Supreme Court Rules ISPs Not Liable for E-mail Content 84
dan of the north was the first to write in with the Supreme Court Ruling outcome that ruled that ISPs (in this case, Prodigy), are not liable for the content of e-mail messages sent through them. The details of the circumstance are availible in the above link. Yes, this was a big "duh", but it's good to see this stand.
Re:i don't see why this is good. (Score:1)
If in the first case that happens, you have a legitimate beef. No one has said that it is wrong.
in the second example, ISP's routinely drop abusive users from their systems. (thats how this guy in this case found out about this in the first place). I don't see how an ISP would know it is doing wrong until the perpetrator does wrong. Prodigy did nothing wrong in this case, the imposter did, and it would be wrong to hold prodigy accountable when prodigy was lied to.
Re:Offer us a workable alternative... (Score:1)
You may have noticed a slight stinging sensation in the corner of your mouth. If you gently touch the affected area, you will find a curved, barbed piece of metal embedded there. Attached to it is a length of nylon fiber.
This is a sign to you that you have been trolled. Remove the hook (which is not mine), go forth, and be a fish no more.
Re:I've been really impressed with the Supreme Cou (Score:1)
Not in my country. But email from your country can, and quite possibly spam. A new breed of legally protected spam.
Re:Finally a win in the right direction (Score:1)
Ah, but does Prodigy control what your From: header reads? Does your phone company control what caller ID reports for your phone number?
The From: header is set by the person making the post. Yes, I suppose it is possible for the news/mail server to replace it with what their records say, but it would rely on some form of authenticating the user, and many mail clients don't support authenticating SMTP servers.
What displays on caller ID is controlled by the phone company, with the exception that you can block it completly when making a call.
Re:My grandmother as a judge (Score:1)
Thank you OOOG.
Re:What about RESPONSIBILITY? (Score:1)
Re:I've been really impressed with the Supreme Cou (Score:1)
All cases in law and equity:
- arising under the Consitution,
- the Laws of the United States (these are federal laws, not laws of each of the several states),
- and Treaties made under the foregoing,
- all cases affecting Ambassadors, other public ministers and consuls,
- all cases of admiralty and maritime jurisdiction,
- all controversies to which the United States (again, this is the whole federal government, not an action in which an individual state is a party, unless...),
- to controversies between two or more states
- between a state and citizens of another state (this reference to "another state" means another one of the united states, e.g., New York, not France)
- between citizens of different states (e.g., New Yorker v. New Jerseyan, not New Yorker v. Frenchy or French v. Brit for that matter)
- between citizens of the same state claiming lands under grants of different states (almost completely irrelevant these days)
- between a State or the citizens thereof, and foreign States, Citizens or subjects.
The Judiciary Act adds a few things and various statutes and other parts of the constitution add other capabilities, but to say that the US Supreme Court is the "final arbiters of all law" is grossly misleading. Unless there is an aspect of a case that brings you within the jurisidiction of the Court, they are not going to hear it and they certainly DO NOT "have the power to strike down and/or interpret any law or legal decision whatsoever." Any first-year law student who has taken Constitutional law can tick off half a dozen cases in US History carving out the scope of Supreme Court jurisdiction.
For example, the US Supreme Court will not review a state law having to do with fines for scooping up your dog's crap off the sidewalk _unless_ you can come up with some sort of constitutional reason for them to hear it (e.g., the fine is so excessive as to be cruel & unusual, dogshit on the sidewalk is your way of expressing free speech). This is not because the case is trivial (which my example clearly is), but because the court simply has no authority to review laws which are not within its ENUMERATED POWERS (buzzword alert).
At various points in the past 225+ odd years the court has been more and less active in expanding its jurisdiction, but at no time has it ever even come close to the power to which it has been attributed in the post to which I'm replying.
And it's really not clear what is meant by "law"... Ever heard of the Miranda doctrine? It's a rather hot topic right now, because, as happens all the time in common law countries such as the US, it is law created by the courts. Part of any legal framework in which courts are allowed to interpret statutes and those interpretations are both binding and published is that doctrine (a/k/a "law") arises through judicial construction. The importance of publication is that it allows for review and reliance upon the decision by later parties. In fact, most statutes are intentionally drafted in such a manner that allows the court to refine the "law" within the constraints of its jurisdictions. Yes, courts cannot draft statutes but they absolutely, unequivocally DO create law.
As far as the original message goes, I believe the comment was talking about "original" jurisdiction which means something specific which was also clearly missed in the previous message. The Supreme Court only has original jurisdiction over:
Cases affecting ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party (of the cases listed above).
