

45 Europe and the Global Information Society: Recommendations to the European Council [Bangemann report], 8. corporations whose activities are directed to the maximization of return on investment, not to achieving socially desirable but financially unprofitable goals.^[517]

To accommodate its fundamentally incompatible goals, the United States government has adopted the formula of universal service. The Communications Act of 1934, which regulated telephone service in the United States, used language that has come to define the principle of universal service: “to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and worldwide wire and radio communication service with adequate facilities at reasonable charges.” Universal service was funded by a rate structure in which profits from one type of telephone service subsidized another, less profitable form of service: Rural telephone service, where wiring costs were high, was financed by the profits from densely populated areas; low rates for residential service were maintained by higher rates for business service; and long-distance users, who were mainly businesses, helped keep the cost of local calls down. A level of profit was guaranteed, and how that profit was achieved was left to the telecommunications provider.^[518]

Universal service largely accomplished its purpose of providing afford­able telephone service, although it no longer is as effective as it was. Changes in the telecommunications law in 1982 brought increased com­petition and lower rates in long-distance service, but it has been at the expense of higher rates for local calls. The number of people who can afford telephone service has decreased. In five of the six large urban areas studied by the Federal Communications Commission, the number of fa­milies without phone service increased significantly between 1988 and 1992. Not surprisingly, those without service are predominantly black, Hispanic, and low-income families.^[519]

The telecommunications laws of both Germany and the United States legislate universal service for the new information environment. The American act is described as an act “to promote competition and reduce regulation in order to secure lower prices and higher quality ser­vices for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies”; the German, “to promote competition through regulation of the telecommunications sector, to guarantee appropriate and adequate services throughout the country and to provide for frequency regulation.” Each has a section on universal service. The American act defines universal service as the avail­ability of quality services at fair, reasonable, and affordable rates and elab­orates on the principle to make clear that it means advanced services that will be accessible in all areas, and that all providers will make a contri­bution to achieve universal service. The American act makes special pro­visions for service to elementary and secondary schools and classrooms, health care providers, and libraries at rates less than those charged to other parties. The German law defines universal service as a minimum telecom­munications service to the public to which all users must have access at a price within their means, regardless of income or workplace. It does not make any exception for institutions such as schools, hospitals, or libraries. How effective these laws will be remains to be seen.^[520]

additional equity considerations

Access is only the beginning of information equity. A true right to infor­mation means meaningful participation. Universal service worked well when the object was that all Americans have telephone service, but finding the right information for a particular purpose, evaluating its quality, and applying it are far more complex tasks than making a tele­phone call. Yet without those abilities, a right to information is so empty that it has little meaning. In addition to access there must be usability, the appropriate hardware and software for people to produce and consume information for a wide variety of purposes, training, the education that enables them to use the information systems to satisfy their needs, and a purpose that satisfies public and social needs as well as produces economic gains.^[521]

The Microsoft Foundation has begun a large-scale, nationwide project in the United States that addresses some of these aspects. Motivated by concern about information inequity, the foundation is in the process of working out the best ways to provide public libraries with the hardware, software, and support that they need to use the Internet. Public libraries, open to all, have been selected as the best way of making access to the Internet available to those who cannot afford it for themselves.

Economic forces are also increasing the availability of the access, equip­ment, and knowledge that individuals need to exercise their right to infor­mation. Sometimes governments push along the process of modernizing communications, as when the government of Saxony established the Saxon Development Organization for Telecommunications. The broad range of this organization’s activities includes efforts to link schools to the Internet and working with the information industry and local businesses. Its approach exemplifies the interrelatedness of individual participation in the information society and national, or in this case regional, economic activity. Individuals are the foundation of the larger success, and skills learned for work are equally useful for other purposes - or vice versa.^[522]

Although access is an obvious prerequisite to obtaining information, it is not information per se; the real purpose of a right to information is in fact the information itself. It is in this area of content that the most for­midable problems lie. Some of the fundamental questions that have a direct impact on a right to information have yet to be answered, such as who shall disseminate what electronically? Who shall regulate what is disseminated? What rules, if any, apply to the use of what is dis­seminated? The perennial issue of censorship has been given new urgency. Traditions of the regulation of the content of media in Germany and the nonregulation of the same in the United States need to be re-examined. Intellectual property rights have been rendered virtually unenforceable. All these questions require political choices; the choices will profoundly affect the available information to which individuals have a “right.”

