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Bar Journal - December 1, 2000

How Consumer Reaction to Disruptive Technologies May Cause Governmental Change

By:
 

Technological innovations often change the world. In the past, some changes thus wrought have disrupted normal business models, often to the detriment of consumers. This article will discuss how a century ago, in their desire to reestablish fairness in commerce after such a technological upheaval, consumers actually caused the reformation of the structure and makeup of the government. The inescapable question is whether the developing world of internet commerce can cause consumers to demand another such reformation of the law and of government.

A disruptive technology1  – in 1887 it was the railroads – can cause social changes resulting in new and different demands on government. First railroads changed commerce, then their owners took advantage of their economic strength. For the first time, consumers demanded assistance from the federal government, and got it in the form of the Interstate Commerce Act. The passage of that act caused unpredictable and evidently permanent changes in the form and structure of the government of the United States.

Certain parallels exist between the disruptive technology of the railroads, and the disruptive technology of the internet. What remains to be seen is whether consumers will drive another major change in the form and structure of government to counter the potential dangers to their interests posed by the Web.

Consumer protection law is based on relatively simple and familiar principles. Among these are: that people should be treated fairly; that when one person acts in a way which has an impact on another, the actor must obtain the other’s willing acquiescence; and that all must act with due care for the welfare of others. These are the same principles which underlie a vast range of law, including torts and contracts, the Uniform Commercial Code, and other statutory and common law.

The field of consumer law is considered by many to be relatively new. While Ralph Nader can be credited with starting the modern consumer protection movement with his book Unsafe at Any Speed, consumer protection has been a concern for legislatures and for Congress for over a century. For as far back as citizens have had access to the courts, people have been able to assert their rights as consumers. When Europe and the nascent colonies which grew to become the United States were primarily agrarian, goods were produced and sold by local farmers and craftspeople to local consumers. The law merchant and common law courts provided consumers with an ability to seek redress for acts of unscrupulous merchants.2  Such acts by a merchant were considered an offense against the community at large and were actionable as a community tort.3 

With the advent of the industrial revolution and the growth of interstate trade in manufactured goods, however, the pattern changed. Manufacturers were now remote to their markets, making it more difficult to hold a manufacturer accountable for defects in the goods the manufacturer made and sold. Jurisdictional issues arose when defective goods were made out of state and were shipped across state lines for sale. The courts eventually responded with International Shoe, and state legislatures passed long-arm statutes. However, the states did not all react in a similar fashion. This lack of uniform statutes and court rulings meant that the remedies available to the people varied from state to state. Meanwhile, technological changes were under way which would soon revolutionize life in this country and around the world.

I. THE RAILROADS CHANGE THE WORLD

Before railroads, goods were transported primarily via waterways. In the east, commerce was transacted in the growing port cities which lined the Atlantic coast. Proximity to the water was necessary for the economical transportation of goods. By the late 1700s and early 1800s, however, settlers were moving westward, following navigable inland waterways. Where these waterways would not support shipping, canals were built to facilitate shipment of goods to the large commercial centers on the coast. The Erie Canal in New York State is the most famous, but many other canals were built. These eventually connected all the major waterways in the East. Goods made in the recently industrialized cities along the Eastern seaboard could be shipped by water to markets in Pennsylvania, Ohio, Illinois, and anywhere with a coastline on the Great Lakes.

Canals were difficult and dangerous to build, expensive to maintain, and in many areas, simply impractical. In England and Europe, railroads were beginning to be used. Railroad technology was soon imported to the United States, where it flourished. Faced with this powerful new competitor, canals began to go out of business. As this process accelerated, the railroads cannibalized the assets of the canals by laying tracks on the canals’ now unused towpaths. Thus railroads could follow already established shipping routes. Because railroads could be laid where cutting a canals was impossible, expanding the reach of cost-effective transportation. Soon, transportation of goods by inland waterway became the exception and travel by rail the rule.

It is impossible to overstate the effect railroads had on American society. The development of railroads made it possible to move raw materials from their origins to wherever they were needed. The ability to transport coal eliminated the need for factories to be located near a power source. Thus, industry could flourish in any location served by a railroad. Finished goods, no matter where they were made, could be transported over land to any of the growing ports on the coast for worldwide distribution.