This is right out of Article 3 Section 2 of the Constitution. Over everything else the Supreme Court's jurisdiction is appellate. As in, "there must be a trial first." This has been narrowed a bit in the past two centuries, by the way.
Just trying to clear up a few things.
Ethics demands a bit more (Score:2)
But ethically, I think Prodigy has a corporate obligation--perhaps deriving from a cybervariant of environmentalism--to:
A) Investigate when one of their members is polluting the shared pool of trust that the Internet mostly operates upon.
B) Willingly cooperate--and provide additional forensic analysis--when it is clear that somebody's been hurt and they're one of the only organizations that has the capability to find out by whom.
C) *NOT* go overboard and install loggers that make it simple to track down anybody at anytime, privacy be damned. Makes it easy to track down offenders; makes it *too* easy.
Look, we get angry when corporations act like senseless, ethicless fools because That's Not Their Mandate. Source filtering, as a means of shielding against DDoS attacks, only shields the victims--those whose networks are being used to victimize are rarely tapped to the point where they notice failures. *Legally*, I don't want a company liable because a cracker broke in and added
I'm saying this, incidentally, knowing that source port filtering removes some extremely useful tactics for speeding up net connections on asymmetric links(Link 2 forges the source port of Link 1; Link 1 picks up all return traffic but that's ok because return traffic comes in far faster). But the harm that not source filtering allows--even if it shouldn't be a legal issue if you've accidentally left it open--outweighs the gains for people like me.
Yours Truly,
Dan Kaminsky
DoxPara Research
http://www.doxpara.com
Re:This is actually a BAD thing... (Score:3)
Maybe I'm on drugs here, but this sounds like a pretty serious problem to me, when an ISP cannot figure out who is using their own service! Based on the facts as I know them, I think Prodigy should have been held liable for this, since they obviously didn't have some way to verify the identities of their users.
Why? Why on earth should they be able to verify the identities of their users? Should hotmail be able to verify the identity of every single hotmail-account owner?
At the best, prodigy can track down the phone number of the person who dialed in - if they are a dialup service. What does that give them? NADA. I'm not sure how prodigy services works, but if it works the same way as some norwegian ISP's, then someone could've signed up by going to certain webpages, and "signed up" for a free account. Furthermore, you can sign up when bouncing via a proxy
It takes no skill to bounce via some totally anonymous bouncers (netbus infected people, people with non-logging wingates running, and so forth).
That prodigy couldn't identify them
--
"Rune Kristian Viken" - arcade@kvine-nospam.sdal.com - arcade@efnet
Re: Spamford, aka Sanford Wallace (Score:2)
Re:Effect on other cases? (Score:1)
After Demon were left having to splash out £1/4m, would you want to be the next ISP to test the law? So the practice is always going to be much more extreme than the letter of the law.
Re:i don't see why this is good. (Score:2)
The person who has his account stolen is the one who should be held liable - by the ISP - for gross negligence. He got his account stolen - he is the negligent one. Put the blame where it belongs.
example 2
The ISP should not ble held responsible by authorities. But, we've got some wonderful folks at MAPS
--
"Rune Kristian Viken" - arcade@kvine-nospam.sdal.com - arcade@efnet
Yanks Show Sense (Score:1)
Re:What about RESPONSIBILITY? (Score:1)
So don't send condoms through the post or buy them mail-order...
ISP as publisher or paper company? (Score:2)
I'm not so sure that works. Think about it. Let's say you find an libelous article in the newspaper about you one day. Who do you charge with libel? Do you sue the company that made the paper the news was printed on? No; you sue the people who made the content. Likewise, you shouldn't be holding the ones who simply provide the medium; you have to go to the ones who created the content. And that is not, by and large, the ISP's.
If the newspaper publishes information, it is obligated to either publish a retraction upon a libel or slander challenge or back the columnist. If they choose to back the columnist, they usually become party to the lawsuit for publishing the information.
A newspaper does, not the company that provides the periodical with paper.
Likewise, if an ISP receives information about a hosted site that is considered libelous or slandering, they have to make a choice whether or not to continue "publishing" the site, or removing it from circulation, i.e. blocking access or removing it from the server(s).
This may be the law, but it's simply wrong. An ISP cannot reasonably be expected to control Internet users (AOL is different because its proprietary system is self-contained, but even its Internet portions cannot reasonably be expected to be controlled). There are simply too many random variables. A paper company cannot choose what is printed on its products, so why should an ISP have to try and choose what is "printed" on its media? All an ISP does does is provide the means to publish; the publishing is still done more or less entirely by the user owning the Website. So only the Website owner should be liable, not the ISP.
