
Supreme Court Refusal Means ISPs Are Not Common Carriers 87
Masem writes "In another Supreme Court refusal to hear a case, a ruling from a lower court stands that AOL and other ISPs are not considered to be common carriers (akin to telephone and cable services), and therefore may not be regulated by the FCC. This can be taken both ways, but moreso on the better side: ISP competition will still be a major factor, helping to keep connection prices low."
Re:What exactly makes an ISP? (Score:2)
Re:We still have to regulate the ISPs though. (Score:1)
Re:ISP Responsibility (Score:1)
I'm considering options for getting the hell out of this country the way things are going.
what about cable isp's? (Score:2)
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Re:Internet Entrance Exams (Score:1)
I'm thunderstruck.
Heh... (Score:1)
Re:Oh wait...I see... (Score:2)
But that's just speculation. I'm sure DSL is planning the same thing...just over twisted pair instead of coax.
- JoeShmoe
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Re:Is this a good thing? (Score:1)
I think that heavily depends on the service which is offered by the provider. When talking email contents I think it should be indeed included in the carrier 'rules' but when websites are concerned its a totally different issue IMHO.
Re:Interesting (Score:2)
`ø,,ø`ø,,ø!
I want more obnoxious flirtatious comments on IRC (Score:1)
Oh wait, never mind. I don't want that.
Re:Oh wait...I see... (Score:1)
Nonsense (Score:1)
what? (Score:4)
And look at the last FCC ruling, now TVs/VCRs without copy protection. If we granted the FCC power over the 'net, they could unilaterally ban napster/gnutella/whatever else without any kind of legislative action.
You should be worried about this (Score:1)
We've had similar rulings in the UK in particular the Dr Godfrey vs Demon Internet [demon.net] libel case.
(For Demon commentary see : Demon Response [demon.net])
Fundamentally it was ruled that Demon were not a common carrier and thus liable for the content of their news-groups.
For a litigous country like the US this is very bad news. Think of all those fundamentalist states which will be suing ISPs for corrupting their children's minds with disgusting pornography, violence etc.
I'd lobby your congressmen to get this sort of decision reversed, it can only lead to heavier censorship, and the winning of the ISP game by bland behemoths like AOL.
FCC control? (Score:2)
On the flip side, this would mean that the majority of the net familar to people could be open to being closed down if the content of these areas comes into question.
Is this decision good? Well, at a thought - if the FCC were to regulate any service that offered internet communications technology, then
A: The FCC could decide what tools are available (like telnet) and what these services could cost... in the United States. This could change the face of networking in that country
B: Other countries could choose to take the same actions or to argue against.
Be aware that as soon as the data crosses national boundaries (such as into Canada where I live) a different set of laws and restrictions come into play. Canada does NOT have the concept of a common carrier or any protection for such.
But for everyone's sakes - do not take the arrogant view that any US decisions means ANYTHING to the internet. Or to its architects. It just affects one small country of thousands.
But also be aware that this decision could be a blow in favour of those idiots who want to legislate content restrictions or rules.
We shall see what happens. :)
G'day, eh?
- Winterlion
Ack. this can be bad.... (Score:1)
enslavement (Score:1)
I think you just proved my point... (Score:1)
jdb
"Enhanced" Services (Score:1)
What if I started up an ISP that only connected people to the internet? No email address, no mail servers, no shell accounts, nothing. Just a dialup connection. I would keep no more logs that I would need to operate and that I would be legally required to as a common carrier. Would the FCC the contend that I'm not a common cariar because I'm providing some sort of "enhanced" service? It seems to me that the FCC needs to reasses their description of ISP's. Unless C|Net chnged the meanign of the FCC's statement to make it more interesting for the article, of course.
Mr. Spey
"When you stumble, you may regain your balance
by jumping beyond the thing that tripped you."
- Frank Herbert
Two definitions? (Score:4)
47 USC 153(10) [cornell.edu] (telegraphs, telephones, radiographs)
- The term ''common carrier'' or ''carrier'' means any person
engaged as a common carrier for hire, in interstate or foreign
communication by wire or radio or interstate or foreign radio
transmission of energy, except where reference is made to common
carriers not subject to this chapter; but a person engaged in
radio broadcasting shall not, insofar as such person is so
engaged, be deemed a common carrier.
17 USC 512 [cornell.edu] (Copyright:DMCA)(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.
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Re:A refusal to hear != assent. (Score:5)
However, until a different case enters the SC arena, the lower court ruling stands in the lower court's region. I believe that the original suers were from TX, meaning that the ruling that AOL and ISPs in general aren't common carriers only applies to (pretty much) TX.
