The History, Purpose, and Procedures of the Advisory Commission on Electronic Commerce

I congratulate the law review on putting together such an impressive collection of speakers to discuss this timely topic. I pay particular homage to Professors Hellerstein and McClure, who I have had the pleasure of hearing address the Advisory Commission on Electronic Commerce (the "Commission").1 I am also grateful that Mr. McKeown was here earlier today representing Governor Leavitt, who, as you know, has taken a very active role on the Commission and is one of the more forceful personalities amongst a collection of accomplished people. There is a danger that comes from appearing with such a distinguished group, and I discovered that earlier today. Last April, I had the privilege of speaking at the law school about a much different topic, the then-recently-concluded impeachment trial of the president. I appeared on a panel that included the president's impeachment counsel Greg Craig, along with Senator Bennett and Representative Cannon. Now here is the danger of appearing with notable people: when I arrived this morning, someone approached me and said, "Mr. Craig, it's good to see you again." I do not imagine anyone will mistake my presentation for one delivered by Professors Hellerstein or McClure. In that regard, please beware that there is a caveat to my appearance here. I cannot comment on the substance of proposals before the Commission, nor will you want me to because that is not my expertise. What I can speak to is the history and purpose of the Commission and the procedures under which it operates. Before I describe the work of the Commission, permit me a personal observation about the similarities between the role that I find myself in now, as the general counsel to the Commission, and the role that I occupied when I came to speak here as Senate legal counsel. As general counsel to the Commission, I am asked to serve a public entity, comprised of people from diverse backgrounds who are engaged in what is essentially an adversarial enterprise that has as its ultimate goal a higher good. The Commission is purposefully diverse. Its members are highly talented. They bring to the Commission viewpoints based on a lifetime of experience dealing with the interests that collide at the intersection of government and commerce. (I cannot say that they have brought to the Commission a lifetime of experience in electronic commerce because they are each more than three years old. ) At least one of the roles of the general counsel to a group like that is to teach its members how to operate in a realm where they have a duty towards the collective good. That task is made easier here because of the high quality of the membership of this Commission. Everyone talks about electronic commerce by noting that we live in an astounding time. We are witnessing the birth of a new form of commerce. That birth is happening at a time when a consensus seems to have emerged over the last quarter century about the role of government and its relationship to commerce. "Consensus" may be a bit strong, but I think we have a better understanding today than we have had at any previous time about the relationship between government and the creation of business activity. I am aware of the danger of hyperbole. Remember the bold predictions made at the end of the nineteenth century that we had discovered everything there was to know about physics; then came relativity and quantum mechanics. I hope that I do not sound quite like that in talking about the relationship between government and business, but I am an optimist. I think we have a pretty good sense today of how government can either nurture or hinder the emergence of new forms of commerce. How we use that knowledge turns on the resolution of significant public policy debates. In the midst of this convergence between the rise of electronic commerce and the increased understanding we have achieved regarding the relationship between government and commerce comes the Internet Tax Freedom Act (the "Act"). …