This is actually NOT a BAD thing... (Score:1)
Whether Prodigy could or could not identify the user is irrelevant. Prodigy did NOT author those messages. How is it that Prodigy (or anyone) could be held responsible for someone else's crimes?
Re:i don't see why this is good. (Score:2)
2) SPAM, well, SPAM is SPAM I guess, but I find that by protecting your email address, you don't get a lot. I have been surfing for 6'ish years, total of maybe 5 SPAM messages (not including stupid friends that forward chain-letters).
It is a good thing that they are not responsible for email content, look at demon in the UK, that whole libel thing. I believe that an ISP IS a common carrier and they should be treated as such.
Because apples are not oranges (Score:1)
The case was not about negligence. The case was whether or not Prodigy has a responsibility to control the content over which it has little or no control. Presumbaly if they were grossly negligent, as in your example, then this ruling would not apply.
example 2:
all that damn spam mail... now I'm getting tons and tons of spam mail from legit servers such as excite.com and yahoo.com and hotmail.com... it's going to a mailbox that I don't often use, but same principle applies. Shouldn't these ISP's and large companies be responsible for the information being sent through their network?
Check the Terms of Service. If you don't like 'em, vote with your feet. Take responsibility for yourself.
----
Wind and temp at my house [halcyon.com]
Re: this ought to apply to Websites too (Score:1)
My opinion (non-lawyer) is that this is only partway true for several reasons, which are important to consider before making a blanket statement like the one above. Consider, first and foremost, web pages have been ruled "publications" under the law. This means that some of the liability laws which apply to more traditional forms of publication also apply to WWW publishing.
Let's consider the three ways an ISP can manage information flow to and from the WWW. The way I see it there are three cases, which I will offer opinions on, a person or company is acting as an ISP and:
It's the third case (c)is the heart and soul of the battle (IMHO). If my reading of current law and decisions is correct, right now a hosted web site is much the same as a column in a newspaper. If the newspaper publishes information, it is obligated to either publish a retraction upon a libel or slander challenge or back the columnist. If they choose to back the columnist, they usually become party to the lawsuit for publishing the information. Likewise, if an ISP receives information about a hosted site that is considered libelous or slandering, they have to make a choice whether or not to continue "publishing" the site, or removing it from circulation, i.e. blocking access or removing it from the server(s).
Am I missing anything here?
can't you idiots read? (Score:2)
Re:I've been really impressed with the Supreme Cou (Score:1)
Wait a second... (Score:1)
Two words (Score:1)
Seriously. This guy, rather than sue the guy that masqueraded as him, sues the ISP. PUHLEESE.
This is like sueing mastercard for a fraudulent charge. COME ON!
The facts of this case.
This guy (who is not a prodigy user) gets an email from prodigy, who says that because of his aberrant activities is being cut off from the service.
This is the way that things should be. if someone is being abusive, and someone contacts his ISP about it, they have every right to suspend his service. In this case however, this was an account based on fraudulent info.
The service discovers that they have 'several' accounts for this guys imposter.
Who is a victim in this:
the guy who has had his name smeared. (obviously)
Prodigy (for varied fraud from this imposter)
In this case it sounds like a case of kill the messenger.
Re:i don't see why this is good. (Score:1)
If due to the negligence of the ISP, your account and your personal information (credit card numbers etc.) end up in the hands of somebody else, that is a totally different problem than the contents of some e-mails. We're talking about totally different things. First of all, the person who stole your information is the one who has committed the crime, the ISP hasn't done anything unless the ISP has neglected to use sufficient protection that is required by law to protect your personal information. I agree, the ISPs should be required to protect your data but we're still talking about a different problem than holding ISP responsible for the contents of the e-mails passing through the system.
Spam: Now, who is the person who has committed the offence/crime: the spammer or your ISP? I don't want my ISP to scan my e-mails to "protect" me from spammers, even if they respect my privacy. That is not a good solution. Even though there are some spam e-mails whose contents are sufficiently "known" that you could distinguish them from legitimate mails, I still don't want my ISP to do that (well, I don't get that much spam anyway, but I don't live in the USA), and I don't really see how they could be held liable unless they also would be required to scan all the e-mails passing through their system.
There are better ways to accomplish what you want than holding ISPs liable for the contents of the e-mails.
Re:I've been really impressed with the Supreme Cou (Score:1)
That unless says it all. The Supreme Court can review any law for constitutionality. They can and will refuse to review a case if they do not feel there is a legitimate constitutional challenge to the law. They can and do refuse to hear cases if they feel that the lower courts have made the correct ruling in regards to constitutionality. Neither the Supreme Court nor any other court can invalidate a law willy nilly. They can only rule that a law is unconstitutional. (State courts can review laws for compliance with state constitutions, of course.)