The railroads changed more than the ways in which business was transacted. As the newly bustling cities lured people from the farms to new and more lucrative jobs, the United States began its change from a rural, agrarian society to an urban, industrialized one. Family life changed dramatically. On the farm, extended families made up of several generations shared the chores and responsibilities of child rearing. When people moved to the cities, those who could usually left their older relatives and started anew in the city. The modern nuclear family, consisting of two generations, became the norm.

Railroads even changed the way we tell time. Prior to the railroads, time was kept locally. Before industrialization, there was little need to know the exact time. A sundial or the town clock was adequate for most purposes. If a factory came to town, then the factory kept people on time with the morning, noon, and evening whistles. As a result, to the extent timekeeping was standardized, it was only on the local level. Time in two towns, separated only by a few miles, could vary by several minutes.4  But once the railroads, with their need for precise scheduling, came to town, variations in timekeeping between towns became unworkable. The invention of the telegraph, whose lines frequently followed railroad tracks and which tied railroad stations together allowing rapid transmission of messages, made it possible to synchronize5  clocks. Towns served by railroads often had two different times: railroad time and local time. To eliminate the resulting confusion, Standard Time was born. The railroads also divided the nation into the four time zones we still use.6 

Before long, the railroads had become necessary providers of essential transportation services. If the new factories were to thrive, they required the raw materials railroads brought, and the markets which were accessible only through the rail shipment of the manufactured goods. Soon, problems began to arise.

Railroad owners exploit their captive market

By the end of the Civil War, the railroads had a captive market. It was not long before the rail barons did what captive market owners do - they exploited the market. Because the rails were owned by the company which laid them and their use was restricted to engines and cars owned by that same company,7  monopolies among the local carriers were the rule.

It was not uncommon for railroad managers to practice discriminatory pricing, where one shipper would be provided a rate which was vastly more favorable than that provided to other shippers. Numerous agreements were made by regular large volume shippers, such as coal companies, and the railroad owners for preferential treatment. This created a disadvantage for other, low volume shippers such as individual farmers. Nor was it uncommon for railroads to require shippers to pledge that they would not hold the rail carrier liable in the case of lost or damaged goods. Since the railroad was the only available high speed carrier of goods, the shipper was forced to go along with these requirements.

Another abusive practice arose because no rail company could serve the entire country. Thus, in the case of a long-haul shipment, the rail company that accepted the goods from the shipper would need to transfer goods to other rail carriers. A shipment could be transferred to many different carriers before it was finally delivered at its destination. If goods were lost or damaged by one of the connecting carriers, the original carrier would inform the shipper that because the loss occurred when the goods were not in its possession, it was not liable. If the shipper wished to recover, the shipper would be forced to travel to the location of the loss and sue for damages. The volume of money involved in the railroad business gave rise to further abuses, among which were occasional political scandals where free passes and other favors were bestowed upon public officials.8  But more troublesome to the consumers of rail services were the practices of frequent variations in the published rate schedules, many of which were only disclosed to those who benefited from them.9 

These abuses caused concern among shippers. Small producers, including farmers on the newly settled lands to the west, were unhappy with their fate at the hands of the rail companies. So great was the frustration of western farmers and others that they banded together during what came to be known as the Granger Movement. Grangers pushed for state regulations of the railroads, and were to a large extent successful, but only temporarily.10  In 1886, the Supreme Court voided all state regulations of railroads as being contrary to the Commerce Clause’s provision of federal regulation of interstate commerce.11  Outrage against the acts of the rail carriers continued to grow. The Supreme Court’s action so exacerbated this ill will that it became impossible for Congress to ignore the clamor for assistance.12 

The Interstate Commerce Act of 1887

Due to the above mentioned practical problems, as well as public concern regarding the railroads’ fairness and morality in the conduct of their business, states attempted to regulate rail carriers.13  Numerous states set up commissions to deal with the rail carriers, with limited success. Soon it became clear that if railroads were to be effectively regulated, this regulation must be federal in scope. After several false starts, in 1885 the Senate impaneled the Cullom Commission, headed by Illinois Senator Shelby Collum, to investigate the situation and report to the entire body.14  Meanwhile, the House of Representatives was also feeling public pressure to rein in the railroads. Subsequent to the final report of the Cullom Commission and much legislative back and forth, the Act to Regulate Commerce was passed,15  and on February 4, 1887, President Cleveland signed it into law.16  The Act has been amended several times since its origin. As a result of the 1887 Act, the Interstate Commerce Commission was established with the power to enforce the substantive provisions of the Act.17 

