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

Barry Shein bzs at world.std.com
Mon Jun 11 19:05:54 UTC 2007


On June 11, 2007 at 06:22 johnl at iecc.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)

-- 
        -Barry Shein

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