Securing the Freedom of the Communications Revolution

At the dawn of the American Revolution, Thomas Paine wrote that "the design and end of government" was to provide the public with "freedom and security." (1) For the past 200 years, Americans seldom have had to ponder or grapple with the potential contradiction between these two goals because the contradiction emerges most palpably only during times of national crisis. Events like President Lincoln's suspension of habeas corpus, President Roosevelt's internment of Japanese-Americans, and President Nixon's attempted suppression of the New York Times' publication of the Pentagon Papers underscore the tension between these two principles, as well as the dangers of pursuing one goal at the expense of the other. As Thomas Paine so clearly understood, we must strike the appropriate balance between freedom and security if we are to maintain our American values and way of life during times of national crisis. As with so many other things in our lives, our perception of the relative roles of freedom and security changed forever on September 11,2001 ("9/11"). On that day we were indelibly reminded that freedom is not free, that it cannot exist in a vacuum, and that enhanced security is the price we must pay to preserve it. That day required us to recalibrate the delicate balance between freedom and security. For us in the communications industry, this recalibration is particularly difficult because we must balance the promise of new modern digital technologies that provide global communication with the security concerns, both public and private, based on those transmissions. Today, freedom--in the form of the free exchange of ideas, open and competitive markets, and technological innovation--is fueling an ongoing revolution in the communications industry. As a result, the telecommunications sector has emerged as the driving force of both the American economy and the global marketplace, with consumers reaping the benefits. But we are only at the threshold of this revolution: a digital future awaits where competitive markets, open broadband networks, and cutting-edge services will fundamentally alter every aspect of our lives. The challenge we face, therefore, is twofold. First, we must understand how current law and regulation strike a balance between freedom and security in the local, national, and international environments in which the telecommunications industry functions. As the articles in this issue illustrate, the complexities of telecommunications technology and economics combine with multiple sources of governmental involvement to weave an intricate pattern of rights and responsibilities. It is only when these complexities are better understood that we can face the second challenge of assessing whether the balance between freedom and security reflected in current law is proportionate, or needs further refinement. The stakes involved in accurately striking this balance cannot be overestimated. Shall we turn our backs on almost a quarter century of open market progress to shield ourselves from future threats? Shall we hobble the Internet because of its vulnerabilities? Shall we close our competitive markets because they are impossible to control or predict? Shall we limit new participants' ability to offer innovative services because we cannot forecast all the ways in which such services may be used? The answer to all of these questions is a resounding no. Security need not, and does not, require us to reject freedom, but it does require us to take a hard look at the post-9/11 world and compels us to find a balance that enhances both. The Federal Communications Commission ("FCC") has been engaged in this balancing effort ever since 9/11. An abbreviated description of these efforts demonstrates just how extensive the reassessment process needs to be, involving not just the FCC's rules, but its fundamental organization as well. In November 2001, the FCC began restructuring its internal operations to conform to post-9/11 security-related concerns. …