Congress targeted multiple abuses with the original Act and its subsequent amended versions. Among the remedies Congress instituted was what has become to be known as the "Filed Rate Doctrine," which states that interstate carriers of goods must publish their rates in a "tariff," and that this tariff is to be available for inspection by all prospective shippers. Furthermore, the carrier was not allowed to deviate from these published rates. This effectively shut off discriminatory pricing and allowed the shippers to plan their shipments strategically for their best price. Along the same lines, rebates and other preferential pricing schemes were eliminated.

When Congress amended the ICA in 1906, it took on the issue of forced waivers of liability. The Carmack Amendment was designed to halt this practice by requiring that all interstate carriers be held liable for the actual value of the goods they carried based upon the declared value of the goods listed on the bill of lading. The Carmack Amendment also held the original carrier liable for goods lost or damaged by a connecting carrier. Now, if the goods were lost by a connecting carrier, the original carrier was liable and could seek contribution from the connecting carrier which actually lost or damaged the goods.

It is clear by these provisions that a major purpose of the Interstate Commerce Act was clearly to protect consumers of the services provided by the railroads. It did this by forcing the rail carriers to post their rates and forcing them to stick to the rates as posted; by fixing the amount of liability for the goods shipped; and by placing the liability for lost or damaged goods upon the interstate carrier which originally received the goods to be shipped.

Because the Interstate Commerce Act preempted incompatible state laws, another effect of these provisions was to provide the interstate carriers with a uniform measure of liability for goods shipped in interstate commerce. As mentioned earlier, liability was previously determined by state law, and those laws were not uniform. Therefore, a carrier had a complex task when deciding how to insure its cargo. Because of the Interstate Commerce Act, a carrier knew its exposure to liability simply by looking at its bills of lading. No longer did the carrier need to worry about the liability provisions of the laws of the states it was carrying goods through. This provision simplified matters for the rail carriers, and removed one barrier to expanded interstate shipments.

As is evident by the terms of the Interstate Commerce Act as passed and as subsequently amended, this legislation served to provide protection for consumers by forcing the railroads to treat consumers of their services uniformly and fairly. These reforms came about largely due to pressure from the consumers of the railroads services. These consumers were the victims of the railroads’ unfair and unreasonable pricing practices, and their attempts to escape liability for their negligent acts.

The Interstate Commerce Act changes the structure of government

Most importantly, it should be noted that the Interstate Commerce Act changed the structure and form of the federal government forever. These provisions, and others, firmly established federal regulatory control of interstate shipping pursuant to Article 1, Section 8, Clause 3 of the U. S. Constitution (the Commerce Clause). The Interstate Commerce Commission (ICC), established by the 1887 Act, was the first federal regulatory agency. This Act instituted the concept of administrative law, wherein an appointed board is given the power to promulgate regulations and to interpret the statute by which Congress instituted agency. Subsequent to the Interstate Commerce Act, other federal regulatory agencies were instituted. The Federal Trade Commission, the Food and Drug Administration, and all the rest of the federal regulatory agencies were to follow. Even though Congress eventually dismantled the ICC in 1995,18  the federal government retains subject matter jurisdiction over many aspects related to the interstate transportation of goods and services.

The inception of regulatory agencies brought on by the Interstate Commerce Act also raised legal issues relating to the relationship between the federal and state governments. In court cases which followed, complex issues of federalism such as preemption of state laws were litigated. The landscape of this legal terrain is still being shaped by litigation today.

Nation building

The legacy of the Interstate Commerce Act is enormous. In one sense, it includes the entire federal regulatory structure which is in place today. This legacy also includes the institution of administrative law, and complex notions of federal preemption and federal jurisdiction. Thus, it has changed the nature of the relationship between the states and the federal government.

