Common carriers

[Greg Broiles]

At 05:08 PM 9/5/2001 -0700, Eric Murray wrote:
>Is it no longer possible to consider a remailer (or an ISP or
>BBS) a common carrier and thus "publisher" is the best to hope for?
>Or is it that "publisher", while carrying fewer rights, is much
>less likely to be held invalid?

The "common carrier" argument never went anywhere - it was a reasonable 
early effort to discuss the liability rules which might be appropriate for 
online services; but that's not the way that the law has developed, and 
it's no longer considered a reasonable line of thinking. Even traditional 
common carriers (like phone companies) aren't likely to fit the definition 
of "common carrier" when they're operating as ISP's or other online service 
providers - e.g., pacbell.com, the company which provides local phone 
service as an SBC subsidiary, is still a common carrier for many purposes - 
but pacbell.net, the company which provides DSL connectivity, Usenet news, 
email, and web hosting for residential and business customers, is *not* a 
common carrier as that term has traditionally been used. That arm of the 
business is likely considered an "enhanced service provider", in FCC and 
PUC-speak, and doesn't get the benefit (or the burden) of traditional 
common carrier rules.

(Don't forget, common carriers usually have to publish rate schedules, 
stick to published rates for all subscribers, seek regulatory permission to 
change their rates, participate in administrative proceedings concerning 
their rates charged to customers and rates of return on capital, etc - it 
is absolutely not some magic badge of publisher freedom which one can 
assume and then wield as a shield against any form of regulation. It's more 
like a deal with the regulatory devil, whereby one gains some short-term 
exemptions in exchange for eternal obesiance to a byzantine regulatory 
apparatus with no hope of salvation.)

Even "publisher" is relatively outdated - the relevant definitions and 
liability rules are found in the Communications Decency Act (it wasn't all 
struck down; see 47 USC 230) and the Digital Millenium Copyright Act (17 
USC 512), if you're talking about liability for online service providers.


--
Greg Broiles
gbroiles at well.com
"We have found and closed the thing you watch us with." -- New Delhi street kids