Common Carrier Question

Thu Apr 13 22:07:03 UTC 2006

On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:

> I'm working on a graduate policy paper regarding Internet filtering by
> blocking ASN's or IP prefixes.  It is a variation of Net  
> Neutrality, just
> by a different name.

Except Network Neutrality is about QoS, not filtering.

> Is anyone in the IANAL field aware of any cases where :
>
> a.  an ISP successfully defended a common carrier position
> b.  an ISP unsuccessfully defended a common carrier position

ISPs are _not_ common carriers, and have never been (in the US at  
least).  "Common Carrier" is a legal term, and carries lots of  
responsibilities as well as benefits.  ISPs have essentially neither.

However, assuming you meant a more general definition, I might have a  
case on point:

Back in the early 90s, Prodigy & Compuserve (I think, maybe AOL  
instead of one of those) were involved in a slander case or something  
like that.  Someone had posted "bad" stuff about company using these  
ISPs.

One lost and one won.  The reason was that Prodigy monitored its  
content for things like foul language, Compuserve did not.  As a  
result, most ISPs after that would very, very intentionally not look  
at what their customers were doing so they could not be accused of  
monitoring or filtering or whatever.

> c.  an ISP was treated as a common carrier, even if didn't want to be.
> d.  an ISP was not treated as a common carrier, even if they wanted  
> to.

I can't think of a reason an ISP would not want to be a common  
carrier, unless you are talking about the federal legal definition  
and they're avoiding the responsibilities it carries.  But then no  
ISP has ever been treated like that (unless they were _also_ a  
telco), so it never comes up.

As for D, that happens all the time.  For instance, there are plenty  
of times ISPs have had equipment seized, either as "evidence" or  
because they were being prosecuted directly, for things their  
customers did.  Again, this assumes you are not talking about the  
legal definition.

-- 
TTFN,
patrick