In no small part, the establishment of the Interstate Commerce Commission and all the subsequent regulatory agencies spurred a remarkable exercise in nation building. As the railroads shortened the distance between points on the globe, their excesses and overreaching taught citizens to look to both state and federal governments for protection. As the federal government and the new regulatory agencies promulgated statutes and regulations which unified the rights and responsibilities of business, it was also unifying the rights and responsibilities of all the citizenry. The United States became more of a nation and less of a confederacy.19  For good or ill, these changes exist due in large part to the demands of consumers for federal protection from a major national business conglomerate against which the general public believed it had no meaningful recourse.

II. THE COMPUTER REVOLUTION V. THE INDUSTRIAL REVOLUTION

Will the rise of computers and computer networks bring a repeat of the changes instituted with the Interstate Commerce Act? Computers and the internet are a disruptive technology, with potential to cause social change similar to that which was caused by the railroads in the early 19th century. Already we are seeing changes in the workplace due to the ability of computers to interconnect. Some workers have stopped commuting to the office every day and who telecommute by connecting their home computer to the office network. By doing so, the worker can communicate and share work product and ideas as easily as if that worker were at the office. Many information technology workers have eschewed the corporate structure entirely and set themselves up in business as free-lance sole proprietorships operating out of their homes. As more and more people work via their inter-networked computers, the importance of actually working on site may decrease. In this manner, the electronic revolution may instigate a reversal of the urban migration brought on by the industrial revolution. Commentators have spent much time and effort predicting the changes to society which may result from our increased use of computers and the internet. Unfortunately, just as the people of the middle 19th century could not foresee the changes which industrialization and the railroads would bring them, neither do we have any means to predict accurately the changes to be wrought by the computer industry in the coming twenty-first century.

While we do not know what changes the internet will ultimately bring, some changes are already evident. Much interstate commerce is now being carried on via computers. Where the internet was originally a research tool instituted by advanced technology laboratories and the U. S. government, it is now primarily a means whereby the general public gathers information, communicates and shops. The other articles in this issue relate to areas of the law as diverse as court jurisdiction, fraud, privacy, copyright and intellectual property, formation and validity of contracts, and charitable contributions. All of these topics are related in some way to the valid concerns of the consumer. Rather than restate the observations of other contributors to this journal, for the final part of this article, I would like to concentrate on whether the computer revolution is likely to bring about so radical a change in society and government as did the industrial revolution and the railroads.

An international solution?

Consumers can persuade Congress to protect their interests. The railroads, through their overreaching and abuse of their customers, inspired consumers to demand that Congress step in to provide uniform, nationwide consumer protection. Today, the question is whether there is any need so great as to mobilize consumers as a group to demand international intervention in the electronic marketplace. The creation of an international body to provide a means of control over users of the internet would be analogous to the scope of the change in government brought about in the late nineteenth century. Such a body may be necessary in order to settle the jurisdictional issues raised by the international connectivity of the internet. Under current conditions, by operating from a safe haven in some rogue nation, any cyberterrorist can perform disruptive or harmful acts via the internet with impunity.

Opposition to such an international law enforcement body would certainly be strong. Historically, no nation gives away any of its sovereignty without a compelling reason. Therefore, any problems which would be solved by such a body must be of an enormous magnitude and also be resistant to solution by any other means. As in the railroad case, that such massive changes in government can only be brought about when the mass of the people, i.e. consumers, demands it. Do parallels exist between our situation now with that of our forebears in the mid 1800s?

If we start by looking for parallels between the current state of internet commerce and the state of the railroad shipping, some appear and others fail to appear. The clearest parallel is with the general changes to society caused by the new technologies. As in the mid 19th century, we are now seeing changes in work patterns and remarkable gains in productivity. Economists have been uniformly stumped when attempting to predict what will happen next. The music publishing business is threatened by the ability of web users to copy and distribute material. Print publishers lose when such mainstream authors as Stephen King publish works directly to the web. The news business is going through major changes due to the speed at which information can now be disseminated. Law enforcement agencies are concerned about encryption technology which makes messages they have intercepted unintelligible. Consumer fraud over the internet is a fact, made easy by the technology of the Web.20  Throughout all this, internet companies fiercely resist any attempt at federal or state regulation of their businesses.

