Re: UK ISPs v. US ISPs (was RE: Network Level Content Blocking)

>IIRC, AOL got whacked by a court years ago because they
censored some
>chat rooms and not others.  The court held that since
they censored
>some content, they lost their status as a common carrier
and were
>liable for other content they didn't censor (either by
intent or
>mistake).  This was a particularly interesting case,
since the
>implication was that ISPs who _don't_ censor content
_are_ common
>carriers, which I don't think has otherwise been touched
upon in the
>US.

I would be most interested in a citation of this alleged
case.

Perhaps you are thinking of the Stratton Oakmont case in
which a New
York court found Prodigy liable for for postings in some of
their
online fora.  Since there is a section in the 1996 CDA
specifically to
reverse the outcome of this case, anyone who cites this case
as
relevant to the current situation in the US is just plain
wrong.

Also, ISPs in the United States are not common carriers. 
Even the
ISPs that are owned by phone companies (which are common
carriers for
their phone service) are not common carriers.

Regards,
John Levine, johnliecc.com, Primary Perpetrator of "The
Internet for Dummies",
Information Superhighwayman wanna-be, http://www.johnlevine.com, ex-Mayor
"More Wiener schnitzel, please", said Tom,
revealingly.

On June 11, 2007 at 06:22 johnliecc.com (John Levine)
wrote:
 > 
 > Also, ISPs in the United States are not common
carriers.  Even the
 > ISPs that are owned by phone companies (which are
common carriers for
 > their phone service) are not common carriers.

Are you possibly conflating the general legalistic term
"common
carrier" which applies to taxi cabs, UPS, trains
(common carriage,
i.e., generally cannot be held responsible for the contents
of what
they carry) versus telecommunications common carriers as
defined under
the "Communications Act of 1934" (CA1934) which
established the AT&T
monopoly?

Granted there's no agency or body which takes out a big
stamp saying
COMMON CARRIER (in the common law, first sense) and sticks
it on an
ISP's head (in the second sense, CA1934, that'd be the
FCC.)

The common law sense is more a practical matter of law and
precedence. The wikipedia entry has a nice brief summary:

     http://en
.wikipedia.org/wiki/Common_carrier

  Internet networks are in many respects already treated
like common
  carriers. ISPs are largely immune from liability for third
party
  content. The Good Samaritan provision of the
Communications Decency
  Act established immunity from liability for third party
content on
  grounds of libel or slander. The DMCA established that
ISPs which
  comply with DMCA would not be liable for the copyright
violations of
  third parties on their network.

So, although it should be noted that by and large ISPs have
resisted
being classified telecommunications common carriers as
specifically
defined in CA1934 they seem to be treated by the law, in
practice, as
common carriers in the common law sense (i.e., offer their
carriage to
the general public, can't generally be considered
responsible for
content etc. any more than a taxi or fedex could be.)

It's a very important if somewhat confusing distinction.
It'd be a lot
easier if we could come up with separate terms for common
law common
carrier versis CA1934 telecommunications common carrier.

That said, nothing is absolute and even an unarguable common
law
common carrier (say, fedex) has some duty to raise
suspicions about a
package which is ticking or dripping noxious (or really any)
liquid,
and to cooperate with law enforcement where properly
required (e.g.,
via warrants.)

I think we're less in the realm here of who is or isn't some
sort of
common carrier and more "what are the responsibilities
even within
those constraints?". Even the old AT&T monopoly,
probably as legally
fortressed from liability as possible (other than its broad
exposure
to regulation) would be required to cooperate with properly
executed
legal process.


(I suppose to be PC I have to say out loud this note is
US-centric)

-- 
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On Mon, 11 Jun 2007, John Levine wrote:
> Also, ISPs in the United States are not common
carriers.  Even the
> ISPs that are owned by phone companies (which are
common carriers for
> their phone service) are not common carriers.

The Communications Decency Act, Digitial Millinium Copyright
Act, 
Electronic Communications Privacy Act and even ISP's own
Terms of Service 
give operators substantial protection for "Good
Samaritan" acts to filter, 
screen, allow, disallow or report objectionable material.

In addition, under 42 USC 13032, US public electronic
communication 
providers (also known as ISPs) have the *DUTY* to report,
not monitor, 
child pornography to the National Center for Missing and
Exploited 
Children.  Failing to file a report could result in a fine
of $50,000 or 
more, except due to a quirk in how the statute was written,
apparently no 
US government agency was given the authority to issue the
fines.

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