If you can come up with an example of a law which does not fall within their ENUMERATED POWERS as regards to constitutionality, please post it here. Otherwise, it seems to me that the Supreme Court IS the final arbitrater of all US laws.
Negligence? (Score:1)
I'm not sure about the details of this case, but suppose someone out to get this Lunney chap decided to hack into his web-page, mail account, etc., exploiting a bug for which fixes are readily available, but not installed. Could Prodigy be found guilty of negligence in such a case?
Have scenarios such as that one been tested?
Any thoughts?
Re:i don't see why this is good. (Score:1)
This seems like good enough "protection" for the user, the ISP, and the Internet as a whole.
Re:I've been really impressed with the Supreme Cou (Score:1)
um, you're like mr sound and fury, but you're not hearing the simplified point i was making.
The supreme court IS the final court of appeal in ALL cases. The whole technical discussion of jurisdiction, etc., big fscking deal...the point is, if it makes it through the judicial channels, they can hear it and decide on it.
If they choose not to, that is a different matter. But, you are correct in your statement that they DON'T review everything, and are very conservative about the choices they make. But their jurisdiction, while delineated by the constitution and applicable law, is nonetheless immense and comprehensive. They CAN hear any case they choose to that arrives at their door.
I know you're impressed with all your little book-learnin', but try living in reality for a few minutes...the Supreme Court IS the final arbiter of all disputes in this country one way or another, although they have historically limited their own jurisdiction through the exercise of due prudence.
--
Remember Skokie... (Score:3)
Re:Effect on other cases? (Score:1)
* The ISP is not liable for any content passed through them, but not "published" or otherwise owned by them unless:
1. They are informed that the content is offensive / libelous (sp?) or otherwise daft.
2. They then refuse to remove it.
This is the whole "cease and desist" nonsense.
Where is the problem? Obviously, in the ISP's response - the actual case law seems to be sensible (on both sides of the Atlantic.) If I post an objectionable USENET or
What actually happens - for the one duff message, the entire site is normally taken down. Solution?
Proposition: more common sense, fewer law suits. (Don't see it happening, myself.)
could this ruling set a precedent for Napster? (Score:1)
it would not take a large leap of logic to say that Napster is offering a similar service (facilitating the exchange of data, routing information, whatnot) to an e-mail server, and thus would also not be held responsible for illegal files sent over it's wires, or even information about where to find illegal files, communicated over its' wires...
I can send an MP3 file via email; and can give the IP number and login of a MP3 hotline server in an email, too
hmm. would be nice to see thing move in the right direction in other cases as well...
adrien cater
boring.ch [boring.ch]
Re:Finally a win in the right direction (Score:1)
I don't know if it does, but it certainly should. There's a long-standing tradition in multi-user computing systems that the local system ensures mail originating from a user is tagged as having done so. RFC 822 explicitly states this (section 4.4.1), and provides a mechanism (the "Sender:" header) for cases when this isn't true.
Does your phone company control what caller ID reports for your phone number?
It sure does!
The From: header is set by the person making the post.
Perhaps, but it isn't supposed to be. Prodigy should (and I expect does - remember, it started as Sears and IBM, not a high school student in his parent's basement) ensure that the "From" header accurately reflects the author's userid. The case at hand doesn't imply any failure to do so. On the contrary, the suit (as quoted in the Wired article cited way south of here) apparently claims Prodigy is liable for their failure to adequately protect Lunney from imposture. In other words, Prodigy aided and abetted in the commission of a crime. While I'm glad the Supremes found no reason to review the case and therefore allowed Prodigy's common-carrier status to stand (at least in New York), I really think they dropped the ball in also allowing Prodigy to get away with their role in the imposture.
Yes, I suppose it is possible for the news/mail server to replace it with what their records say, but it would rely on some form of authenticating the user, and many mail clients don't support authenticating SMTP servers.
I haven't seen any report that suggests the e-mail in question was totally forged (i.e. that it was sent around Prodigy, not through it). As long as Prodigy was in the loop, it had an obligation to do exactly as you say.
What displays on caller ID is controlled by the phone company, with the exception that you can block it completly when making a call.
Not to mention the wonderful Caller Id Block Block! Now there's a great concept to carry over to the Internet. Imagine the ability to require your ISP to keep mail from unauthenticated senders out of your inbox - most spam would vanish in a puff of logic.
This order has no precedential value outside of NY (Score:1)
The court's denial of certiorari is not a ruling. It is not a holding that other courts, state or federal, must follow. The New York ruling is precedential in New York and somewhat persuasive elsewhere, but what the Supreme Court said means practically nothing for suits brought anywhere other than New York. The issue is completely open to being heard (and ruled to the contrary) by the Supreme Court at a later date, and courts outside of New York are perfectly free to find opposite of New York's holding.