It also gives some legal precident for actions in other states if it warrents it. This case, not so much so, but take the DeCSS case, ruled in the NY circuit court. ONLY in this area does the Kaplan ruling apply, but if the MPAA wanted to go after someone in Seattle, they have a good start on a prior case. Sure, the judge for that district need not follow Kaplan's ruling, either.
As you said, the ruling means not much more than nothing. It does state the lower court ruling stands, and that it is sound. But it also implies that there is nothing in the ruling or the case that trends on established US Constitional rights or laws. In cases where the answer should be obvious to techies, the SC saying nothing is a good thing, and possibly shows that they do have some understanding of technology and where it is going. It's cases where the SC refuses to hear the case, and the case itself is iffy (Sony vs Connectix is a good example), then there's questions of why the SC didn't take it, and not taking it may lead to more harm than good depending on the lower court ruling. What if, after appeals, the SC let Kaplan's ruling stand on 2600 because they didn't want to take it?
Supreme Court - Another blasted comment (Score:1)
Re:THANK GOD (Score:3)
Wherever there is the potential for lots of money to be made, a big corporation (or a few big corps) will arise and try to capitalize on it. Don't fool yourself by thinking "The 'Net is different! They can never regulate that!!" History dictates that every mass communication medium (print, radio, TV...) eventually comes to be ruled by a few, powerful corporations. The Net will not be any different....
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Re:ISP Responsibility (Score:1)
"Hold Harmless" clause of ISP user agreements. (Score:2)
You'll also have to agree to accept legal responsibility for defending the ISP if any information eminating from your account or your actions (i.e. your personal web pages hosted on their server) "harms" anyone else, who sees them and decides to seek action against the ISP.
Re:No FCC input for IM sharing (Score:1)
Monopoly (Score:1)
Re:Internet Entrance Exams (Score:1)
Mao wants YOU!
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Unto the land of the dead shalt thou be sent at last.
Surely thou shalt repent of thy cunning.
Re:Interesting (Score:1)
Re:We still have to regulate the ISPs though. (Score:1)
Re:ISP Responsibility (Score:1)
The problem is that without common carrier protection for ISPs you could sue other people's ISPs for delivering content. If you send an offensive E-mail or set up an offensive web site and your ISP could be held liable and sued by whomever you sent the E-mail to or by the hot-tempered and protective parent whose kid visited your porn/bomb making site. That's what people are worried about.
I guess there is an up-side here in avoiding some regulation, but opening up the possibility that ISPs could be sued for the actions of their users strikes me as a bigger down-side.
ISP Liability as Threat to Freedom of Speech (Score:4)
This is the scenario I predicted in my 1982 white paper on computer conferencing [geocities.com] and its a nasty scenario indeed. Wars have been fought over less than what is implied by a company like AOL telling us what we can say in public.
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.
Re:THANK GOD (Score:3)
Peer to peer (Score:2)
T. Lee
But of course.... (Score:3)
Not common carriers = Wide open to legal action (Score:2)
For instance, I go to www.verynastystuff.org, and I'm offended by what I see. Do I complain to postmaster@verynastystuff.org, or do I sue my ISP for delivering that content?
This could mean that ISP's will become paranoid, and you, the customer, will only be able to see what they feel will not alarm you.
Joo-Janta-200.net Peril Sensitive ISP Anyone?
I want higher connection prices (Score:2)
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No FCC input for IM sharing (Score:1)
Interesting (Score:1)
The Bad: ISP's can't be regulated by the FCC.
This leads us to the ugly: AOL. Everyone knows that the next big thing will be merging cable and internet and phone services.
What exactly makes an ISP? (Score:4)
Keeping the FCC out of the ISP regulation trade is great. Sure, we have to deal with mega-providers trying to arm wrestle eachother and the consumers, but it also prevents the big guys from filing bulls**t lawsuits against little guys who would technically all be subject to the same regulation.
As an aside, does anyone else see a parallel to what's going on in Telecom/Internet these days and the movie Demolition Man? -- ... after the franchise wars, now all ISPs are AOL...
Censors (Score:1)
Re:I want higher connection prices (Score:1)
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Comment removed (Score:5)
Hmm (Score:2)
Typhoid Mary, eat your heart out.
Re:Interesting (Score:1)
The Bad: ISP's are responsible for content.
The Good: ISP's can't be regulated by the FCC.
ISP Responsibility (Score:2)
Internet Entrance Exams (Score:1)
Smart masses Online... Dumb asses off!
jdb
Re:Two definitions? (Score:2)
- Plaintiffs claimed merely that AOL enacted an improper license agreement. The ownership of copyrights is not at issue, and Plaintiffs have not claimed any infringement, or requested relief, under the Copyright Act.
