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Let's Not Let Phone Pollution Hang Up Free Speech

Top of the News: COMMENTARY


The government is having a heck of a time deciding how to approach dial-a-porn. Is it corrupting America's children? Protected by the First Amendment? Or both? Congress has made three stabs at the issue. The latest set of federal laws and rules on dial-a-porn was upheld this year by appellate courts in New York and San Francisco. But few people think the matter has been laid to rest.

So emotional an issue always tends to muddy the legal waters. But another reason for the muddle over dial-a-porn is the growing number of roles taken on by the telephone. Today's network, no longer just a conduit for conversation, is carrying things Alexander Graham Bell never imagined: news, electronic mail, and computerized sales pitches, to name a few. But the courts haven't kept up with technologies that have implications for free speech and privacy rights.

TROJAN HORSES? The variety of uses for the telephone system inspires awe. Recorded soap-opera updates or dial-a-porn are more like radio broadcasts than a telephone conversation in that everyone who calls hears the same thing. Tellingly, these recorded messages are called shows. The phone network can also serve as a postal system via electronic mail. Electronic bulletin boards present their own cluster of legal issues. And the surge in telemarketing--transformed by random dialers and robot salespeople--raises questions about whether marketers have managed to turn home phones into Trojan horses for sales pitches.

As society goes electronic, contacts that used to occur in the town square are being made over phone lines. The problem is that there's no simple standard for deciding what can be said or even who should decide. Often, phone companies end up calling the shots by agreeing or not agreeing to bill and collect for services offered by outsiders over their networks.

With 900 numbers, which range from stock market quotes to sports scores to soft porn, each long-distance carrier sets its own rules. U. S. Sprint Communications Co. recently decided to let "romance" and "dating" 900 lines fade away through attrition by not billing or collecting for any new ones. The lines are used by all kinds of people, not just Sprint's regular customers. Sprint has been braver about billing for outsiders' political messages, which have ranged from pro-David Duke to anti-Jesse Helms. Still, Sprint calls the shots. If all four long-distance carriers that offer 900 lines turned squeamish about a service, they could effectively shut off an outlet for free speech.

The kind of picking and choosing that long-distance companies engage in is an even bigger headache at the local level, where information providers don't have a choice of carriers. And even though many states require local phone companies to make their billing and collection services available to all, the carriers can still find ways to make life tough for information providers they find unsavory, such as pressing for laws restricting them.

There is a solution. Since the main problem is that phone companies don't want to bill and collect for services that could tarnish their reputations, companies that provide these services should do their own billing and collecting. It's more expensive, but there's nothing in the Constitution that promises dial-a-porn vendors, gab-line operators, or vendors of "guaranteed" credit cards that someone will inexpensively collect their money for them.

FAIR CHANCE. Other conflicts turn out to be similarly solvable. For example, it's possible to protect children from porn or ripoffs and still preserve adults' First Amendment freedoms: Just have phone companies hand out passwords to customers 18 and over, no application required. The easy-to-use pushbutton codes would be required to reach "adult" services or lines supplying high-priced information. It's not foolproof, but then, underage kids also find ways to buy liquor and sneak into X-rated flicks.

Keep in mind, too, that these measures wouldn't open the wires to truly obscene or fraudulent services: Those are and would remain illegal. But with independent billing and passwords, services that are merely risque or mildly suspect would get their fair chance in the marketplace of ideas.

Electronic communications shouldn't be treated any differently just because they arrive over phone lines instead of in the mailbox. Laws protecting U. S. mail can--and should--protect messages delivered over public electronic-mail networks. In contrast, a telemarketer's computer-generated call at dinnertime doesn't deserve the same legal protection as a phone call from Aunt Martha, even though it happens to use the same medium.

As phone networks are put to ingenious new uses, they may seem ungovernable. But the rules that can control them and everything offered over their wires are already here. They're just waiting to be applied.Peter Coy and Michele Galen

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