--Tim Hadley
Student, University of Minnesota Law School
Re:I've been really impressed with the Supreme Cou (Score:1)
Re:Common carrier? (Score:2)
So ISPs just need to say that identical email sent to more than 'n' people is in violation of your terms of service, as is nearly identical (just enough to pass a dumb CRC check) bulk email, without an account specifically for running a mailing list, which would be a free upgrade, but would entitle them to monitor the account usage and determine that a subscription based mailing list was being run, not a spam list.
The phone company must let me call people, even if they don't like what I say, but if I hook up nonstandard equipment, or try to send control signals (blue boxing type stuff) or anything else that breaks their rules, they can shut me down. (Without needing to prove criminal actions or intent.)
It's Better than Common Carrier Status! (Score:2)
Somebody else pointed out that Common Carrier rules, if applied to the email world, wouldn't let an ISP refuse to carry spam. They also wouldn't be able to make whatever policies they wanted about what kinds of traffic they carry, probably couldn't offer censored services for the parents that want it, probably couldn't do free-service deals with some partners and not others, probably couldn't have a special "clean-up-the-mess" fee for spammers, etc.
Common carrier status also might affect the ability to offer various privacy services - can you support anonymous users? Must you treat all your users anonymously? Do you need to collect ID information and communication logs on all users so the Fedz can track people they don't like? This is especially an issue for free internet access services, where collecting user information is a major marketing opportunity, but verifying it is a major cost, and for ISPs that want to provide access for kids, where there are special rules about handling information collected on them that may contradict other proposed rules mandating information. Do you allow anybody to claim to be under 13 (and hence non-loggable), or do you insist that they get a "parent"'s signature saying they're a kid?
Common carriers traditionally have to make all their pricing policies public, open to anybody, filed in advance and subject to regulatory approval. Do you want this in your business?
Much nicer to avoid the whole regulatory game, which exists largely to help monopolies and near-monopolies use political influence to restrict their competition anyway :-)
Re:I've been really impressed with the Supreme Cou (Score:2)
Are you kidding? The supreme court has jurisdiction over every conceivable piece of law in the country
They are the final arbiters of all law. They don't CREATE law, but they have the power to strike down and/or interpret any law or legal decision whatsoever.
--
Finally a win in the right direction (Score:1)
I've been really impressed with the Supreme Court (Score:1)
Too bad they don't have direct jurisdiction over patent law. (at least not to my knowledge.)
tcd004
Of Course (Score:1)
It's all about the Benjamins.
Instant Crisis
A really good ruling (Score:3)
...phil
Woohoo! (Score:2)
Now the courts need to learn that this ought to apply to Websites too. The E-mail decision will hopefully make that easier to accomplish. It's a shame that this is coming so late in the Net's history (and yes, I know the Net is still in its infancy; this should have been done just as the Net was coming into popularity). But, as I said, it's still getting done, and that's good anyway.
My grandmother as a judge (Score:1)
Working on GeekPress [geekpress.com] has been depressing in one way: the absurdity of the legal decisions over technical and internet issues. The judges sitting on the bench are often too ignorant of how the internet works to render any good decisions.
I remember trying to explain to my grandmother the real basics of how a computer works: just the file-folder analogy. She couldn't get it, not matter how many ways I tried to explain it. It was pathetic. With each bad decision, I think: that judge must be just like my grandmother!
Perhaps all judges who are to sit in judgment of an internet or computer-related case should have to show that they can at least use a mouse.
-- Diana Hsieh
It's a good thing we have Echelon... (Score:3)
"The public would not be well served by compelling an (internet service provider) to examine and screen millions of e-mail communications..."
Glad somebody is taking care of that. Thanks, NSA!
Supreme Court *did not* rule... (Score:4)
Re:Of Course (Score:2)
They couldn't get reelected if they told media-controllers with lots of money that they had to start policing their users.
Except that Supreme Court Justices aren't elected
Denied the case. (Score:1)
Effect on other cases? (Score:1)
What about RESPONSIBILITY? (Score:4)
On a related topic, I really must insist that the US postal service start opening every letter and examining the contents for objectional material.
Come on people! we're racing head-long into a dangerous time where everyone might have to start taking personal responsibility for their own actions.. Isn't that what government is for?
-- 'Won't somebody please think of the lawyers.."
Re:What about RESPONSIBILITY? (Score:1)
You mean they don't already?