That's the only mention of 17 USC in the whole ruling, the rest of the common carrier stuff is only about 47 USC, so I'm pretty sure that the DMCA still stands.--
Re:Peer to peer (Score:1)
INTERACTIVE [mikegallay.com]
Re:No FCC input for IM sharing (Score:1)
Which is good, because it's FUCKING STUPID precedent to set to start forcing companies to open up code.
Open source is NOT something you can force on people. It's a great idea, but it's a decision that is UP TO THE PEOPLE THAT WROTE THE CODE. It's not up to you, I or the government to decide that.
In a lot of situations, open source would just plain kill of the product or (at the very least) kill off the company making the product. (And no, this is NOT a good thing).
You doubt? Imagine this: a company that sells ultra-high-end, very 'aimed-to-satisfy-a-tiny-market' software for $80,000 a license. They sell maybe 300 copies a year.. now imagine them being forced to open their source. How long do you think they would be able to keep selling the software?
rhyac.
Re:A refusal to hear != assent. (Score:2)
Not particularly. Texas is part of the Fifth Circuit [uscourts.gov] (helloooo Judge Jerry Buckmeyer), not the Ninth. According to the Ninth Circuit's website [uscourts.gov], they "[include] all federal courts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands."
That means that the decision only really applies to the Ninth Circuit. Now, it would provide a great prior-case background for a suit in another Circuit, but that judge is not bound by judicial law to rule the same way.
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Re:Not common carriers = Wide open to legal action (Score:1)
Re:Internet Entrance Exams (Score:1)
Re:But of course.... (Score:4)
This in no way means that "ISPs will be held responsible for content flowing over their lines". What this means is that ISPs do not meet the definition of a Common Carrier under the specific use in the 1934 Communications Act. The only impact of this is that it means the FCC is not responsible for regulating the ISP industry in the same manner that it regulates the Telecom industry.
AOL and other ISPs may certainly meet other definitions of a Common Carrier ( ala UPS, FedEx, etc. ). *That* has yet to be decided.
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Re:Oh wait...I see... (Score:2)
How can this possibly be good? (Score:1)
2. As far as liability - my personal belief is that it is in the common good that ISPs not be liable for conduct. Nowhere should private indestry be given the responsibility of censorship.
3. FCC regulation is the only thing that could prevent bundling of broadband and say, premium TV channels. Now if you want TW broadband - you need to get HBO, Starz and all that other junk they are losing to teh satellite/DSS market.
I don't see how this can be beneficial for anyone except AOL/TW. And here is a hint: if it is good for a corporation, it is usually bad for the consumer.
Marc
How does this affect VOIP? (Score:1)
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Effects of the "case" (Score:1)
1. AOL can't be regulated by FCC to release the AIM source. Take it whatever way you want, but FCC won't be able to add that as a requirement for merger, as the ISP isn't part of their jurisdiction, only cable services.
2. Napster would not be considered a common carrier, as it is providing something more than just the bare-bone connection of the telephones. This would probably be bad news for Napster, as that was their chief defense.
Any other possible effects are also possible.
Re:Oh wait...I see... (Score:3)
Re:We still have to regulate the ISPs though. (Score:2)
Remove the regulations that prohibit entry into the local telco market and the problem is solved. It will quicly become a nightmare house of cards if regulations keep getting imposed in an effort to solve the problems of prior regulations. Food is a much more vital commodity than telephone lines, yet I am allowed the liberty to choose my grocer, but I cannot choose my local telephone service.
Come on (Score:1)
Re:Interesting (Score:1)
hundreds of cases were denied cert today. (Score:1)
Yeah. Furthermore, it should be added that today was the first day of the SC's new session -- hundreds of cases were denied cert today. This is how it works. First throw out the frivolous stuff. I'm not going to count, but there's about thirty cases listed per page, and the list of cases they're not going to hear is about sixty pages long.
Do the math.
Re:Not common carriers = Wide open to legal action (Score:1)
Re:THANK GOD (Score:2)
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Re:Supreme Court - Another blasted comment (Score:1)
Re:Internet Entrance Exams (Score:1)
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because we know that... (Score:1)
disclaimer: i hate the FCC passionately. if you're going to broadcast radio waves that travel through my body, i'll be damned if i'm not going to listen to them.
Re:No FCC input for IM sharing (Score:2)
The FCC can weigh in on anything they feel like. Also, the force is being applied because they want permission to become a huge vertical monopoly/behemoth, not simply because they cornered the IM market..
Is this a good thing? (Score:1)
What's the *right* thing here? I don't think we can have our cake and eat it too.
