Legal Issues on Blackholeing

Mon Nov 17 20:23:36 UTC 1997

On Mon, 17 Nov 1997 at 11:49 EST, Curtis Brown
	<cbrown at bbnplanet.com> wrote:
> 
> On Nov 17, 10:11am, Paul Flores apparently wrote:
> 
> > To sum it up:
> > part of the CDA indicates that "No provider or user of an interactive
> > computer service shall be treated as the publisher or speaker of any
> > information provided by another information content provider"
> >
> > This woulds seem to indicate that an  ISP can not be LEGALLY
> > held accountable for the content published by a customer. (although
> > in the case of UBE, I think the means, more so than the message, is
> > the issue.) I don't think the issue of filtering comes into this at
> > all.
> 
> I think (read 'hope') that you are reading too much into this.
> 
> Going back to non-specific cases regarding the operation and liabilities of
> running a BBS I shall cite what I feel has been done in the past and seems as
> if it may remain appropriate:
> 
> Cases against BBS operators for distributing illegal or offensive material seem
> to be split, based solely on the level of participation which the operator
> displays. For those operators that have shown a 'hands off' operational
> approach, there has been little liability for content. For those operators that
> take part in creating/managing their content, liability is usually complete.
> 
> In other words, the way I see this as applicable to ISPs follows: *service*
> providers which supply TCP/IP access to the internet are liable only to ensure
> their customers are aware of netiquette. *content* providers (i.e. AOL, MSN...)
> are fully liable for all content which they manage/distribute.
> 
> Feedback?
> 
> cbrown at bbnplanet.com
> Server Administration, GTE Internetworking.

That's basically my understanding, though it needs some additions.
To summarize differently, a provider is liable if it knows or could
be expected to know of the abusive content in question.  This
phrasing adds the condition that if a provider operating as a common
carrier is made aware of abuse, they then become liable if they
subsequently fail to take reasonable measures against recurrence,
even though they otherwise are allowed to be unconcerned with content.
(Think in terms of phone company liability for obscene calls).

The section cited by Mr. Flores basically says that only the first
provider receiving the abusive traffic (ie. nearest the source) would
have been liable, not every provider all the way to the destination.
Otherwise, every provider would have had to monitor all content
passing through it.  Doing this would have been bad enough for 
source networks; imagine doing this for all traffic passing through
MCI.  Fortunately, the CDA is dead and this latter question is moot,
at least for a while.

--eric