All these issues now exist. But does any one of them, or does any combination of them, have the potential to arouse consumers to the point where they demand a governmental change of the magnitude they demanded prior to the passage of the Interstate Commerce Act? Is there any combination of issues which would cause people to demand a change in the actual structure of the government? Or, given the world wide nature of internet communications, is there an issue or a group of issues which has the potential to cause a new, heightened level of international cooperation to provide protection to consumers world wide? Would there be the will among nations to transfer some of their sovereignty to an international body which would provide recourse to those injured by wrongful actors without relying on extradition treaties or other less certain means of enforcement?

This possible international solution would be more likely if more parallels between the current state of affairs and that of the mid-19th century existed. For instance, there is no preexisting governmental entity to which consumers can turn for relief. In the 19th century United States, the Commerce Clause of the U.S. Constitution made the federal government such an entity. At this point, there is no such entity on a world wide basis. The United Nations is no analogue of the United States government in that membership is voluntary, and it has no enforcement capabilities. Furthermore, issues of trade and commerce are handled by individual nations through treaties which depend upon the willingness of the signatory nations to cooperate. In the absence of that willingness, a treaty will fall into disuse.

We also have no monopolist or monopolists who are controlling the internet and forcing all who need to use the internet or its instrumentalities to do business on their terms. Even Microsoft’s dominance of the market is not nearly as complete as was that of a local rail carrier in a one-track town. Given current antitrust law and the volatility of the marketplace, as well as the diversity of instrumentalities of internet use, it is unlikely that there ever will be a durable monopoly in internet services. No one party controls a key instrumentality of internet access. In fact, the structure of the internet itself resists such monopoly control.

This brings up another reason why formation of an international internet control body is unlikely. Most of the problems posed by the internet are subject to solutions other than those requiring any creation of such an international internet police force. The technology which makes many problems possible can also offer the solution. Viruses, hacker and cyberterrorist break-ins of sensitive computer systems can be halted via technological solutions. Every internet user can use the technology of the Web to protect his or her privacy. Web surfers need not allow their browsers to accept every cookie they are sent. Encryption software called Pretty Good Privacy (PGP) can keep emails from being read by unintended recipients.

The most important reason why there has been no call for international action to curb abuses on the internet is the lack of a galvanizing issue. In the mid-19th century, the acts of the railroads and their abuse of their monopoly power caused such distress and anger among so many consumers that they caused the government to react. At this point, there is no such issue in electronic commerce. When we list the problems posed by the internet and subtract from that list all which can be solved via enforcement of current law, or via the imposition of technological solutions, no issue remains with the obvious power to unite consumers in a demand for worldwide action.

As technology provides new and different opportunities, new problems will arise. Some of these may be important enough, or difficult enough to solve, that consumers will be galvanized into calling for international action. One such issue might be genetic privacy. Should the mapping of the human genome give rise to an enhanced ability to analyze and predict the likelihood that an individual may contract a particular disease, then the protection of personal information would become extremely important. Knowledge of such a genetic predisposition could adversely effect availability of health insurance and employment for someone so predisposed. If this type of personal information were to be routinely distributed electronically, and such detrimental results were to ensue on a large scale, it is conceivable that enough people worldwide could become angry enough to demand international controls of the instrumentality of the distribution. If it is clear that consumers have no means of protecting their genetic information from distribution and use to their detriment, genetic privacy just might be that galvanizing issue. On the other hand, such an abuse may be remediable via legislative and other methods. For instance, trading in such information without the express consent of the consumer may be outlawed. Such laws could be enacted independently in other nations around the world. Other methods for ensuring that consumers control their own information could be established legislatively as well. Should these solutions be effective, demand for any international regulating body would lessen.

Governments should be aware of the ability of consumers to demand dramatic changes in how governments work. As was seen in the case of the railroads, when consumer interests are ignored or when consumers are abused, the potential exists for radical change. In the mid-nineteenth century, consumer pressure was instrumental in causing a major shift of power from the states to the federal government. In the mid-twenty-first century, such a demand from consumers could again change the current model of government. In the absence of an ability to protect themselves from unscrupulous or overreaching businesses, consumers may again demand dramatic changes similar to those we saw a century and a half ago. If governments wish to protect themselves from such upheavals, they will do well to be certain that consumers have the legal tools they need in order to protect themselves, as well as access to the technological and educational resources necessary for their protection.