Somewhat less politically sensitive but equally significant in terms of a meaningful right to information is the domination of content production by market forces. Herbert I. Schiller has observed that “the high expec­tations for the new means of transmitting messages and images are invari­ably thwarted by the institutional arrangements that quickly enfold the new instrumentation. This has been the fate, successively, of radio, televi­sion, cable, satellite communication, and, still underway, digitized elec­tronic transmission.” If he is right about what is happening in the new information environment, only that which produces a profit will be avail­able. As in radio and television, minorities will have relatively little voice, and serious issues will receive minimal attention. Electronic information will be an integral part of economic activity, but it will be far less impor­tant to society in general. Information needs that are not on a sizable enough scale will not be met because none of the legislation passed thus far shows any concern for the development of orphan information com­parable to the concern for the development of drugs. Information that relates to the public good will have at best a token presence. The train­ing that will be available will stimulate desired consumption patterns; the ability to evaluate critically will be left to educational institutions.^[523]

There are many hints that with the national information infrastructure, “instead of a healthy drink all we might get is soda pop - well-packaged and extremely sweet, but devoid of any nutritional value.” The Internet offers, free of charge, much current information, information on popular subjects, and information from organizations and individuals about themselves, but at the same time trash abounds. Advertising is now common on the Internet. The government’s response, to develop a second Internet to serve the serious needs of the economy and of research, does not address the issue of the individual citizen’s right to serious information.^[524]

Some indications point in a more positive direction. Libraries and other public institutions are making a valiant effort to make available to people necessary and desirable information that is not commercially profitable. The network for the homeless in Santa Monica, California, is a frequently cited example. The Telecommunications and Information Infrastructure Assistance Program (TIAPP) of the Department of Commerce has provided modest subsidies to several civic networks, including the Three Rivers Free-Net in Pittsburgh and Charlotte’s Web in Charlotte and Mecklenburg County, North Carolina. The Bremen Public Library is participating in a pilot project to provide community information.

conclusions

The process of affirming and effecting a right to information is under way in both the United States and Germany. Because the information revolution is essentially a global phenomenon, events in one country influence events in another, but that influence is far from equal. Thanks to its technological superiority, its demonstrated information achieve­ments, its position as a leading exporter of culture, and its desirably strong economy, America predominates. The prevalence of the English language in debates points to how pervasive that influence is. English words are sprinkled among the German; one document distributed by the Free Democratic Party used “information haves” and “information have-nots” to describe those who have access to information and those who have not. When English is not used, the German may be a direct translation, for example, Daten-Autobahn (information superhighway) and information- sarm (information poor). American experts bulk large. Bill Gates was fea­tured in the report of the German Federal Ministry of Education, Science, Research, and Technology, and several Americans, including Howard Rheingold, contributed to another German compilation. Nowhere is American influence more apparent than in the realm of the values that are shaping the final product. The emphasis on freedom, the discourage­ment of censorship, and the adoption of the principle of an individual’s right to information are American priorities that have been adopted by Europe.^[525]

Another source of similarities is the shared ambiguity over what is the proper role of government. In neither country have the lengths been determined to which government is willing to go to ensure equality of information. The high costs make large-scale government involvement unlikely, as does the absence of any broad-based demand for information equity. Yet at the same time political and social forces are working in opposite directions.

There are also differences between the two countries. The existing information infrastructures that form the foundation of the new infor­mation infrastructures in the United States and Germany are not the same any more than their political cultures or values are. Deliberate speed marks German progress rather than the enthusiasm of the Americans. The long­standing American faith in technology is noticeable, whereas the Germans are more concerned with culture. In Germany the emphasis is over­whelmingly on the economic aspect of the information revolution, whereas in the United States this is one among many. There are also con­trasts in the conduct of the debates. Experts are dominant in German debates, and women are conspicuous by their absence. In American discussions a much broader public participates, and librarians, including men and women, are far more prominent.

For both countries a fully realized right to information clearly lies in the future. There are indications that the interplay of technology, eco­nomic development, and political rhetoric is working to strengthen the theory of such a right. At the same time, there is evidence that that same interplay is corrupting the right to information. In both countries, the marked absence of attention to the reciprocal responsibility of the indi­vidual to be informed weakens the case that society is responsible for pro­viding the means to be informed. It cannot be surprising, then, that, in both American and German information policy, rhetoric favors the con­cept of the right of an individual to information, but the law does little to effect it.