Bulletin Board Ruling Upheld, Too! (Score:2)
This point deserved a lot more atttention. The liability of a bulletin board operator for its content is much less clear cut. Assuming that this ruling was also being challenged, then the Supreme Court has upheld the privileges of bulletin board operators (like CmdrTaco) as carriers, not publishers.
Now that's news!
Re:I've been really impressed with the Supreme Cou (Score:1)
I'm not shure how much power they have regarding "National Security" issues. I would rally like them to set a precendent that judges can claim the right to rievew classified documents which are relevent to a case. We need a supream court with balls to create this kind of judicial review power.
Actually, senitors should have automatic security clearance and "need to know" too (I mean seriously, what kind of a democrasy would not allow it's senetors access to classified information).
Re:Because apples are not oranges (Score:1)
It is misleading to say that this is a case about
content. While the kid did sue about content, it was not because it was offensive, but rather because it was posted under his name.
We all (I hope) agree that my ISP isn't resposible if I call you a lazy ass bastard in an email (not that I ever would mind you
I think it does border on negligence not to verify the identity of the person opening an account -- at least if we assume that all accounts need identities (I'd love to have a totally anonymous one, but I doubt it would be feasible -- so few ISPs take cash).
So saying this is a case about content isn't wrong, but not 100 % correct either.
Re:Good decision. (Score:1)
Nice gun-control troll, by the way.
--
Re: fsked up boldface (Score:1)
damn slashes in tags -- I can never remember the direction they go..
New Supreme Court Rullings (Score:1)
Officials from the MPAA quickly announced a new and groundbreaking set of proposals to protect Intellectual Property from law-abiding consumers as well those in violation of the law.
"After much discussion with Director Freeh of the FBI, we felt that limiting the full force of the law to those that have broken it shows a narrow vision, while by enacting legislation to take away those rights only invoked by pirates and hackers, we can more easily and safely bring our artistic message to the consumer"
This has been a test of the Slashdot Broadcast Network . . .
Re:i don't see why this is good. (Score:4)
My reading of the article is that basically the U.S. Supreme Court has held only that the ISP is not liable for the transmission of the offending information, which means that they have what is called "common carrier" status. I'm not sure whether the original lawsuit also contained a request for liability based on the network security issue(s). I'm reminded of the fiasco at Network Solutions not too long ago where hackers forged the email header information for a large number of websites and basically took control of those sites for a while. If I owned the registration on one of those sites, and libel or slandering material was published on those domains, I would very certainly have suffered damages to my reputation, etc. And I would hope that a court would find that if NSI didn't adequately secure my data (or offer higher security for my data to prevent the domain name piracy, which they do), that they are in part responsible for the damage.
Spam mail...I don't know if the courts need to necessarily get involved, because there are other technological ways of dealing with the problem, AKA the RBOC list. If the email services provided by yahoo, etc. don't shut off the flow of spam mail, they can get blocked in a hurry, right? Your question asked Shouldn't these ISP's and large companies be responsible for the information being sent through their network?No -- they can't be under the court opinion. But they can, have, and will continue to be made responsible by the 'Net community for the fact that spam is flowing through their networks. Which is why nearly all ISP's have a policy of cutting off the account(s) of anyone sending spam through their connections.
Final case: "It's just like having a gun... if your gun is taken and used in a homicide, you should be responsible for not taking the necessary precautions and preventing it from being used in a crime."
Depends. If I have the gun in my hand and I let you take it from me, shoot somebody, etc. I'm an accessory to the crime. Likewise, if I allow or assist someone who should not have access to firearms to gain that access, I can again be charged with violating the law. But if you burglarize my house, breaking into a gun cabinet, stealing the weapon, (and I report it to the police, etc.), if you murder someone, should I still be held liable because I didn't somehow prevent your original burglary crime, or store the guns in a 2000 lb. safe, etc.?
Not Quite a Common Carrier... (Score:2)
There is a big difference between suggestions and binding rules.
Rules of etiquette typically exclude criminal conduct, but that does not mean Miss Manners should be given the force of law. Nevertheless, there are cases where ISP authority has been invoked by energetically blurring the distinction between stating very unpopular opinions that ignite flame wars, violating rules of 'netiquette' and breaking the laws regulating the use of communication channels. This typically occurs when widely received neomorals against sins involving human genetics("racism", "sexism", "homophobia" etc.), are violated. That all countries in the industrialized western world now have vigorously enforced statutes on the books prohibiting "hate speech", the definition of which shifts and expands depending on how many and which "victim groups" have joined the coalition against free speech, does not bode well for the rule of law in the resolution of disputes within societies that are both increasingly diverse in their makeup and woefully inexperienced with such rapidly increasing diversity.