Another angle -- I don't think that this really says that all ISP's are not common carriers. I'm reading more that AOL isn't a common carrier becuase it provides unique services and content. a "real" ISP is only providing the bandwidth and certain infrastructure - i.e. DNS (akin to 411)
Re:Interesting (Score:2)
AT&T will get there before AOL does. Lucent makes the hardware. AT&T already has cable in place. Several companies which will go unnamed (but one of them has its name in common with a liquor) are working on putting telephony into a cable set-top box. Uh-oh, AT&T is already a local carrier in some areas, is also a long distance carrier, provides some of the backbone, provides home (phone) internet access, provides buisness internet access, does cable, AND cable internet.
Just this one, I really don't think it's AOL you have to worry about. It's the death star.
Re:Interesting (Score:1)
Re:Internet Entrance Exams (Score:1)
Really though, considering how many dumb people are on the internet, three or four smart ones could be considered an 'intelligent mass'
jdb
Sheesh... (Score:1)
Man, those justices are lazy!
-j
Oh wait...I see... (Score:2)
How...comforting. All AT&T has to do is start running their phone service over their coast-to-coast @Home and look! I'm not a national monopoly again! I'm an ISP!
- JoeShmoe
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My Apologies... (Score:1)
As a token of my sincerity, I have here a great modem for you. It can transmit 14 THOUSAND, 4 HUNDRED bps. Doesn't that sound a lot better than the 56k you have now? I thought so...
:oP
jdb
THANK GOD (Score:5)
The FCC regulating Internet services is the very last thing I would ever want to see. They should not be able to regulate ISPs or anything on the Internet anyway - the whole excuse for the FCC is that radio and televison frequencies are limited commodities and therefore need to be regulated and divvied up by the government - to make sure radio stations don't try to lay claim to a frequency by just squatting there, for instance. However, the FCC has gone far beyond that and has really fubared radio for everyone. Ever wonder why all radio sounds alike? It's probably because most radio stations are owned by conglomerates that just apply cookie-cutter formulas to stations, and corporations are now allowed to own more stations in one area than ever before.
In the early days of radio it was a fairly democratic medium, the barriers to entry were small and many enterprising people started up small stations. However, the trend has been towards creating regulations that raise the barrier of entry, require much more massive equipment and basically bar anyone but the wealthy from starting a radio station. Of course, this has the nasty side effect of limiting your options when it comes to listening to radio. Just try to get a license to run an FM or AM station to broadcast to the area of a small town. More than likely you will be unable to because the FCC only wants you to have a license if you are going to run a large transmitter. Never mind the fact that is not in the best interest of the public - the rules and regs of the FCC are shaped by special interest groups who have the money to lobby them.
If the FCC started regulating the Internet in any way, it wouldn't be long before the heavies started lobbying for rules that would be prohibitive for small businesses or publications on the Net.
Sorry - I used to work in radio and I have an intense hatred for the FCC and what they've done to radio.
Re:Interesting (Score:1)
The Good: ISP's can't be regulated by the FCC. No regulation of content, etc.
The Bad: ISP's ARE responsible for their content. A common carrier is like the phone system - I can't sue AT&T if you cuss me out over the phone.
No argument over the ugly, however.
Re:Peer to peer (Score:2)
Unrestricted IP access, routing updates, unfiltered connections, and if any limits are placed, they should be strictly on bandwidth.
No matter what restrictions are put in place, we can always tunnel around them, so why make us do it?
Re:A refusal to hear != assent. (Score:2)
So, Hemos, I'm afraid you jumped the gun. What was decided to day was to decide nothing today.
__________
Re:Interesting (Score:1)
Hmm, doesn't Qwest own more? Or did MCI buy them or something? Back in the day when Wired did their special on Qwest, they were laying down enough fiber and using slick enough technology to have four times the entire fiber capacity of everyone else put together.
Re:A refusal to hear != assent. (Score:1)
Soylent Green is people!
Re:A refusal to hear != assent. (Score:1)
I believe that this DOES mean that there is now legal precedent within states (and possessions) that fall under the jurisdiction of the 9th Circuit, unless and until either
Re:A refusal to hear != assent. (Score:2)
BTW, it does mean something when the Supreme Court refuses to hear a case. It means the lower court's decision stands. It means the court case is over with, and the lobbying will start - oops, scratch that - the plaintiffs don't own a whole flock of lobbyists, so they can't appeal to Congress. It means that you'd better have a WHOLE lot of money if you want to sue an ISP because they've violated statutes or regulations that govern common carriers.
We still have to regulate the ISPs though. (Score:1)
Re:Internet Entrance Exams (Score:1)
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'course not.. (Score:2)