ENDNOTES

1. This term was coined by Harvard Business School professor Clayton Christensen, in his book THE INNOVATOR’S DILEMMA: WHEN NEW TECHNOLOGIES CAUSE GREAT FIRMS TO FAIL (1997, Harvard Business School Press). Prof. Christensen describes two different types of technologies – sustaining and disruptive. A sustaining technology is one which preserves and improves on the technological status quo. For instance, a technology which allows an auto maker to produce cars which are better and cheaper would be a sustaining technology. A disruptive technology is one which upsets the technological progression of better, faster, cheaper and causes turmoil in an established technological field. For example, while VCR makers were making their machines better and cheaper, along came recordable DVD, which could make VCRs obsolete. Although Prof. Christensen did not make the point, it is obvious that a disruptive technology can have the potential to cause significant changes in the society at large. This is the case with both the railroads and the internet. We are living witnesses to the social and economic disruptions now being brought about by the internet. How the railroads disrupted the social fabric of the mid nineteenth century will be shown later.
2. DONALD P. ROTHSCHILD AND DAVID W. CARROLL, CONSUMER PROTECTION: TEXT AND MATERIALS 1.01, at 1.
3. Id.
4. MICHAEL O’MALLEY KEEPING WATCH - A HISTORY OF AMERICAN TIME (1990) at 99-128. Chronicling the adoption of Standard Time and 4 US time zones.
5. The word means "Same time."
6. O’Malley, supra. While the notion of standard time was the product of several academics and astronomers, the idea only became reality upon its acceptance by the railroads. Telegraphy made standard time possible, but the railroads made it necessary.
7. Clyde B. Aitchison Evolution of the Interstate Commerce Act: 1887 – 1937, 5 Geo. Wash. L. Rev. 289,291 (March 1937).
8. Id at 292.
9. Id.
10. Skowronek, Stephen, National Railroad Regulation and the Problem of State-Building: Interests and Institutions in Late Nineteenth-Century America, in BUSINESS AND GOVERNMENT IN AMERICA, VOL. 1, 351, 354(Robert F. Himmelberg, ed. 1994).
11. Wabash, St. L. & P. R. Co. v. Illinois, 118 U.S. 557, 7 (1886)
12. While it is clear that consumer pressure was instrumental in the passage of the Interstate Commerce Act, whether it was the determining factor is controversial. It is not surprising that numerous interested parties would be involved in the creation of federal legislation with so broad a scope as the Interstate Commerce Act. Some commentators have stated that the railroads themselves sought federal regulation as a means of settling problems of interstate commerce, while others have pointed at the growing power of merchants to influence Congress as the genesis of the ICA. See, e.g. I. L. Scharfman, The Interstate Commerce Commission: A Study of Administrative Law and Procedure, (New York; The Commonwealth Fund, 1931; George Miller, Railroad sand the Granger Laws, (Madison; University of Wisconsin Press, 1971); Albro Martin, The Troubled Subject of Railroad Regulation in the Gilded Age: A Reappraisal Journal of American History 61 (September, 1974).

Regardless of the relative impact of consumer interests as opposed to that of the commercial interests in Congress’s decision to pass the ICA, the fact remains that the ICA included the first federal statutory protection for consumers in the open marketplace.
13. Aitchison, supra at 293
14. Id at 298.
15. 24 STAT. 379, c. 104 (1866).
16. Aitchison, supra at 289.
17. Id at 305.
18. I.C.C. Termination Act of 1995, Pub. L. 104-88, 109 Stat. 803 (Dec 29,1995)
19. Skowronek, supra at 373-376.
20. It is easy, for instance, to clone a web site belonging to an established e-business. This cloned site will look exactly like a genuine site in that it will display the same logos, hyperlinks, and other identifying characteristics as the genuine site. The perpetrator then changes the text in the body of the page to give the consumer some fraudulent reason why the consumer needs to enter a credit card number. For instance, it could state that there is a problem with the consumer’s account. If the perpetrator of the fraud can obtain a list of the e-business’s consumers, he or she can bulk email those consumers and divert them to the fraudulent site and trick them into providing their credit card information.

The Author

Attorney David Rienzo, NH Department of Justice, Consumer Protection and Antitrust Bureau, Concord, New Hampshire.

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