How is it, then, that an ISP can avoid legal liability for communications that take place over its wires when it preemptively demands, not only the avoidance of illegal conduct -- such as libel, spam and cracking -- but the adherence to "rules of netiquette" in the name of which unpopular opinions are routinely intimidated and occasionally penalized?
ISP's have, by this careless definition of their bounds of authority, abrogated their role as common carriers and become the de facto enforcers of majority opinion in public speech. All that remains is ever increasing exceptions to the principle of free speech and a free press, as the definition of what constitutes "hate speech" is widened and the force of law to legitimize this censorship in the name of "keeping the peace" is expanded to the last jurisdiction in the developed world still free from such legalistic tyranny: The United States.
I'll post, again, an exerpt of a white paper I wrote in 1982 [geocities.com] warning of what is, apparently, coming to pass.
The question at hand is this: How do we mold the early videotex environment so that noise is suppressed without limiting the free flow of information between customers?
The first obstacle is, of course, legal. As the knights of U.S. feudalism, corporate lawyers have a penchant for finding ways of stomping out innovation and diversity in any way possible. In the case of videotex, the attempt is to keep feudal control of information by making videotex system ownership imply liability for information transmitted over it. For example, if a libelous communication takes place, corporate lawyers for the plaintiff will bring suit against the carrier rather than the individual responsible for the communication. The rationalizations for this clearly unreasonable and contrived position are quite numerous. Without a common carrier status, the carrier will be treading on virgin ground legally and thus be unprotected by precedent. Indeed, the stakes are high enough that the competitor could easily afford to fabricate an event ideal for the purposes of such a suit. This means the first legal precedent could be in favor of holding the carrier responsible for the communications transmitted over its network, thus forcing (or giving an excuse for) the carrier to inspect, edit and censor all communications except, perhaps, simple person-to-person or "electronic mail". This, in turn, would put editorial control right back in the hands of the feudalists. Potential carriers' own lawyers are already hard at work worrying everyone about such a suit. They would like to win the battle against diversity before it begins. This is unlikely because videotex is still driven by technology and therefore by pioneers.
The question then becomes: How do we best protect against such "legal" tactics? The answer seems to be an early emphasis on secure identification of the source of communications so that there can be no question as to the individual responsible. This would preempt an attempt to hold the carrier liable. Anonymous communications, like Delphi conferencing, could even be supported as long as some individual would be willing to attach his/her name to the communication before distributing it. This would be similar, legally, to a "letters to the editor" column where a writer remains anonymous. Another measure could be to require that only individuals of legal age be allowed to author publishable communications. Yet another measure could be to require anyone who wishes to write and publish information on the network to put in writing, in an agreement separate from the standard customer agreement, that they are liable for any and all communications originating under their name on the network. This would preempt the "stolen password" excuse for holding the carrier liable.
Beyond the secure identification of communication sources, there is the necessity of editorial services. Not everyone is going to want to filter through everything published by everyone on the network. An infrastructure of editorial staffs is that filter. In exchange for their service the editorial staff gets to promote their view of the world and, if they are in enough demand, charge money for access to their list of approved articles. On a videotex network, there is little capital involved in establishing an editorial staff. All that is required is a terminal and a file on the network which may have an intrinsic cost as low as $5/month if it represents a publication with "only" around 100 articles. The rest is up to the customers. If they like a publication, they will read it. If they don't they won't. A customer could ask to see all articles approved by staffs A or B inclusive, or only those articles approved by both A and B, etc. This sort of customer selection could involve as many editorial staffs as desired in any logical combination. An editorial staff could review other editorial staffs as well as individual articles, forming hierarchies to handle the mass of articles that would be submitted every day. This sort of editorial mechanism would not only provide a very efficient way of filtering out poor and questionable communications without inhibiting diversity, it would add a layer of liability for publications that would further insulate carriers from liability and therefore from a monopoly over communications.
In general, anything that acts to filter out bad information and that is not under control of the carrier, acts to prevent the carrier from monopolizing the evolution of ideas on the network.
In other news... (Score:1)
Common carrier? (Score:2)
The court (in this case the NY Court of Appeals, affirmed by the Supreme Court since they refused to hear the case) essentially recognized an ISP as a common carrier.
IANAL, but IIRC common carriers by law must relay all messages, and "all messages" includes stupid, pointless, annoying mail commonly called spam..
He would be liable... (Score:1)
Not a ruling (Score:1)
Re:i don't see why this is good. (Score:1)
The EPCA already says this is true (Score:2)
-- PhoneBoy
hmmmm...Now to rule on Napster... (Score:1)
Re:Finally a win in the right direction (Score:1)
The content-liability issue rests firmly on telecommuncations common-carrier law, but aren't the carriers still responsible for the accuracy of the telephone number that your caller-ID box displays? What if I start making threatening phone calls to the White House after convincing Bell Atlantic to give me a phone line that's listed in your name? When the Secret Service breaks down your door, will this ruling still look like a win?
Napster's Defense (Score:1)
Good decision. (Score:1)
Oh, and because Slashdot's Gods have tanked my Karma 20 points in the past few weeks for no fucking reason at all, and Rob's such an idiot he won't even _listen_ to a polite question about it....
America:1 Great Britan: 0
Should have gotten a bill of rights when you had the chance, guys.
Re:I've been really impressed with the Supreme Cou (Score:1)
But the precedents that they set can have such legal impact that they may as well be law -- hence the term "common law." This was discussed not too long ago in my POLS class; and while you are technically correct here, the term "common law" refers to judge-made "law."
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Re:Good decision. (Score:1)
they take cases that are (1) really, really important or (2) issues where lower courts have been reaching conflicting conclusions.
Waiting for the other shoe to drop (Score:2)
Someone hack up a procmail version of Napster.
Lets make an exception for AOL! (Score:1)
...you can stop cheering now - im just kidding.
Re:But what about the children? (Score:1)
Re:But what about the children? (Score:1)
Re:Effect on other cases? (Score:1)
We are going to need some support from (who knows where?!!!) if people like Campaign Against Censorship of Internet in Britain are going to be able to reside in their own country, without having to run of the the US for legal protection!.
This is actually a BAD thing... (Score:3)
Now, note the part that says:
Maybe I'm on drugs here, but this sounds like a pretty serious problem to me, when an ISP cannot figure out who is using their own service! Based on the facts as I know them, I think Prodigy should have been held liable for this, since they obviously didn't have some way to verify the identities of their users.Couldn't they have at least provided the credit card number that was used to open the account to investigators or something? Geez...
Be glad your grandmother isn't a US Senator! (Score:1)
A few years ago, Declan McCullagh wrote an article [time.com] describing her efforts to learn about the internet. Her chief of staff sat her at his desk and said, "This thing controls the arrow on the screen. Now take hold of the mouse...".
Whereupon Feinstein cried, "Mouse?!", pulled her feet off the floor, hitched up her skirt, and started looking underneath the desk for a stray rodent.
GeekPress: Today's Technical News, Sifted and Summarized
Re:Supreme Court *did not* rule... (Score:4)
The same thing happens in the executive branch of government. If congress is in session, and the president doesn't sign a bill after a certain period of time, it becomes law. The President didn't approve the law, but the law is. Same as the pocket veto when congress isn't in session. If the president doesn't sign a bill or veto it, it becomes vetoed without action.
i don't see why this is good. (Score:2)
example 1:
what if you're a Prodigy member with a name, circle of friends, credit card info, etc in your account. now lets say that someone somehow steals your account, has access to your credit card info, says damaging things to your circle of contacts, makes threatening emails to people, and all in your name. Shouldn't the ISP, in this case Prodigy, be held liable due to gross negligence in protecting the security of their network?
example 2:
all that damn spam mail... now I'm getting tons and tons of spam mail from legit servers such as excite.com and yahoo.com and hotmail.com... it's going to a mailbox that I don't often use, but same principle applies. Shouldn't these ISP's and large companies be responsible for the information being sent through their network?
yes, I agree that they shouldn't be able to read or censor all of the information, but being able to walk away and say that they're not responsible for all of the spam sent through their servers or their lax security it NOT a good thing. If your computer is on a network that is accessable from anywhere in the world, you should be held responsible for your computer. It's just like having a gun... if your gun is taken and used in a homicide, you should be responsible for not taking the necessary precautions and preventing it from being used in a crime.
Offer us a workable alternative... (Score:1)
Do you propose that before an ISP can open an account under the name John Smith, John has to physically show up at their offices with two forms of picture id? And even then, what's to prevent John from masquerading as the other John Smith who lives down the street? or in the next town?
Before you go spouting off nonsense, try coming up with a sensible alternative that you can offer people so that they can at least see some value in your viewpoint. And to top it off, you have the nerve to post this anonymously...
Re:Of Course (Score:1)
Hmm, I could try to back myself up by saying that they are appointed by an elected person, but they're in for life or resignation, so that's pretty feeble.
I guess I'll stick to the "defend the constitution" part.
Thanks for pointing that out.
Instant Crisis
real-world application (Score:1)
Re:i don't see why this is good. (Score:1)
Re:A really good ruling (Score:1)